Bathroom bill fight has been in the making for years, with no end in sight
Big Business is playing a key role in blocking passage — for now
August 12, 2017
Updated: August 12, 2017 7:56pm
AUSTIN — The concerns first arose in November 2015, when the Houston Equal Rights Ordinance was repealed, and some business leaders in Texas began wondering whether other non-discrimination laws might soon become targets.
By the next March, North Carolina had passed it’s so-called bathroom bill. And Lt. Gov. Dan Patrick was soon railing about the threat to Texas from transgender bathroom policies, after Fort Worth school officials adopted a new policy about the time the Obama Administration mandated transgender protections.
“Business leaders were concerned about whether this would spread, whether it could affect non-discrimination ordinances in several cities that had been put in place to attract corporations and business investment,” Eric Glenn, an Austin consultant who was involved with the early efforts. “As a majority of Texans feel this is a distraction from more important issues. Business agrees.”
Realizing that Texas’ move to adopt its own version of the privacy law would hurt their corporate bottom lines, business leaders formed a new organization — Keep Texas Open for Business — and marshaled resources to fight the bathroom bill and other discriminatory laws, joining an already outspoken coalition of activist groups in a move that would put them on a dead-center collision course with Texas’ top two Republican officeholders, their longtime allies.
By last week, their efforts had yielded a most unexpected result: The bathroom bill, championed by both Gov. Greg Abbott and Patrick, was declared all but dead.
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That success marked the first time in years that Big Business threw its considerable muscle into such a high-profile political fight against the ultra-conservative GOP bloc that has driven much of Texas’ public policy in recent years, coming just months after the sanctuary city ban opposed by corporate interests was signed into law.
But political experts and seasoned observers say the victory could be short lived, at a time when both supporters and opponents agree the issue will be back — either in a future legislative session or in the Republican primaries next March, where bathroom-bill proponents hope to oust House Republican moderates they blame for derailing its passage into law this summer.
There was much talk of another late effort to attach it to another bill on Saturday, but nothing materialized.
The experts say the headline-grabbing throwdown over the bathroom bill could also signal a softening of business support for social-policy issues championed by the ultra-conservative wing of the GOP, and a new push for state leaders to address more-substantive issues such as improved funding for public education and health care, among structural changes to the way state government makes and spends its money.
“The Legislature has been focused for several years on issues that don’t cost money — social issues like sanctuary cities, abortion, gay marriage and the bathroom bill,” said Cal Jillson, a political scientist at Southern Methodist University, who said Texas is not much different than other states in that regard.
“When you start talking about school-finance reform, among other issues, that’s when you have to come up with additional money. Someone will have to pay for it. That’s never fun,” he said.
For their part, Gov. Greg Abbott, Lt. Gov. Dan Patrick and House Speaker Joe Straus insist they want to address those other issues — with Straus, generally thought of as more moderate than the other two leaders, leading the way during the special session for the Legislature to address more pressing issues than bathroom access and tree-cutting ordinances, among the 20 must-pass issues that Abbott demanded lawmakers approve.
By Saturday night, with only three of Abbott’s issues signed into law and about as many more appearing heading to final approval, this question remained: Will the final tally at the end of the special session on Wednesday be good enough to keep the governor from calling lawmakers back into another special session?
The answer appeared to be yes. For now.
But there’s no expectation that lawmakers are done dealing with the divisive issue, on the 2018 campaign trail and in future legislative sessions.
“Like Frankenstein, the bathroom bill could come back to life because, in an election year, it’s an issue that appeals to the Republican base that turns out to vote,” said Brandon Rottinghaus, a University of Houston political scientist. “This is an example of how business interests can make a difference when they speak out. And if they stay involved at this level, it could make a difference in what the Legislature does on other issues like school finance and tax reform.”
Opinions differ on whether the bathroom bill would have been derailed by the dozens of LGBTQ activists and groups and their supporters without the support of big businesses. While Larry Keiler, an Austin opponent of the bill who counts fingers on both hands as he counts and hearings and protests he has attended at the Capitol since January to oppose the bill, said while he believes their voices would have eventually prevailed — perhaps in a court suit — the opposition from corporate and business leaders helped turn the tide two weeks ago.
That came in a letter signed by more than 50 Houston CEOs and business leaders, followed by letters from dozens more in Dallas, San Antonio, Corpus Christi and other areas. “That got everyone’s attention,” Keiler said. “Before that, the letters from Apple and Microsoft and other corporations had been written off as the coastal liberals trying to tell Texas what to do. But ExxonMobil and Halliburton and the others are not liberal and they’re not coastal. They’re here in Texas.”
Within a few weeks, top officials of more than 50 Fortune 500 companies had weighed in against the bill. Middling support in the House for the bill began to evaporate. Even the 20 Senate Republicans who had voted for the bill a month earlier began to question whether they were on the wrong side of a trend.
Then came the announcement Monday that the bill would not get a hearing in a House committee, meaning it could never come up for a vote by the full House. Scrambling by supporters to tack it as an amendment onto another bill went nowhere.
By Friday, supporters including confidantes to Abbott and Patrick conceded it was most likely DOA.
“The bill may be dead, but the issue is not,” said Rice University political scientist Mark Jones, echoing the views of more than a dozen lawmakers who spoke privately for fear of antagonizing Abbott or Patrick. “It was largely a manufactured issue that will evaporate over time. There is no crisis on transgender Texans for most Texans. But for Republican primary voters, it will still be around.”
More than a dozen tea-party and conservative Republican activists agreed, saying they plan to press Abbott to call the legislature back into a special session early next year to remind GOP primary voters how much of the summer’s conservative agenda did not get passed — including the bathroom bill.
“It’s looking pretty dismal right now, all the priorities of Gov. Abbott that the House blocked, and I can assure you that people in Texas are not going to forget about that,” said JoAnn Fleming, executive director of Grassroots America: We the People, an influential tea-party group among conservative Texas Republicans. “An awful lot of bills have not been passed, and now they’re trying to cut deals in the House at the very end to make it look like they’re accomplishing something, when they’re not.”
Other activists in Fort Worth, Houston and San Antonio echoed that disdain, warning that the business leaders may end up sorry they fought the bathroom bill, when the Texans who support it successfully push it through in another legislative session.
Jeff Moseley, CEO of the Texas Association of Business, the lobby group that for decades has wielded considerable clout at the state Capitol and threw its weight behind derailing the bathroom bill, disagrees. He said his group, facing a growing amount of legislation that is bad for business, plans to continue its legislative momentum.
After remaining relatively low-key in some recent sessions, lobbying for criminal justice reforms as lawmakers fought about social-conservative issues such as abortions, Big Business took a higher profile last spring in fighting attempts to place new restrictions on eminent domain, to cut tax-abatement incentives and kill the state’s business-development fund — along with their fight against the bathroom bill that grew into a full-on throwdown this summer.
“We were ringing the bell during the regular session, and then the governor put in on the special session agenda, and we knew that our voice had to be heard strongly and loudly,” Moseley said. “For Texas to remain globally competitive, we have to remain open for business. And laws like this are a disregard for the Texas Miracle, which wasn’t some cosmic accident. It was a result of solid policies that encouraged business growth and economic development in Texas.”
Political scientists and campaign consultants in Austin said the entry of corporate America into the fight over the bathroom bill was significant, because it signaled that they will use their clout to protect Texas’ business climate. That could prove a challenge to Republicans like Patrick, who has championed numerous issues like bathrooms and sanctuary cities and abortions that appeals to social conservatives but don’t cost the state money to address.
“If there is a god, the business interests will show up on education and school finance reform and force the Legislature to address those issues and others that are more important to the state,” Jillson said, echoing the sentiments of others. “That could change the discussion.”
Moseley made it clear his group intends to stay active with leaders of both parties in coming months. “This coalition that we have put together is committed to growing in stature,” he said. “This isn’t just a one-trick pony.”
For now, though, confidantes of Abbott, Patrick and Straus insist the outcome of the fight over the bathroom bill will have few downsides for them with voters. Most expect that when the special session ends, all three will all declare victory: Abbott for having tried to get his conservative-though-controversial agenda of 20 items approved, Patrick for burnishing his already-strong standing with the conservative-right GOP base, Straus for keeping a slew of what he viewed as bad bills from becoming law.
Behind any victory laps, though, will be a Republican Party in Texas still at war within itself, an almost certain precursor to more political fireworks — either in the spring primaries or when the Legislature convenes again in regular session in January 2019.
Many legislators, consultants and political scientists compare the current arguing between the conservative-right and conservative center of the Republican Party to how conservative, moderate and liberal Texas Democrats fought for decades. In some respects, they suggest, much the same split is being played out in Washington, where Republicans now control the presidency and both legislative chambers.
Abbott has remained mum about what might happen next, but he has hinted in recent interviews that he might get involved in primary elections “to elect the type of officials who are going to be reflective of conservative governance.” Patrick, who blames Straus for defeat of the measure, has hinted he may do the same, even as Straus has encouraged Texans who share his views to run for the Senate.
For Republicans like Teri Guerra, a Houston small-business owner, she hopes that the voices of business interests continue to be strong, just as she hopes that Big Business will direct their campaign contributions to officeholders who will focus on solving the state’s big-ticket problems, not just “the emotional ones” that drive GOP primary turnout.
“At some point, the Legislature is going to have to address the real issues that Texas faces,” said the mother of three. “The transgender bathroom issue doesn’t affect that many people. Who would know anyway? But fixing our school funding? That’s a big deal to keep an educated workforce and to keep Texas competitive globally. Even a Little Business Momma like me understands that.”