A Victory by the People

Filibuster, parliamentary gamesmanship kill abortion bill … for now

It took until 2:20 in the morning for the Texas Senate to determine whether 12:02am occurs on Tuesday night or Wednesday morning – but they ultimately came to the conclusion that even the most anti-science Republican had to admit was factually correct.

Senate Bill 5 – the omnibus abortion bill that would have massively restricted access to reproductive services in Texas – died at midnight, though its death wasn’t reported until hours later. The Chron Newsdesk managed a late post confirming the defeat of the bill, but by then very few people were still awake to read it.

That’s a somber statement for an event that was full of the sort of excitement and high drama that Hollywood can’t script, that sports commissioners ruin their pants imagining for the conclusions to their biggest games. But robbing the people who killed SB 5 of their victory celebration was maybe the last twist of the knife for a Party that did everything they could to derail the efforts of thousands of Texans from around the state who came to the Capitol to stop the bill.

Sen. Wendy Davis' filibuster shoes (Photo by Jana Birchum)

The Opening Acts

Tuesday at the Capitol started early, with a rally featuring Cecile Richards – president of Planned Parenthood and daughter of former Gov. Ann Richards – and continued with some live theatre with a filibuster of the bill by Sen. Wendy Davis, D-Fort Worth, starting at 11:20am, intending to continue until the special session ended at midnight. Davis wore bright orange sneakers and a back brace, and she must have peed into something. She read testimony from Thursday night’s nullified "citizens' filibuster.” She got compared to Tami Taylor from Friday Night Lights a lot. Supporters from Lena Dunham to Barack Obama tweeted on the #standwithwendy hashtag. And, eventually, she was silenced.

The crowds at the Capitol were the biggest that had come to Austin to oppose SB 5. People dressed in orange to show their solidarity with Davis were spread out throughout the building, but an estimate of 2,000 wouldn’t be unrealistic. They got there early – the Senate gallery’s 500 seats were completely full by the time she began her filibuster – and they stayed late. They ate the pizzas and cookies from around the world that had become a hallmark of the SB 5 opposition, and they watched from the Capitol Auditorium and the Legislative Conference Center once more. They brought their kids. Some came from as far away as Oklahoma, a reminder that Texas’ abortion services serve more than just Texans. They called Davis “Governor Davis,” or maybe just “Khaleesi.” Between all the orange and all the cheering, and the very distinct “us and them” feeling among the spectators, the atmosphere felt a lot like a football game.

And they watched – along with, by the end, close to 200,000 viewers on the Texas Tribune’s livestream of the floor – as the Senate Republicans did everything they could to shut her up and sit her down. Everybody got a lesson not just in civics but in parliamentary rules of the Texas Senate, some of which are downright bizarre: For instance, did you know that there’s a “three strikes and you’re out” rule on filibusters? Most people at the Capitol did not, which made the attempts by Sens. Robert Nichols and Tommy Williams to issue points of order in an effort to derail her testimony confusing. The word “germane” got used a lot, as in “is this topic germane to the discussion of SB 5?” In the Texas Senate, filibusters aren’t just talking exercises where the member on the floor can read the phone book – or a Chronicle report by Jordan Smith, as Davis learned after she was issued her first warning on a point of order.

At 6:40, she was issued her second warning: This time, because fellow Sen. Rodney Ellis helped her adjust her back brace during questions from another member. This was around the time that the proceeding started to feel like something of a farce. Did the reproductive health care of millions of Texans really come down to whether or not somebody touched the Senator’s back brace?

But that’s the parliamentary game, which shouldn’t be confused at all with the debate of what’s right or fair. Those things weren’t of any interest to anyone on this bill – where even votes about things like #BackBraceGate went along strict party lines – and the result was a very tense evening. It was hard not to notice that there was a group of men (specifically, Dewhurst and Williams) trying to tell a woman what she could do with her body while trying to stop an abortion bill, but the creeping irony of that was lost on the Republicans on that floor – or they just didn’t give a shit about it.

What they did give a shit about was “decorum” and what’s “germane.” Davis, aware that she had two strikes against her and five hours of filibustering to get through, stopped taking questions from the other senators, seemingly having made the decision that the best way for her to get through the evening would be to just keep reading analysis of the bill, with a stack of unheard “citizens' filibuster” constituent testimony in her back pocket, if it came to that.

Meanwhile, her myth continued to grow. The number of viewers on the livestream only went up, and the crowd of supporters throughout the Capitol turned into Beatlemaniacs – the cheer in the auditorium after someone asked if they could take a video of the hundreds of people crammed into the room and standing in the aisles shouting, “We love you, Wendy!” stretched on for well over a minute. It all made a certain kind of sense. The hopes of the people who had come to the Capitol to defeat the omnibus abortion bill during the special session had initially been pinned on a “citizens’ filibuster,” in which people would participate directly in the legislative process by using their bodies and their voices to directly shut down legislation they opposed so strongly. When the opportunity to do that was yanked away by Rep. Byron Cook at a House committee hearing last Thursday night, it became a matter of simply showing support for lawmakers – and, eventually, for Sen. Davis, who became the avatar for all of the citizens who were denied their chance to filibuster.

Senators cast a vote with an eye on supporters in the Gallery. (Photo by Jana Birchum)

The Crisis

It was, frankly, a kind of magical thing to watch. Davis smartly spent a good deal of her performance simply reading the testimony of the people who didn’t get to speak, and, while she often blazed through it with a good deal of emotional distance, some of it was pretty powerful stuff: When she read the testimony of a woman whose wanted pregnancy turned out to be nonviable, and who was denied the opportunity to abort it by a Catholic hospital, she was in tears. The line between “participatory” and “democracy” seemed especially thin, at least for a while.

And then, ultimately, it came time for the third strike. Shortly after 9:30pm – eight hours into Sen. Davis’ filibuster – a point of order was raised again. Davis was discussing the effect that SB 5 would have on low-income Texas women, and began discussing the current restrictions in place because of the requirements that all abortions be preceded by an ultrasound. Freshman Sen. Donna Campbell, R-New Braunfels, and a fiercely religious opponent of abortion, called for a point of order – was it germane to the discussion of abortion legislation to discuss current abortion law?

Every time one of these points of order came up – or even whenever another senator spoke, even if just to ask if she’d be taking questions – the air sucked out of whatever room in the Capitol people were watching from. There were already two warnings, and a third would kill the filibuster. If it was like watching a football game, it was a game where your team was constantly having to kick a 50-yard field goal with seconds on the clock while down by two. Still, people initially seemed confident in this one: How could a discussion of current abortion law not be germane to a discussion of possible abortion legislation?

If you asked yourself that question, you’re not Lt. Gov. Dewhurst. Presiding over the Senate, Dewhurst sustained the point of order after half an hour of discussion.

Lt. Gov. David Dewhurst (Photo by Jana Birchum)

Things threatened to turn ugly quickly: The previously silent Senate gallery exploded into boos and jeers, and people rushed from the downstairs overflow room to the rotunda. But the parliamentary game is a long one, and it was already after 10pm at this point. Sens. Watson, Zaffirini, Ellis, and Van de Putte all began a flurry of points of order, motions, and sub-filibusters. 200,000 people watched on the livestream. The gallery quieted back down as Watson motioned to appeal Dewhurst’s decision to sustain the point of order, and then led a 30-plus minute filibuster within the filibuster to attempt to slow down the process once more. When he was interrupted, another colleague would step in with a motion or point of order, and so on.

But ultimately, those parliamentary tricks weren’t enough. And that’s when things got very strange. That’s when you saw people on Twitter – like former Texas Monthly editor and current Texas Tribune boss Evan Smith – say things like, “Have seen nothing like this in #txlege in 22 years. Not even close.” That’s when the citizens' filibuster returned.

The People Speak

You can’t script this shit. Not really. If you tried, you’d get accused of a pandering Hollywood ending. But the Senate Democrats used up their parliamentary tricks by 11:45 on Tuesday night – fifteen minutes before the end of the special session – and the Senate gallery went apeshit. Dewhurst had stepped down as chair after Sen. Watson’s appeal and had been replaced by Sen. Robert Duncan, who didn't see or ignored an attempt at a motion to adjourn by Sen. Van de Putte. Duncan pled for “order in the chamber, so we can properly cast our vote.” Good luck with that one, buddy. Sen. Van de Putte, who had returned that day from her father's funeral, and was visibly distraught but stoic, finally asked Duncan, "At what point must a female senator raise her hand or her voice to be recognized over the male colleagues in the room?"* In a single sentence, Van de Putte had boiled down both the politics and the tactics of the GOP majority. The gallery exploded, and it was absolutely deafening in the chamber; sitting in the E2 basement level of the Capitol Extension, you’d swear you could hear faint shouts.

And it went on. For 15 minutes – through the midnight deadline - the room was full of hollering citizens. Mostly, they just cheered, like they were trying to drown out an opposing quarterback’s signals while their team was on defense – which is almost exactly what they were doing. Wendy Davis, still standing, watched. And with every passing minute, SB 5 grew closer to defeat, and the room just got louder. It was the sort of moment that can make even the biggest cynic about what an absolute disingenuous farce politics in Texas and the rest of the country can be get chills: What had started as citizens trying to use their voices to be heard in opposition to these restrictions had, with minutes left, reached its end as citizens used their voices to be heard. So what if it stopped being about storytelling and started being about the shouting?

People counted down in the Capitol Extension as the clock ticked to midnight. The special session ended.

And then, of course, the Senate called for its vote at 12:02am on Wednesday.

The scene turned ugly again. Little old ladies were arrested. DPS officers marched ominously to the doors of the Capitol. (Republican State Rep. Bill Zedler of Arlington tweeted that “we had terrorist [sic] in the Texas State Senate opposing SB5” – although his earlier timing suggests he may have been referring to Davis and the Dem opposition.) The rotunda filled with too many Texans to count, cheering and crying and chanting.

Won or Lost?

Chanting is not a thing that the winning side of a political action tends to waste much time with, and as Democratic Senators came out to address the crowd, their speeches sounded remarkably like consolation. The Associated Press reported that the bill had passed. Dewhurst, Sen. Dan Patrick, and other Republicans started giving out numbers on how the vote passed.

Democratic senators like Ellis and Whitmire, meanwhile, argued that the bill hadn’t passed, that it had happened too late. Most people in the building were forced to question if they would believe Dewhurst or their own lying eyes, as confusion reigned. What started with the atmosphere of a football game had turned into something more like a soccer match: no winner, lots of chanting, and the specter of inexplicable extra time added to the clock. It stayed that way for hours. People trickled away from the Capitol. The livestream numbers dwindled as the action moved outside the Senate floor.

Then, at 2:20, the Senate reconvened to figure out what the hell had happened. Sen. Juan "Chuy" Hinojosa had posed for a photo that indicated that the date had been changed on the official record. The question became whether the vote occurring at 12:02am meant that it happened on Tuesday or Wednesday. The answer, mercifully, was settled as a matter of objective fact.

And thus the anticlimax. That Hollywood moment – where, all other options exhausted, hundreds of ordinary Texans shouted down legislation that would have severely regulated their bodies – occurred, but the celebration never did. There was never a “We beat 'em!” moment to cap everything off with the catharsis that we’re conditioned to expect after weeks of struggle, culminating in a victory. By the time the announcement was made – by Sen. Davis and Cecile Richards, in the rotunda – there were hundreds, not thousands, at the Capitol. The livestream was showing the inactivity of the Senate floor. Twitter was mostly quiet. A battle that was supported, fought, and won by people throughout the state and around the world was celebrated late, and by far fewer than who participated in the victory itself.

Sen. Wendy Davis joins supporters in the Capitol Rotunda after SB 5 is officially declared dead. (Photo by Shelley Hiam)

And that, ultimately, may be appropriate when discussing SB 5, because the victory – while real, and extremely impressive for Texas progressives and liberals who, until now, have spent many years tasting mostly defeat in their political battles – will probably remain in question, too. The special session has ended, and SB 5 failed. But so did two important bills dealing with transportation and juvenile justice, and a second special session could be called by Gov. Perry at any point to address all three bills. If and when it is, the abortion question could quickly return to the forefront.

There’s this part at the very end of the series finale to Buffy the Vampire Slayer – a show that more than a few people at the Capitol would cite as a major inspiration in their lives, it’s safe to say – where, after closing the “Hellmouth” that had threatened to rain down apocalypse on the world, one character cautions the others to restrain the celebration. “There’s another one in Cleveland,” he says.

That line was stuck in my head as I watched the measured celebration in response to the defeat of SB 5 early in the morning on Wednesday. Yeah, this one’s been beaten, but there are still monsters lurking in Texas.

See Part 1 of Dan Solomon’s three-part series on SB 5, “‘Let Her Speak!’”
See Part 2 of Dan Solomon’s three-part series on SB 5, “A Sunday at the Capitol.”

For more images, see "The Citizens’ Filibuster" on our Photo Galleries page.
For a brief history of recent challenges to abortion rights in our state, see "'Chipping Away': A Texas Abortion Rights Timeline."

*Correction: Sen. Van de Putte's winning line was written incorrectly in a previous version of this article.

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Abortion, women's rights, Wendy Davis, Texas Senate, filibuster, sb5, special session, David Dewhurst, Senate Bill 5

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