Outside the Beltway

The Importance of Institutional Design (Part Lots)

The Texas Board of Pardons and Paroles sparks a thought.

Steven L. Taylor · Sunday, April 9, 2023 · 5 comments

So, I wrote a substantive comment on James Joyner’s post on Texas Governor Greg Abbott’s stance for law and order political grandstanding, but the internet ate it.* As punishment, I have decided to write a far longer post! I know enough about Texas government to be dangerous (I taught it for a couple of years back in the day), and a little trip down the Intertubes confirmed at least the broad outline of my recollection as it pertains to this matter.

What I primarily wanted to respond to was this:

And it makes zero sense to have a Board of Pardons and Paroles if they’re all appointed by the sitting governor.

While at least such a board would be some level of check on the governor acting arbitrarily, James has a point. If the sitting governor has full influence over the board, that would certainly limit its independence. And this is where the confluence of design and practice come into play, and in a way that has broader implications for Texas government beyond even this specific board.

The Texas State Constitution of 1876 was written in reaction to the Reconstruction period and was rather clearly designed to make state government weak. To wit, it limits the legislature to 140 days in session every other year (yes, you read that correctly). It also had a short term for the governor (only two years) until a constitutional amendment expanded it to four years in 1972. And while the governor is not term-limited it is also worth noting that until Rick Perry’s two decades in office, and Greg Abbott’s approaching twelve years in office, the longest-serving governor in terms of years was Bill Clements, who served eight total years in office but in non-consecutive terms.

In that context, it is worth noting that the Texas government has a lot of boards and commissions which carry appointments from the governor. As I recall, like the Board of Pardons and Paroles, the terms tend to be longer than four years (six years in the case of Pardons and Paroles). If you expect a new governor every two years (or, at least, an election every two years) then a six-year, staggered term on a board means that a given governor is unlikely to be able to dominate the appointments. Now, the move to four-year terms increased the odds of such dominance, but the standing practice, for whatever reason, was not to re-elect governors to consecutive terms until George W. Bush was re-elected in 1994. Then Perry, who took over for Bush in 2000 won three terms on his own (serving until 2010). Abbott is now serving in his third term.

In simple terms: a system of lengthy, staggered terms means that for a given governor to dominate a given board would take several re-elections. This was not the norm in Texas until this century. In simple terms, prior to Rick Perry, Texas governors simply did not dominate these institutions they way they now do. The rules have not changed, but the shift in voter and politician behavior has effectively changed the way the system functions.

The point is that the design of state government in Texas kind of assumed that governors would not be in office as long as has now become the norm. For good or for ill, that shapes the entire way state government functions, as it gives a given multi-term governor outsized (indeed, Texas-sized) influence over state government.**

Again, setting aside what preferences one may have, or what one thinks about Abbott, all of this combined demonstrates the way in which various institutional choices can impact the output of government. Throw in one-party dominance at the ballot box (which, by the way, is a Texas tradition as prior to Bush the Democrats dominated state-level elections with the aforementioned Clements being the only Republican to win the governor’s office between Reconstruction and Dubya) and you have pretty solid control of state government.

Another thought that occurs is an overall theme in the back of my head, which I have noted over time: when the legislature is not able to be assertive, and the Texas legislature is not assertive largely by design (while also suffering from representative maladies common to single-seat, first-past-the-post systems) other parts of the government will assert itself. Worse, since other parts of the government do not fulfill the representative function that legislatures are supposed to perform, this can create democratic deficits. The importance of the Wisconsin Supreme Court comes to mind. In the case of Texas, the boards and commission system (as well as extensive home rule) fill in a lot of gaps. And now with the ability of governors to win multiple terms, the office has grown in influence not because the office itself has much power (it used to be described as amongst the weakest state chief executives) but because of the appointment power.

*I have had an ongoing problem wherein the site seems to be accepting my comments and then it swallows them whole and the only way to reset is to clear OTB from my cache. I am not sure if it is a Mac OS issue, or if it is some other cause. I try to remember to copy my comment just in case, but failed to do so this morning.

**A side note: the Colombian president has a number of appointments of a similar nature and when they moved from a one-term limit to allow for re-election they realized that a disequilibrium was being created by those appointments, so they went back to a one-term limit.