Gov. Rick Perry’s response to his indictment for his efforts to induce Travis County District Attorney Rosemary Lehmberg to resign reveals the underlying philosophy of executive power that the governor has embraced while in office. His expansive conception of gubernatorial power stands in remarkable contrast to historical precedent and, for that matter, to his own pronounced views of executive power in other circumstances.
It is telling that Perry has not denied seeking Lehmberg’s ouster, neither while he was attempting to do so nor since he has been accused of a crime. But the central element of the governor’s defense is not just that he didn’t break the law – it’s that the laws, as applied to him in this case, represent unconstitutional limits on his prerogative as the state’s governor.
The constitution is an interesting place for Perry to find a defense for his alleged overreach. The Texas Constitution contemplates a governor’s office that should not be a center of power, and should not be occupied for a great length of time by any one individual. Texas’ 1876 constitution was written in response to the rule of “Radical Republicans” during the Reconstruction Era. The framers of the new constitution, shut out during the previous government, were skeptical of centralized power (a feeling many Texans still share). To combat the natural impulse toward power aggregation, the newly written constitution set the gubernatorial term length at two years (only changed to four years in 1974), and purposefully divided the powers of the state’s executive (the governor) into multiple authorities, often duly elected in their own right. By design, the governor’s power was intended to be limited, and for this reason, you get to vote for the commissioner of the General Land Office.
Even given this constitutional context, Perry’s defense might still be understood purely through the lens of legal expediency – were it not for the fact that Perry’s record provides ample evidence of this expansive view of executive authority in practice. He has consistently and decisively maximized the limited institutional powers at his disposal, from his deft guidance of the numerous appointees with whom he has populated state government over his 14 years to his ready (and sometimes not so deft) use of the veto. In conjunction with these institutional powers, he has also made use of the political tools only available to a sitting governor, from his use of funding entities like the Texas Enterprise Fund to serve his ends to his shrewdly symbiotic relationships with strategically chosen allied organizations.
This increase in the governor’s influence is frequently attributed to his longevity in office, but is also a reflection of Perry’s sustained interest in wielding executive power. Historically, Perry’s decision to run for a third time was a remarkable one in light of what was intended for the governor in the Texas Constitution. Holding the office for so long enabled him to push the bounds of his authority in ways that were impossible for most if not all of the shorter-term occupants that preceded him.
For all the media’s speculation on the implications of Perry’s indictment in the short and medium term – Isn’t this just partisan politics? Will this affect the 2014 campaign? What are the implications for 2016? – the fundamental questions revolve around whether the indictment, in calling attention to Perry’s expansive view of the governor’s authority, will affect the power of the office after his departure. Perry’s governorship has in many ways transcended both the spirit of the Texas Constitution and the political culture of the state. The indictment – its merits completely aside – begs for a discussion of whether Perry’s version of the governorship is the one Texans want or even need. Despite the fact that we are in the midst of the first gubernatorial campaign without an incumbent on the ballot in 24 years, the post-indictment discussion has been much more focused on activist judges, Travis County Democrats, the movement of the Public Integrity Unit and Lehmberg’s DWI than on what kind of political institutions Texans want in the post-Perry era.
This piece originally appeared in TribTalk.