Smitherman Expected to Be Senate President Pro Tem

In the upcoming legislative session that starts next week, look for state Sen. Rodger Smitherman (D – Birmingham) to be elected Senate President pro tem to replace Hinton Mitchem who will step down from the position.

Rodger Smitherman cut a deal two years ago to be Senate President pro tem for the final two years of the quadrennium, but since then three Democratic votes have turned into vacant seats. Mix in some Democrats that have been willing to caucus with the Senate Republicans, and the Democratic majority is small enough that some observers wondered if current President pro tem Hinton Mitchem would decline to resign out of concern that the Dems might not keep the position.

Nineteen Senators are Democrats and thirteen are Republicans. There are three additional formerly Democratic seats made vacant by the election of Parker Griffith to Congress, the death of Pat Lindsey, and the felony convictions of E. B. McClain. But two of the 19 Democrats, Tom Butler and Jim Preuitt, are expected to continue to caucus with the Republicans, which makes a slimmer 17-15 lead for the majority Democrats. Throw in considerations like the question of Democrat Bobby Denton’s health and the fact that Democrat Larry Means has caucused with the Republicans during this quadrennium, and you begin to see potential difficulties. (Denton is expected to participate in the session.)

Nonetheless, Senate Democrats are indicating that they will have the votes. Sen. Zeb Little told the Parlor before Christmas then that he believed the transition would happen smoothly, and last night at a reception for the Senate Democratic Caucus he said that the change would happen as expected.

On the matter of how many votes are needed given three vacancies, a staffer in the state Senate office told the Parlor that, given a quorum, the Senate needs a majority of those present and voting to elect a new President pro tem, i.e. 17 votes if all 32 Senators are present.

Numerous Republicans have told me that they are pleased about this potential outcome, as they anticipate Smitherman “being a bigger headache to Democrats than Republicans,” to quote one.

There are some considerations.

• Rule 82. Rule 82 of the Senate’s operating rules for the quadrennium states:
  

  Any motion relating to creating or filling a vacancy in the office of President Pro Tempore shall be in writing with a day certain for the vote, which day certain may not be less than five legislative days after the motion is filed. Any vote relating to the removal of a member serving as President Pro Tempore shall prevail only with a concurrence of a two-thirds vote of the elected members of the Senate.

  This would appear to indicate that the Senate would have to wait until the sixth day to elect Smitherman to the Senate President pro tem. The Democratic Senatorial Caucus is expected to assert that the rule does not apply in the case of the President pro tem voluntarily resigning, that it applies to removing the President pro tem.

  However, you won’t be surprised that the expectation is that this will require a ruling from the presiding chair, presumably Lt. Gov. Jim Folsom.

• What if there is a tie? It’s certainly not impossible. For example, Democrat Larry Means could decide to rejoin the minority caucus. One GOP Senate insider told the Parlor that Democrat Wendell Mitchell “always has imperial ambitions and he has been in coalition with us before,” and adds that considerations like these explain why Democrats have been “actively recruiting Craig Ford.”

  If there is a 16-16 tie, would Folsom break the tie? Mike Martin, Folsom’s Chief of Staff, tells the Parlor that the matter is under review and that the argument could be made either way. On one hand, the Lt. Governor as presiding chair breaks tie votes in the Senate. On the other hand, the Senate is to elect the President pro tem, and the Lt. Governor is not a member of the Senate. Martin says that the Lt. Governor’s office is “reviewing it at present time” and doesn’t have an answer. He adds that, from what he has heard, “indications as recently as this morning are that it will not be a tie.”

• Anything could happen. Granted it will probably go as expected, but we have seen enough strangeness to know anything could happen. Two and a half weeks ago, Republicans in Tennessee’s General Assembly were poised to take control of the body for the first time in 140 years with a one vote majority. In the “political play of the decade,” Democrats nominated sophomore Republican Kent Williams for Speaker who was more to their liking. All the Democrats voted for him, Williams voted for himself, and the Republicans were denied by one vote their choice of Speaker.

One potential hitch has been that Hinton Mitchem did not want to replace Smitherman as Chair of the Senate Judiciary Committee and wanted assurances that he could chair the Senate Confirmations Committee instead. Sen. Myron Penn has reportedly not embraced the idea of stepping down as Confirmations Committee Chair to take the Judiciary Committee Chairmanship, and apparently there is no such deal in place. A Senate insider tells the Parlor that if the deal blows up, it will be on this issue.

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