Litigating the Republican Civil War

Republican state Representative Bryan Hughes’ bid to oust House Speaker Joe Straus back in 2012 was hampered by a glaring flaw. He was a trial lawyer. With a lot of campaign money from other wealthy trial lawyers. 

Even for the East Texas conservative, who ascended to the state Senate in 2016, that occupational hazard put enough stink on him to help undermine his bid to oust the supposedly moderate speaker. 

Hughes tried to defend himself at the time by pointing out that he’d also received $3,000 from Texans for Lawsuit Reform (TLR), the powerful business group that took on the Democratic-aligned trial attorneys in the ’90s and early aughts, helping pave Republicans’ path to one-party rule by severely limiting ordinary Texans’ access to civil redress.

Hughes eventually dropped his bid for speaker. A few years later, in a sign of political shifts to come, TLR bankrolled the trial lawyer’s campaign for the deep-red Senate District 1 with $400,000 in PAC money. 

Perhaps no one group is more responsible for facilitating Republican domination of the Lone Star State than TLR. And no ideological principle was more central to the project than the anti-trial lawyer crusade known euphemistically as tort reform, which conveniently helped undercut Democrats’ funding base. 

But the tides, they are a’ turnin’. The various factions of the Texas Republican Party have turned their guns inward. The party’s branch of hardline conservatives—led by Attorney General Ken Paxton and conservative West Texas billionaire Tim Dunn’s political machine—are now casting TLR as a bogeyman on par with the liberal billionaire donor George Soros. The long-held principles of corporate cronyism and “civil justice” reform are being increasingly replaced with a burning desire to use conservative government as a means to litigate the right-wing culture wars. 

The classic tort reforming Chamber of Commerce-type Republican has given way to a new breed of conservative politician: the right-wing trial lawyer. 

Hughes is the poster boy. Now the most powerful member of Lieutenant Governor Dan Patrick’s Senate and a leading contender for higher office, he’s the architect of several pieces of extreme legislation that have opened up new venues to sue private individuals and companies suspected of anything from violating state abortion restrictions to social media “censorship.” 

Scott Braddock of the Capitol insider newsletter Quorum Report first clocked the emerging phenomenon of the right-wing trial lawyer in the 2021 legislative session, noting how politicians like Hughes “are finding ways to monetize culture wars in ways not seen before.” 

“Fundamentally, the biggest shifts in Texas over the last 24 months … are the consolidation of power in the executive branch and the rise of the Right Wing Trial Lawyer,” Braddock wrote on Twitter at the time.

Perhaps the most pernicious of these right-wing billboard-lawyer initiatives was Hughes’ Senate Bill 8, which allows practically any private citizen to sue other private citizens or entities for facilitating an abortion after as soon as just six weeks.

Soon after the passage of SB 8, an estranged husband sued his wife’s friends for allegedly abetting her abortion. One of the lawyers on this case was Deer Park state Representative Briscoe Cain, another right-wing trial attorney who has launched his own practice specifically to enforce the laws he and his colleagues pass.

In 2023, Republicans including Cain and Hughes passed a law that requires commercial websites that host porn to verify the age of its users. Paxton has since sued several porn companies, though it’s not clear whether social media companies like Elon Musk’s X, which recently updated its policies to explicitly allow porn on the site, are subject to the law. 

Much like how pre-tort reform Texas laws allowed plaintiffs’ lawyers to pursue massive class-action lawsuits and Democratic AGs to lead multi-state litigation against ne’er-do-well insurance giants, tobacco companies, and chemical producers, Republicans have created all sorts of new causes of action to take their foes to court. 

Despite its anti-liability mission, TLR and its top donors have effectively helped facilitate this rash of new laws. The organization has only raised its hackles, largely behind closed doors, when these measures jeopardize large corporations, while remaining a top heavyweight funder of the GOP leadership and rank-and-file. The group sends a comparatively small portion of cash to friendly Democratic incumbents.

Nevertheless, far-right foes are seeking to make TLR into a pariah among the base. 

Paxton and his apologists accused TLR of orchestrating the attorney general’s quick-fire impeachment in the Texas House last spring. (TLR supported Paxton challenger Eva Guzman in the 2022 GOP primary.) In fact, the crux of Paxton’s defense during his Senate trial, which resulted in his acquittal, was that the poor AG was being targeted for his offenses against the same entities that TLR defends: Big Pharma, Big Tech, etc. 

The attorney general has also accused TLR of undermining his ability to prosecute corporate malfeasance. “One of my constitutional roles is to make sure corporations do not commit fraud, and so I think TLR would like to put that aside and say, ‘If they commit fraud, that’s fine. Business is business,’” Paxton said in a recent anti-TLR production by the Dunn-funded Texas Scorecard. 

Governing political parties, the GOP included, can tolerate a fairly high degree of cognitive dissonance. As such, some conservatives like Hughes and Cain have been able to stay in the good graces of both TLR and the Dunn machine. But the contradictions, as the Marxists say, are heightening.  Paxton, Patrick, and an insurgency in the House are all working to draw lines in the sand. 

Indeed, TLR has finally felt compelled to push back publicly against the party’s puritanical excesses. “If you have 100 issues, and you agree with them 99 times, you’re their enemy,” Alan Hassenflu, a TLR board member, told the Texas Tribune in May. “They’d be just fine having the government tell businesses they can’t have unisex bathrooms or mandate vaccines. … That’s not limited governance.”

The marquee battleground is now the Texas House. Speaker Dade Phelan narrowly survived a May runoff with the help of GOP establishment donors including TLR. After Phelan’s skin-of-the-teeth victory, Paxton threatened to take down any House Republican who votes to keep Phelan as speaker in 2025. 

House conservatives like Cain are useful weathervanes in the lower chamber. The rabble rouser-turned-Phelan lieutenant voted to impeach Paxton and served as a House manager in the Senate trial. That earned him a fringey primary challenger who was endorsed by Paxton. But Cain easily prevailed, aided by over $100,000 in campaign cash from TLR, Phelan, and other GOP establishment groups. 

Soon after, Cain signed a pledge to only support a speaker endorsed by the House Republican Caucus, effectively promising not to back Phelan. The speaker’s path to retaining his power, then, would likely run through a coalition composed mostly of Democrats. If TLR and co. stick with Phelan in that case, it would validate their far-right critics’ claims and create sticky questions of how exactly liability-averse corporations should target their political patronage going forward.

One of the Republicans who has emerged to take on Phelan for the speakership is Stephenville state Representative Shelby Slawson, a two-term member who carried SB 8 in the House in 2021. Slawson, too, is a trial lawyer.