For me, the Special Sessions could go by the title of that old Clint Eastwood movie: The Good, the Bad, and the Ugly. The optics of the first, two Special Sessions before the Christmas holiday, were horrible. We were called to Raleigh to work on a disaster relief bill, and then, after completing work on that bill, surprised most everyone by passing two bills relating to a range of changes to state government. Those bills were viewed as taking power from the incoming Democratic Governor, Roy Cooper, and giving power to new Republican Council of State members, such as the Superintendent of Public Instruction, and limiting the power of the now majority-Democratic NC Supreme Court.
There is some truth and some fiction to that perception. The new laws establish a procedure that mirrors federal law requiring Cabinet appointments to get legislative confirmation. While they take away some gubernatorial appointments, they also make a range of other changes that I view as good policy choices. These changes aren’t receiving much coverage because of the optics. The three bills were not simple, and they contained many complex provisions. My effort will be to try to explain what actually passed.
H 2 [The Disaster Recovery Act of 2016, Third Extra Session] is good, much needed help for several parts of our state. It received unanimous support in both the House and the Senate, and was quickly signed by Governor McCrory. Essentially, it appropriates about $200 million to address the flooding issues in eastern North Carolina and the fire-related costs in western North Carolina. Approximately $25 million of that relates to the fires in our area. The last bill summary is the best way to see what exactly was appropriated. Half of the monies came from the “Rainy Day Fund” and half of the monies came from our unappropriated General Fund balance. In other words, no cuts had to be made to the budget to pay for disaster relief.
In my opinion, S 4 [Bi-Partisan Ethics, Elections & Court Reform, Fourth Extra Session] is a law that has some good, some bad and some ugly provisions.
There are four parts to the law. First, it combines the functions of the State Ethics Commission, the lobbying section of the Secretary of State and the State Board of Elections into a new state agency. Second, it clarifies the legislature’s authority in apportionment and redistricting matters. Third, it restores partisan elections for the NC Supreme Court and the NC Court of Appeals and provides for a new procedure for the Court of Appeals to hear cases. Finally, it modifies the terms of members of the Industrial Commission.
The first change, combining three different entities, is good public policy in my opinion. As a candidate, public official and environmental advocate, I’ve dealt with these entities separately and know how hard it is to navigate election and ethics laws applying to candidates, office holders and lobbyists. The jurisdictions of the agencies overlapped. My view is combining these agencies is good public policy.
The controversy comes with how the new board that manages this new entity is named. Rather than the majority of that board’s appointments being made by the Governor and presumably from his party, the board is constituted with appointments coming equally as between the governor and legislature dividing the board equally between the two parties.
Clearly, the optics of this change is that the legislature is taking a shot at the incoming Governor. Under prior law, Governor Cooper would have appointed a majority of the board. The previous law had the majority of each county election board coming from the incumbent Governor’s party. Now each party would have the same number of members on each county board.
What I found intriguing was the provision requiring a supermajority (6 of 8 members) on the State Board to take action and a majority of 4-member county boards to take action. In other words, as a practical matter, no action could be taken without bipartisan support, allowing no more party-line decisions.
While this is intriguing, I don’t know if it will work. We may just have enacted a law that insures the new board can’t take action on controversial matters. On the other hand, we may have just enacted a law that will require people to compromise. My guess is this could be ugly but I am hopeful it may work out to be good.
The second change I view as simply clarifying language. It stated that the State Board of Election and county boards of election do not have any authority to alter, amend, correct, impose or substitute any congressional or state legislative redistricting plans. I never was really sure why this provision was needed but evidently someone felt the need to clarify what I understood was settled law.
The third change was to restore partisan elections for the North Carolina Supreme Court and the North Carolina Court of Appeals. This change was a direct response to the anomalous results in the recent election in which all the Republican candidates for the Court of Appeals were elected while the incumbent Republican candidate for the Supreme Court was not.
In the Court of Appeals races, party affiliation was shown, but that wasn’t true for the Supreme Court race since a court had thrown out a retention election provision for Supreme Court justices. The incumbent justice was a Republican but was not shown as one on the ballot. He lost. The incumbent and non-incumbent Republicans running for the Court of Appeals were shown as Republicans on the ballot, and they all won.
I have mixed feelings about this provision. In theory, I’d like to have judicial races nonpartisan. I think people generally have more confidence in the judiciary if they don’t view decisions as being political. However, voters clearly want to know the party affiliation of the judicial candidates, and I’m not sure legislators should keep information about the party affiliation of judicial candidates from them.
Another change related to the procedure for hearing cases before the NC Court of Appeals and to the jurisdiction of the NC Supreme Court. The Court of Appeals is composed of 15 judges, who sit in panels of three judges. The law now allows the NC Court of Appeals to hear cases en banc, in other words, with all judges sitting together. This is the same procedure used in the federal appellate courts, and it allows the Court of Appeals to resolve disputes as to the law as between different three-judge panels. My view is that this is a very sound change.
As to the Supreme Court, the new law eliminates the right to appeal directly to the Supreme Court from a trial court order finding some law unconstitutional or violative of federal law. The law also made clear there was no right of appeal from an en banc decision by the Court of Appeals and eliminates certain direct appeals to Supreme Court of decisions made by the Commissioner of Insurance or decisions involving redistricting.
Democrats viewed these provisions as restricting direct access to the Supreme Court for certain types of actions, and would note the changes got made only after Democrats now have a majority on the Supreme Court. While it is true that the effect of the changes might be to cause more suits to go to the Court of Appeals before going to the Supreme Court, what isn’t noted is that there is no restriction on the Supreme Court, on its own volition, transferring appeals to the Court of Appeals to the Supreme Court.
In other words, the Supreme Court still can exercise its discretion to hear whatever cases it wants. The new law simply doesn’t create a “right of appeal” to the Supreme Court is some range of cases.
In the end, I viewed S 4, on balance, as a reasonable law, although I have doubts as to the workability of composing election boards with the same number of Republicans and Democrats.
H17 [Modify Certain Appts/Employment, Fourth Extra Session] makes various changes pertaining to the Superintendent of Public Instruction, the appointment process for the boards of trustees for the UNC System, and the appointment of agency heads. It also established a task force for safer schools.
Without getting too much into the weeds, that part of the law relating to the Superintendent of Public Instruction, we were told, basically returned powers to the Superintendent that had been taken and given to the State Board of Education (SBE) in 1995. While I don’t know the circumstances that caused the General Assembly in 1995 to move responsibilities from the Superintendent to the SBE, the optics of the changes for the media were that the legislature was now making these changes because there was a Republican Superintendent.
That is probably true. However, I think more important than the optics is whether the changes made sense, and I thought they did. I remember too well, Superintendent June Atkinson having to sue Governor Beverly Perdue when Perdue tried to make Atkinson little more than the titular education leader. A court decision resolved that dispute.
Only a few SBE members are elected officials; most are appointed. The voters elect the Superintendent. My view is that the Superintendent should be in charge of the Department of Public Instruction, and that the SBE should be a policy board — a board that sets policy to be followed by the Department but which does not run the Department on a day-to-day basis.
This may be a case of legislators doing the right thing for the wrong reasons. My guess is that the Republican legislature wouldn’t have given Democratic Superintendent June Atkinson more power at the expense of the majority Republican SBE, but giving the Superintendent the power to run the Department is the right decision, and the changes for the most part simply give power to the new Republican Superintendent at the expense of the majority Republican SBE.
The new law also decreased from 1,500 to 425 the number of positions the Governor may designate as exempt throughout Cabinet departments and offices. Simply put, the new law reduced the number of state employees that the Governor can hire and fire at will. This provision was viewed as a direct attack on the incoming governor, since Governor Cooper would have only 425 positions that were patronage positions or political appointments while Governor McCrory had 1,500 such appointments.
Prior to Governor McCrory, governors had 300 exempt positions they could appoint, but when McCrory became governor, the Republican legislature increased that to 1,500. My understanding is that he never made 1,500 appointments, but his total was around 1,200. While I don’t remember the debate around this issue back in 2012 when McCrory became governor, I’m guessing the idea was to allow the first Republican governor with a Republican legislature to clean house after over a century of largely Democratic rule. Having cleaned house, I guess the thought was that the incoming Governor should be able to make political appointment in roughly the same range as his predecessors, other than Governor McCrory.
I’d like to think that had this change been proposed a year before the election that I’d have supported lowering the number of political appointments that Governor McCrory could make. However, that proposal never got made before the election, and I viewed this change as one that was clearly politically driven but not clearly wrong in terms of policy.
While there were some other changes in the incoming governor’s appointment powers to certain boards, the big change was in eliminating the governor’s appointments to the various UNC boards of trustees, e.g. UNC-Chapel Hill, UNC-Asheville, Western Carolina University among others. Under the law, the legislature now makes the appointments.
Initially, my concern was that we could be unconstitutionally infringing on the powers of the Governor, but a quick review of the NC Constitution suggests that the General Assembly has responsibility for Higher Education [Art. IX, Section 8]. The General Assembly had actually relinquished part of its authority to make appointments to the Governor.
Certainly, if the General Assembly has given the Governor some of its authority to make appointments to the UNC System boards, then the legislature can take back that authority. While I wish we’d done this at a different time, this change seemed to be another case of making a policy change that might have been good policy for partisan reasons.
Another change with the same optics was the requirement that Cabinet appointees receive Senate confirmation. Basically, what the legislature enacted were provisions that mirror federal process. At the federal level, the President nominates Cabinet officers and some other senior officials, and the Senate confirms those nominations. Under the new law, the Governor will nominate Cabinet officers that must be confirmed by the Senate.
The NC Constitution states the “Governor shall nominate and by and with the advice and consent of the majority of the Senators appoint all officers who appointments are not otherwise provided for.” [Article III, Section 5] Evidently, at some point in the past, the legislature gave up the Senate’s right to “advise and consent,” deeming all Cabinet appointments as being approved. The new law reversed that practice bring back Senate confirmation of agency heads.
As I’ve noted with other provisions, the optics on this one were bad. However, the question again is whether this is good policy, and I think it is. I think gubernatorial nominations should have to be approved by the Senate. It is a useful check on the governor’s appointment powers. The Senate confirmation doesn’t apply to all of the Governor’s appointments—just to the appointments of department heads.
In the end, I knew the public’s perspective on these changes was that they were being made for political reasons, and I’m not so naïve as to think that isn’t true. However, the question for me when voting on the bill was whether the changes were good policy changes and whether they were consistent with the North Carolina constitution. With one exception, I thought they were good policies, and I thought all the changes were constitutional.
The one exception related to moving the new governor’s political appointments from 1,500 to 425. If we thought 4 years ago that Governor McCrory needed to make five times the number of political appointments as his predecessors, I saw no policy reason why we now needed to lower the appointments to less than a third.
Interestingly, had an amendment been put forward to raise the number of gubernatorial appointments to a somewhat higher number, I would have probably supported it. However, Democrats offered no amendments to the bill in the House (the House bill originally set the number of appointments at 300, and the Senate upped that to 425.) Rather than debating the merits of the bills, the Democrats tack was to argue the whole Special Session was illegal and therefore refused to offer amendments or do anything other than vote against both S 4 and H 17.
Passing laws is often described as much like making sausage: not something one wants to watch. With respect to the passage of S 4 and particularly with respect to H 17, the description is apt. I hated the optics of the legislative sausage-making, but my only option was to either vote “yes” or “no,” and, with the one exception noted above, I had no huge reservations—other than the optics.
The optics relate to people’s faith in government. All of the changes in S 4 and H 17 were adopted through party-line votes on bills that had gotten very little public participation. While outside groups managed to bury legislators in emails mostly from people living in other parts of the state, country or world, I received over 50 communications from my district — all expressing dismay about the process and most questioning the policy.
A fairly balanced summary of what became law in the Fourth Extra Session can be found in the Asheville Citizen-Times, in an article by Mark Barrett.