Depending on the context, it could be called poor sportsmanship. Or bullying. Or a flouting of democratic principles. Or even tyranny.
Consider a situation in which a group of people are found to have violated certain rules. But the violators are able to change the rules in their favor. So that’s what they do. Problem solved – no more violation!
The Republican senators and representatives who dominate North Carolina’s General Assembly are in the midst of what could be the climax of a years-long effort to solidify and enhance the legislative branch’s and thus their own power in state government, at the executive branch’s expense.
They have sought to handcuff successive governors, Republican Pat McCrory and Democrat Roy Cooper, to the point where the state Supreme Court twice has ruled they’ve gone too far.
In each case, the governor challenged limitations on his powers of appointment. And in each case, the high court ruled that the legislature was hindering the governor from carrying out his constitutional duty to see that the laws are faithfully executed.
One can practically hear legislative chiefs muttering among themselves, “OK, we’ll fix that wagon!” And the method they intend to use is to change the constitution itself to prevent any such future challenges.
No appointments for you
In a nutshell, the constitution would be altered via House Bill 913 to specify that legislators are in charge when it comes to appointments “to any board or commission prescribed by general law.” Period.
That notably would include the board that oversees elections and enforces the state government’s ethics rules. In fact, H.B. 913 would fold into the constitution a new structure for the board, under which the governor would have no say in its membership.
That board’s makeup has been at the heart of the clash between legislators and Gov. Cooper over appointive powers – the same dispute that led to a Supreme Court ruling last year in Cooper’s favor on state constitutional grounds. With the change that Republican legislators now seek, the current governor or any successor would no longer be able to argue that stripping him of appointments, to the elections board or any board, breached the constitution’s principle that one branch of government cannot prevent another branch from doing its job.
There’s frankly no better description of this maneuver than a legislative power grab. The state’s election and ethics enforcement machinery would be placed in the sole custody of a board whose eight members would be chosen by the legislature itself.
There would be a gesture in the direction of bipartisanship, as the minority party in each chamber would get to recommend two members. So under the current partisan configuration, despite being in the minority Democrats would be able to fill four seats, although their nominees still would have to be approved by the majority Republicans.
The governor, however, would be shut out – so a governor who, for example, placed a premium on broadening access to the polls (manifestly not a Republican priority) wouldn’t be able to further that policy via any degree of control over the board.
Bait and switch
Let’s acknowledge that the structure of state government is always susceptible to change through a constitutional amendment – which occurs after a proposed change is approved by the voters in a referendum.
So if the people in their wisdom decided that the governor not only should have his powers curtailed but should become a total legislative puppet, appointed by lawmakers and serving at their pleasure, then that’s the way it would be. It would be a radical departure from the tried-and-true principles of separation of powers and checks and balances, but at least theoretically it would be a choice made with eyes wide open.
By contrast, the legislature’s H.B. 913 gambit is rooted in deception. It uses language obviously meant to hide from voters the real substance of what they’ll be asked to approve.
The constitution would be amended in five different ways, including the addition of a new section setting up the “Bipartisan State Board of Ethics and Elections Enforcement.” Other amendments would fall under sections entitled “Separation of powers,” “Powers of the General Assembly” and “Duties of Governor.”
A key change would declare: “The legislative powers of the State government shall control the powers, duties, responsibilities, appointments, and terms of office of any board or commission prescribed by general law. The executive powers of the State government shall be used to faithfully execute the general laws prescribing the board or commission.”
Another change seemingly would reinforce the separation of powers by barring legislators from serving on a board or commission “that exercises executive or judicial powers.” But the thrust of the changes is to lock the governor, with regard to powers of appointment, into a posture of subservience to the legislature.
For all that, voters would be asked to vote for or against the changes on the basis of this wording alone: “Constitutional amendment to establish a bipartisan Board of Ethics and Elections to administer ethics and elections laws, to clarify the appointment authority of the Legislative and the Judicial Branches, and to prohibit legislators from serving on boards and commissions exercising executive or judicial authority.”
There’s not even a mention of the governor, whose office would lose out on prerogatives long enjoyed by chief executives of both parties. Legislators could delegate to him the right to make certain appointments, but he’d still be more or less at their mercy.
It wasn’t as if these changes and their implications were thoroughly and publicly vetted. H.B. 913 – which originally dealt with another subject altogether – was unveiled in its current form by a House committee on June 25. By suppertime on June 27, it had cleared both chambers on party-line votes and become law.
Because a governor isn’t allowed to veto proposed constitutional amendments, Cooper couldn’t even go through the motions of issuing a veto only to be overridden, as typically happens because of Republican supermajorities.
Amendments to avoid
Aside from its raw cynicism, why should this assault on the governor’s appointment powers be something to be concerned about?
First, as the Supreme Court recognized, it’s more difficult for a governor to execute the laws as he or she, not the legislature, thinks they should be executed when he or she has no control over the membership of key panels such as the elections board or the Environmental Management Commission. The governor, elected by all the state’s voters, deserves that kind of leeway and authority to help achieve the agenda on which he ran.
Second, in the real world of 2018, North Carolina’s governor champions an agenda in line with the needs of a state where public education continues to be shortchanged, where taxes have been recklessly slashed in favor of the well-off, where rural counties continue to sink into the economic doldrums, where environmental protections have been sapped in deference to polluters.
To subvert the sitting governor’s powers while enhancing the legislature’s is likely to mean tilting the policy scales against what the N.C. Council of Churches and its allies see as the public interest – especially the interests of those residents who struggle amid their own powerlessness.
Perhaps this legislative session’s most notable legacy will be its push for several constitutional amendments – all in furtherance of the Republicans’ efforts to hold down the number of Democratic-leaning voters, to maximize turnout among their own base and to propel the state’s judiciary toward the right.
It looks as if a half-dozen such proposals will wind up as referendums on the ballot. All shape up as what many church-goers will recognize as poisonous fruit – perhaps tempting but best left to dangle untasted on the vine.
