Special session secrecy is outrageous regardless of what’s on the agenda

Special session secrecy is outrageous regardless of what’s on the agenda

Whether it’s Hurricane relief, court-packing or something else, legislators should have provided details several days ago

The North Carolina General Assembly returns to Raleigh today for a special, lame duck legislative session. The ostensible purpose is to take actions that would supplement ongoing efforts to provide relief to victims of Hurricane Matthew and recent wildfires that swept through the drought-parched western part of the state.

As dozens of news stories and the state government rumor mill have made distressingly clear in recent days, however, it’s a virtual certainty that lawmakers will expand the agenda to include other items. Here’s Colin Campbell of Raleigh’s News & Observer in a story yesterday:

Gov. Pat McCrory has scheduled a special session of the state legislature for 10 a.m. Tuesday, and four words in his proclamation are fueling speculation that lawmakers might go beyond disaster relief.

McCrory called the session to allocate disaster funding to help victims of Hurricane Matthew flooding and wildfires in Western North Carolina. But the governor left Tuesday’s agenda open-ended: The proclamation says the purpose also includes ‘addressing any other matters’ legislators want to consider.

House Speaker Tim Moore and Senate leader Phil Berger won’t say what else might be on the agenda, but their recent comments haven’t ruled out an attempt to add two seats to the N.C. Supreme Court. And a high-ranking Republican House member said a deregulation bill from earlier this year could resurface.

Legislators have been told the session will last two or three days.”

Other rumors have held that lawmakers will seek to pass “regulatory reform” legislation that failed this past summer or even try to restrict the powers of the Governor by transferring them to other Council of State members like the Lt. Governor or the Treasurer.

A dangerous and unnecessary road

As various schemes have emerged in recent weeks, good government advocates, editorial boards and progressive advocacy organizations have been almost universal in their condemnation.

A Capitol Broadcasting Company editorial put it this way yesterday:

The state Supreme Court has plenty of justices and doesn’t need any more. It doesn’t need to give the state Supreme Court authority to add ‘substitutes.’ It is more solutions in search of problems.

The legislature does not need to change the number of ‘exempt’ state jobs it increased to accommodate GOP political favoritism when McCrory took office in 2013. If anything, legislators should wait until next year and give Cooper the chance to make the case on the matter.

Unresolved legislation from the last session – including changes in environmental regulations and limits on wind energy development — are dead and need not be revived.”

Meanwhile, editorials in both the News & Observer and the Winston-Salem Journal have blasted the court-packing idea and called on Governor McCrory not to further tarnish his already dingy legacy. The N&O put it this way:

McCrory should avoid leaving office on another divisive note. Instead he should urge the legislature to confine its efforts to helping hurricane and wildfire victims.

Natural disaster response is one area where McCrory has earned high marks from the public. Signing smart and generous legislation to help people and towns still coping with those events [would] be a good way for McCrory to leave and a good way to be remembered.”

And yesterday, the nonpartisan government watchdogs at Common Cause North Carolina unveiled a powerful new video ad that will be neatly summarizing much of the opposition to court-packing for TV and Internet viewers this week.

In contrast, public defenses of the court-packing idea have been few and far between and mostly confined to the rants of Internet trolls and the dark hints of a handful of conservative legislators that there would be justification for expanding the Supreme Court now because Democrats voted to expand the state Court of Appeals 16 years ago. What this argument conveniently ignores, of course, is that a) the Court of Appeals does not, like the Supreme Court, hear cases as one body in which the ideological or partisan expansion division is critical, and b) the Court of Appeals expansion in 2000 was driven, at least in part, by expanding caseloads and recommended by a bipartisan commission – conditions that are clearly not present in 2016.

A less obvious but even more important injustice

As outrageous as the court-packing scheme (or any other dark-of-the-night power grab) would be, an even greater and more disgraceful aspect to this week’s session is one that most observers have, sadly, all but ignored in recent days. This would be the very fact that such a session has even been called without real notice to the citizenry about what it might consider.

Think about it: At the heart of any democracy is the notion that government is “of the people, by the people and for the people.” This means that, absent the exigency of true emergency, laws and regulations are considered and passed in the light of day, with adequate notice for the news media to report the details and for citizens and their representatives to know and understand what’s being considered in order to make comments and give input.

In the ordinary day-to-day workings of a legislative body like the General Assembly, this kind of notice and opportunity to give input usually takes the form of things like regularly scheduled committee meetings, committee meeting notices and legislative calendars that are published ahead of time and a series of rules that typically require bills to be heard and approved, at a minimum, on multiple days.

Unfortunately, when it comes to this week’s “special” session, most or all of these basic democratic protections are getting tossed out the window. It’s truly outrageous when you take a minute to consider it: In a large and important state of 10 million people, some of the most vital laws governing the organization of our democracy – the basics of who is responsible for what and who tells whom what to do – could be markedly different 48 or 72 hours from now. What’s more, there are only a handful of people who have any real idea of what these changes will look like.

That all of this might be taking place as part of a not-even-thinly-veiled effort to overturn results of an election that occurred just a month before just makes the situation all the more shameful. It is the stuff of Putinism, “banana republics,” tin pot dictatorships and an ends-justify-the-means cynicism on a massive scale.

As Professor Gene Nichol of UNC Law School wrote in a fiery essay this past weekend:

Phil Berger, Tim Moore and Pat McCrory have sought not only to make North Carolina the most right-wing government in America, they also want it to be the most autocratic. Arthur Schlesinger wrote, decades ago, that ‘a totalitarian regime crushes all autonomous institutions in its drive’ to wield authority. Hail the new totalitarians.”

And even if the session does somehow end up being confined to storm clean-up matters or “regulatory reform,” it’s still absurd that we know no details of what will actually be discussed (or why or whether it’s even remotely necessary).

Last hope?

Remarkably, the last best hope for disrupting and maybe even preventing this latest Jones Street putsch may reside in, of all places, the Governor’s mansion. After four years of serving as a feckless doormat for so many things that he privately opposed (at least reportedly), Pat McCrory could, in the end, redeem part of his governorship by standing up publicly and loudly to the bullies who’ve pushed him around for so long. He could veto any new power grabs they send his way or even refuse to appoint any new Supreme Court justices or other positions that might be created.

Even if such a Christmas miracle were to occur, however, it doesn’t change the fact that this week’s special session is but the latest in a dark series of authoritarian moves by a group of state leaders that seems to hold little interest in adhering to the basic premises and rules of democratic government. Stay tuned.