Berger and Moore’s latest destructive power grab

Berger and Moore’s latest destructive power grab

Why holding confirmation hearings for the Governor’s department heads is a lousy idea

Leaders of the North Carolina General Assembly have taken a lot of disastrous turns – both substantive and procedural – over the past six years. Denying health care and unemployment insurance benefits to hundreds of thousands, slashing taxes on the rich, eviscerating voting rights, waging wars on science, the environment, reproductive freedom and LGBTQ equality, pushing loaded guns into every corner of the state, and just generally undermining the health of government; the list of regressive policies goes on and on.

Meanwhile, most of these dreadful policy decisions have been abetted by a series of procedural moves designed to seize and concentrate more and more power in the hands of a narrow cadre of conservative legislative leaders. Whether it’s shutting off debate, ruling amendments out of order, calling sudden and repeated special sessions, altering the composition of committees to silence minority voices, rendering budget subcommittee work virtually meaningless, or seizing authority from local government and the executive branch, House Speakers Thom Tillis and Tim Moore and, especially, Senate President Pro Tem Phil Berger have taken repeated ends-justify-the-means steps to make themselves the final arbiters of all public policy in the state.

HB2 has provided a classic case study in this megalomaniacal pattern as lawmakers took LGBT discrimination from back of the envelope to state statute with essentially zero meaningful process and then added language attacking local governments as a topper. Several months later, when a majority of lawmakers favored repeal during a hastily called special session, the leaders prevented a vote so as to prevent Democrats from combining with a handful of reasonable Republicans to outvote an intransigent minority of conservative hardliners.

The “confirmation” hearing mess

The latest chapter in this seemingly endless series of power grabs is scheduled to get underway this week. Tomorrow, the Senate says it will hold the first of several planned committee meetings at which Republicans will purport to decide whether or not the men and women Governor Cooper has already selected and employed to lead various state departments will be “confirmed.”

As readers will recall, the idea of “confirmation hearings” for these positions is something that is foreign to North Carolina. Traditionally, governors, as head of the executive branch, have selected their own department heads to carry out the orders of their administrations. This has been the case regardless of the partisan makeup of the two branches. Prior to last December’s rump legislative special session, state law simply read:

The head of each principal State department, except those departments headed by popularly elected officers, shall be appointed by the Governor and serve at his pleasure.”

Unfortunately, in keeping with their hyper-partisan approach and ongoing effort to accumulate as much power for themselves as possible, Berger and Moore now want to change this. In December, they altered the law (with the aid of the feckless outgoing governor) to require approval by the Senate for these appointees and recently established a procedural gauntlet that appointees must supposedly run. Tomorrow, senators have scheduled a hearing at which they have said they will consider the nomination of former House Minority Leader Larry Hall to serve as Secretary of the Department of Military & Veterans Affairs. Several others are planned in the coming weeks.

A massive and bureaucratic waste of time

There are a lot of reasons why the confirmation power grab is a terrible idea for North Carolina. First and foremost is the unnecessary bureaucracy and waste. Think about it: the challenges that Governor Cooper and his cabinet secretaries confront right now are enormous. Thanks to McCrory’s refusal to concede and his destructive efforts to delay the finality of the November election, Cooper had less than 30 days to effect a transition. He entered office behind schedule in filling positions and developing a budget for the coming biennium and his cabinet secretaries entered their jobs behind schedule as well.

Meanwhile, even in Washington, where the tradition of Senate approval of cabinet secretaries is understood and established, senators commenced hearings on Donald Trump’s nominees even before he took office. Not so, though, here in Raleigh.

Amazingly, the North Carolina Senate schedule doesn’t contemplate completing the confirmation process until mid-to-late March! At a time when department heads should be moving with great speed to master their jobs and develop budgets and priorities (and in which lawmakers should be doing likewise), the Berger-Moore plan is to have all involved wasting large amounts of time on preparing for a series of “gotcha” public hearings.

The irony in all this is striking. Here’s a supposedly “conservative” legislative leadership – one that’s allegedly committed to “streamlining” government and “making government run like a business” – implementing a bureaucratic morass of hearings that’s even more complicated than those in the U.S. Senate. This: from a group of lawmakers who found themselves able to pass the most infamous law in state history in just a matter of hours.

Partisan hypocrisy

It would have been one thing if Republican leaders had attempted to institute their confirmation idea immediately upon taking power in 2011 or, at least, say, in 2013 when Pat McCrory became governor. That they did not, of course, signifies the transparently partisan nature of the scheme.

Senator Berger claims that his purpose in holding hearings is, among other things, to ferret out “conflicts of interest.” But if this is so, why didn’t he seek to do so when McCrory nominated people like Aldona Wos and Anthony Tata to cabinet positions? Wos’ husband Luis DeJoy is a huge GOP campaign contributor and, shortly after taking over DHHS, Wos handed a high-dollar, no-bid contract to one of her husband’s employees. Meanwhile, Tata continued his job as a Fox TV commentator and author of spy novels while serving as Transportation Secretary.

The explanation for the flip-flop is obvious. As with Berger’s past support of nonpartisan redistricting – something that lasted only as long as Republicans were in the minority at the General Assembly – the 2017 confirmation plan has nothing to do with a commitment to good government and everything to do with seizing and accumulating power.

The constitutional challenge

Yesterday, as is his wont, Gov. Cooper sent Berger a kind of olive branch of a letter in which he asked for some kind of a mutually agreed hold on the confirmation process until the courts dispose of Cooper’s constitutional challenge to the whole idea. He even reiterated his desire to expedite the court hearings. Here’s his conclusion:

Instead of going through all of these confirmation hearings which we believe will become moot, why don’t we instead concentrate on continuing the excellent work your leadership and I are already doing on job recruitment? We also must find a solution on HB 2 and have more detailed discussions about teacher pay and Medicaid, among many other issues. Our time and energy would be better spent on these challenges.

I know we disagree on the constitutionality of this law, but I hope we can resolve this issue concerning the delay of hearings in a manner that reflects a spirit of respect for the offices we both hold and the people of the state we both serve.”

Unfortunately, as has become his wont, Berger’s response was full of bluster and hostility. The author of countless closed door decisions even, laughably, accused Cooper of wanting to keep matters “out of the public eye.”

Going forward

Where all of this leads and ends is anyone’s guess at this point. With a massive job to do, his appointees already busy serving in their jobs and a constitutional challenge proceeding in the courts, Gov. Cooper has little incentive to send his department heads over to the Senate for partisan target practice – especially given the Trump-like tendencies that have infected Berger’s Republican caucus. Berger, on the other hand, seems perfectly willing to throw a tantrum over the whole matter, so who knows?

One thing seems certain, however. As an excellent Capitol Broadcasting Company editorial noted last week, regardless of what happens with the confirmation hearing scheme, Berger, Moore and their minions will continue to harangue and harass Cooper and his appointees.

Let’s hope Cooper intends to keep fighting back.