Why the legislature now operates this way and why it’s a big problem
The North Carolina General Assembly (or, at least, a goodly portion of it) returned to town last night. Nearly four months after having passed a new state budget—the event that used to signal the conclusion of an annual legislative session—lawmakers are back yet again.
The top agenda item this time for our “part-time” lawmakers: to override Governor Cooper’s veto of a bill to alter state elections passed during their last cameo appearance in the state capital. At least, that’s what we think the plan is. Though the Senate acted last night, no one knows for sure. The move comes just days after legislative leaders had stated publicly that no such action would be taken until at least January of 2018.
This makes roughly a half dozen times this year that lawmakers have convened, departed and returned. Though legislative leaders have wised up (at least from a P.R. perspective) and stopped always referring to their serial returns to Jones Street, as “special sessions,” (there were at least five of such sessions in 2016—remember the HB2 session and the pre-holidays session to undermine Roy Cooper?) that is, effectively, what’s been going on with great regularity for several years. Rather than coming to Raleigh for a single annual session and then returning upon its conclusion to their homes, jobs and families as was long the tradition in the state, lawmakers—especially since Republicans assumed control back in 2011—now operate under a new model.
In the new system, the General Assembly is essentially always subject to being called into and out of session in short order depending on the political wants and whims of a handful of powerful leaders—most notably Senate President Pro Tem Phil Berger and House Speaker Tim Moore. Some special sessions have even been called, for tactical reasons, with just a few hours’ notice and while legislators were already in Raleigh.
So, why the change? Why would lawmakers—especially arch-conservative lawmakers who have long cried out for “small government” and even sponsored legislation to impose limits on the length of legislative sessions—hypocritically embrace a structure in which the legislative branch (thanks to staff increases) is larger than ever and in which legislative sessions are now effectively permanent?
At least three main explanations stand out.
Number One: Control. Democratic government is messy and difficult. This is especially true in our present era in which voters and their representatives are divided along some pretty bright lines on numerous high-profile issues. By arranging legislative sessions so that they come and go very quickly based upon the call of legislative leaders, the messiness and difficulty factors are greatly reduced as rank and file legislators, the media, advocacy groups and citizens have decidedly less power in numerous ways.
Think about it: Under the old system, passing a bill often takes weeks or months. A proposal has to be introduced, referred to a committee, be subject to some measure of public input and then receive floor debate. Then, if it passes one house of the legislature, the process is repeated in the second house. For many of these bills, the governor then has 30 days to sign them or issue a veto. An advocacy group might, for instance, be able to plan a “lobby day” at the General Assembly many days, or even weeks, in advance so that it would rightfully expect to have some chance to influence the process.
In the new system, most, if not all, of these procedures are short-circuited. If they happen at all, committee meetings can be kept to a minimum and occur with just a few minutes’ notice. Normal time frames whereby bills are considered on multiple days can be waived, and rank and file legislative members—especially in the minority party—can be kept in the dark and off balance. HB 2, of course, was the classic example as it went from the back of an envelope to state statute in less than 24 hours.
In recent sessions, legislative leaders have even pushed this model a step further by bending their own rules to insert completely new legislative proposals into bills that had already passed both houses and that were simply residing in “conference committees” (i.e. small, leadership controlled groups that are supposed to exist only to work out the differences in House and Senate versions of the same bill). With conference committee reports, no amendments or further committee meetings are even part of the process so that members must simply vote “yea” or “nay.”
This is what happened with the bill on which lawmakers are expected to override Governor Cooper’s veto this week. Senate Bill 656, the badly misnamed “Electoral Freedom Act” had nothing to do with the scheduled primary election for judges next spring until just a few days ago when lawmakers inserted the provision to cancel the judicial primary with no notice whatsoever.
Number Two: Stealth. When one’s goal is to implement a radical policy agenda that bears only an occasional resemblance to what the public really wants and even less resemblance to what is needed, stealth and the confusion it sows are the allies of the people in power. And so it is that North Carolina lawmakers continue to take whatever steps they can to shield their actions from thorough public scrutiny.
In addition to the use of hastily arranged special sessions, this means, among other things:
- burying scores of important substantive provisions in the budget and various “omnibus” and “technical corrections” bills,
- crafting bills in secret and springing them on rank and file lawmakers at the last minute,
- passing bills under cover of darkness during late night sessions,
- using parliamentary procedures to limit debate and force early votes on matters most members do not fully understand.
While each of these tactics has been used at times by powerful lawmakers for decades—if not centuries—each has been taken to new levels by the current leadership in the General Assembly. As with the gerrymandering they’ve perfected to cement their positions, legislative leaders have made their predecessors look like amateurs when it comes to bending and ignoring the rules related to process and transparency.
Number Three: Because they can. Of course, in a world in which dozens of dedicated journalists from essentially all of the state’s major news outlets were covering and exposing every aspect of the General Assembly and state government (as was the case only a couple of decades ago in North Carolina), such stealthy power grabs would have been much more difficult. Unfortunately, in today’s world—a place and time in which just a handful of overwhelmed reporters try to keep up and in which the editor of Raleigh’s News & Observer rather remarkably dismisses such coverage as “spinach”—the environment is ideal for the majority’s cynical tactics.
An assault of democracy
There are a lot of obvious reasons that the new mode of operation at the Legislative Building is bad news. That the vast majority of the state’s elected senators and representatives have been reduced to little more than a studio audience for a show being stage managed by a handful of super-powerful lawmakers and their aides is bad enough. That the show in question is being dosed out to and filtered through a small and shrinking number of mostly overwhelmed journalists and news outlets makes it worse still. It’s the kind a scenario that would make Donald Trump and his minions look on with great longing. This week’s session, in which no one could say as late as yesterday what would be voted on and when, is another classic example.
Ultimately, however, what’s by far the worst aspect of this new system is not the power concentration or the secrecy involved, but the way in which it abets the slide toward tyranny. As Professor Gene Nichol so insightfully outlined in a powerful essay last week, North Carolinians of 2017 are rapidly losing what had been thought to be a constitutionally guaranteed right to self-government as the current legislature continues to implement what can only be described as “banana republic” tactics.
This week’s session, in which as Nichol reminds us, lawmakers will likely take the remarkable step of simply canceling an election with which they don’t care to be bothered, ought to be a moment of raucous public debate. Unfortunately, thanks to cynical manipulations of those in power and a diminished media, it’s more likely to be a moment of distracted yawns.