“Democracy dies in darkness” isn’t a new phrase but it’s certainly one that has gotten a lot of attention during the Trump era. North Carolina Republicans, though, are apparently working from a different playbook, and they want to shut the lights off completely.
House Bill 1029, which is currently sitting on Gov. Roy Cooper’s desk, would make all State Board of Elections investigations confidential, effectively shutting the door to any public scrutiny, particularly when it comes to campaign finance violations.
Provision IV of the measure would also limit who could file a complaint with the State Board, restrict investigators in how far back they could look at allegations and require second investigations before evidence could be turned over to a prosecutor.
Cooper said in a press conference Tuesday that the provision was a deal breaker for him, and that there should be more transparency, not less, in light of the “blatant election fraud” that might have occurred in the 9th congressional district this year.
“You would think that the response would be making sure investigators and prosecutors have more tools to uncover wrongdoing and that more light could shine on these disturbing allegations,” he said. “Well, you would be wrong. … This bill makes it hard to root out corruption in elections and campaign finance.”
He’s not the only one who thinks so. Voting rights and democracy organizations, advocates and Democratic lawmakers have taken issue with shutting the public out of State Board investigations.
“There is so much in politics right now that shows us why the public deserves transparency,” said Rep. Graig Meyer (D-Durham, Orange). “It’s incredibly tone deaf of the legislature to be restricting access to public investigations of elected officials.”
He added that elected officials who commit major campaign finance violations are breaking the public trust, and that people deserve to know about it.
“And people deserve to have that information in front of them when they vote,” Meyer said. “I couldn’t support the secrecy provision and believe that this is important enough that it was worth voting against the bill.”
No public attention
The State Board as of press time was still working on a response after multiple emails asking for comment on the provision making its investigations confidential. It also has not yet responded to requests asking how many investigations it handles per year.
There have been at least two major campaign finance investigations the State Board has wrapped up in the past few months – one involving Democrat Rodney Moore, which resulted in his case being sent to prosecutors, and another involving Republican Ralph Hise, which resulted in a plea agreement and modest fine.
The State Board found that Moore had failed to report more than $141,000 in campaign contributions and expenditures, including nearly $25,000 in ATM withdrawals. The State Board’s involvement in the case was concluded before the midterm, and Moore lost re-election.
Hise was forced to pay a $500 fine and reimburse the state for $4,000 in expenses charged during a two-year investigation into allegations of campaign finance violations. The case was not finalized until after the midterm, and Hise was re-elected to serve another two-year term in the legislature.
If HB 1029 had been in effect, the public would not have even known that Moore or Hise were being investigated, much less that they were culpable for any wrongdoing.
Similarly, the State Board has recently been investigating alleged absentee ballot fraud in the 9th congressional district midterm race. Not every detail of the investigation has been released, but what was told to the public led to some North Carolinians to come forward with pertinent information.
“It should concern anyone who cares about holding political corruption to account that confidentially changes in House Bill 1029 would block the State Elections Board from hosting investigative public hearings on campaign finance violations,” said Democracy NC spokesperson Jen Jones. “Without public hearings and attention, local district attorneys can simply ignore wrongdoing. Longstanding problems that have recently come to light in places like Bladen County show why outside pressure and public attention are vital — not just giving secret information to local officials and leaving enforcement completely up to them.”
Bob Hall, who is retired but used to direct Democracy NC, expressed similar concerns. He said that under the legislation, the State Board not only could keep the contents of an investigation secret but also the identity of anyone under investigation.
The lack of transparency means there would be no public attention and would mean that prosecutors wouldn’t feel any public pressure.
“How much is the public going to be in the dark?” Hall asked. “Is it going to shut down the Board from fact-finding hearings?”
‘We must strengthen confidence’
Rep. David Lewis (R-Harnett) did not respond to two emails seeking comment about why the confidentiality provision was added to the bill. Such a provision has not previously existed in State Board legislation.
Lewis and Senate President Pro Tem Phil Berger did, however, issue statements Tuesday in response to Cooper’s threat to veto HB 1029. They were furious about Cooper’s press conference and accused him of holding the State Board and it’s 9th congressional district investigation hostage.
“Gov. Cooper laid bare what he’s sought for two years: partisan weaponization of the Board of Elections’ investigatory power,” Berger wrote.
Cooper said Tuesday that he wanted to give the legislature time to fix HB 1029 before vetoing it. He also said if lawmakers removed Section IV, he would sign the rest of the bill in its current form.
“This is a time when we must strengthen confidence in our elections, not weaken it with added secrecy and road blocks for investigators and prosecutors,” Cooper said. “Fix it this week and I’ll sign it.”
Lewis indicated in his statement after the press conference that the provision making campaign finance investigations confidential was needed for “due process protections.”
It should be noted though that ordinary members of the public being criminally investigated are not afforded such “due process protections.”
Most Democratic Senators voted for HB 1029 – and many said later that they had to balance the good in the bill with the bad.
Most of the bill is about returning the current State Board (the set-up of which has been declared unconstitutional) to two agencies: a five-member State Board of Elections appointed by Cooper and an eight-member State Ethics Commission with four members appointed by Cooper and four members appointed by the General Assembly.
It also returns lobbying enforcement to the Secretary of State’s Office.
“If we expect the majority party to work with us, we need to be more than obstructionist, and willing to compromise,” said Sen. Terry Van Duyn (D-Buncombe), who voted for the bill. “I was expecting a much worse bill, including taking campaign finance away from the Board of Elections and keeping lobbying oversight with the Ethics Board. When they restored the structure to something so similar to the pre-2016 structure, that seemed like a huge concession to me, and I wanted to acknowledge that by voting for the bill.”
She added, though, that sometimes a provision like the one making investigations confidential, takes time to seep in.
“That’s why regular order is so important,” Van Duyn said. “We need to have committee meetings that are scheduled days in advance, so experts can weigh and and we can have meaningful debate.”
Public’s right to know
The measure, which was fast-tracked by being inserted into a conference report that couldn’t be amended, wasn’t released online to the public until over an hour into a House Rules Committee meeting on the subject. A final 19-page conference report was released to committee members less than 20 minutes before they voted to move it forward to the House floor.
The Senate had a little more time with the measure, but not much. Van Duyn and Sen. Floyd McKissick (D-Durham, Granville) raised concerns in their Rules committee meeting but couldn’t propose changes.
“I don’t mean to make excuses for myself, but I remember fondly my freshman year when we had regular committee meetings and I had time to call folks for their viewpoint before I took a vote,” said Van Duyn.
She added that she believes it is wrong for lawmakers to exempt themselves from the laws the rest of the state lives under.
“In fact, transparency is more important for candidates and elected officials,” she said. “The voters deserve to know whether a candidate is under investigation before they cast a ballot.”
Gary Bartlett, who worked as Executive Director of the State Board of Elections for 20 years, said during his time that they would preliminarily review allegations and determine whether a case was open or closed, meaning information would be available to the public or not.
Typically, cases that were closed had to rise to a higher grievance level, and while it meant details were kept from the public, it never meant the public couldn’t know who was being investigated.
“I think that the public deserves every right to know what eventually happened – it’s the public’s right to know – however, we do not need to undercut any prosecutor in them putting together a case if it were at that level,” Bartlett said.
He said a sampling of what kind of cases might be closed during his tenure included if a candidate knowingly received money from an illegal source, or if they falsely put things or omitted things on their campaign finance report, or if they tried to launder money through certain circumstances.
The number of investigations the Board had varied greatly depending on whether or not it was an election year. There were fewer investigations and more minor allegations during non-election years, but things tended to escalate with more races on the ballot.
“It never seems to fail that a party or an organization or a candidate will see how close they can get to the line for their advantage, and sometimes they went over,” Bartlett said.
McKissick voted in favor of HB 1029 but said the confidentiality provision was one of a couple that gave him “heartburn.”
“I thought it unneeded and unnecessary,” he said in a phone interview. “It decreases transparency.”
He, like Van Duyn, raised concerns in the Senate Rules committee, but weighed the whole bill before voting and thought it provided for a balance of giving the Governor his powers back and making concessions on other matters.
“I thought it was probably 80 percent fine and 20 percent, I wasn’t comfortable with,” he said.
McKissick said he’s not convinced Republicans will “fix” the bill by removing the Section IV provision, but said it was something they could certainly address at a later time without taking anything away from the current point of the measure.
“The challenge is they might have to call enough members to session shortly after Christmas – that’s what it really gets down to,” he said of just changing the bill or eventually overriding a veto. “I guess the question is how badly do they want to deal with this?”