As you no doubt have heard, General Assembly Republicans put on quite a show yesterday. Minutes after passing a $200 million relief package for victims of Hurricane Matthew and the wildfires in western North Carolina, Senate President pro tem Phil Berger announced that another special session
—that's two in one day and four this year total, for those of you keeping score — would convene.
Rep. David Lewis told reporters after the House adjourned for the night that the legislature definitely wouldn't adjourn before Friday, and could very well be here until next week. So here's a rundown of what happened, and what might happen next.
What has actually passed so far?
The Disaster Recovery Act of 2016, a $200 million relief package, passed unanimously in both chambers of the legislature. Democrats put up a small fight on a couple of points — on it not being a big enough package, on the lack of a timetable for fund disbursement, on the lack of direct assistance to families — but everyone supported it. It's now awaiting the Governor's signature. Everyone was happy for about five minutes, and then the legislature called another special session
What was introduced?
By the time the House closed the filing period for bills, twenty-eight bills had been filed overall; twenty-one in the House, and seven in the Senate. They stretch from very big things — including one bill that requires Senate confirmation of all of Roy Cooper's cabinet appointments— to small bills that won't go anywhere, unless they're gutted and replaced with more nefarious things.
The Big Ones
Arguably the most controversial is HB 17
. Among other things, HB 17 mandates that all of the governor's cabinet appointments require Senate approval. While this might seem innocuous on its face — this is the way cabinet appointments are done at the federal level, after all — Lewis admitted to reporters afterwards
that Cooper's election was the driving force behind legislators deciding to do this in the short session, rather than wait until the longer one. So, if McCrory had won, it's likely this bill (or even this session) would have never seen the light of day.
HB 17 also delegates much more authority to the Superintendent of Public Instruction, a seat which was (surprise!) won by a Republican. One change? The new SPI, Mark Johnson, will now co-supervise the School Achievement District with the state Board of Education.
Still more HB 17 stuff: the General Assembly will take the authority of the governor to appoint people to UNC schools' Boards of Trustees and hand it directly to the General Assembly:
Finally, HB 17 takes one more swift kick at Cooper:
So, yeah. There's a lot to unpack in this bill, but the most important takeaway from this bill and the others is that this is a warning shot at Cooper from the General Assembly.
SB 4 has several parts, but the biggest would be to merge the Board of Ethics and the Board of Elections into one big board called the Bipartisan State Board of Elections and Ethics Enforcement, which has eight members - four Republicans and four Democrats, with the governor choosing two of each, the Speaker choosing one of each, and the Senate president choosing one of each. At the county, it would also be an even split, two-to-two. As Rick Hasen of Election Law Blog points out
The Democratic party appointees to the election board would chair in odd numbered years, and the Republican party appointees would chair in even numbered years (see page 4 of the bill), meaning that they would chair in each of the years in which there are legislative, congressional, and presidential elections.
Currently, the way it works is that the governor's party controls the state and county Boards of Elections. Rep. David Lewis told the INDY
that if there's a 4-4 tie under the new makeup of the board, the appeal would go to court.
In addition, the bill would restore partisan elections for the state Supreme Court and North Carolina Court of Appeals, in an attempt to correct a dumb mistake that helped push them out of the Supreme Court majority in the first place. NC Policy Watch's Melissa Boughton also notes
that SB 4 would "change the appeals process, making it more difficult to get cases to the high court." Hasen again
The state supreme court would be limited in reviewing state constitutional and federal challenges, giving the power instead first to an en banc panel of intermediate appellate court judges (who of course are Republican majority) and limiting appeals as of right (see from pages 20 on in the bill).
Finally, SB 4 gives the governor the authority to appoint a chair of the Industrial Commission on "December 30, 2016, and every four years thereafter" —meaning that McCrory will get to pick the next one. On the flip side, Cooper will get to pick the next one in four years, as long as the General Assembly doesn't pull it out from under him again.
HB 6 takes the position of the Chief Information Officer, created by McCrory, out of the governor's cabinet and makes it an executive of the Department of Information Technology, which would become an independent agency rather than an agency of the governor's office. Furthermore, it gives the Lieutenant Governor — Forest — the authority to nominate the CIO, who will then be confirmed or rejected by the full General Assembly. Once confirmed, the new CIO will serve a five-year term.
In a press release, the North Carolina Democratic Party criticized the Republicans as "strip[ping] Governor McCrory of one of his proudest accomplishments, which was making DIT a cabinet agency." He's not even out of office yet, Democrats; maybe wait a couple of minutes before you start trying to rally people behind his 'proudest accomplishments'.
Seems like the much better argument to make would be that it's wrong to strip Cooper
of this authority, or even that a culture war true believer like Dan Forest shouldn't be entrusted with picking the state's top technology officer, but I guess that's why I'm not a Democratic operative.
SB 6 & 7
These bills will confirm two people to business court judgeships. One is Andrew Heath, a close associate of McCrory who told the N&O
this year, “I don’t think it’s a surprise that I’m a McCrory supporter. I was a McCrory supporter in 2008. I was a supporter in 2012. And of course I am now. I’m a fan of the governor, and I’m a fan of what he’s doing.”
That support has paid off: Heath became chair of the Industrial Commission in 2013 and McCrory's budget director earlier this year. Now, at 34, he's set to become a Special Superior Court judge.
The other nomination is Adam Conrad, a partner at Charlotte firm King and Spaulding who once clerked for Clarence Thomas and also, apparently, is a member of the Federalist Society
is the "Regulatory Reform Act of 2016." This mostly seems to be a rehash of last year's SB 303
, which died in the Senate. Among other things, some counties (including Orange) won’t have to do fuel emissions tests, a lot of DEQ reports are going to be eliminated, and it looks like the government wants to start charging to fulfill public records requests. Elon University has a good rundown
on the open government/privacy issues associated with this one, and this part sticks out:
Finally, the bill would change how agencies are required to provide access to public records and electronic databases. Under existing law, an agency must permit inspection or provide a copy of a record or database upon request, unless it is otherwise exempt. The person making the request has the choice of format, as long as it is one in which the agency is capable of reproducing the record.
The bill would permit agencies to satisfy their obligation under the Public Records Law by making records and databases accessible online in a format that allows the record or database to be downloaded. The agency would not be required to provide the record or database in any other form or format. The agency could choose to provide the record or database in another format "as a service to the requestor" and would be permitted to "negotiate a reasonable charge for the service."
Put more simply:
Out of all of the bills filed, these six are the most notable, but there were nineteen other non-procedural bills that were filed. Here's a quick rundown of some of them.
The Other Bills
The 'No Chance in Hell' bills, i.e. the bills introduced by Democrats
The Democrats filed some bills that probably will not go anywhere. HB 10
, a bill by Rep. Rodney Moore to prohibit discriminatory profiling by law enforcement, is probably the best bill introduced during the session, but alas, it has no chance of passing.
There are a pair of anti-I-77 toll bills offered up by Rep. Tricia Cotham and Charlotte-area Republicans. Technically, these do have a bit more of a chance of passing considering how this issue was very likely part of the reason McCrory lost
, but this was a tenuous issue during the long session. Unless this makes it into some sort of a deal to bring along some Republicans who were hesitant to attach their names to what's sure to be another deeply unpopular special session, don't count on it.
In addition, Democratic House leader Larry Hall filed two bills in the third special session to restore early voting days and create a nonpartisan redistricting process. That session is done, and there was no action taken.
The small bills
There were several small bills, some local in nature, that will either have no action taken or likely could make it into one larger omnibus bill, but on their own, it's hard to see them making it all that far.
Notable ones include a 'puppy mill
' bill, which was an unfulfilled priority of both Pat McCrory and First Lady Ann McCrory over the past four years, and a bill filed by Senator Brent Jackson to repeal a sales tax exemption
on "certain property used in wastewater dispersal systems."
It's not likely these will pass on their own, but they could show up in a larger bill or in the next session.
The education bills
Four House bills introduced yesterday dealt with education. One
concerns the flexibility of school boards to schedule their start date at the same time as local community colleges, one
concerns classroom sizes (read this
for more background on this issue), another
would designate December 20 as 'State Employees' and Teachers' Appreciation Day', and yet another
would give a one-time $1,000 holiday bonus.
Like the other small bills, odds are that these won't see the light of day unless they're stuffed in a larger bill or gutted to make room for something else.
The 'Justin Moore shoots his shot' bills
The reason the House kept pushing their deadline back, it seems, is so Rep. Justin Moore - a Mecklenburg County Republican who is fulfilling the term of former Rep. Charles Jeter, and didn't run for election in November, meaning this is literally his only week in the legislature — could file a bunch of bills
that don't make sense if you put them altogether. Unless Moore is planning on running against Chaz Beasley in 2018 (or 2017, depending on legislative redistricting), it's not clear why he filed so many bills.
The bills Moore introduced, though, weren't half bad. HB 18
would prevent mug shots from becoming public unless it's a felony. Given that this is largely the same body of people who overwhelmingly supported the terrible body camera law
last year, however, I wouldn't count on it. Moore also introduced a bill that would give $350,000 to Big Brothers Big Sisters for mentoring.
So, what happens next?
First, here's what hasn't happened yet: the heavily rumored packing of the Supreme Court didn't show up in any of these bills (but something with the judiciary did, more on that later), and Republican leaders maintained that probably wouldn't happen, even through the fourth special session.
Other rumors concern Lieutenant Governor Dan Forest taking control of certain executive agencies, such as the Department of Administration or the Division of Medical Assistance (which administers) Medicare. Still other
rumors held that the Department of Environmental Quality might be transferred to Commissioner of Agriculture Steve Troxler, or that the Attorney General-elect Josh Stein might have to get legislative approval to file lawsuits on behalf of the state.
Make no mistake about it, however; even though none of these things showed up in any of the bills filed, that doesn't mean they won't magically appear later on. Republicans could gut and amend anything that was filed on Wednesday and probably ram it through, considering they have two supermajorities. Remember the motorcycle abortion bill
? At this point, nothing can be ruled out.
Today marks the start of committee hearings
on all of these bills; S4 will be the first one taken up, at 8:30 a.m. by the Senate Committee on Redistricting.
Either way, today marked the start of what is sure to be a highly-public four-year battle between Roy Cooper and the Republican leadership in the General Assembly. Given the precedent set by McCrory to sue the legislature over the Coal Ash Commission
, Cooper will probably sue to regain authority over some of these things. In retaliation, the legislature will probably take more stuff away from him.
All of this will be done with the knowledge that Forest will most likely be the frontrunner for the Republican nomination in 2020, and that the state's failures will be seen as Cooper's failures, meaning that the legislature will probably throw the kitchen sink at Cooper to render him ineffective, all so they can say he was an ineffective governor in four years.
As for the rest of us plebs, well, we get to live with a barely functioning government. Hooray us.
Either way, we'll be covering the special session until it adjourns. Stay tuned for updates.