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UPDATE: The following article, published Dec. 20, 2016, looks at events from two recent special sessions of the General Assembly and the expected results of a third special session to consider repealing House Bill 2, the so-called “bathroom bill.” However, as of 8:15 p.m. Wednesday, the N.C. Senate voted against a repeal bill that included a six-month moratorium on anti-discrimination measures from local governments and the House adjourned without any action, according to various media reports. Republican legislative leaders said early Wednesday that they encountered more opposition to repealing HB2 than anticipated, in part because some lawmakers did not trust the city of Charlotte leaders with whom state leaders negotiated the deal to repeal the law. The addition of the moratorium failed to appease some Republican lawmakers fully, while angering many Democrats.
RALEIGH – The potential repeal of HB2 is the latest in a string of end-of-year moves by the North Carolina General Assembly, as the state transitions rapidly into divided government for the first time in four years.
Gov. Pat McCrory issued a proclamation Monday afternoon calling the legislature into session Wednesday at 10 a.m. after a surprise move by the Charlotte City Council to repeal a portion of human rights ordinance that extended protection on the basis of gender identity.
Charlotte Mayor Jennifer Roberts told the council Monday morning that governor-elect Roy Cooper had assured her that the legislature would offer a full repeal of HB2, which also rolled back employment discrimination protections, if Charlotte moved ahead in striking the rules it adopted in last February.
Cooper announced shortly after the council’s actions that he had received assurances from House Speaker Tim Moore, R-Cleveland, and Senate President Pro Tem Phil Berger, R-Rockingham, that they would offer a full repeal.
McCrory also quickly announced he would call a legislative session as promised now that Charlotte had made good on its end of the bargain.
But McCrory and later Moore and Berger both denounced Roberts and Cooper, reiterating a stance taken during the bitter governor’s race between Cooper and McCrory that HB2, passed by the legislature in March, was a ploy used by Democrats to win the governor’s race.
Heated special sessions
The repeal session follows a week of legislative action that included both strong agreement and bitter disagreement between the Republicans and Democrats.
In two back-to-back special sessions last week, the General Assembly tapped reserve funds to cover disaster relief, then pivoted to a partisan-fueled effort to dial back the powers of incoming Democratic governor Roy Cooper.
The Disaster Recovery Act of 2016, passed quickly and unanimously and was signed by the governor Thursday. The bill allocates $200.8 million in state aid with the money going mainly to assist in the recovery of 49 eastern counties damaged in flooding from Hurricane Matthew.
About $25 million is directed to western counties, mostly to cover costs of fighting wildfire. Other pieces of the funding will go to match federal funding, replenish the state’s emergency funds and pay for planning for future emergencies.
The unanimity of the passage of the act quickly dissolved after the special session closed and a new special session was opened. The second session, called on the basis of a petition circulated among Republican members, opened without a specific purpose.
Asked why the session was needed and what bills would be heard, Moore said the agenda was open to any legislation any legislator wanted to offer.
Democrats later questioned the validity of the session and said it would likely lead to a constitutional challenge in the courts. That outcome became even more likely as a slew of bills were filed throughout Thursday afternoon. By then end of an abbreviated bill-filing window, 21 bills were filed in the House and seven in the Senate.
The bills ranged from protest bills filed against I-77 toll lanes, to a revival of a major regulatory omnibus that was one of several bills left hanging during the regular session after the last minute rebellion against Asheville redistricting legislation scuttled an end-of-session deal between House and Senate leaders.
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Only a handful of bills made it to a final vote. They included last-minute appointments requested by McCrory and two bills that together restructured the state’s judicial branch, created a new board to handle ethics and elections oversight, greatly reduced the number of employees the governor can hire and fire and took away all of the governor’s appointments to UNC campus boards of trustees.
In announcing the proposals and through the two day session, advocates said were long-needed reforms that could only be done between elections. A coalition of groups already wary of a previously rumored plan to expand the state Supreme Court joined with Democratic representatives to quickly label the new session a power grab.
The rest of the session saw periodic rallies and protests and the final votes were taken while protesters stomped on the floor above and knocked loudly on the doors of the galleries, which had been cleared and locked. Over two days, 56 people were arrested.
“I hate to make it about process,” Sen. Terry Van Duyn, D-Buncombe, said during the session, “but we learned from HB2 that when we move this quickly without public comment there are unintended consequences that you don’t get identified until it is too late.”
Van Duyn said it’s hard to escape the perception that the Republican leadership didn’t like the outcome of the election and is trying to change the rules.
“That’s not why were here,” she said. The extra special session, she said, “is only about maintaining the majority party’s prerogatives going forward.”
Sen. Ralph Hise, R-McDowell, said part of the motivation for the bills was the need to enact long-sought changes in between elections, but he also agreed that the legislature wants to shore up its ability to set the agenda.
“This is something we feel is a necessity,” Hise said. “This is about what we’ve done over six years as a legislature and protecting those (accomplishments).”
Hise said that unlike the protests in Raleigh he hadn’t received much feedback from his district.
“There’s a lot of organized chatter that’s filling up the in boxes,” he said. “We go through them and less than a dozen are actually coming from my district.”
Bills make deep changes
Senate Bill 4 and House Bill 17, which passed Friday, represent the broadest restructuring of state government in a decade. Though couched as reform, they represent a significant rollback in the governor’s powers during a change in party in the executive branch.
In a press conference Friday, Cooper denounced the moves, telling legislators to go home. He said the changes go beyond just a partisan move and could do damage to institutions in the state. He threatened to mount a legal challenge on some of the changes.
“I will use every tool in the Governor’s Office to fight for everyday North Carolinians, including the courts if necessary,” Cooper said in a written statement. “If I believe that laws passed by the legislature hurt working families and are unconstitutional, they will see me in court, and they don’t have a very good track record there.
Senate Bill 4, the Bi-Partisan Ethics, Elections and Court Reform Act, creates a new State Board of Elections and Ethics Enforcement, merging the state Board of Elections and the state Elections Commission. Unlike the current seven-member state board of elections, which tilts in favor of whichever part hold’s the governor’s office, the new eight-member board will be split evenly between the parties. Major rulings would require a vote of six members.
The current three-member county boards of elections, which have a majority two members from the party of the governor, will grow to four, also split evenly between the parties. A further provision would effectively designate the GOP representatives control of the board during General Assembly election years.
The bill, which McCrory signed shortly after it landed on his desk Friday afternoon, also changes the state appeals process by routing certain types of cases that now head from a three-judge panel directly to the state Supreme Court. The changes affects constitutional challenges, which a losing party could now to the full Court of Appeals.
Opponents of the move say the provision is a legislative reaction to the recent shift in the partisan makeup of the state Supreme Court and a group of recent losses under the current system, including McCrory v. Berger, which shot down a legislative attempt to set up a coal-ash oversight board and two other boards with a majority of members appointed by the General Assembly.
House Bill 17, Modify Certain Appointments/Employment, reduces the number of positions appointed by the governor from 1,500, granted under McCrory, to 425, which was close to the number employed at the beginning of Gov. Bev Perdue’s final year in office in 2012. The change puts hundreds of state employees appointed by McCrory under the State Personnel Act.
While the new governor will retain hire-and-fire authority over the upper management and policy levels of each department, he’ll face another layer of scrutiny at the very top.
The bill, which has yet to be signed by McCrory, grants the Senate advice-and-consent power over all cabinet appointments. Under the provision, any Cooper appointments made prior to the upcoming session of the legislature, could be rejected through a Senate resolution.
In addition, the bill also shifts much of the power over K-12 education from the state school board to the Office of Superintendent and eliminates all of the governor’s appointment powers for boards of trustees of UNC system campuses.
Although he voted for the two bills, Rep. Chuck McGrady, R-Henderson, said he did so reluctantly.
“I am not in agreement with all provision in these bills,” he said. “There’s a lot in them. You’ve got things that you think are good policy and things that you’re not sure are or don’t even like and they’re combined. It’s not like you can vote in the middle. You either vote yes or no and you weigh the difference.”
During the special session McGrady sponsored one major piece of legislation, a version of the the Regulatory Reform Act of 2016 that he said represented a compromise struck at the end of the regular session by House and Senate negotiators, but was never voted on.
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The new version also failed to get a final vote after Senate negotiators insisted on provisions on wind energy rules, electronic recycling and alcohol regulations the House had rejected.
Environmental groups criticized the new version of the bill because it contained rollbacks in stream and buffer protections.
McGrady said there were aspects of the bill he’d like to change, but offered it because it represented a fair compromise settled on at the end of the regular session. He said he would likely reintroduce the measure in the upcoming session.
“I’m not at all unhappy that the bill didn’t pass because I think that frankly we can pick it up in a few months and get it right,” he said.
The disaster recovery bill, he said, should take care of most of the funding concerns around the wildfires, McGrady, who began work drafting the legislation in mid-November, said.
Unlike the eastern floods, where the damage, especially to infrastructure, has been difficult to fully assess, the state forest service has done a good job keeping track of its costs.
He called the $25 million in the disaster recovery bill “a huge start” toward covering the costs of the fires.
“Arguably we have captured a higher percentage of the damages related to the fire in the west than we captured related to the water in the east,” McGrady said. There would like be a follow up bill in the next few months, he said.
Hise said the state was lucky not just to have the support of firefighters from dozens of states, but because nearly all the wildfires touched federal lands, triggering federal support.
“That means we have a tremendous amount of federal resources that are available to fight the entire fire,” he said. “The risk is if we have one of these of this size and it’s not part of federal land, the state may not have the equipment to fight it,” he said. The state, he said, may need to update its firefighting aircraft.
Hise said the forest service has also expressed concern over a buildup of underbrush in old-growth forests that fueled some of the fires.
“We’re really going to have to start looking at some of these areas and how we can go in there clear it out and get some new-growth forests to come in and fill the area and how we cycle that.”
He said he the state should look at ways to bring the timber industry in to clear certain areas with heavy growth to reduce the risk.