NC legislature’s actions are ‘death by a thousand cuts’ to the separation of powers

Longtime President of the NC Center for Public Policy Research gives his analysis of actions recently taken by the Republican-controlled General Assembly to strip powers from executive branch offices held by Democrats.

1. Bad Substance:

The legislature keeps violating the separation of powers clause in our state Constitution by stripping powers from the Governor’s office and other executive officials. The NC Constitution says, “The legislative, executive, and supreme judicial powers of the State government shall be forever separate and distinct from each other” (Article I, section 6). The legislature’s actions in 2024 represent “death by a thousand cuts” of separation of powers.

NC already has one of the most powerful legislatures in the US. Meanwhile, several studies by the nonprofit, nonpartisan NC Center for Public Policy Research found that the NC governor already was one of the five weakest governors institutionally among the 50 states, judging by state statutes and state constitutions. One of the few areas where the NC governor was found to be strong at the time was in appointment powers, but over the last 14 years, the legislature has stripped the governor of power to appoint the majority of such powerful executive commissions as the Environmental Management Commission, the Coastal Resources Commission, and the NC Building Code Council, as well as the local campus boards of trustees for each of the 16 public universities. The legislature also has the power to appoint all of the members of the UNC System Board of Governors.

Now the legislature is stripping the governor of many appointments to the the State Board of Elections, the Utilities Commission, and the State Board of Education and giving those appointments to other newly-elected Republican statewide officials.

Some history: Previously, when Republican Gov. Pat McCrory was in his final month as governor in December 2016, but before Democrat Roy Cooper took office in January 2017, the Republican majority in the legislature reduced the number of positions in the governor’s office from 1,500 to 425, required all of a governor’s nominees for Secretaries to head cabinet departments to be confirmed by the state Senate, and required the nominees for election to the appellate courts to have their party affiliations listed on the ballot.

2. State Board of Elections — Particularly jarring this year is the bill’s provision stripping the governor of the power to appoint a majority of the State Board of Elections. And, to transfer these appointments and the State Board of Elections to the new Republican State Auditor is bad governance because the mission and functions of the State Auditor’s Office have nothing to do with elections administration.

Also in 2016, as McCrory was going out and Cooper was coming in, the legislature tried to change the Board of Elections from a 3-2 majority appointments by the governor to an even 2-2 split for each party and equal party control for control over county boards of elections too. The legislation said the State Board of Elections chair would be a Republican in even-numbered years, when elections are held, and a Democrat in the odd-numbered years. The state Supreme Court eventually found this bill infringed on the governor’s executive powers in a way that violated the state Constitution’s separation of powers clause.

In 2018, the voters of the state also rejected a similar legislative proposal to change the state Constitution to have the elections board members consist of a 4-4 party split. But, 61% of the public voted against this proposed Constitutional amendment.

3. Utilities Commission — This year’s bill also shifts control of the state Utilities Commission away from the governor. Previously, the governor appointed the majority of the five-member commission. The House Speaker and Senate President Pro-Tem appointed the other two members, which was already a questionable practice in having the legislature appoint officials in the executive branch. In the new legislation, one of the governor’s appointments was given to newly-elected Republican state Treasurer Brad Briner, leaving the governor with two of five appointments. Again, the mission and functions of the Treasurer’s office have nothing to do with utilities regulation.

4. Appointments by the Governor To Fill Vacancies on the Appellate Courts — The bill requires that new vacancies on the state Supreme Court and Court of Appeals be filled by requiring the governor to select appointees from a list of three people recommended by the executive committee of the political party with which the judge leaving the seat was affiliated. Rep. Marcia Morey (D-Durham), a former judge herself, said this provision violates the state Constitution.

This year’s bill also strips powers from two other Democrats newly-elected to statewide Council of State offices.

a. Superintendent of Public Instruction — The legislature stripped Democrat Mo Green, the newly-elected State Superintendent of Public Instruction, of the power to appeal decisions on charter schools made by the NC Charter School Review Board. These decisions could relate to renewals, grants, revocations, or amendments of charters to charter schools. In 2023, the legislature already had passed legislation that removed power from the State Board of Education to approve or deny charter school applications.

The legislature also transferred the Center for Safer Schools away from the Department of Public Instruction to the SBI, or State Bureau of Investigation, whose mission and statutes have nothing to do with public schools.

b. Attorney General — The legislature banned newly-elected Democrat Jeff Jackson as Attorney General from taking any position on state laws in court that is inconsistent with the position taken by the General Assembly — in the law’s words, “contrary to or inconsistent with the position of the General Assembly.” The bill specifies that the AG can’t take positions in court that would lead to a state law being struck down. This means the Attorney General is forbidden from questioning the constitutionality of laws passed by the legislature. The legislature’s record in refraining from passing unconstitutional measures is not good. As a legislator once commented to me, “What’s a Constitution among friends?!”

And, the bill also limits the AG’s participation in litigation “pending before a state or federal court in another state.”

Both of these provisions likely are also unconstitutional.

Some history: The last three Attorneys General have participated in class action lawsuits and consent agreements with Attorneys General in other states against tobacco companies, utilities and TVA, and opioid manufacturing companies. These consent agreements netted more than $6 billion in revenue for NC — $4.6 billion over 25 years from the tobacco master settlement agreement in 1998, $11.2 million in the clean smokestacks agreement for violations of the Clean Air Act, and $1.4 billion from 2022 to 2038 in the opioid settlement against drug companies.

In 2016, as newly-elected Josh Stein was about to take office as the new Attorney General, the legislature reduced the number of staff in the Department of Justice.

Bad Process:

1. Senate Bill 382 was originally a bill to make changes in dental practices. That bill was gutted and replaced with legislation titled “Disaster Relief 3/Budget/Various Law Changes.” It was negotiated among a small group of Republican leaders and only released to the public about 5:30 pm and brought up in the House of Representatives for debate for the first time and a vote at about 8 pm. The bill is 131 pages long, so members would have to be speed readers to be able to read it all in time, much less look up statutory references for which laws were being amended. And, in a bill touted as disaster relief for Western North Carolina from Hurricane Helene, only 13 of those 131 pages deal with disaster relief.

2. Special Provisions in Budget Bills: This continues bad legislative practice in adding special provisions in budget bills that amend laws that are unrelated to the budget. As is the case here, the provisions were sent forward with little notice to most members of the House and Senate, and added to a popular measure that would be hard for the rank-and-file to vote against, like, in this case, hurricane disaster relief.

Suggested Reforms: The legislative rules and statutes should include a germaneness test where members can challenge whether the special provisions relate to the main topic of the bill. There also ought to be rules and statutes requiring notice of at least a day ahead when such a bill will be brought up so rank-and-file legislative members, the media, and the public can read it.

And, the process of gutting a bill and replacing it with an entirely new measure should be banned. Every bill should have to go through the process of having three readings in each chamber and separate votes in each chamber, as required by Article II, section 22 of the NC Constitution.

No bill should first appear as a conference report where no amendments are allowed. Conference reports are supposed to be used to resolve differences between the two chambers and represent the compromise position with provisions coming from one chamber or the other. This conference report came out of the blue with no prior bills or votes in either chamber.

In addition to legal challenges alleging violations of the state Constitution’s separation of powers clause, former state Supreme Court Justice Bob Orr has said a legal challenge to the legislative process itself might be valid here.

All of these votes were taken in one of the last weeks before the Republicans are likely to lose their supermajority in the House in January. In these final weeks, the Republicans have the supermajority in both chambers necessary to override a governor’s veto. Presumably, they will be one vote short when the new legislature begins in January.

At some point, I hope the rank-and-file legislators who are not part of the leadership in both chambers will revolt against the leadership and demand these reforms in the legislative process because it is they who always get surprised with last-minute legislation that is rammed down their throats. A fair process helps members in both parties and would give rank-and-file legislators, the media, and the public the transparency they deserve.

Democrats committed similar power grabs and used bad process when they were in charge. But the power grabs, abuses in legislative process and violations of the Constitution’s separation of powers clause by the Republican legislative supermajorities are far more excessive, far more aggressive, and far more dangerous to a healthy democracy.