GOP legislators outfox governor

This column was published in the Wilson Times Sept. 7, 2019.

North Carolina Democrats are entitled to feel good about themselves after two successful elections. In 2016, their gubernatorial candidate, Roy Cooper, won the governor’s seat, but his effectiveness was stymied by powerful personalities in the state legislature, who held a veto-proof majority and used a lame-duck session in December 2016 to pare away powers traditionally wielded by the state’s chief executive, leaving Cooper as a governor with relatively few executive powers.

In 2018, Democrats set their sights on taking enough legislative seats away from the Republicans to make the Democratic governor’s veto power an actual power. Democrats succeeded in what has been called a “wave election,” and Cooper soon made it clear that he wouldn’t be shy about vetoing legislation he didn’t like. Democrats won nine previously GOP seats in the House and six formerly GOP seats in the Senate, enough to prevent overrides of his vetoes.

But Democratic officials have made some strategic errors since last year’s election. Gov. Cooper misjudged the tenacity of the GOP legislative leaders. As usual this year, the legislature’s budget and the governor’s budget did not match. Among other expenditures that they disagreed on were teacher salaries and expansion of Medicaid.

Cooper found the legislators’ budget unacceptable, so he vetoed it. He called for negotiations with the GOP leadership. Speaker of the House Tim Moore and Senate Majority Leader Phil Berger have essentially told Cooper, “Go negotiate yourself.”

Republicans have done all they can to minimize gubernatorial powers, and Cooper’s adamant demand for negotiations on the budget is going nowhere, adding to the GOP’s aim to make the governor appear irrelevant. That perception won’t help Cooper win re-election next year.

GOP leaders displayed their shrewdness and strategic thinking by introducing individual parts of the legislature’s vetoed budget and bringing these individual bills up for a vote. Piecemeal is a poor way to plan spending, but it can have some political effectiveness. Among the popular bills passed while this stalemate continues is one giving raises to state employees — raises that had been on hold because of Cooper’s budget veto.

Cooper is likely headed for a difficult re-election bid in 2020. President Trump carried North Carolina in 2016, with Cooper’s success (thanks to then-Gov. Pat McCrory taking a more conservative turn after taking office, having campaigned as a pragmatic moderate in 2012). Being out-played by legislative leaders is not Cooper’s only political problem in 2020.

As Hurricane Dorian aims for the N.C. coast, the Cooper administration has spent only seven percent of Federal Emergency Management Agency block grants to aid recovery from last year’s Hurricane Florence. Cooper says the problem is that the feds have not issued rules and standards for spending block grants to help Florence victims. That may be true, but the Cooper administration has done a poor job of explaining exactly what the problem is and how the governor aims to fix it.

Cooper may also come to regret another veto he issued, this one on a bill requiring North Carolina sheriffs to cooperate with Immigration and Customs Enforcement detention requests. Some newly elected Democratic sheriffs, including sheriffs in urban counties have announced they will not do ICE’s work for them, but in a generally conservative state that has been dramatically changed by hundreds of thousands of immigrants, many of them undocumented, cooperation with ICE doesn’t sound so bad to many voters. Expect this issue to be discussed in the 2020 election for governor.

Cooper has found himself outfoxed by a strategic-thinking GOP while he has focused on playing to the Democratic base.

Another year (or more) of HB2?

House Bill 2 lives on, despite promises earlier this week that a deal had been reached to ditch the hastily passed legislation that has cost North Carolina millions of dollars in tourism and new jobs that went elsewhere. The law on bathroom access and civil rights protections for sexual orientation and gender identity is still on the books because Republicans in the General Assembly backed out of what Democrats and the Charlotte City Council thought was a done deal.

Charlotte City Council on Tuesday repealed the portions of a local ordinance passed last February that were rescinded by House Bill 2. When some Republicans raised objections that Charlotte had agreed to kill the whole ordinance and not just the parts addressed by HB2, City Council met in emergency session Wednesday to complete the repeal of its ordinance. The vote also eliminated a deadline for the state to repeal HB2.

But Republican leaders saw that hesitation as a heinous plot to keep local civil rights laws on the books, and legislative opposition grew along with mutual distrust. Charlotte provided the "clean" repeal, but GOP legislators backed away from a "clean" repeal of HB2. A GOP proposal barring local civil rights ordinances for six months in return for HB2 repeal ran into Democratic opposition. Republicans shouted that Charlotte's original rescission vote, which was quickly changed to satisfy critics, had abrogated the whole deal. But the six-month ban on local laws was clearly a violation of the deal to get rid of HB2 if Charlotte got rid of its ordinance. The Charlotte ordinance as repealed, but legislators would not follow through by repealing HB2.

Fingers were pointed in all directions. Even before Wednesday's vote on the repeal died on the Senate floor, Gov.-elect Roy Cooper was being blamed for HB2 remaining on the books through the summer. A Facebook post I saw claimed Cooper had lobbied legislators NOT to repeal HB2 in July because, allegedly, he wanted to use the law in his campaign for governor. Those who posted that false report must have forgotten that it was not the legislature that killed a July deal, it was the Charlotte City Council, which voted down a repeal of its civil rights ordinance that started this whole conflict.

GOP spokesmen were quick to blame Cooper for scuttling this week's deal, but it was the GOP legislators, some motivated by sincerely held "right vs. wrong" beliefs and others only seeking political advantage, that killed the repeal of HB2.

Whatever you think of HB2 or transgender rights, you have to admit that HB2 has been costly to North Carolina in economics and prestige. With this week's inaction, more losses will come.

McCrory finally accepts the facts

Gov. Pat McCrory has accepted the fact that he lost the 2016 governor's race and has conceded to Attorney General Roy Cooper, the next governor of North Carolina.

McCrory's concession has relieved my worry that he and his GOP colleagues might be plotting a slick move of having the General Assembly declare an election deadlock to give McCrory another term, despite what voters did.

McCrory was the big loser on the state's ballot. Fellow Republicans won statewide elections for U.S. Senate and president, but McCrory lagged far behind his 2012 success. A pre-election hurricane gave McCrory an opportunity to be seen carrying out his responsibilities and empathizing with residents, but that wasn't enough to save him from his self-inflicted wounds. 

The moderate mayor of Charlotte joined hands with the harshest conservatives in the legislature and passed an unnecessary bill that infuriated gay rights supporters across the nation. The legislation was passed in unprecedented haste, and McCrory angrily defended the bill and denied, despite all evidence, that the legislation hurt North Carolina's economy, its prestige and its reputation. It appears obvious that House Bill 2 hurt McCrory's re-election bid, bringing out voters who might not have cared otherwise. McCrory and attorney general candidate Buck Newton, a sponsor and defender of HB2, were the only Republicans in prominent statewide races who failed to win.

The voters have unleashed their anger at McCrory, but little will change so long as the General Assembly has a veto-proof Republican minority, most of them ensconced in gerrymandered safe seats that make them immune from Democratic challengers.

McCrory has an unbeatable election strategy

North Carolina Gov. Pat McCrory's election strategy seems apparent now, two weeks after the election. He is determined to win the election by taking it out of the hands of voters and giving the Republican-dominated state legislature the power to determine the election victor.

Democratic challenger Roy Cooper leads McCrory by more than 6,000 votes — a margin that has grown as county election boards continue to count absentee and provisional ballots. McCrory's campaign has challenged voting in more than half the state's counties. Thus far, each challenge has been rejected by Republican-dominated county boards of election. Still, McCrory and his soldiers persist in claiming the election isn't settled until every complaint is heard and every vote counted a second time. This week, he called for a recount, even though the first count remains incomplete.

The secret weapon of an incumbent governor in danger of losing an election is an obscure provision in the state constitution giving the legislature the final authority to determine an election victor when electoral squabbles drag on and the election results remain contested. If McCrory and his crew can drag out the vote count just a few more weeks, the General Assembly, with veto-proof Republican majorities in both chambers, can declare McCrory the winner, no matter what the vote totals say.

Federal authority debate was settled in 1865

N.C. Attorney General Roy Cooper has put a damper on the state's new legislative majority's efforts to exempt North Carolina from the federal health care reform. In a letter to Gov. Bev Perdue, Cooper points out that state legislatures cannot "pick and choose which federal laws the state will obey."

The Republican-led General Assembly has followed the lead of some other GOP-majority legislatures in passing a bill stating that North Carolinians cannot be required to purchase health insurance or pay into a federal insurance fund, as required by last year's health care bill. That requirement does not go into effect until 2014, but some legislatures are getting into line early to oppose the law. Some states are also suing the federal government, claiming that the health insurance requirement exceeds the authority of Congress.

As Cooper points out, federal law trumps state laws. I thought that debate was settled in 1865. All the talk of "nullification" and state sovereignty from the 1830s met a bloody and final end 146 years ago. As to the lawsuit claiming Congress cannot require individuals to purchase health insurance, that will be settled by the Supreme Court. But it's ironic that states are suing over this insurance requirement, although most (perhaps all) states, including North Carolina, require individuals to have liability insurance on their vehicles. That doesn't seem to raise constitutional issues. States use their "coercive" powers to require individuals to purchase driver's licenses, hunting licenses, business licenses and other permits and to pay inspection fees, garbage fees and sundry other fees. Congress even requires employers to withhold income taxes and Social Security taxes when they issue paychecks. So why is health insurance the only federal (or state) mandate that raises these constitutional issues? I'll wait for the Supreme Court's decision for that answer.

The state law Cooper finds unenforceable also raises another issue: It requires Cooper to join the lawsuit against the federal health care law. As the late Richmond County Sheriff R.W. Goodman used to point out to county commissioners, one constitutionally established body (i.e., county commissioners) cannot order around another constitutionally established body (i.e., the sheriff). "I am a constitutional officer," Goodman used to remind commissioners. Cooper, the attorney general, holds an office created by the state constitution, and, as such, he is on an equal footing with the General Assembly. Legislators cannot order him to do anything. They can cut off his funding; they can make life difficult for him. But they cannot order him to do things he doesn't want to do. He is their constitutional equal, not a subordinate. The legislators themselves can join the lawsuit they love or file friend-of-the-court briefs on the side of the plaintiffs, but they cannot order Cooper to do so.

Maybe legislators should read that constitution they say they're defending.

Burr is not as easy a target as Democrats think

N.C. Attorney General Roy Cooper will not run against Sen. Richard Burr next year, leaving Democrats without a high-profile candidate to complete the sweep of prime state elective offices. Cooper made the announcement last week, disappointing Democrats, including (apparently) President Obama. Former Gov. Mike Easley, who is under investigation by state and federal authorities, is not likely to recover in time to challenge Burr, if he wanted to.

The assumption among Democrats is that Burr is highly vulnerable. Knocking off Burr could ensure Democrats a filibuster-proof majority in the Senate, and Burr's approval ratings are lower than Elizabeth Dole's were at this stage of the campaign. But Burr is a deceptive and easily underestimated politician. Few people gave him much chance in 2004 against the better-known Erskine Bowles, but he won handily.

Burr is unusual among politicians in that he is incredibly unassuming. Most politicians travel with an entourage of handlers and hangers-on. I met Burr in 2004 when he was traveling alone from town to town, driving his own aging personal car and chatting with reporters and editors in an unassuming and modest way. He was well-versed on issues without being confrontational or doctrinaire. Since his election to the Senate, Burr has followed the same strategy. He spends congressional recesses traveling the state (unlike Elizabeth Dole, who seldom worked the state during her six years in office) and meeting with the small groups that he is so comfortable with and that invariably find him so appealing and impressive.

Given that methodology, it is surprising that Burr's name recognition and approval ratings are so low. Some would claim that Burr's retail politicking is an anachronism in an age of wholesale political strategies -- television commercials, direct mail and digital networking. If the Democrats can come up with a viable candidate, 2010 could be a showdown between Burr's old-style, personal and county courthouse campaigning and the wholesale campaigning used by the Democratic Senate Campaign Committee, which early on tarred Dole as an aging, disconnected, out-of-touch and aristocratic politician.

But Democrats would be mistaken to underestimate Burr. He will not go down as easily as Dole.