Arcane procedure keeps changes to regulatory bill at bay

Posted May 22, 2014
Updated May 30, 2014

— Sometimes the state Senate is a magic place, like when the Rules Committee chairman turns a vote on saving a the North Carolina Actual Innocence Commission into a vote on bees.

This bit of prestidigitation took place Thursday as lawmakers were debating a package of regulatory reforms. Senators gave Senate Bill 734, the Regulatory Reform Act of 2014, tentative approval on a 37-10 vote. The measure, sponsored by Sens. Trudy Wade, R-Guilford, Brent Jackson, R-Sampson, and Andrew Brock, R-Davie, is designed to make it easier for citizens and businesses to get needed permits and weed out unneeded rules.

Some of the bill's provisions are largely non-controversial, such as repealing a prohibition against cursing on the state's highways or increasing the fines for illegally parking in a handicapped space. 

But other parts of the bill are controversial, raising hackles of those with an interest in maintaining strict environmental protections or, like Sen. Floyd McKissick, D-Durham, those trying to preserve a panel designed to ensure that innocent people don't stay in jail.  Sen. Bob Rucho, R-Mecklenburg Regulatory reform heads for Senate floor

"Tell me how many cases they've reviewed," Sen. Jerry Tillman, R-Randolph, challenged McKissick on the Actual Innocence Commission. "They've done little or nothing."

That prompted McKissick to tick back through points he had just made, pointing out that the commission was formed by a former state Supreme Court chief justice who happened to be a Republican. Current justices, he said, also favored keeping the panel. 

The Senate, he said, should adopt his amendment to take the group off the chopping block. "They would still like to continue to function and to operate," he said. 

But just as he was hitting full rhetorical flower, Senate Rules Chairman Tom Apodaca interrupted. 

Apodaca, R-Henderson, said he had been reviewing the bill and found a crucial change that was urgently needed. The bill as written would have ordered a group of agriculture officials to report on a how to foster more honeybees in the state on Nov. 30, 2014. The day should have been Dec. 1, 2014, he said. 

"That extra day will help us make this a much better bill," Apodaca said. 

So he offered that change as a substitute amendment to the change originally proposed by McKissick. The net effect: the bee report would be delayed by a day, and the change sought by McKissick was killed without lawmakers taking an actual vote on the question of whether the Actual Innocence Commission should be preserved.

"What a difference a day makes," Apodaca dead-panned after the session. 

Air quality monitoring, other environmental rules at issue

The arcane legislative trick of substituting a potentially problematic amendment with one that is far more minor in its effect is not new. Less than four years ago, Apodaca was in the Senate minority and watched as then-Democratic Majority Leader Tony Rand did the same thing on occasion. Once the minor "substitute" change is adopted, Senate rules block senators from trying to push the more substantial legislative change again. 

This year, Republicans hold a 33-17 advantage in the chamber, more than enough to vote down any amendment they don't like. So why bother with legislative trickery?

"There are just some amendments that don't need to be voted on," Apodaca said.

He explained that he offered the substitute amendments when he thought the Democrats were trying to force votes on measures that could be used against GOP members in future campaigns.

"You want an honest answer? You don't want to see a vote on a particular amendment," he said. "It could be misconstrued. It could end up in a particular campaign ad. You never know what could happen."

Democrats, he said, were angling to create fodder that could then be used in the footnotes of splashy campaign fliers or television commercials. Again, that wouldn't be a new idea.

"We did the same thing when we were in the minority," Apodaca said. 

Sen. Josh Stein, D-Wake, said he doesn't care how the amendments were killed. They fact is, he said, they didn't pass. 

"What I care about is whether our air is clean," Stein said.

He had offered an amendment that would have kept in place all 133 air-quality monitoring stations currently deployed throughout the state by the Department of Environment and Natural Resources. The bill, as it was given tentative approval Thursday, would remove roughly half of those stations.

"They are trying to keep us in the dark," Stein said, pointing out the monitors wouldn't clean the air but would at least alert the government to problems. 

Apodaca derailed the air quality amendment with a change that put off by two months a report on the development of a shellfish sanctuary. 

Other Democratic amendments, such as one that would have allowed the state Energy Office to continuing auditing the energy use in state offices every five years, failed on simple party-line votes. The same bill, if it passes, would prohibit state agencies from fining polluters if the company discovers its own pollution and reports it to the state before state officials discover the transgressions. 

The bill must be heard a second time by the full Senate next week before heading to the state House, where its fate is uncertain.


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  • teleman60 May 23, 2014

    View quoted thread

    I don't think families of wrongly convicted NC citizen will see the humor in abolishing a commission seeking to determine their innocence!

  • Matt Wood May 23, 2014
    user avatar

    Are the parliamentary procedures for the NC GA posted anywhere online? I certainly can't find them on their website.

    I was trying to figure out how this can possibly be permissible. Generally, in parliamentary procedure, a "substitute" amendment (called a "friendly amendment" in Robert's Rules of Order) can only be implemented if the person who proposed the original amendment agrees to the substitute. But then, since I can't find the GA's specific procedures online, I can't confirm that this is documented anywhere.

  • iopsyc May 23, 2014

    This kind of maneuver should not be allowed by members of any political party.

  • Eq Videri May 22, 2014
    user avatar

    Excellent report on the childish senatorial shenanigans. The Republicans have now made themselves just as corrupt as the Democrats were. They have thereby sacrificed the moral high ground. The circle is complete.

    And when the Democrats return to power someday, their revenge will be swift and cold.

    A pox on both their houses, and pity the people.

  • miseem May 22, 2014

    So he offered that change as a substitute amendment to the change originally proposed by McKissick. The net effect: the bee report would be delayed by a day, and the change sought by McKissick was killed without lawmakers taking an actual vote on the question of whether the Actual Innocence Commission should be preserved.
    Gimmicks. Not substance. But at least I commend him for his warped sense of humor.