Crucial legislation can be crafted behind closed doors

Posted May 28, 2014

This is the door to the room where Republican senators discuss many important pieces of legislation.

— When state Senate leaders publish their budget online late Wednesday, there will be 33 lawmakers who have a really good idea of what it says already. 

Members of the Senate Republican caucus, the Republicans elected to the 50-member body, have already spent four hours behind closed doors reviewing the proposal, closely vetting each section of the budget, sometimes calling on staff to explain certain sections. 

"There are still a lot of moving pieces," said Sen. Harry Brown, R-Onslow, one of the co-chairmen of the powerful Senate Appropriations Committee. "We just wanted input from our caucus before we rolled it out."

As described by Brown and other members who attended the meeting, Senate Republicans had a chance to express concerns about certain provisions, keeping any disagreements within the party out of public view. 

Asked if discussions Tuesday or in subsequent closed-door meetings could change which items made it into the proposal or are cut from it, Brown said, "sure."

Among public bodies in the state, the North Carolina General Assembly is unique. Members of the Republican and Democratic caucuses are allowed, by law, to gather behind closed doors to discuss matters of policy and work out how the group will approach floor debate on a bill. For every other public body in the state – from town councils to boards of county commissioners and gubernatorially appointed panels – any gathering of more than half their members to discuss policy and information must be open to the public. Legislators, by contrast, can gather enough of their members to decide the outcome of legislation away from the press and the public. 

"That is not healthy," said Bob Phillips, director of the North Carolina branch of Common Cause, a good-government advocacy organization. "That is not good for democracy."

Both Republicans and Democrats hold closed-door caucus meetings at the General Assembly, but the current Republican majority means that the GOP members have the raw numbers to determine the fate of legislation in those sessions. 

It's important to note that party caucuses have been used for decades, if not centuries, to wrangle sometimes unruly legislative bodies. For most of the 20th century and the first decade of the 21st, it was Democrats who could gather behind closed doors in sufficient numbers to determine the outcome of a bill. 

"It was wrong when the Democrats were doing it, and it's wrong now," Phillips said. 

The Senate budget provides a particularly stark example of the practice. After working through many of their intramural differences in private, Senate leaders say they will bypass the budget subcommittees that traditionally review the hundreds of pages that make up the $21 billion spending plan. Instead, the measure will go to a single budget committee before heading to the floor. 

"That's outrageous," said Sen. Josh Stein, D-Wake. "Senate Republicans are short-circuiting the process through which Democrats and members of the public traditionally give input into the bill.

"We have Democratic members who have not seen the first written word of this document," Stein said Tuesday. "Republicans are not the only people in North Carolina who have knowledge and interest in the budget."

Exercising a traditional prerogative

"The political party caucuses in Congress and the state legislature have been instruments of the majority leadership to tame the rather chaotic process of legislating," said Ferrel Guillory, a University of North Carolina journalism professor and the director of Program on Public Life.

Party caucuses allow legislative leaders to harness the energy and ideas of dozens of members to push toward a common goal. However, caucuses can be a venue for political considerations to bleed into public policy.

For example, in Congress, the so-called Hastert Rule, named for former U.S. House Speaker Dennis Hastert, is often seen as restricting the flow of legislation. Although not a formal guideline, speakers frequently refuse to bring legislation to the floor unless most of their legislative majority have already agreed to support an idea. That rule, Guillory said, has often been seen as restricting bills that can pass to a narrow ideological band. 

In North Carolina, current and former lawmakers described the caucus meeting as a venue in which members can discuss issues without fear their meanings might be misconstrued or insulting to others. For example, the current Republican majorities often have to decide how to react to Gov. Pat McCrory, a fellow Republican, just as prior Democratic majorities had to hash out their relationship with former Govs. Bev Perdue and Mike Easley. 

Other closed-door discussions often include the "messaging" surrounding a particular bill – how members might best communicate ideas to the press and public – as well as the tactical strategy for guiding legislation through debate. 

"The caucus process itself is a good thing," said Rep. Tim Moffitt, R-Buncombe. "It allows the proponents of a bill to make their case."

Moffitt said caucus meetings are a chance for members to exchange information and hear about bills coming to the floor that they had not yet examined.

House Republicans drew attention to their caucus last week when they effectively expelled Rep. Robert Brawley, R-Iredell. Members involved in that decision said that Brawley had talked about matters discussed during closed-door meetings outside of the caucus.

Brawley said he never discussed anything in a caucus meeting that he wouldn't talk about in public. He also pointed out that some of the most honest discussion of a legislation's flaws and merits happens behind closed doors. 

Some of his fellow Republicans sympathize with Brawley's attitude, if not his approach.

"I've always believed that caucuses should be open," said Rep. John Blust, R-Guilford. "The public should know what we're doing. A majority of my county commissioners back home can't meet without it being open."

Sen. Jeff Tarte, R-Mecklenburg, a former mayor, say all legislative bodies, large or small, seek refuge from scrutiny from time to time.

"We would go away; we would go to off-site retreats," Tarte said of his city government days.

A few reporters would follow, but the usual cadre of media and gadflies that dog a town council crafting a budget would not follow members away from their usual digs at city hall.

As for the Senate budget, Tarte said, most of it had been discussed during interim committee meetings over the past several months.

"I'd say less than 1 percent" of the material in the budget that will roll out to the public late Wednesday had been discussed only in caucus meetings, he said. 

"This is about as open a process as there possibly is," Tarte said. "There's not magic to the caucus. Magic involves sleight of hand, and we don't do that here." 

Is the advantage more perception that reality?

Caucus meetings can be the crucible through which legislation passes before it is even filed or allowed to be heard in a committee meeting. 

For example, Rep. Pat McElraft, R-Carteret, has been pushing a measure that would give some North Carolina patients access to medicine distilled from marijuana. That medicine is now outlawed in North Carolina due to the state's ban on cannabis use.

"She brought that issue before the caucus, and a large number of members, including me, had some sympathy for the issue," said Rep. Edgar Starnes, R-Caldwell, the House majority leader. 

Starnes said that McElraft brought the issue to the caucus because of the sensitive nature of changing drug laws in an election year. 

"The caucus is a place where an issue is first vetted," Starnes said.

General agreement – or least a lack of opposition – behind closed doors can allow a bill to move forward. A general thumbs down might mean a bill is never filed. 

"It probably stops as many bad bills as it helps with good ones," Starnes said. 

Caucuses can take "a caucus position" on legislation, binding their members to vote a particular way. That's seldom done, at least in recent years, say Starnes, Brown and others involved in the current legislative majorities. Rather, they said, members get an informal sense or a count of how members will vote when a bill comes up.

Moffitt and other Republicans in the current House majority said that Speaker Thom Tillis has told them to vote with their consciences first, their constituents second and their caucus third. The group, he said, is not used to pull people toward a certain opinion but as a tool to reach consensus. 

"We want to get it to where we have pretty good agreement among our members before we try to sell an idea to the public," Starnes said. 

That said, measures that do make it to a vote on the floor of the state House or Senate rarely fail. 

"I can truly think of only one bill where it made it to the floor in the past four years and failed a vote," Stein said.

In other cases, bills that might have fallen short of their initial tests were reconsidered after quickly called caucus meetings allowed the Senate majority to regroup.

"It allows for some closed-door arm twisting," he said. 

Guillory calls party caucuses "part of the legislative fabric" but adds that they can be abused. It's appropriate – or at least not a practice that's going away any time soon – for members of the same political party to have a space in which they can discuss policy away from the public. The question, he said, is when do lawmakers go from discussing policy to making decisions and failing to explain them to the public.

"When you have a political party that's got this solid sort of majority, when does it become tyranny to take decisions behind closed doors?" he asked.


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  • Milton Bailey May 28, 2014
    user avatar

    Where is "Government of the people, by the people, for the people; me thinks it has gone the way the promises in Obama Care that we could keep our Insurance plans if we liked them and keep out Doctors; Both NOT in the ACA!
    When closed door meetings are held, the first thing that comes to my mind is "What are they hiding"?

  • WralCensorsAreBias May 28, 2014

    shhhh, you're not supposed to tell people.

    try some duct tape.

  • rushbot May 28, 2014

    to moi it sure sounds like they are debating laws in secret.....i don't believe that is supposed to happen in a democracy.....

  • JoeF May 28, 2014

    When all else fails--blame the media. Puh-leeze stop it! This is about open government. North Carolinians need to be apprised of what is going on in "our house." What happened to transparency? What's with the piecemeal budget surprises for citizens to swallow? Why are Republicans bypassing subcommittee scrutiny, discussion? Has the NC legislature become the "fast-tracking-dictatorship?" If it waddles like a duck...

  • Michael Hart May 28, 2014
    user avatar

    you have something to hide when anything is done behind closed doors! and you sheep complain about transparency! Why is it always "do as I say, with you Righties?"

  • Grand Union May 28, 2014

    View quoted thread

    They reported on it so whats your point?
    And the ACA is a success so although it was a silly comment, things have worked out pretty well despite the best efforts of the sociopaths of the Tea Party.
    And hows that Gay Marriage ban working out for y'all......

  • JaySee May 28, 2014

    Phillips: "It was wrong when the Democrats were doing it, and it's wrong now,"
    Well Phillips, you should have said something about it back when Dems did it. Oh wait, maybe you did but somehow it was mysteriously omitted from stories like this.

  • sinenomine May 28, 2014

    Closed doors are sometimes crucial to success. Can you imagine trying to write the Constitution or Declaration of Independence today under the glare of CNN, Fox, and other media? The bloviating talking heads would analyze each semi-colon, the Reverend Barber types of the left and right would demonstrate and disrupt proceedings, and nothing would ever get done. Any proposed compromise, and the Constitution is full of them, would be the subject of negative political ads and robocalls to motivate people to withhold their support. No, I am thankful for closed doors at times and wish sometimes that there were more of them.

  • Wheelman May 28, 2014

    View quoted thread

    You are very correct. Unfortunately, most news media has an agenda. They may say they are just reporting the facts of the event or situation, but it is how they report it that shows the agenda. The headline, how they start the story and what they emphasize, what they trivialize or omit that sets the tone of the reporting. I know, because I used to be a member of the media and it was what bothered me the most. It isn't a new thing. As long as there have been reporters there have been agendas. There's a lot of "I'm here to help right the wrongs" that is a part of the nature of the media business. And, that is not all bad as long as there is someone in charge to keep it fair and balanced. That's where the trouble really lies.

  • Djofraleigh Anderson May 28, 2014
    user avatar

    WRAL is not without bias. Is going behind this door new to republicans or was it done by Democrats when they built and designed the conference room? The added drama by this is 'bedroom' drama playing on the imagination of the public.