Special session fallout sets up power struggle between Cooper, GOP
Posted December 17, 2016
Raleigh, N.C. — When protesters heckled and disrupted General Assembly sessions this week, one of their oft-used chants was, "All political power comes from the people."
But when the people cast their ballots this fall, they split political power between a conservative Republican General Assembly and a Democratic gubernatorial candidate, neither of whom seems prepared to give quarter, or even the benefit of the doubt, to the other.
This week's session was larded with references to decades' worth of bad blood between the GOP and Democrats, with Republicans insisting that their moves to circumscribe Gov.-elect Roy Cooper's appointment powers simply followed years of precedent laid down by Democrats.
"The examples of what happened in the past are more in the nature of showing what we are doing is not that unusual in terms of things," Senate President Pro Tem Phil Berger said Friday afternoon shortly after his chamber adjourned. "So, when we hear terms such as extraordinary session and things that seemed to indicate that this is unique to the experience in North Carolina, that's the better reason to point those examples out, because it is not that unique."
Unique or not, this week in Raleigh was remarkable for its political theater inside the House and the Senate chambers and outside the House and the Senate galleries. The spectacle of arrests inside the Legislative Building and both chambers being closed to the general public focused national media attention on what Democrats described as a "power grab" designed to undercut Cooper.
Lawmakers leave town after passing bill limiting Cooper's, education board's power The Democrat will face virtually the same Republican-dominated General Assembly in January that sought to limit his powers this week, and he apparently is digging in for a trenchant political and legal battle.
"Once more, the courts will have to clean up the mess the legislature made, but it won't stop us from moving North Carolina forward," Cooper said in a statement Friday, signaling he was spoiling for a legal fight.
Meanwhile, legislative Republicans maintained they were perfectly within their rights to adjust the office's powers and were merely following the strictures laid down by the state constitution.
But more than just the broad narrative of party-on-party chicanery cast a pall over this session. With Gov. Pat McCrory on his way out the door, legislative Republicans saw an opportunity to gain the upper hand on the executive branch. While North Carolina's governor has always been relatively weak compared to other states – nine other statewide elected officials head executive agencies such as the agriculture and education departments – the legislature had slowly delegated power to the executive branch over the years.
For example, governors gained the veto in the 1990s. That gave them a larger role in legislating, House Speaker Tim Moore said. This week's bills help reset that balance.
"The changes are intended to more consistently reflect the checks and balances called for in the constitution," Berger, R-Rockingham, said.
Lawmakers were elected to office too, he said, and Republican lawmakers as a group piled up more votes statewide than Cooper did on the way to eking out a slim 10,000-vote victory.
That reset comes at a price.
"I dare say there won't be a honeymoon for the governor-elect and that rather divorce proceedings are underway between the two branches of government," said Michael Bitzer, a political science professor at Catawba College. "A pending court battle is the way we'll start this new relationship."
Disaster session brings dissension
For more than a month, McCrory has said he would bring lawmakers back to a special session in Raleigh to fund disaster relief for those affected by flooding from Hurricane Matthew and wildfires in the western part of the state. His loss to Cooper on Nov. 8 kicked off weeks of strident, and apparently unfounded, speculation that Republican lawmakers would use the disaster session to regain the control of the state Supreme Court that the GOP lost in the election.
Intense speculation over a potential court-packing bill effectively masked what Republicans apparently had planned for some time, be it days or weeks. Once they finished work on a $200 million disaster relief bill, Berger and Moore announced they would call another special session – the General Assembly's fourth of the year – to handle an unspecified number of matters.
The two main products of this surprise session included a law that McCrory signed Friday making appellate court races partisan and merging lobbying, ethics and elections oversight into a single agency. An second measure would curtail Cooper's power to hire and fire appointees at will as well as consolidate power in education under a soon-to-be Republican superintendent of public instruction.
As protestors aligned with the "Moral Monday" movement railed in the hallways, Democrats inside insisted Republicans were taking "illegitimate" actions.
McCrory signs bill for partisan court elections "We have undertaken something unprecedented, and the level of civil disobedience and response is unprecedented," Rep. Chris Sgro, D-Guilford, said on the House floor as chants outside the chamber were clearly audible.
But Republicans said protesters and Democratic colleagues alike were ignoring decades of history. They pointed to Democratic senators in 1989 stripping then-Lt. Gov. Jim Gardner, a Republican, of powers such as appointing committees, effectively neutering the office's legislative influence. GOP members also pointed to efforts by former Gov. Jim Hunt, a Democrat, to oust Republicans from the state's bureaucracy even before he took office.
They also insisted measures, such as requiring Cooper to submit his cabinet secretaries to state Senate approval, follow constitutional provisions long left fallow but still in place.
"The constitution is not some ethereal group of ideas. It has words, and those words have meaning," Sen. Chad Barefoot, R-Wake, said.
Battling for the next election
McCrory had his own battles with this Republican-led General Assembly. Lawmakers attempted to take control of coal ash cleanup and gas drilling regulations by handing them over to commissions. The state Supreme Court overturned that law, handing McCrory a rare unalloyed win over lawmakers.
While he quickly signed the elections and ethics bill, as of late Friday, McCrory had not yet signed appointments-related bill, perhaps reticent to hand back power from an office whose institutional prerogatives he defended. He has not spoken out about the bill.
More protests, more arrests at legislature "What they're doing is horrible for our state but great for Roy Cooper. He can now spend four years running against them," said Gary Pearce, a Democratic strategist and former aide to Hunt. "Now, they have a governor who has a power they can't take away – the power to dominate the debate."
Pearce acknowledged that Hunt did his best to assert control over state agencies, including firing some entrenched workers. But more recent political history is at play as well.
Cooper's own relationship with legislative Republicans over the past six years weighed on the session. He was outspoken in his opposition to the law commonly known as House Bill 2, a measure that dealt with transgender bathroom use and LGBT rights, refusing to defend it in court. He also dropped his defense of the state's 2013 law that included voter photo identification requirements after it was struck down by the 4th U.S. Circuit Court of Appeals.
"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," Cooper said Thursday.
Carter Wrenn, a long-time Republican strategist who once worked for the late U.S. Sen. Jesse Helms, said he's not sure how much the two bills passed by the General Assembly will hamstring Cooper. But he said the political battle touched off this week creates opportunities and risks for both sides. If a recent federal court ruling holds, much of the legislature will have to run for election again in 2017 due to their current districts being declared unconstitutional. A 2018 election would follow after that.
"I thought the Republicans played right into the image of the nasty politician," Wrenn said. "Nobody likes politicians anyway, and here come Republicans acting like the nastiest politicians on the block. I think it was a mistake."
If the energy displayed outside the chambers can be turned into political momentum next year – something the Moral Monday movement has not yet been able to do – the GOP could find itself facing an energized Democratic base.
Asked if Republicans might have avoided some of the mistrust and outrage displayed this week if they had been more open about their intentions or waited until next year, Moore, R-Cleveland, said he didn't think so.
"The folks who came here to try to create a public disturbance would have come to create a public disturbance regardless," he said.
Those disturbances, Wrenn said, undercut the Democrats' message. As Cooper began to feel his way toward using his new office's bully pulpit, and Democrats on the floor at the opportunity to score rhetorical points, news photographers focused on those outside the chambers.
McCrory appoints chief of staff's wife to Industrial Commission "The demonstrators took over as the Democrats' spokespeople. It was, all of a sudden, the demonstrators against the Republicans," Wrenn said. "People heard a lot about mean Republican politicians and a lot about demonstrators who looked pretty mean too."
Democrats generally, and Cooper specifically, Wrenn said, will have to recapture the spotlight in order to flip the Republicans' power move into anything resembling ballot-box victories.
Partisans on both sides will likely take exception to the "mean" characterization, but Bitzer said that, to the extent Republicans and Democrats are fighting for some middle-of-the-road group of voters, the week may have served neither very well.
"For folks who are in the middle, who don't identify with foam-at-the-mouth partisanship, they'll probably just see it as, 'Well, there they go again."