A little after 2:00 p.m. on July 7, House Rules Committee chair Rep. David Lewis gaveled in the final slog to the end of the 2020 short session with a Hamilton reference.
“Welcome to the room where it happens,” he said.
It earned a few yuks, but everyone knew it was a lie. The room where it happens is elsewhere in the building, somewhere near the leadership offices where the deals are cut. It’s a place best described as a black box, a place without daylight to which you and I are not invited.
The House and Senate rules committees, gatekeepers to the floor of the chambers, provide the pageantry where things become official.
It’s not unusual for the legislative short session in a presidential election year to be heated, hyper-partisan, or even weird, but this year was exceptionally so and included a particularly disturbing lack of transparency and open government.
The session began with a brief note of consensus, a handful of COVID relief bills, but quickly devolved into theatrics. Meeting semi-virtually, with some legislators on-site and some scattered around the building or at their home offices, things grew increasingly chaotic and divisive as the session wore on.
In the end, GOP leaders settled on a strategy to differentiate themselves from Governor Roy Cooper through a series of targeted reopening bills transparently aimed at providing grist for the election season. This was, of course, amid a backdrop of spiking coronavirus cases and hospitalizations statewide.
The session wrapped up in a bizarre, sloppy final 48 hours in which bills and sections of bills appeared and disappeared through the many trap doors of Jones Street.
Some of them became law, including an infuriating public records exemption tucked into a Department of Health and Social Services bill that shielded state death investigation records. It was among several that Cooper vetoed.
Legislators came back for a curtain call the next week to try to override the governor’s vetos, but after five votes in a row failed, debate sort of fizzled out. They cut the lights and went home.
There’s no doubt that the COVID-19 crisis and our response to it have deepened our understanding of the inequities, injustices, and inadequacies of institutions around us. The North Carolina General Assembly is no different.
I went into this year already frustrated by the direction of the place and thinking about what reform would look like should there be an opportunity for change when a new General Assembly is sworn in next January. I’ve been writing about the legislature off and on for more than two decades and have been a member of the Capital Press Corps since 2014. I take no joy in reporting what a mess it is.
But after watching and listening to what happened on Jones Street over the past few months, I’m more concerned than ever. No matter what the outcome of the election is, what the mix of seats is, the bottom line is that the legislative branch is in trouble, in dire need of fixing, and for now is unable and unwilling to even consider it.
The preface of any writing on the government of our state should include a few riffs about the ultimate power of the state legislature. The North Carolina Constitution starts with a lot of nice stuff about all power coming from the people, but it quickly hands over the keys to the General Assembly, giving it the most important authority of all, the power of invention, the ability to write laws about anything and everything including itself.
Only late in the 20th century did the governor of this state get the power to veto legislation—and even then, only bills in certain categories. Among those excluded, naturally, are redistricting bills. That leaves no immediate check on how the legislature draws things up and no need for the majority to negotiate, even if it’s only a one-vote majority.
Over time, the legislature has crafted districts and election laws that suited it and used its powers to carve out convenient exemptions to laws on open meetings and public records.
This year was no different as General Assembly leaders asserted repeatedly that public health requirements issued by the executive branch do not apply to it under the constitution’s separation of powers clause. One late session bill even included a provision granting all 170 members of the House and Senate the exclusive right to dig into anyone’s Department of Social Services records on demand. That effort failed after last-minute objections got it stripped from the bill.
If you spend enough time at our legislature and watch people come and go, you start to see beyond the personalities of the day and get an idea of the ghost in the machine. Once you do, a couple of things dawn on you.
The first is that you probably are never going to find two places where people think more highly of themselves than the floor of the state House and Senate. The second is that the legislature will never, ever reform itself.
By tradition, reform rides into Raleigh on the back of scandal. It usually takes something pretty bad, and pretty blatant. The last big round of reform came early in this century and was set in motion after the Speaker of the House secured his majority by handing over a bag of money in an IHOP bathroom off I-85 near Salisbury. Jim Black got 63 months in federal prison, and the state got another round of campaign finance laws and limits on gifts from lobbyists.
It was a start, but after the heat dissipated, so did the spirit of reform. Since then, there have been attempts to change the institution, but few wins.
Before COVID-19, the 2020 session was shaping up to be an opportunity for changes to redistricting, reform’s crown jewel. Putting an end to gerrymandering goes to the heart of the matter, but supporters hoping for an independent commission or at least a less cold-blooded partisan process saw their opportunity slip away when the COVID response made any other major initiatives impossible.
For me, the most disconcerting sign this year was how the fog settled in early and nearly all the work went behind closed doors, to the black boxes. Committee work all but shut down and they returned only to read through the latest version of the bills and vote. Any real debates were out of the public eye, in caucus rooms, conference committees, and among small groups of legislators and staffers.
For the past several sessions, cutting the public out of the process has been intentional, a strategy that centralizes power and decision making under the guise of efficiency. I’ve seen it happen in the past as well as leaders got more comfortable in the throne, but we’ve reached a new level of opaqueness in lawmaking.
This year, in the name of efficiency there wasn’t even a nod to the idea of open debate. For the last half of the session, nearly every bill arrived at whatever committee had been assigned to ram it through as a done deal. Some of the bills, many of them, were awful last-minute monsters, strung together sets of provisions, married only by the common fact that this was the bill the leadership said would pass.
Some parts of the bills came from other bills that weren’t going to pass or were likely to get vetoed, but in far too many cases there were provisions that came out of nowhere, items that had never been heard in a committee.
This is a violation of the legislature’s own rules, but you see it more and more now. When this kind of stuff happens, the reasons can range from sordid to mundane, but there’s almost no time to sort that out before the vote.
This should worry you for a lot of reasons, but especially because there’s a law of physics that says government lacks elasticity. Once you rely on workarounds like that, they become the way things are always done.
You see this in the changing legislative schedule, too. Special sessions, or adjourning for a few weeks or months and returning, were once rare occurrences. For the past few years, the legislature has been sliding toward a year-round schedule without first doing the kinds of things you’d do organizationally to make it work.
It’s confusing for the public or really anyone outside an inner circle of decision-makers who control the calendar. Unless you’re in the know, you don’t know what’s coming, and you can’t plan ahead.
All this corner-cutting cuts us out of the process and allows for more insider-driven agendas and political gamesmanship. The more it’s normalized, the more likely it is to be abused and used by future General Assemblies.
With the heat of an unpredictable election bearing down, now would be a good time to ask the people who want to represent you in Raleigh if they would commit to something better: to not shut the public out, to provide some predictability and collaboration, to listen and consider what you have to say, and above all, to legislate in your name out in the open.
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