Republicans Consolidating Power In The States
Late last year, after Republican Gov. Pat McCrory (R) became the only incumbent governor ever to lose a reelection bid in North Carolina, the state’s GOP-led General Assembly passed legislation restricting appointment powers of Democratic Gov.-elect Roy Cooper. But that wasn’t the only recent move by Republicans in the states - or in North Carolina specifically - to reduce the influence of the branches of government they don’t control while strengthening the power of those they do.
The legislative action last December in North Carolina capped off months of partisan wrangling that began in March with the abrupt passage - in the first special session called by the state’s General Assembly in 35 years - of HB 2, requiring transgender individuals to use the public restrooms that correspond to the gender of their birth and barring local governments from adopting anti-discrimination protections for LGBT individuals. The bill touched off a national backlash that contributed to McCrory’s historic election defeat. Exit polls showed that two-thirds of voters opposed the law and 64 percent of that group voted for Cooper, according to the Washington Post.
The race was still very close; just over 10,000 votes separated the two candidates out of over 4.7 million cast. And the hard-fought contest dragged on for nearly a month after Election Day, with Republicans and the McCrory campaign alleging voter fraud in several counties and obtaining a partial recount in one - though it did little to change the vote tally - before McCrory finally conceded on Dec. 6.
Two weeks later the General Assembly, which had adjourned its regular session in July, convened itself into special session again and passed SB 4, ending majority control over the state and county election boards by the governor’s party, and HB 17, requiring the governor to obtain Senate approval of his cabinet picks, stripping him of his power to appoint University of North Carolina trustees and slashing the number of positions he can fill at state departments and offices from 1,500 to 425. Both bills were promptly signed by McCrory, according to LexisNexis State Net’s legislative tracking system.
“This is an unprecedented, shameful and cowardly power grab from the Republicans,” said Jamal Little, a spokesman for the state’s Democratic Party, according to the New York Times. “After losing the governor’s office, the G.O.P.-controlled General Assembly is attempting to hold on to power that voters took away from them.”
But Republican legislative leaders maintained that the changes had long been needed to restore the balance of power in Raleigh that they say had shifted too far toward the executive branch.
“This was clearly a constitutional session,” said House Speaker Tim Moore (R), as the Washington Post reported. “It was fully compliant with the law.”
Cooper, however, has filed a lawsuit challenging both SB 4’s election board revamp and HB 14’s cabinet confirmation requirement, and those challenges have been seesawing back and forth in the courts. Both provisions were initially blocked by state judges, unblocked by appeals court panels and then in the case of the election board makeover, re-blocked by the state’s Supreme Court, pending a determination of whether they violate the North Carolina Constitution’s separation of powers clause. Which way the courts will ultimately rule isn’t clear, Michael Gerhardt, a law professor at the University of North Carolina, told the Post, although he noted that during his four years in office McCrory never told the Legislature: “I think I’m too powerful and you should look for ways to weaken my office.”
North Carolina Superior Court Judge Jesse B. Caldwell III, one of the three judges on the appeals panel that considered whether to block the Senate confirmation requirement for gubernatorial cabinet appointees, raised that very issue.
“If we have an executive branch that’s out of control, out of control, that needs to be reeled in...then why wasn’t this done before?” he asked the attorneys for Senate President Pro Tem Phil Berger (R) and House Speaker Tim Moore (R), the defendants in the case, according to the Progressive Pulse, a blog about North Carolina public policy.
One of those lawyers, Noah Huffstetler III, reportedly replied that the change was overdue and that just because it hadn’t been done in the past didn’t mean it shouldn’t be done now.
“I think it’s just a good, sound public policy, he said.
While the state’s courts have been deliberating last year’s legislative actions, its General Assembly has been considering a series of new restrictions on the executive branch. HB 239, for example, would eliminate three of the 15 seats on the state’s Court of Appeals when they become vacant, denying the governor the opportunity to fill them. Two other bills, HB 240 and HB 241, would transfer the power to appoint district court judges and special superior court judges - who don’t have to reside in the district where they preside so they can be sent wherever they’re needed - respectively, from the governor to lawmakers. All three bills have cleared the House and are in the Senate, according to State Net’s legislation database.
Democrats say the bills are clearly politically motivated. As the Progressive Pulse reported, the Court of Appeals is currently dominated 11-4 by Republicans, but three of them are approaching mandatory retirement age, so HB 239 would prevent Cooper from appointing Democrats to fill those vacancies. House Democratic Leader Darren Jackson also noted that no formal study had been done to justify the reduction of the court’s size, according to the blog.
But as the Raleigh News & Observer reported, House Speaker Pro Tem Sarah Stevens (R) told the House Judiciary Committee before it approved HB 239 last month that the Court of Appeals’ workload has been diminishing by about 200 cases per year, so there was no longer a need for 15 judges. And Rep. Justin Burr (R), who sponsored all three of the judicial reform measures, told that same committee he’d “always advocated for pushing in this direction.”
“I pushed under [Gov. Pat] McCrory and wasn’t successful,” he said. “This is something I’ve looked at for several years.”
Nonetheless, if the bills pass, there will likely be more litigation, said Rep. Henry Michaux Jr. (D), according to the Progressive Pulse. And it seems unlikely the courts would be receptive to curbs on their power.
North Carolina is not the only state where Republicans - who have complete control of the legislative branch in 32 states and hold both the legislature and governor’s office in 24 - have sought to consolidate their power, however. In Kentucky, where the GOP added control of the House to its existing command of the Senate and governor’s office in November, the Legislature moved to block the state’s Democratic attorney general, Andy Beshear, from filing civil lawsuits, after he sued Gov. Matt Bevin (R) three times last year. In Arizona, Gov. Doug Ducey (R) and the state’s GOP-controlled Legislature passed a bill last year (HB 2537) adding two new justices to the state’s Supreme Court - which had recently upheld voter-approved ballot measures they opposed - and the governor has also eliminated several state boards and commissions, and transferred their powers to his office, as the Hill reported. Florida’s GOP-controlled Legislature is considering HJR 1 and HJR 21, which would seek voter approval of ballot measures limiting Supreme Court justices and district court judges to 12-year terms, and allowing lawmakers to reverse court rulings striking down laws on constitutional grounds with a two-thirds vote, respectively. And Facing South, the online magazine of the progressive Institute for Southern Studies, said 30 bills have been introduced nationwide, mainly by conservative lawmakers, “that constrain the power of courts or heighten the level of political involvement by the legislative and executive branches.”
But experts say such actions are nothing new, and haven’t been taken just by Republicans.
“This is the oldest trick in the political book, writing the rules to win the game,” Thad Kousser, an associate professor of political science at the University of California San Diego, told the Hill.
Kousser cited Democratic President Franklin Roosevelt’s plan to pack the U.S. Supreme Court with justices amenable to his New Deal programs and the partisan gerrymandering routinely engaged in by both parties as just a couple of examples illustrating his point.
The Hill also reported that Democrat-controlled legislatures in Massachusetts and New Jersey recently changed rules governing U.S. Senate appointments to restrict the powers of Republican governors in those states, and Nevada Senate Democrats used their narrow majority to bar the state’s Republican lieutenant governor, Mark Hutchison, from casting tie-breaking votes in that chamber. And according to the Washington Post, in 1972, when North Carolina voters elected the state’s first Republican governor of the 20th century, Jim Holshouser, Democrats, who controlled the General Assembly at the time, expanded the powers of the state’s Democratic lieutenant governor. Ten years later, when voters elected the state’s first Republican lieutenant governor of the 20th century, the Democrats attempted to scale back the powers of that office.
Kousser said the cyclicality of politics ought to be a consideration for GOP majorities now.
“If the shoe’s on the other foot, if we lose power, are we going to face a backlash?” he said.
But he also said there generally isn’t much reward for long-term thinking in state legislatures.
“Careers are shorter in state legislatures overall, and careers have an end date baked into them in states with term limits,” he said.
