A few weeks ago, when the General Assembly called itself back into a special session following the passage of The Disaster Recovery Act of 2016, the legislature took up some important bipartisan reforms to North Carolina’s ethics, elections, and court systems.
At the same time, another piece of bipartisan legislation, House Bill 17, was also passed into law making various reforms to state government’s appointment and employment procedures.
The new law restores the State Superintendent of Public Instruction’s authority to make staffing decisions as head of the Department of Public Instruction, as called for by the state Constitution in Article IX, Section 4 (2), which states that the “The Superintendent of Public Instruction shall be the secretary and chief administrative officer of the State Board of Education.” This authority had been unfortunately stripped away from the State Superintendent, who is popularly elected by the voters of the entire state, by a previous legislature.
HB17 also reaffirms that Cabinet appointments by the governor are subject to confirmation by the state Senate, as called for by the state Constitution in Article III, Section 5 (8), which states: “the Governor shall nominate and by and with the advice and consent of a majority of the Senators appoint all officers whose appointments are not otherwise provided for.”
The new also makes changes the appointments process for the boards of trustees for the various institutions of The University of North Carolina, as called for in Article IX, Section 8 of the state Constitution.
The provision in the new law perhaps causing the most consternation among Democrats, however, is one which sets the number of political hires the governor can make at 425 positions. These jobs are exempt from the State Personnel Act, and the people appointed to fill them serve at the pleasure of the governor. For some context, the Democrat-controlled legislature only approved 400 of these so-called “exempted positions” for Democrat Governors Jim Hunt (1993-2001), Mike Easley (2001-2009), and Beverly Perdue (2009-2013). They were temporarily increased during the term of Republican Governor Pat McCrory in order to fix a broken, bloated, and inefficient state government.
“We recognize Roy Cooper is our state’s next governor and has the right to hire his own staff. That’s why we’ve authorized 400+ positions he can fill with whoever he wants,” explained Senator Berger. “But the changes to how state government operates that were desperately needed in 2012 are no longer needed now. When Gov. McCrory took office, he inherited a Department of Health and Human Services with massive Medicaid shortfalls. He inherited a Division of Employment Security that owed more than $2.5 billion to the federal government. And he inherited a bloated bureaucracy whose lack of fiscal discipline contributed to the outrageous $2.5 billion budget shortfall legislative Republicans were saddled with.”
“In contrast, under Gov. McCrory’s reformed executive branch, North Carolina is thriving,” Senator Berger continued. “Our economy is booming. We have budget surpluses not shortfalls. Our debt to the federal government is paid off. Our Medicaid system is finally operating within budget. And North Carolina is consistently listed at the top of many national rankings.”
So why all the consternation, one might ask? After all, an incoming Democrat governor is being given more political jobs by a Republican legislature than a Democrat legislature ever gave the past three Democrat governors. John Hood sums it up rather politely as a “preference for legislative supremacy” in his excellent piece “History can teach both parties” from December 19. It’s definitely worth a read.
We did a little digging of our own, which brings us to our final Throwback Thursday installment for this year.
A Short But Interesting History of Legislative Limits on Executive Authority in North Carolina
Any attempt to examine the methods by which Democrats in North Carolina have sought to limit the powers of Republican Governors and Lieutenant Governors must be taken in the context of what has been, for the most part, Democrat dominance of politics in our state.
Aside from the 12-year Reconstruction Era period following the Democrat defeat in the Civil War that produced the election of four Republican governors (and the impeachment and removal of one, William Woods Holden, by pro-Ku Klux Klan Democrats in 1871) and the one four year term of Republican Governor Daniel Lindsay Russell and Lt. Governor Charles A. Reynolds beginning in 1897, no Republicans assumed the governorship until the one-term election of James Holshouser in 1972. A Democrat, Jim Hunt, was elected Lt. Governor in that year.
Republican Lieutenant Governors in North Carolina are even more of a rarity; James Carson Gardner, elected in 1988 for one term, and who served under James Martin, was the first Republican Lt. Governor elected in North Carolina in the 20th century. The office of the Lt. Governor was created in 1868, after a new constitution was established by order of the federal government. This mandate applied to all former Confederate states, including North Carolina.
James Martin, a six-term Republican congressman from Charlotte, won an overwhelming victory for governor in 1984 (54 to 46 percent) and went on to win re-election in 1988. Two different Lt. Governors served under him, Democrat Robert B. Jordan, III (1985-1989) and (as noted above) Republican Jim Gardner (1989-1993).
It wasn’t until 2011 — the first time since 1870 — that Republicans controlled both chambers of the General Assembly. Democrats enjoyed unilateral control of both chambers of the legislature in every session but three since 1870 (Republicans controlled the House under Democrat Governors Elias Carr from 1895-1896 and Hunt from 1994-1998).
The minor and extremely rare inroads that Republicans were able to make through the years would not be easily tolerated. In response, Democrats sought to further enhance their power, and limit, where they could, the powers of the Governor. The late Professor Paul Luebke, himself a former member of the North Carolina House of Representatives, explains:
In the early 1970s, house and senate Democrats began the process of enhancing legislative power vis-à-vis the executive branch. This effort received impetus after the elections of Jim Holshouser, North Carolina’s first Republican governor in the twentieth century, in 1972, and Charlotte-area Republican Congressman Jim Martin in 1984. But legislative Democrats sought additional power even when Jim Hunt was governor from 1977 to 1985. One step was to organize an independent fiscal and research staff so they would not be dependent on the governor’s information. Their major mechanism, however, was self-appointment to boards and commissions established by the General Assembly. This was similar to legislators’ control of the Advisory Budget Commission, a body of gubernatorial and legislative appointees created by the General Assembly in 1925 to develop the state budget.
The move to strengthen the General Assembly was slowed in 1982, when the North Carolina Supreme Court ruled that making legislative appointments to the Coastal Area Management Board violated the separation of powers of North Carolina’s constitution.
Nevertheless, Democrats found legal ways to limit the governor’s powers. For example, in 1985 the General Assembly established an Office of Administrative Hearings to review the decisions of state government agencies. The legislation designated that the chief justice of the North Carolina Supreme Court, not the governor’s office, would select the chief hearing officer. Since the top positions in state government under a Republican governor of course were occupied by Republicans, this amounted to a special overview of executive policy. Democratic legislators presumed that the elected chief justice of the supreme court would appoint a Democrat, so that, even with a Republican governor, they could be sure a Democrat would review cases and make recommendations to administrative agencies. Similarly, in 1987 the General Assembly made all the appointments to an executive branch commission charged with determining priorities for public education construction, rather than allowing the Republican-dominated State Board of Education to make the selections. —(Luebke, Paul (1990). Tar Heel Politics: Myths and Realities, Chapter 3, p. 43).
[Editor’s Note: The State Board of Education consists of the Lieutenant Governor, the state Treasurer, and eleven members appointed by the Governor, subject to confirmation by the General Assembly in joint session.]
Legislative machinations to curtail the power of the executive were not limited to the governor’s office. The state Constitution of 1971 (ratified by voters in November 1970) gave the legislature almost unlimited power over the duties of the Lt. Governor, beyond those few already spelled out (namely succession power as Governor, the ceremonial functions of “President of the Senate” and a seat on the State Board of Education).
Prior to 1989, the Lieutenant Governor, in his role as President of the Senate, governed the Senate in a way not dissimilar from that of the Speaker of the House; that is, he controlled debate, the flow of legislation, committee appointments, etc. In fact, Senate Rules gave the Lt. Governor this mandate: “The President of the Senate, unless he has by law disqualified himself from that office, shall have the exclusive right and authority to appoint all committees, regular or select, and to appoint committee chairmen and vice-chairmen, but he may delegate said authority in any instance, as he may choose.”
At the time, the Lieutenant Governor had power in the Senate to appoint members of 95 important state committees:
- The North Carolina Courts Commission;
- The Juvenile Law Study Commission;
- The Crime Victims Compensation Commission;
- The North Carolina Criminal Justice Education and Training Standards Commission;
- The North Carolina Sheriffs’ Education and Training Standards Commission;
- The Motor Vehicle Dealers’ Advisory Board;
- The State Banking Commission;
- The Public Officers and Employees Liability Insurance Commission;
- The Board of Governors of the North Carolina Health Care Excess Liability Fund
- The North Carolina Health Insurance Trust Commission;
- The State Fire and Rescue Commission;
- The North Carolina Utilities Commission;
- The Private Protective Services Board;
- The Alarm Systems Licensing Board;
- The Disciplinary Hearing Commission;
- The State Board of Cosmetic Art Examiners;
- The State Board of Chiropractic Examiners;
- The North Carolina Veterinary Medical Board;
- The State Board of Therapeutic Recreation Certification;
- The Southern States Energy Board;
- The Advisory Committee to the North Carolina Members of the Low- Level Radioactive Waste Management Compact Commission;
- The North Carolina Low-Level Radioactive Waste Management Authority;
- The Milk Commission;
- The Northeastern Farmers Market Commission;
- The Southeastern Farmers Market Commission;
- The Recreation and Natural Heritage Trust Fund Board of Trustees;
- The North Carolina Seafood Industrial Park Authority;
- The Energy Policy Council;
- The State School Health Advisory Committee;
- The Council on Educational Services for Exceptional Children;
- The State Advisory Council on Indian Education;
- The North Carolina Teaching Fellows Commission;
- The Commission on School Facility Needs;
- The Educational Facilities Finance Agency;
- The Board of Trustees of The University of North Carolina Center for Public Television;
- The NCCAT Board of Trustees;
- The Board of Trustees of North Carolina School of Science and Mathematics;
- The Board of Directors of the Arboretum;
- The Commission on Children with Special Needs;
- The Joint Legislative Utility Review Committee;
- The Joint Select Committee on Low-Level Radioactive Waste;
- The Environmental Review Commission;
- The Legislative Ethics Committee;
- The Legislative Committee on New Licensing Boards;
- The Agriculture; Forestry; and Seafood Awareness Study Commission;
- The Joint Legislative Commission on Municipal Incorporations;
- The North Carolina Study Commission on Aging;
- The North Carolina Housing Finance Agency;
- The North Carolina Agricultural Finance Authority;
- The North Carolina Housing Partnership;
- The Governor’s Council on Physical Fitness and Health;
- The North Carolina Medical Database Commission;
- The Board of Trustees Teachers’ and State Employees’ Retirement System;
- The Committee on Employee Hospital and Medical Benefits;
- The Board of Trustees of the Teachers’ and State Employees’ Comprehensive Major Medical Plan;
- The Board of Trustees of the North Carolina Museum of Art;
- The Advisory Budget Commission;
- The State Building Commission;
- The North Carolina Code Officials Qualification Board;
- The North Carolina Wildlife Resources Commission;
- The North Carolina Office of Local Government Advocacy;
- The Emergency Medical Services Advisory Council;
- The Committee on Inaugural Ceremonies;
- The Administrative Rules Review Commission;
- The Art Museum Building Commission;
- The Advisory Committee on Abandoned Cemeteries;
- The Andrew Jackson Historic Memorial Committee;
- The Commission for Mental Health; Developmental Disabilities and Substance Abuse Services;
- The Consumer and Advocacy Advisory Committee for the Blind;
- The Child Day-Care Commission;
- The Governor’s Advisory Council on Aging;
- The North Carolina Council on the Holocaust;
- The Property Tax Commission;
- The Substance Abuse Advisory Council;
- The Environmental Management Commission;
- The Governor’s Waste Management Board;
- The Board of Transportation;
- The North Carolina Capital Planning Commission;
- The North Carolina Council on Interstate Cooperation;
- The North Carolina Human Relations Commission;
- The Governor’s Advocacy Council for Persons with Disabilities;
- The North Carolina State Commission of Indian Affairs;
- The Governor’s Advocacy Council on Children and Youth;
- The North Carolina Internship Council;
- The North Carolina Public Employee Deferred Compensation Plan;
- The North Carolina Farmworker Council;
- The North Carolina Board of Science and Technology;
- The State Controller;
- The North Carolina Agency for Public Telecommunications;
- The North Carolina State Ports Authority;
- The North Carolina Technological Development Authority;
- The Governor’s Crime Commission;
- The Local Government Commission;
- The General Statutes Commission; and
- The North Carolina Sentencing and Policy Advisory Commission.
But for the first time since 1900, North Carolina had both a Republican Governor and Lt. Governor again. In 1988, voters elected Jim Martin and James Gardner to those offices.
Democrats were beside themselves. While they could nibble around the edges of gubernatorial authority (see Professor Luebke’s analysis above), they could certainly bring the hammer down hard on Republican Lt. Governor Jim Gardner.
Democrats controlled both chambers of the General Assembly by wide margins (in the 1989-1990 session, there were 37 Democrats and 13 Republicans in the Senate and 74 Democrats and 46 Republicans in the House and in the 1991-1992 session, there were 36 Democrats and 14 Republicans in the Senate and 81 Democrats and 39 Republicans in the House), and they immediately moved to strip the Lt. Governor of all his power, except the few enumerated in the state constitution — first by a modification of the Senate rules and then by law.
1991’s Senate Bill 801, supported by then-Senator Roy Cooper, removed every single one of the 95 committees, by name, from the Lt. Governor’s purview and transferring it to the President Pro-Tem of the Senate.
In a dazzling power grab, Democrats flipped decades of tradition and procedure to reduce the first Republican Lt. Governor in 88 years, to the largely ceremonial role we know today. Nothing like it had ever been done before.
And, it would seem, there was no political price to pay for the move; in the 1992 election, voters elected a Democrat Governor, a Democrat Lt. Governor, and a Democrat-controlled General Assembly.
Legislative supremacy, indeed.