Phil Berger’s Misleading Excuses for 2016 NCGA Special Session 4
One of the reasons, I suspect, that NCGA Republicans pretended to make a deal for HB2 repeal was to put the undemocratic and nakedly self-serving horror show of Special Session 4 behind them. With the rotten fruit of SS4 back in the news due to the pending litigation, now is a good time to go back over the whys, wherefores, and WTFs of that session. As a refresher, we can use an article NC Senate majority leader Phil Berger posted on Facebook before the Special Session 5 fiasco. In that article, he attempted to argue that Special Session 4 was necessary and justified, and that the media had conspired to smear the hardworking NCGOP leadership. The actual title of his piece was: “The facts being covered up by the press.”
Before we even get started: can you believe the brass ones on this guy? He and his cronies plan an extra special session, pre-load it with legislation, hold off getting the votes until the last possible minute to get it called, refuse to make the agenda public, ram it through in three days of sessions with the public shut out so people barely even get to read this crap before it’s voted upon, and HE WANTS US TO WORRY ABOUT WHAT THE MEDIA WON’T TELL US.
But hey, let’s see what he had to say. The full article can still be found here:
Yikes. With apologies to FJM, I’d like to go through Berger’s piece and rebut it point by point.
Below is some very important background and historical context we’ve shared with members of the North Carolina and national press about legislation being considered in this week. Unfortunately, the vast majority of media outlets have chosen to ignore these hard facts because they do not fit the narrative that sells newspapers or TV advertisements. Overt media bias and an unwillingness to tell both sides of the story is precisely the reason why so many Americans no longer have faith in the mainstream media. PLEASE SHARE this post to help us spread the truth the media is unwilling to tell.
I shared it, Senator! I’m happy to help anybody who openly feeds his constituents’ sense of victimization and validates their penchant for fake news. That’s exactly the kind of leadership that everyone should respect.
These are not just facts, folks. These are hard facts. They are hard facts that do not fit the narrative. OR…the media have simply concluded that the lot of it is nothing but self-serving, irrelevant twaddle that does nothing to explain why people are actually angry.
Confirmation of Cabinet Secretaries
Article III, Section 5 of the North Carolina Constitution 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.
This is true. It is certainly a fact. It has also not been standard practice to run confirmations. In the last six years, the GOP has held a majority or supermajority in both houses of the NC legislature, and in that time this never came up. December 2016, however, brought an emergency so profound they sprang into action — at the marginal cost of roughly a teacher’s salary per day — to protect us from this constitutional crisis. An emergency which he will explain in…well, no, he’s done with this one.
Full Appellate Court Panel Review
· 1999 bill sponsored by Majority Leader Cooper creating an ‘en banc’/full appellate court review procedure: http://www.ncleg.net/gascripts/BillLookUp/BillLookUp.pl?Session=1999&BillID=sb800&submitButton=Go
I’m not going to quote this one in full because I will actually give Senator Berger a pass on it. It’s not terrible policy, and the federal precedent wasn’t deliberately concocted for partisan gain. Of course, they wouldn’t have done it if the appeals court weren’t heavy on conservative judges, and he sure is proud of being able to stick it to Roy Cooper. Seriously, though, this is incredibly small potatoes. I’ll give you this one, Senator.
Employee Status
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.
Congratulations! You’ve won the Heritage Foundation Prize for Extreme Disingenuousness in Defense of Partisan Nonsense!
But the changes to how state government operates that were desperately needed in 2012 are no longer needed now.
He will, no kidding, argue against exactly this in two paragraphs when he remembers that he insisted on keeping the people who were added by those changes.
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.
The shortfalls are both accurate. However, both have more to do with the Great Recession than with the structure of the “bloated bureaucracy,” as he puts it.
The Medicaid shortfall appears to have been the simple result of failing to properly forecast — the 2010 and 2011 Medicaid appropriations were incredibly optimistic, probably due in part to knowing that big ARRA (Obama stimulus) money was coming to help with costs. The appropriation for 2010 was $500M less than the one in 2009, for example, due apparently to some expectation that this effect would be magic — even though ARRA money had started arriving in 2009. This is why, despite overall costs only going up $200M, there was a $300M shortfall in 2010. The annual shortfall was down to $75M by 2013 due to better appropriations forecasting in the budget passed in 2012, before McCrory arrived. Overall North Carolina-facing costs were basically flat from 2010 to 2014. The GOP chose to use the previous budgeting crisis as a reason to reduce Medicaid reimbursement rates, which caused problems for patients but did further cut costs. There’s next to no evidence that the additional employees hired by Governor McCrory had much of anything to do with it.
The debt at the Division of Employment Security is even easier to explain: NC used to have pretty nice unemployment benefits and ran in deficit during the recession, accumulating a large debt. Benefits were cut heavily by the legislature to put the program back on budget and pay back the debt. The cuts were so deep they disqualified North Carolina from federal unemployment aid. Again, this does not point to great achievement by McCrory’s exempt employees.
In contrast, under Gov. McCrory’s reformed executive branch, North Carolina is thriving. 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 does it make sense to enable the mass political firing of people who have been doing a wonderful job for the state?
See, the Senator actually does believe those changes are still necessary. Told you he would change his mind. Not only are they still necessary, it must be these specific people. After all, they did such a great job that the legislature had to cut benefits in their departments multiple times each. There’s something astonishing about a Republican indignantly leveling an accusation — without apparent irony or, for that matter, any self-awareness whatsoever — that Democrats are going to shed critical employees and thereby hamper the workings of government.
It’s much simpler than that. Most of the country, contra the GOP’s claims during the presidential election, is doing better than 4–6 years ago. North Carolina’s recovery in particular has been middling and hollowed out, but claims are down across the board in these countercyclical programs. McCrory’s people aren’t magic. The crisis, such as it was, was fake. The legislative remedies, on the other hand, were real, draconian, and counterproductive. Doctors have been opting away from Medicaid patients due to the lowered reimbursement rates. The North Carolina workforce, despite lower nominal unemployment, has gone from a roughly average share of the working-age population to about three percent below average since the unemployment reforms.
Finally, the churn in exempt positions at the end of the Governor’s term is in the very nature of those positions. Governor Cooper was not going to turn over all 1,000-plus of Governor McCrory’s exempt hires. The only thing that raised the specter of a “mass political firing” in the first place was the NC GOP’s insistence that Cooper not be provided the discretion granted to his predecessor. Certainly, when it is time the next governor to replace some of Cooper’s exempt employees, I think it highly unlikely that Senator Berger will refer to that as a “mass political firing.”
In the end, it seems that what Senator Berger really means is that he would prefer that these exempt executive branch hires serve at the pleasure of Republicans regardless of who’s actually the governor.
Restoring Administrative Authority to the State Superintendent
We are restoring the State Superintendent of Public Instruction’s authority — stripped away by Roy Cooper and his fellow Democrats — to make staffing decisions as the elected head of the Department of Public Instruction. (Article IX, Section 4 of the North Carolina Constitution establishes that the Superintendent of Public Instruction is the secretary and Chief Administrative Officer of the State Board of Education.)
· 1995 laws supported by Sen. Cooper stripping away the State Superintendent of Public Instruction’s authority: http://www.ncleg.net/Sessions/1995/Bills/House/PDF/H7v4.pdf,
http://www.ncleg.net/gascripts/BillLookUp/BillLookUp.pl?Session=1995&BillID=sb15&submitButton=Go
This is all smokescreen. The SPI at the time was high-profile Democrat Bob Etheridge, who was later elected to Congress and eventually ran for Governor as a Democrat. He and the Board of Education engaged in a power struggle that ended in a pair of lawsuits in 1993, in which each sued the other. The power was stripped from the SPI primarily to put an end to these lawsuits. Etheridge pouted about it to the NCDOJ. It was not done in special session and it wasn’t a partisan power grab.
NCGA Republicans called a special session for themselves partly to give this problematic power — removed by Democrats from a respected Democratic public servant — back to the SPI, in the hope that a 32 year-old Republican attorney and voucher advocate will handle it better in the face of an opposed Board of Ed on the strength of a laudable stint in Teach for America and another in his local school board. This is not merely obviously going to work out poorly, it was inevitably going to result in lawsuits and chaos…and in fact the lawsuit has already been filed.
We should at least consider the possibility that it was intended to do so. There’s a theme there, which Senator Berger will explicitly acknowledge a little further down, about the legislature’s use of the courts as a foil. As ever, Republicans will blame Democrats for the lawsuits. However, in reality they are ignoring the history of the problem that they are re-creating while presuming to give the rest of us a lesson in it.
Either way, notice that there’s not a single argument even from Senator Berger that this is good government, merely an assertion that Republicans have the power to do what they like and a vague claim to moral authority founded on the past actions of politicians whom they do not seem to personally find honorable.
Board of Trustees at UNC Institutions Appointed by Legislature
The North Carolina Constitution (Article IX, Section 8) is crystal clear on this issue:
The General Assembly shall maintain a public system of higher education, comprising The University of North Carolina and such other institutions of higher education as the General Assembly may deem wise. The General Assembly shall provide for the selection of trustees of The University of North Carolina and of the other institutions of higher education, in whom shall be vested all the privileges, rights, franchises, and endowments heretofore granted to or conferred upon the trustees of these institutions. The General Assembly may enact laws necessary and expedient for the maintenance and management of The University of North Carolina and the other public institutions of higher education.
Since 1973, one of the ways in which the General Assembly had provided for the selection of trustees was to offer four of the seats to the Governor to appoint at his or her discretion. While the NC Constitution gives the Assembly the authority to change this, it does not have anything to say about whether that is a good idea. Neither, apparently, does Senator Berger, who’s (again) content to let this statement of authority stand on its own.
Interestingly, Senator Berger chose not to highlight that HB17 literally transfers half of the Governor’s former UNC Board of Trustees appointment power to Berger himself (the other half to Speaker Moore). It seems odd in that light that he does not wish to take the opportunity to elaborate on the GOP’s rationale for this change or his and/or Moore’s qualifications in this regard. It’s almost as though the issue is as simple as him thinking to himself, “Hey, the Constitution technically gives my supermajority the authority to take part of the Governor’s job and give it to me! So I guess OF COURSE we should do that!”
State Ethics and Elections Enforcement Board
We are restructuring the State Board of Elections, Lobbying Compliance Division of the N.C. Secretary of State’s office, and N.C. Ethics Commission into a consolidated State Ethics and Elections Enforcement Board with an even split in partisan membership. This board will be responsible for oversight of campaign finance, lobbying and ethics investigations, ensuring that similar functions are regulated by the same agency and helping avoid situations where separate entities issue conflicting interpretations of the law. It follows the model of the Federal Elections Commission and the current model of the State Ethics Commission by requiring the board’s eight members to be evenly divided between Republicans and Democrats, and by requiring at least six votes for an official action.
The “even split in partisan membership” is another smokescreen. The effect here is to weaken lobbying and ethics oversight by “consolidating” them into a deadlocked, do-nothing body. Senator Berger is correct in noting that this is modeled after the FEC. What he doesn’t mention is that the FEC is a deliberate disaster, modeled in this way specifically to weaken it. The FEC chair most responsible for this, Donald McGahn, openly did not believe in the FEC’s basic mission. McGahn has since been rewarded with a position as White House Counsel for the Trump administration.
Clarifying General Assembly’s Authority to Draw Congressional and Legislative Maps
Our state constitution gives the General Assembly alone the authority to draw congressional and legislative districts. If a constitutional violation is alleged, then the courts can step in and order a remedy.
CAN? In fact, as Senator Berger knows well, the courts have already done so more than once because the NC GOP made it so abundantly clear the last set was deliberately intended to disenfranchise African and Latin Americans “with surgical precision.”
Here’s that theme again, though. The NCGA Republicans do not appear to feel bound by any norms that run in opposition to their naked exercise of power. Clarifying lawsuits have always been an aspect of our government, but it’s another thing entirely for politicians to take it upon themselves to use their legislative power to steer directly into conflicts with their own citizens in court, determined to take not one limitation on their ability to oppress for granted. When the courts do step in and order a remedy, you can be sure the GOP will not meekly accept it as a part of the system of checks and balances.
Partisan Appellate Court Elections
One of the easiest ways for voters to identify who shares their philosophies on the role of the judiciary is through partisan affiliation. This is a much better way for voters to select candidates in lower profile races than by relying on name ID and ballot order. That’s why this bill creates partisan elections for state Courts of Appeals and Supreme Court candidates.
Even the liberal tabloid INDY Week highlighted the problem with our current system, noting that a newly-elected Supreme Court Justice may have won “because conservative voters, knowing little to nothing about these candidates but having seen Republican judges on top elsewhere on the ballot, assumed [he] was a Republican.”
It is a fascinating argument he’s making here, that judicial elections should be more partisan to make it easier to manipulate low-information voters. While it’s deeply unfortunate for a leader in Senator Berger’s position to express this kind of cynicism about his own voters, a more practical problem with this view is that it doesn’t actually make it easier. Studies have shown that partisan SC elections are much more expensive and much more subject to the influence of outside money. These are two of the reasons NC is just the eighth state to move to partisan state SC elections. However, there’s little doubt both of those suit the NC GOP just fine.
Historical Context on changes to N.C. state government following previous elections
Below are key events from Gov.-elect Cooper’s tenure as a former state senator to keep in mind when considering his feedback on recently proposed policy changes in North Carolina:
I’ve moved some of the links that were provided in this section to be co-located with an earlier section of Senator Berger’s piece with which they were related. The remainder are below.
· Gov.-elect Cooper was in the legislature when it stripped Lt. Gov. Jim Gardner of most of his authority. What were his thoughts on that change?
When the Lieutenant Governor was stripped of most of his authority in 1989, that authority was invested in the President Pro Tempore of the state Senate, where it has remained ever since. That job is now held by…Senator Phil Berger, who has done exactly nothing in the last four years to cede power back to fellow Republican Lt. Gov. Dan Forest to right the injustice he’s supposedly complaining about here. So, what are your thoughts on that change, Senator Berger?
· Gov.-elect Cooper’s support for packing the appellate court in 2000 has been well-documented.
It is true that Cooper supported adding appeals judges in 2000, but because it’s well-documented we know that there were actual reasons to add judges in 2000. The additional seats were added specifically to deal with increased caseload. In contrast, in response to the NC Supreme Court-packing controversy of 2016, the Public Trust and Confidence Committee of the N.C. Commission on the Administration of Law and Justice — a commission set up by the Republican Chief Justice — issued a resolution stating that the number of judges and justices on all courts should be pegged permanently to workload.
· What are Gov.-elect Cooper’s thoughts on his self-described mentor, former Gov. Jim Hunt, demanding scores of resignations before he was even sworn in to his first term, which is now referred to as the ‘Christmas Massacre?’ Does Gov.-elect Cooper plan to follow in his mentor’s footsteps?
It appears that it is now referred to as the ‘Christmas Massacre’ more or less solely because Senator Chad Barefoot found that term ascribed to “rivals” in a 2003 biography of Hunt, and the NC GOP brought it with them to Special Session 4 ready to repeat it ad nauseam into anything that even looked like a microphone. The N&O notes that term did not appear in their news coverage from the time.
For his part, Governor Hunt among others contest this characterization of his transition. Hunt did manage to “oust about 75.” On the other hand, during the transition of Hunt’s Republican predecessor, Jim Holshouser, over 100 Democrats were purged from the Department of Transportation alone, albeit without it being given a snappy name.
At any rate, Governor Cooper was nineteen years old in 1976 and could not possibly have had a meaningful role in Governor Hunt’s transition. Senator Berger himself was just twenty-four and living in Virginia, and Senator Barefoot was not born until 1983. What meaningful role this supposed intergenerational grievance could possibly have to play in their contemporary politics remains unclear. Telling that story is probably more fun than explaining themselves.
· Given that Gov.-elect Cooper has stated on the record his intention to emulate President Obama and circumvent the legislative process by governing through rule-making and executive orders, why is he surprised the legislature is taking steps to protect its constitutional authority?
Governor-elect Cooper faces hostile, veto-proof supermajorities in both houses of the state legislature, who just spent the last four years in some important cases overturning the veto of the Republican governor, and who are clearly unchastened to have found that Republican governor hoist with the petard of the bad, unpopular, and frequently unconstitutional policies they shoved down his throat.
On what other possible basis could he credibly hope to govern? Is it Senator Berger’s personal opinion that the executive branch only holds (held) these powers due to failure, in some cases spanning three or four decades, of the legislature to “protect its constitutional authority?”
Past actions are often predictors of future actions, and Gov.-elect Cooper has done nothing to give the expectation that he will behave any differently in his new role.
Voters must remember in 2018 that the same can be said of Senator Berger. In his NC GOP, might makes right. They make law because they can, without obvious care what most people want. They would rather face costly losses in court than admit to their constituents that much of the agenda of minority oppression and partisan retrenchment that they relentlessly promote is unconstitutional on its face, presumably because they know that every loss in court reinforces the biases of the people who vote for them. They sneer at the mainstream media for an implied “narrative” while penning op-eds online to more efficiently direct their own stream of half-truths and deliberate evasions at their own voters. They cite decades-old grievances in a pathetic attempt to drum up moral authority while refusing to learn the lessons that are obvious from the very cases they cite, because in the end they do not respect history or historical norms of any kind.
What they respect is power — their own power. They strut and preen with self-regard at having acquired that power even as they can see that their ability to exercise it is restricted by the way they got it: their willingness to take command by refusing to lead. They can only exercise power at the discretion of the mob, for they are too self-interested to risk dissension and too cowardly to actually try to lead it. As the gap between their actual knowledge and the knowledge which they’re prepared to display to their base increases, their disingenuous, smirking contempt for those voters becomes more manifest with every public statement.
I want to make it clear that there’s nothing inherently Republican about Berger’s actions or comments here. It is not my goal to smear all Republicans with the same brush. I simply wish to lay plain the kind of leadership that North Carolina Republicans are receiving. While some may be content with that kind of cynical faux leadership, those who are not must demand better and demand it soon.
