Pete's Prep: Tuesday, August 14, 2018

Governors seek to protect gubernatorial power

I'm old enough to remember when Pat McCrory was called too conservative to lead our state. The Republican former governor was also accused of caving to the Republican legislature - even as he sued that body over who gets to make appointments to many of the state's 500+ boards and commissions.

McCrory won.

So, it's not a surprise he joined the four previous living governors to oppose the proposal to change the way the state appoints members of the judiciary and the Board of Elections.

But Democrats were able to put their hatred of former Governor Pat McCrory aside yesterday (don't worry, it's not a truce - just a temporary ceasefire) to celebrate his call for voters to reject two constitutional amendments on the November ballot.

Let's take a look at both questions.

Remaking the Elections Board (and every other board, too?)

Here is a question you'll see on the ballot to remake the Elections Board:

[ ] FOR [ ] AGAINST 

Constitutional amendment to establish a bipartisan Board of Ethics and Elections to administer ethics and election laws, to clarify the appointment authority of the Legislative and the Judicial Branches, and to prohibit legislators from serving on boards and commissions exercising executive or judicial authority.

The governors and Democrats say this will limit Executive Branch power -- and that is true.

But that doesn't automatically make it a bad idea. After all, the legislative branch is the one closest to the people, and that's where most power should naturally reside. To borrow a favorite chant of the left: "This is what democracy looks like." One all-powerful executive is not what the nation - or the state - was designed to promote or protect.

It doesn't automatically make is a great idea, either. While Republicans control the legislative branch right now, they will not always do so. It is wise to contemplate how the law will be used when your opponents get to wield the power.

So, let's look at the proposed amendment and what it outlines.

The Bipartisan State Board of Ethics and Elections Enforcement shall be located within the Executive Branch for administrative purposes only but shall exercise all of its powers independently of the Executive Branch. 

The Board of Ethics and Elections would be walled off from executive branch influence. I fail to see how this is a bad idea.

The next part outlines how the members of the Board will be appointed. 

It will have 8 members - each serving a 4-year term. 

"Of the total membership, no more than four members may be registered with the same political affiliation, if defined by general law."

The idea here is that the Board will be evenly split - with 4 Republicans and 4 Democrats.

All of the appointments will come nominations submitted by the General Assembly:

Appointments shall be made as follows:

(a) Four members by the General Assembly, upon the recommendation of the President Pro Tempore of the Senate, from nominees submitted to the President Pro Tempore by the majority leader and minority leader of the Senate, as prescribed by general law. The President Pro Tempore of the Senate shall not recommend more than two nominees from each leader. 

(b) Four members by the General Assembly, upon the recommendation of the Speaker of the House of Representatives, from nominees submitted to the Speaker of the House by the majority leader and minority leader of the House of Representatives, as prescribed by general law. The Speaker of the House of Representatives shall not recommend more than two nominees from each leader.

All of this is defensible as a potentially better way to construct the Board of Elections - rather than the old system - where the Governor built all of the state's elections boards with majorities from his/her own party.

However, the General Assembly just recently overhauled the way the Board of Elections is built. In 2017 the State Board of Elections, State Ethics Commission and the Lobbying Compliance Division of the Secretary of State’s Office were all merged together. The agency is overseen by a nine-member board – four Democrats, four Republicans and a member not affiliated with either of those parties.

So, why is this new change necessary?

I suspect because the current model was only temporary.

Look at this language that pops up in the law - but won't be on the ballot:

The legislative powers of the State government shall control the powers, duties, responsibilities, appointments, and terms of office of any board or commission prescribed by general law. The executive powers of the State government shall be used to faithfully execute the general laws prescribing the board or commission.

This is the language that the former governors are concerned about.

Had this been part of the constitution in 2017, Gov. McCrory might not have prevailed in his lawsuit against the legislature.

From the Carolina Journal:

In the lawsuit, the state Supreme Court ruled the governor had to have effective control of a majority of the appointees of a board or commission which primarily performs executive branch functions.

So, the question is - do you want the legislature or the governor to be in charge of appointing ALL boards and commissions in the state. 

Which is really a question about your views on legislative vs. executive power.

Appointing judges

The second question is about judicial appointments. Here is what it looks like on the ballot:

[ ] FOR [ ] AGAINST 

Constitutional amendment to implement a nonpartisan merit-based system that relies on professional qualifications instead of political influence when nominating Justices and judges to be selected to fill vacancies that occur between judicial elections.

Whenever there's a judicial vacancy now, the Governor gets to make the appointment. This, obviously, allows the Governor to remake courts with members of his/her own party.

I'd prefer this spoils system mechanism be changed.

I'd also note how the very same people campaigning on a slogan of "an independent judiciary" are defending this de facto patronage system.

The proposed law creates the Nonpartisan Judicial Merit Commission to evaluate the qualifications of judges up for consideration. The judges' party affiliation will NOT be considered.

This commission will then send its list of candidates to the General Assembly.

The General Assembly will then recommend at least two of the candidates to the Governor.

The Governor then picks one from that list.

You can see why Democrats are worried. 

They're afraid that the GOP majority in the legislature will limit Democratic Gov. Cooper's choices to conservative judges, instead of the social justice activists - like Supreme Court candidate Anita Earls.

Of course, a Republican governor would also face the same sort of tactic from a Democratic legislative majority.

Also... who is on that "nonpartisan commission" making the initial recommendation?

No more than nine members - with appointments "allocated between the Chief Justice of the Supreme Court, the Governor, and the General Assembly, as prescribed by law." 

Sooooo... it's not clear how the commission is made up.

The law says the General Assembly shall create the commissions at the state and local levels - but doesn't explain how they'd be created.

Is this a better path than the current appointment process?

It's different.

But given the lack of specifics, I can't say it's better. It's just a different body making the appointments. And unless the law spells out the process, I have a hard time believing it won't be designed to help Republicans (and any future legislative majority) influence the judicial appointment process.

Again, Democrats are howling that this obliterates the independence of the judiciary. Of course, this is false. It simply shifts the influence from the Governor to the Legislature.

Is this preferable? Again, it depends on your views on legislative vs. executive power.

Pete Kaliner

Pete Kaliner

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