Moore and Berger questioned on the balance of power with Gov. Cooper
By most measures, North Carolina already has one of America's weakest governors. Now experts say a new ballot measure would take away even more power.
The measure, passed by a Republican-controlled legislature, takes aim at Democratic Gov. Roy Cooper. But the underlying tensions it reflects go beyond party.
That's why three former governors are joining Cooper in opposing a constitutional amendment that would give the General Assembly more power at the governor's expense.
"The legislature should be making laws, not running the government," said former Gov. Jim Martin, a Republican. "You have to defeat (the amendment). You have to kill a snake at every opportunity."
The amendment, passed this week by the legislature, would create a new Bipartisan State Board of Ethics and Elections Enforcement. Its eight members would be appointed by the legislature. Currently the governor names people to the board.
But if passed by voters, the amendment also would give the legislature power to make appointments to nearly 400 boards that oversee everything from the environment to public health to economic development. Those boards shape policies that affect virtually everyone in the state.
"It's a blatant power grab from the executive branch," said former GOP Gov. Pat McCrory.
Former Gov. Jim Hunt, a Democrat, said he "totally opposes it." A governor of either party, he said, better reflects "the people as a whole."
The measure is one of six constitutional amendments on the fall ballot. Others would cap the state income tax, expand the rights of crime victims and require voters to have an ID. That's the most amendments on a single ballot since the current constitution was adopted in 1971.
John Dinan, a political scientist at Wake Forest University, said North Carolina's governor, who shares executive power with an independently elected Council of State, is one of the nation's five weakest chief executives. That's despite court decisions that have reaffirmed the governor's appointment powers.
Two years ago, for example, the state Supreme Court gave then-Gov. McCrory a victory when it ruled that he, not lawmakers, had the power to name members of the Coal Ash Management and two other commissions.
"If the proposed amendment were to be ratified, this would essentially reverse these recent state court decisions and snuff out recent state court efforts to . . . boost the governor's power in the area of appointments," Dinan said.
Unlike North Carolina, some governors have line-item veto. Others control administration spending, while in North Carolina it's the legislature that does that. And in some states, the governor and lieutenant governor run as a team. North Carolina's lieutenant governor, Dan Forest, is a Republican.
History of tension
Tension between legislators and governors is nothing new.
Dating back generations, it has persisted with the evolving role of both governors and lawmakers. In 1982, the state Supreme Court ruled in Hunt's favor in a case involving legislative appointments to the Environmental Management Commission.
When Martin was elected in 1984, Democratic lawmakers sought to stymie his appointments. One House member even tried to call for a referendum on a constitutional amendment to repeal the governor’s ability to seek a second term.
When Martin did win a second term in 1988, Jim Gardner was elected the first Republican lieutenant governor since the turn of the 20th century. Democratic senators promptly stripped many of the lieutenant governor's powers.
This isn't even the first time the legislature has tried to limit Cooper's powers.
After the 2016 election, but before Cooper took office, lawmakers stripped the governor of the power to appoint members to the boards of trustees for schools in the UNC system, reduced the number of administration appointments from 1,500 to 300, and required the governor's new cabinet secretaries to be confirmed by the Senate.
This year Republicans, who control the legislature, argued that the General Assembly has long been the state's dominant branch of government. Not until the 1970s did Hunt become the first governor who could run for a second term. And it wasn't until the 1990s that the governor — again under Hunt — won limited veto power.
Democrats argued that the ballot amendment would make the legislature too strong.
"History tells us that, when legislative bodies are left unchecked, they become pirates, tyrants," Senate Minority Leader Dan Blue of Raleigh told colleagues. "Legislatures need to be kept in check."
"The governor's going to keep us in check?" replied Republican Sen. Jerry Tillman of Randolph County. "I believe 170 (lawmakers) will be keeping the governor in check."
Going back to 1838
Gerry Cohen, a former long-time legislative official, said the proposed amendment on appointment powers would take the relationship between North Carolina's governor and General Assembly back — almost two centuries.
"It's quite a major change," he said. "We're almost back to 1838 where the legislature would appoint the governor. We’re getting close to pre-1838."
Molly Diggins, state director of the Sierra Club, called it "a wholesale change in the balance of power."
"The (Republican) majority has been relentless in rolling back environmental protections," she said. "It would broaden the legislature's reach if it also had overdue influence on rule-making."
Charlotte attorney John Wester was one of the lawyers who successfully defended the governor's powers in the McCrory case. He said a constitutional amendment, unlike a simple law, would make any subsequent legal challenges problematic.
"If this measure passes and the public accepted it I believe you would transform the governor’s constitutional duty to faithfully execute the laws into an elongated episode of ‘May I,'" said Wester, a former N.C. Bar Association president.
Martin, the former GOP governor, said legislators would be happy with a weaker governor.
"He’d be a nice figurehead, which is what the General Assembly wants," Martin said. "They’d be very happy to have a governor who would go around making speeches, cutting ribbons and staying out of the way."