While national Democrats were desperately and embarrassingly search for some way, any way, to overturn the election of Donald Trump, the mania reaching apotheosis in the unhinged rantings of Michael Moore—“Trump is not president until 12 noon on Jan 20th. So we’ll continue to fight & hope to find a legal, nonviolent way to stop this madness,” the “madness” known as “losing an election”—Democrats, news media, and op-ed writers in the New York Times (but I repeat myself) have been loudly condemning the North Carolina Assembly as part of a condemnation of Republicans generally. After narrowly losing the State House, the overwhelmingly Republican legislature has been passing measures to limit the power of the incoming Democratic governor in a lame-duck legislative session. The changes drastically reduce the number of officials the governor can appoint within state government, require legislative confirmation of Cabinet-level appointments, eliminate partisan majorities in the state board of elections and strip the governor of the power to make appointments to the University of North Carolina Board of Trustees.
This is, according to Slate’s Mark Joseph Stern, for example, a “last-minute power grab” that “marks an alarming departure from basic democratic norms—a blatant attempt to overturn the results of an election by curtailing judicial independence and restructuring the government to seize authority lawfully delegated to the incoming Democratic governor.” By the end, he is foaming at the mouth with indignation:
“What’s happening in North Carolina is not politics as usual. It is an extraordinarily disturbing legislative coup, a flagrant effort to maintain one-party rule by rejecting democratic norms and revoking the will of the voters. It is the kind of thing we might expect to see in Venezuela, not a U.S. state. It should terrify every American citizen who believes in the rule of law. This is so much more than a partisan power grab. This is an attack on democracy itself.”
I was preparing to write something similar, but unlike Stern, I did some research first. What I discovered, however, thanks to the work of Volokh Conspiracy contributor Jonathan Adler, a Case Western law professor, was that as unethical as the General Assembly’s power grab is, the tactic is business as usual in the Tarheel State. Adler points his readers to the research of John Hood, who informs us…
Precisely four times in modern North Carolina history, voters have elected a new governor or lieutenant governor of one party and legislative majorities of the other party. In all four instances, the legislature stripped the newly elected executives of some power.
In the first three instances — Republican Gov. Jim Holshouser’s election in 1972, Republican Gov. Jim Martin’s election in 1984, and Republican Lt. Gov. Jim Gardner’s election in 1988 — a Democratic legislature did the stripping. As Martin’s biographer, I’m most familiar with his experience. Lawmakers limited his ability to staff agencies (including the State Board of Elections), subjected other appointments to constraints or confirmation, and withdrew gubernatorial control over state construction and administrative hearings, among other actions.
In each case, Republicans cried foul. Democrats insisted they were simply carrying out North Carolina’s longstanding preference for legislative supremacy….
Democrats upset with the special session might have been more persuasive had they chosen a different rhetorical strategy. Every time they accused GOP lawmakers of “unprecedented” acts, of “contempt for democracy,” of being “sore losers” and the like, all Republicans heard was hypocrisy. What happened in 2016 was different in detail, but not much in degree, from what happened in the past. A better argument would have been, “Yes, we Democrats went too far when we were in power. It often came back to bite us. Don’t make the same mistake.”
I am all for breaking the cycle. That will inspire greater trust and long-term thinking, from both sides.
That pretty well sums up my position too.
However, to place the events in North Carolina and the conduct of the legislature in proper perspective, it is not just useful but essential to know the history and precedent involved. Never mind, though. For a lot of alleged journalists and partisan hacks, the less the public understands the better it is for promoting partisan polarization. (More Moore, telling MSNBC;s Chris Hayes, telling MSNBC’s Chris Hayes, “You have to admire conservatives and Republicans. They are so brazen. They don’t care.They just go for it.” Hayes, in turn, did not choose to enlighten Moore or his viewers regarding North Carolina political tradition.)
Rob Christensen, chief political writer for the News & Observer, also notes the inconvenient truth about North Carolina:
When Gov. Pat McCrory took office in 2013, the GOP legislature expanded the number of positions exempt from civil service protections from 400 under Democratic Gov. Bev Perdue to 1,500 – the highest cap ever. This allowed McCrory to hire more Republicans. Now, under a bill awaiting McCrory’s signature or veto, lawmakers are proposing to reduce the number to 425 in what is apparently an effort to protect Republican state employees and prevent the hiring of Democrats.
But Democrats invented this practice. The 1985 Democratic legislature placed the first cap ever on newly elected Republican Gov. Jim Martin, limiting him to 325 exempt positions.The whole business of mass firings in state government pretty much began with the election of Democrat Kerr Scott in 1948, a Jacksonian figure who beat the more conservative machine. North Carolina was a one-party state then so this was factional Democratic warfare.
As Adler correctly points out, this history does not excuse what North Carolina Republicans have done. “Such reforms are much more credible when they are enacted in a way that does not create immediate partisan advantage, as could be accomplished if the reforms take effect only after an intervening election,” he writes. That isn’t the point of this post, however, though I agree completely.
The news media misrepresents the events by framing them as a unique and signature example of Republican defiance of democracy, and that is largely what every single news sources has done—even the Washington Post, which has left readers to track down an online and arcane legal blog on its website rather than to clarify the issues in its reporting.
No, the fact that in North Carolina “everybody does it” can’t justify what the Republican legislature is trying to do now. However, that fact does significantly change the meaning of the events. “Both parties do this” is materially different from “look what those evil Republicans are doing now; how disgusting, but then, you know how Republicans are.” Indeed, it is a different story entirely, and a false one.
Fake news, in fact.