Bill to shift appointments, power, from governor to legislature on a fast track

A fast-moving bill to strip the governor’s office of key appointment powers, shifting those decisions to the North Carolina General Assembly, cleared its first committee Tuesday and may be on the Senate floor before the week is out.

The measure is one of several advancing at the statehouse that's intended to shift more control of state government away from the governor's office.

Republican lawmakers behind the push say the General Assembly, whose 170 members are up for re-election every two years, are closer to the people, enabling them to pick a better, more balanced, slate of appointees for boards that make key regulatory decisions around the state. The broadest change proposed so far comes from Senate Bill 512, which shifts appointment powers at nine key boards.

Those include: The N.C. Utility Commission, which regulates Duke Energy and other utilities, the Board of Transportation, which makes road funding decisions, and the Environmental Management Commission, responsible for a wide range of business regulations meant to protect air and water. The measure was announced Monday and is expected to be voted on in the state Senate Thursday, which would send it to the House for more discussion.

Democrats say the bill is clearly unconstitutional, violating a state Supreme Court precedent set in 2016, when the legislature’s GOP majority jousted over appointment powers with Republican Gov. Pat McCrory. Republican supporters said Tuesday they believe the bill is constitutional, either in line with that McCrory v. Berger decision or delving into situations not covered by it.

In that case the state Supreme Court decided, 6-1, that the legislature had limited authority to shift appointments on executive boards. Much of the state Supreme Court that would decide the issue if it comes up again has turned over since 2016, and the court’s new Republican majority showed a willingness earlier this year to revisit, and potentially overturn, precedent.

Current Chief Justice Paul Newby was the only dissenting justice in McCrory v. Berger, though he concurred with the majority in part.

"The idea of one branch of government, the judiciary, preventing another branch of government, the legislature, through which the people act, from exercising its power is the most serious of judicial considerations," Newby wrote in his dissent.

In addition to Senate Bill 512, Senate Republicans moved a bill through committee Tuesday that would create a new process to pick the president of the state’s community college system, giving legislative leadership final say. The system’s state board is looking for a new president now, and in the past has been able to make that decision on its own.

House Bill 149, which until today dealt with charter school policy and didn’t mention community colleges, adds the job to a list of state positions requiring legislative confirmation.

GOP lawmakers have also introduced bills this year that would limit the governor’s ability to fill vacancies on the Council of State and in the state courts, as well as a proposed constitutional amendment that would voters decide whether the governor should keep appointing the State Board of Education or hold elections for those positions.

As for Senate Bill 512, it cleared the Senate Judiciary Committee Tuesday. Sen. Warren Daniel, R-Burke and a bill sponsor, said it would “bring much needed balance to unelected boards that have a great deal of impact on our lives.”

The Cooper administration slammed the proposal when it was announced Monday as “another massive, unconstitutional power grab by Republican legislators who have a track record of right-wing partisan appointees.” But Cooper is term limited, and the bill wouldn’t cut short terms for any of his current appointees, meaning the impact would be felt under future governors.

State Treasurer Dale Folwell, a Republican who announced a 2024 run for governor last month, said he had not read the bill but that he’s “for anything that brings more transparency and accountability.”

Democratic Attorney General Josh Stein, who announced his run in January, called the bill "a political power grab by Republican legislators that will hurt North Carolinians."

"It will impact people’s daily lives – how much they pay for electricity, whether they can trust that their drinking water is clean, and whether they can get the health care services they need," Stein said in a statement.

The other expected candidate for governor, Republican Lt. Gov. Mark Robinson, did not immediately return requests for comment. Former Gov. Pat McCrory declined to weigh in on the proposal.

Daniel pushed back against accusations of a power grab.

“If we wanted to make a power grab we would just take all of the appointments,” he said during Tuesday morning’s Senate Judiciary Committee meeting. “We think it’s constitutional.”

Cooper has vetoed bills before that shift appointment powers, but the dynamics are different this year. Republicans are one seat shy of veto-proof majorities that would allow them to pass laws over Cooper’s veto, and a handful of Democrats have shown some willingness to side with the GOP.

Three House Democrats missed a key vote last week, changing the math enough to let a Republican gun bill to become law. Another bill Cooper let become law without his signature, avoiding a potential override.

Cooper said Tuesday that he hadn’t spoken to the Democratic members who missed the gun vote.

“Obviously that’s a disappointing vote, but we have a lot of issues that are going to be coming before the General Assembly over the next few months,” he said. “And I will veto bad bills and hope that we can get support to stop those bills."

“If we wanted to make a power grab we would just take all of the appointments,” he said during Tuesday morning’s Senate Judiciary Committee meeting. “We think it’s constitutional.”