House Bill 90 clears Senate: Republicans raise concerns of constitutional crisis

Senate Republicans suggested the state could approach a constitutional crisis if it enables a governor to control money outside the normal budgetary process. Some suggested Democrats’ loyalty to Gov. Roy Cooper surpassed their commitment to public education, if not the constitution itself.

Senators spent more than 90 minutes Friday, Feb. 9, debating House Bill 90 before passing the measure 37-5. H.B. 90 is a House-Senate conference report providing money to hire teachers, satisfying a mandate to reduce class sizes in grades kindergarten through three; revamping the Bipartisan State Board of Elections and Ethics Enforcement to address a court order; and taking charge of a $57.8-million discretionary fund Gov. Roy Cooper negotiated with the operators of the Atlantic Coast pipeline.

The fund has faced tough scrutiny from Carolina Journal and various media outlets. It also has raised questions from lawmakers and other experts over whether it violates the separation-of-powers doctrine in the state constitution, since the agreement (called a “voluntary contribution” by the governor’s budget office) gives Cooper full control of the funding and would not include any legislative oversight.

During the debate, Democrats complained that the conference report combined three unrelated measures into one bill — Sen. Angela Bryant, D-Nash, called the latter two “poison pill” provisions — deserving more time and separate debates. Republicans cited the urgency of acting quickly and questioned Democrats’ willingness to provide cover for Cooper when doing so could threaten the ability of the General Assembly to set spending policy as the constitution requires.

Sen. Dan Bishop, R-Mecklenburg, had a pointed exchange with Bryant over the matter. “We are tiptoeing up to a constitutional conflict,” Bishop said, if the General Assembly allows any governor to raise money outside the budget process and exercise control over it.

Senate Majority Leader Harry Brown, R-Onslow, said it would be irresponsible to put those powers in any governor’s hands.

Bryant, and Sen. Erica Smith-Ingram, D-Northampton, suggested the money in the discretionary fund would go to worthy causes and saw no problem with letting it go forward.

Brown and Bishop also cited urgency as justification to include the elections board reforms in the conference report. Both noted the pending election season. Candidate filing for races opens Monday, Feb. 12.

In a statement issued after the vote, Brown said, “Gov. Cooper’s deal looks like a payment-for-permit and doesn’t pass the smell test, and the right thing to do is to take this ‘voluntary contribution’ to the state and use it to fund the educational needs of children in the poor, rural communities impacted by the Atlantic Coast Pipeline.”

The House is expected to take up the measure Tuesday, Feb. 13.