News: CJ Exclusives

H.B. 2 alive as special session can’t agree on repeal

Measure tying repeal to moratorium on new local antidiscrimination laws fails, with Republicans blaming Cooper for intervening

Protesters gathered outside the legislative chambers during a December 2016 special session on House Bill 2. (CJ photo by Dan Way)
Protesters gathered outside the legislative chambers during a December 2016 special session on House Bill 2. (CJ photo by Dan Way)

After a day of repeated pauses and extended recesses, just before 8 p.m. Wednesday the General Assembly adjourned its fifth special session of the term without accomplishing its intended purpose: repealing House Bill 2.

The Senate rejected a proposal from Senate leader Phil Berger, R-Rockingham, to combine a repeal of H.B. 2 — which requires people to use public facilities based on the gender listed on their birth certificates and prevents towns, cities, and counties from enacting employment regulations that are more stringent than those allowed by the General Assembly — with a “cooling off period” allowing legislators to work toward a compromise on local anti-discrimination laws.

Gov. Pat McCrory called the session to “reconsider” H.B. 2 after a Monday Charlotte City Council vote repealed a portion of the anti-discrimination ordinance that initially inspired the controversial state law. The Charlotte ordinance opened bathrooms, showers, and locker rooms to individuals based on the gender with which they identified, resulting in the passage of H.B. 2 in a March special session. The matter has become the focus of federal litigation regarding gender identity and public facilities.

Moments after the Charlotte council vote, Democratic Gov.-elect Roy Cooper suggested a deal had been struck between Charlotte officials and legislative leaders: After Charlotte repealed its ordinance, the General Assembly would repeal H.B. 2. But, as Carolina Journal reported earlier this week, no deal existed.

Accusations of bad faith flew back and forth throughout the day. The Charlotte City Council reportedly had repealed only a portion of its ordinance and returned Wednesday to enact a total repeal. Meantime, legislative Democrats accused Republicans of failing to live up to their end of the “bargain” by adding the moratorium to its repeal legislation.

Berger’s original bill included a six-month cooling-off period. But that bill languished as Democrats refused to accept the moratorium. Berger later offered to amend the moratorium so it would last until the end of the 2017 legislative “long” session. That didn’t work, either.

“This was not the deal. The deal was Charlotte repeals fully, and we repeal H.B. 2 fully,” said Sen. Jeff Jackson, D-Mecklenburg. He complained that the original bill went from a six-month cooling-off period “to an indefinite period of time,” and Charlotte would have rejected that deal had the General Assembly offered it to them.

Sen. Harry Brown, R-Onslow, rebutted Jackson, saying Charlotte did not have a trustworthy track record, and without the moratorium to work on a long-term solution there was nothing to prevent the city or other local governments from passing a similar measure.

Sen. Buck Newton, R-Wilson, said he was concerned about Charlotte City Council and its “lunatic left” agenda, reiterating “Yes, I did use the word lunatic left.”

He said the General Assembly should come together to work on a resolution to avoid being “defamed and maligned by the hateful crowd from California and elsewhere.”

After a lengthy recess, at about 5:30 p.m. the House approved a resolution adjourning the session before any bill had been introduced. (This was a procedural move, because the House could not adjourn until the Senate agreed.)

Just before 7 p.m., the Senate returned, and Berger offered to divide the bill, allowing two votes: one for repeal, the other for the moratorium. If both passed, the measure would go to the House for concurrence. If either failed, the bill would fail.

The division strategy didn’t work. The repeal failed by a 16-32 margin, with all Democrats voting no.

Earlier, WBTV in Charlotte reported that Cooper called individual Democratic lawmakers, urging them to vote against the repeal/moratorium provisions. During Senate debate over the adjournment resolution, Berger called out Democrats for playing partisan politics, a charge several Democrats denied.

Sen. Tommy Tucker, R-Union, said the General Assembly did what was required. “We reconsidered H.B. 2,” he said. “I voted to repeal it. Democrats didn’t.”

Tucker echoed several reports from earlier in the week that a similar bargain had been available for months, but Charlotte did not repeal its ordinance until Cooper had won the election over McCrory. “Charlotte decided to do this Christmas week when there were opportunities earlier,” he said.

After Berger’s proposal failed, several senators expressed regrets that nothing was accomplished. Then the Senate adopted the House adjournment resolution, and the special session ended.