Senators from both parties Wednesday cited the state Constitution and precedent in defending a law passed in December reducing the governor’s number of political appointees and requiring confirmation of his Cabinet members.
Gov. Roy Cooper added challenges to those provisions to an existing lawsuit he filed against another bill reorganizing several aspects of state government.
A partial outline of the Senate advice-and-consent confirmation process for Cabinet secretaries was adopted as part of the rules for the session the Senate adopted unanimously during its opening day of the 2017 legislative long session.
That vote occurred just one day after Cooper amended a lawsuit he filed at the end of 2016 alleging unconstitutional separation-of-powers violations by the General Assembly.
Cooper’s original legal challenge targeted legislation to merge the State Ethics Commission, Board of Elections, and some functions of the Secretary of State’s office into a new State Board of Ethics and Elections Enforcement.
On Tuesday Cooper amended the suit to include laws that required Senate confirmation of his Cabinet appointees, reduced the number of political job appointments he can make, and granted the wife of outgoing Gov. Pat McCrory’s chief of staff a special provision to keep an agency appointment for longer than the normal term.
Senate Leader Phil Berger, R-Rockingham, was reserved in responding to a question about Cooper’s lawsuit, and the quarrels developing between the governor and General Assembly.
“We’re in a little bit different environment. We will see what needs to be done, and what will have to be done as we move forward,” Berger said. “Today’s a ceremonial day. Everybody’s got family here. I’m keeping a smile on my face all day.”
Sen. Bill Rabon, R-Brunswick, chairman of the Senate Rules Committee, said the Cabinet confirmation process is mostly worked out. Details of a select committee that would “look over the credentials, and just make sure they are correct and in order” are not finalized.
That select committee would refer the nominee to a policy committee most closely matching the job for consideration and a recommendation, Rabon said.
“That will more than likely come back to the select committee, and the select committee will then take that to the floor for the vote,” Rabon said.
He discounted any notion that the Republican-controlled House made the change to limit the power of a Democratic governor.
“I have been attempting to bring this about for five years that I’ve been here, and have brought it up early in the session,” Rabon said. “From the [state] Constitution we are, in my opinion, bound to do this.”
Sen. Andrew Brock, R-Davie, agreed.
“It’s something we should have done all the time,” Brock said. “I think we’re just fulfilling our constitutional authority.”
Rabon also defended clipping the number of the governor’s political appointments from 1,500 to 425.
The basis for the law “is historically that many state employees have lost their job, and personally I am much more concerned about people losing their job than who may get the job,” Rabon said.
The state might be losing highly qualified job applicants, especially young people looking to start a career or support a family who may not seek a state job they could lose when a governor of a different party is elected, Rabon said.
“You don’t have many friends, that’s all I can say, if you don’t know someone that’s happened to,” Rabon said. “They’re good people, and they’re doing a good job, and simply because of the way you happen to register or not register, to lose your job over that is not a real fair way to pick employees.”
Brock said although the legislature voted to grant McCrory up to 1,500 political appointments, he only replaced about 300 employees, similar to what past governors did. So giving Cooper 425 political appointments is actually an increase, and Cooper “just wishes he was elected king.”
Senate Democratic leader Dan Blue, R-Wake, said reducing the number of gubernatorial appointments had partisan overtones, though he mainly objected to the GOP’s timing of the move rather than any constitutional concerns. There is “a basis, and a reason for reducing [the number of appointees]. But usually you talk to the governor and negotiate with him” over what is a political position or a job that should be protected under the state personnel act, he said.
Blue said he was in office “when we first started putting restrictions on how many people the governor could appoint because you just don’t want arbitrary firings, and too many jobs to be subject to political control.”
He said authorizing 425 appointments to Cooper is probably too low a number “given the size of the state, and the size of some of the state agencies he has to manage. There are multiple thousands of state employees, and many of the positions have to be subject to a political control.”
Blue referred to “the brilliance of the Founding Fathers” in creating three co-equal branches of government, and the natural tension among them.
Each branch “has its own distinct functions to sort of be a checks and balances against the other branches. … And each one has a specific task, so it does not surprise me that each would keep fighting for its respective territory in that tripartite government structure,” Blue said.
“That’s what you see with the governor challenging the legislature’s action. We ought not be offended by that,” Blue said. “Gov. McCrory did that, so I’m not surprised that Gov. Cooper did it. Gov. [Jim] Hunt did it. Gov. Jim Martin did it. Governors do that because by nature, over our history and over time, legislative bodies try to crowd out everybody.”
Conversely, he said, “the legislature for the most part ought to try to get as much of its constitutional authority as possible,” and Senate confirmation of Cabinet leaders appears to be such a power.
However, he said, the confirmation process “should have been thought out before you even seized the power.” That needs to be finalized quickly, he said, so Cooper assemble his team, and immediately begin working on his agenda rather than facing a political roadblock to his work.