Opinion: Daily Journal

On Wielding the Dark Side

RALEIGH – Let me let you in on a little secret: North Carolina’s conservative/free-market/libertarian/Monty Burns conspiracy is not yet fully operational. And I’m not just saying that for purposes of disinformation, like Emperor Palpatine did when he let the Rebel Alliance think the second Death Star wasn’t fully operational so as to sucker them into a trap. In this case, the scaffolding is real and the groupthink cannon doesn’t fire.

Occasionally, shockingly, denizens of the Right disagree.

I say this because a number of otherwise-reasonable people – namely my friends Paul O’Connor, Scott Mooneyham, and Chris Fitzsimon (scroll down) – seem to be under the impression that the existence of organizational or financial relationships between free-market groups in North Carolina must create a locus of control over what those institutions say and do. In columns published or posted over the past few days, all three have made the remarkably similar point that former Supreme Court Justice Bob Orr might have a difficult choice to make in his new job as head of the N.C. Institute for Constitutional Law.

The choice involves whether to give in to the Dark Side of the Force as personified by Art Pope, a former state legislator who serves as chief executive of the family business (Variety Wholesalers) and oversees the family’s philanthropic pursuits (mainly the John William Pope Charitable Foundation, named after his father). Art helped to found the John Locke Foundation in 1989 and continues to serves on its board. A special project that the Pope Foundation sponsored at JLF for several years, the John William Pope Center for Higher Education Policy, became a separate 501(c)(3) nonprofit last year and continues to receive significant funding from the family foundation. And Art was also instrumental in setting up and directing seed money to the new Institute for Constitutional Law earlier this year.

In the interest of full disclosure, I not only serve as chairman and president of JLF but also on the board of the Pope Center and on the board of advisors of ICL (in the latter capacity, I served on the committee that recruited Orr).

Now, the issue at hand is which matters ICL might choose to litigate. Paul, Scott, and Chris suggest a potential conflict: while the constitutionality of business incentives is obviously one potential case, another they foresee is a case to enforce the state constitution’s requirement that “[t]he General Assembly shall provide that the benefits of The University of North Carolina and other public institutions of higher education, as far as practicable, be extended to the people of the State free of expense.” If asked to do so, how could Orr and ICL reconcile this constitutional language with the policy recommendations of both JLF and the Pope Center? The latter two groups have proposed sizable tuition increases to help balance the state budget, improve the graduation rate, and ameliorate the “reverse Robin Hood effect” that has relatively poorer taxpayers subsidizing the educations of relatively wealthy UNC students and graduates.

More to the point, they ask, would Orr really be willing to tell Art Pope no?

Here’s where a little fact-checking might have been valuable. First, the Three Amigos failed to determine whether Art Pope agrees with me, with JLF, and with the Pope Center on the UNC funding issue. The answer is no. He does not favor tuition hikes of the sort we’ve proposed, and indeed voted against hikes while in the NC House. Even if he did, what bothers me about the suggestion of potential undue influence is that it exposes such an obvious double-standard. When the Z. Smith Reynolds Foundation, the A.J. Fletcher Foundation, or other major grantmakers in North Carolina fund an organization, no one alleges that Tom Ross (of the former) or Jim and Barbara Goodmon (of the latter) gain control over the organization and dictate its policies and actions. The assumption is that groups can work together, aid each other, and yet remain distinct, independent, and sometimes on different sides of an issue.

If you’ll pardon the pun, the suggestion sounds a lot like the so-called Popish Plot of 17th century England, which perverted a legitimate issue (the succession) into conspiracy-mongering. (Interestingly, there is a John Locke connection to that story.)

In case readers haven’t figured this out yet, there isn’t unanimity on public-policy matters even with the John Locke Foundation alone. What I say does not necessarily go, and my staff feels free (believe me) to disagree. Over the years, disagreement has extended to such issues as tax policy, public education, capital punishment, judicial selection, term limits, welfare programs, highway spending, and the Iraq War. JLF has a guiding philosophy, a common tool of analysis – and remember that I don’t think it is possible not to have one – but this does not always result in agreement about application.

As for Orr, I have no idea what his personal view is on UNC’s tuition policy. But there is no obvious conflict between the tuition increases I propose and the state constitution. Currently, tuition and fees cover about one-fifth to one-fourth of the cost of a UNC education. My proposal would increase that percentage to around one-third, saving taxpayers hundreds of millions of dollars but leaving the vast majority of expenditures to be financed by taxpayers. How could 20 percent be constitutional but 33 percent be unconstitutional? It’s silly to suggest that there is any legal principle or precedent distinguishing these conditions.

Indeed, if the clear text of the constitution is the proper guide for interpretation, then the language offers no clear restraint at all. The benefits of UNC are, in the constitution’s words, to be extended to “the people of the state,” not to “the students of the state.” That could be read as suggesting that UNC ought to keep its costs down so as not to put undue expense on the taxpaying public. Speaking of, the constitution mandates that the benefits be extended as free of expense “as is practicable,” a term that does not lend itself to much in the way of judicial enforcement. It appears to be a grant of latitude to lawmakers and university officials.

If, instead, judges were to employ original intent as the rule of constitutional interpretation, I would freely admit that the intent was probably to keep tuition low, not total costs low. But this brings up another problem. When the constitutional provision was written, only a small minority of North Carolinians attended the university. Keeping tuition low did not place a significant financial burden on taxpayers. Starting in the late 1950s and into the 1960s, however, enrollments began to surge. Suddenly, sustaining UNC with minimal tuition became a very expensive proposition. The policy became, one might argue, no longer practicable.

In the absence of any text or interpretation to the contrary, I’d suggest that a reasonable interpretation of this constitutional requirement is that tuition cannot rise so much as to become the main source of funds for educating a student. In other words, it shouldn’t be allowed to rise above 50 percent (for in-state students) without a constitutional amendment. That at least represents a logical tipping point. As I argued earlier, raising tuition from 20 percent to 33 percent doesn’t appear to have any constitutional significance. A 0 percent tuition rate might, but that is obviously required by neither the plain text nor the original intent of the constitution, since tuition has been charged for the entire history of the university.

Of course, Bob Orr may choose to disagree with me. Art Pope already does. I concentrate, I sweat and strain, yet I just can’t seem to force their acquiescence. But I won’t give up, as they do not yet know the full power of the Dark Side.

Hood is president of the John Locke Foundation and publisher of Carolina Journal.