Civics 101, circa 1960 (What I learned in high school): The Legislature Branch makes the laws. The Executive Branch enforces the law. The Judicial Branch settles disputes and decides what the law is.
Civics 101, circa 2018 in North Carolina (What Republicans want): The legislature makes the law, appoints boards and commissions to enforce the law, and appoints judges to decide what the law is. The executive – who’s he?
Two proposed state constitutional amendments will make a mockery of two foundational principles of constitutional government: the separation of powers and checks and balances between its branches.
The descriptions voters will read on the ballot are deliberately misleading. The first says, “Constitutional amendment to establish a Bipartisan Board of Ethics and Elections to administer ethics and election laws, to clarify the appointment authority of the Legislative and the Judicial Branches, and to prohibit legislators from serving on boards and commissions exercising executive or judicial authority.
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The amendment won’t clarify anything. Rather, it will strip the governor of his authority to appoint members of the nearly 400 boards and commissions and transfer that power to the General Assembly.
North Carolina now has five state-recognized political parties. Unaffiliated voters are the second largest group of registered voters, surpassing the Republicans. Yet none of these groups are represented on the body that manages elections.
Hidden in the bill is a provision that the legislature “shall control the powers, duties, responsibilities, appointments and terms of office of any board or commission prescribed by general law.” No checks and balances, no separation of powers.
The wording for the second is just as deceptive: “Constitutional amendment to implement a nonpartisan merit-based system that relies on professional qualifications instead of political influence when nominating Justices and judges to be selected to fill vacancies that occur between judicial elections.”
The supposedly nonpartisan members would be appointed by partisan officials – the governor, the Chief Justice of the state Supreme Court, and, again, the General Assembly. If you understand how the General Assembly actually works, in reality that means two people – the Speaker of the House and the Senate President Pro Tem – will make these appointments.
A true merit commission would not be beholding to partisan officials for appointment.
In another legislative slight-of-hand, appointees would not just complete the term of the judge they replaced. They would serve until two General Assembly elections had occurred, potentially up to four years.
Republicans not only want to take strip the governor of power, they don’t dare be open and aboveboard when they do it. They drafted all but one of these bills in secret. They asked neither the existing state board of elections nor any county board their opinion. They consulted no judges or judicial experts. Then they rushed through to passage without public input.
These amendments weaken constitutional government and move our state toward a parliamentary system. That was something our nation’s founders feared. They wrote into the U.S. Constitution that the federal government was to guaranteed each state a “republican form of government.” But that’s republican with a lower case “r.”
James Madison also warned that “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self- appointed, or elective, may justly be pronounced the very definition of tyranny.”
Brian Irving is the former chair of the Libertarian Party of North Carolina.