Lawyers know never to ask a question for which they don’t know the answer.
Likewise, legislative leaders should know never to make a deal for which they don’t have their caucus’s approval.
HB 2 survives today because legislative leaders made a deal to repeal the bathroom bill with then-Gov.-elect Roy Cooper without first determining that they had the votes to do so. The process by which the repeal legislation died shows how a minority can run the General Assembly.
Most of us learned in elementary school that majority rules, and we expect that to be the case in the legislature. On repeal of HB 2, there probably was a majority of at least 61 representatives and 26 senators ready in support. But majority didn’t rule.
The deal was simple. If Charlotte repealed the LGBT ordinance that prompted the legislature to pass HB 2 last year, then the legislature would repeal HB 2.
House Speaker Tim Moore and Senate President pro tem Phil Berger had offered that deal to Democrats months ago. They must have had the support of their Republican colleagues at the time to do so.
Before controversial legislation goes to the floor of either chamber, however, legislators meet in their respective party caucuses to decide whether unified action is necessary and, if so, whether to vote up or down.
There were good reasons for Republicans to want HB 2 repealed. The law gave North Carolina a black eye nationally, cost the state millions in canceled sports and entertainment events, and led to the out-of-state relocation of conventions and previously announced business expansions. It’s widely suspected that some businesses aren’t even considering a move here because of the law.
Republicans also fear business backlash for the special fall legislative election ordered by a federal court. Dozens of incumbent Republicans will have to run for re-election in new, supposedly less friendly districts on municipal election day, and Republicans don’t have great relations with city voters right now.
So, there was sentiment for repeal, but a majority of Republicans did not materialize in those caucuses. A bargain that rank-and-file Republicans agreed to months ago was no longer acceptable to them. Things had changed.
Republicans in December had just won an election, had a brash new president-elect, renewed veto-proof majorities in each house and a new Democratic governor-elect that they preferred to put in his place. With Lt. Gov. Dan Forest, the future of the GOP, in the lead of the anti-repeal forces, Republican lawmakers said no.
While a majority in their caucuses, the Republican legislators probably did not constitute a majority of our 120 representatives and 50 senators. Had the repeal bill come to the floor, there were probably enough Republican votes to pass it with Democratic help.
But repealing the bill in such a way would not be good for Republican unity, so Berger and Moore went looking for ways to blame Democrats for the repeal bill’s defeat. They added a provision Democrats could not accept, and when Democrats balked they accused Democrats of breaking the deal. In reality, though, Democrats had never agreed to the extra provision; it was not part of the original deal.
All this means HB 2 won’t go away until a majority of Republicans decide to ditch it.
Paul O’Connor has covered state government for 38 years.