Following the Rules, Even When it's Inconvenient | Eastern North Carolina Now

    Publisher's note: The author of this post is Mitch Kokai, who is senior political analyst for the Carolina Journal, John Hood Publisher.

    When members of the N.C. General Assembly's minority party make extraordinary doom-and-gloom predictions about the consequences of the majority party's actions, it's easy to dismiss the comments as political theater.

    But amid the purely partisan clatter, some of their remarks highlight legitimate concerns. Such is the case with a recent N.C. House speech from Minority Leader Darren Jackson, D-Wake.

    Before focusing on Jackson's comments, a brief civics lesson might prove helpful. Think of it as an extended, full-length version of the "I'm Just a Bill" song from "Schoolhouse Rock."

    Before a legislative bill can become a state law, both the House and Senate must approve it in the exact same form. The easiest way for this to happen is for both chambers to vote on the same bill. But it's at least as likely that a bill that passes the House in one form will get amended in the Senate, and vice versa.

    The amendments add a wrinkle to the process. If the Senate amends a House bill, the House then has a chance to take what's called a concurrence vote. If the House concurs with the Senate's changes, the bill heads to the governor. But if the House votes not to concur, both chambers set up a single conference committee to work out their differences.

    That committee of conferees produces a conference report. Both the House and Senate can vote up or down on the report. They can make no amendments. Conference reports rarely head to committees for more thorough discussion.

    Here's where Jackson returns to the story. On Oct. 17, as the House neared the end of its debate about overriding the gubernatorial veto of Senate Bill 656, Jackson shared his concerns about the process that generated one of the bill's key provisions. That provision cancels all primary elections for 2018 judicial races. It appeared for the first time in a conference report.

    "That's a big deal by any measure," Jackson said. "It was never in any previous version of Senate Bill 656 that I saw. It's not related to any previous version of 656. It's not been filed as a bill or offered as an amendment by any member of this body or the Senate, as best as I can tell."

    The idea of eliminating judicial primaries never faced any debate in a committee, Jackson reminded his colleagues. "Basically, leadership made the decision about what would be in Senate Bill 656," he said. "The rest of us have no say."

    Setting aside the merits of canceling judicial primaries, Jackson made a broader point about House rules dealing with conference reports. "Rule 44(b) says that only matters that are disputed between the chambers shall be considered by the conferees, but it only operates if the Senate has a similar rule, which, of course, they don't," he said. "So it makes our rule absurd."

    The House hasn't always allowed the Senate to dictate whether its own rules remain in effect, Jackson contends. He's discussed the issue with longtime lawmakers, lobbyists, and legislative staffers. "All agree that conference reports have never been abused the way they are routinely abused now."

    "What's the big deal, you say - the end justifies the means," he continued. "Sometimes, you just come in and want to get things done and not waste a lot of time. The big deal is we adopt rules to protect all 120 of us. The rules give us all a voice and a role in that process. My role is sometimes to stand up and point out when you're abusing those rules."

    "If a bill goes to conference and the House says A and the Senate says B, then we had a role in A," Jackson said. "What's your role when the conference report comes back with C? That's what happened in this bill with the elimination of judicial primaries. Four or five people made a decision. The rest of us are spectators."

    It's likely that a standalone bill to eliminate judicial primaries in 2018 would have faced vocal opposition from Jackson and his fellow Democratic legislators. Their ideological interest-group allies would have leaped into action as well. Email blasts and news conferences would have cast aspersions about Republican motives. Wild-eyed partisans would have shouted denunciations about legislative leaders usurping political power.

    This observer wouldn't blame Republican legislators for wanting to avoid that circus sideshow. But criticism - even an overheated, ill-informed diatribe - comes with the job. And a more deliberate process, including committee debate, tends to point out potential pitfalls that bill supporters can address through amendments.

    Legislative Democrats don't help their cause by leveling over-the-top accusations at their GOP colleagues. But that shouldn't stop Republicans from listening when the opposition makes valid points. That's especially true of comments designed to safeguard a key element of the policymaking process.