NC lawmakers pass bill that transfers some of the governor’s powers to themselves

The Republican-dominated North Carolina General Assembly is working to take away more powers from the state’s governor.

The governor’s powers are already weak by design compared to other states, and a new law that took effect this year took more power away during states of emergency. Now a bill poised to become law will take away the governor’s powers to appoint people to several government oversight boards and commissions.

The House and Senate, which each hold veto-proof supermajorities by a single vote, proposed legislation, Senate Bill 512, this past spring to move appointment power from the governor to the leaders of the legislature. Democratic Gov. Roy Cooper will leave office in January 2025, so the changes will primarily impact the next governor.

Former governors and some candidates for governor, from both major parties, oppose the move.

Litigation was expected going into the process, and the bill tests the state constitution. House Rules Chair Destin Hall, a Caldwell County Republican, said “even lawyers, judges and our state Supreme Court can’t agree on who has the authority in North Carolina.”

Hall said he believes the bill is constitutional, while Rep. Pricey Harrison, a Guilford County Democrat, made the argument that it would violate the state constitution.

“This is a significant shift in power,” Harrison said during debate on the House floor.

House Minority Leader Robert Reives, a Chatham County Democrat, said that “consolidating power in this body is a bad, bad, bad idea.”

“Do you really, truly believe that this suddenly changes and gives greater accountability to this process?” Reives said on the floor. He said the power should stay with those who are elected statewide.

The bill passed the House 72-47, along party lines, with Republicans supporting and Democrats opposing it. It was sent to the Senate, which approved it on a 27-18, party-line vote with no debate.

Sen. Warren Daniel, a Burke County Republican, who gave an overview of the bill before the vote on Wednesday, said during a committee meeting this year that the boards in question “are largely comprised of members that are handpicked gubernatorial appointees, or individuals who serve in the governor’s administration. This doesn’t bode well for diversity of thought or representation.”

DOT and railroad changes

One of the changes would take eight appointments on the 20-member Department of Transportation board from the governor and give them to the leaders of the House and Senate, currently House Speaker Tim Moore and Senate leader Phil Berger, both Republicans. That would increase their appointments to 14. The governor would appoint six at-large members.

The governor’s appointments to the North Carolina Railroad Board of Directors would be reduced from seven to six, with one appointment going to the state treasurer.

Shifting power on Council of State

Other changes would also take power from the governor but keep it in the executive branch by giving it to another Council of State member. The Council of State is the 10-person group of statewide elected officials that includes the governor, lieutenant governor, superintendent of public instruction, treasurer, labor commissioner, auditor, attorney general, agriculture commissioner, secretary of state and insurance commissioner. The bill moves the power to offices currently held by Republicans — State Treasurer Dale Folwell, who is running for governor, as well as Insurance Commissioner Mike Causey and Agriculture Commissioner Steve Troxler.

Folwell told The News & Observer last month that regardless of what legislation passes, “the governor of North Carolina is still the CEO of the largest business in this state.”

Attorney General Josh Stein, a Democrat and who is also running for governor, said in July the bill shows that Republicans are “drunk on their power.”

“We all learn about it in elementary school. We separate powers, because power corrupts, and that is bad for the people of North Carolina going forward,” Stein said.

Utilities Commission reduced

The newest version of the appointments bill would shrink the N.C. Utilities Commission from seven members to five. It would also give Republican leaders in the General Assembly the power to appoint two commissioners, effective as soon as the bill passes because legislators have not confirmed two of the three sitting commissioners Cooper reappointed.

Under current law, the governor appoints all of the commissioners, who oversee Duke Energy, Dominion Energy, natural gas pipelines and renewable energy applications, among other things. The commission also approves the plan Duke Energy must submit every two years describing how it plans to shrink carbon dioxide emissions while keeping the grid reliable.

Harrison called the change “disruptive” and “particularly problematic” while the commission is in the middle of implementing policy.

The two members whose appointments expired on June 30 whose seats would now be filled by Republican leaders in the General Assembly are ToNola Brown-Bland, who has served on the commission since 2009, and Daniel Clodfelter, a former Democratic legislator from Charlotte.

To shrink the commission, two of the three seats with terms ending on June 30, 2025, would expire. The governor would appoint the remaining seat.

Those seats are filled by Kimberly Duffley, a former Utilities Commission senior staff attorney; Jeffrey Hughes, a former director of the UNC School of Government’s Environmental Finance Center; and former state Sen. Floyd McKissick Jr., a Durham Democrat and attorney.

Former lawmakers or staff are frequently appointed to these boards.

Environmental impacts

Other environmental boards that would be impacted by the appointments bill include the NC Environmental Management Commission and Coastal Resources Commission. In both cases, the bill would shift majority power on the boards.

The Environmental Management Commission, for instance, has 15 members who approve state rules overseeing clean air, water and other natural resources. Current rules give Cooper nine appointments.

If SB 512 becomes law, two of those nine appointments would instead be made by Troxler.

Those two appointments, combined with the six-remaining at-large appointments made by the General Assembly, would control the commission’s majority.

That’s similar on the Coastal Resources Commission, where Cooper makes nine of the 13 appointments. The commission oversees policies on beach management and coastal infrastructure like docks and septic tanks.

SB 512 would remove three of those appointments from Cooper, giving two to General Assembly leaders and another to the commissioner of insurance, currently Causey.

Changes for UNC

The bill also alters appointments to two state university boards of trustees, as well as the UNC Health system.

The boards of trustees at UNC-Chapel Hill and N.C. State University would each grow in size by two members in 2027, bringing the total membership to 15, with the General Assembly gaining the power to appoint the additional members.

That would bring the legislature’s total appointees to those boards to six, up from four currently. The UNC System Board of Governors would continue to appoint eight members to each board. The UNC and N.C. State boards would be the only UNC System boards of trustees affected by the increase in membership.

Boards at all other UNC System campuses would remain at 13 members with the current appointment structure. A previous version of the bill would have increased the membership of the system’s Board of Governors to 28 members, up from 24 currently, but that provision is not included in the version passed by the legislature Wednesday.

May end up in the courts

The bill now goes to Cooper, who has 10 days to sign, veto or let become law without his signature. Republicans have enough votes to overturn his veto.

“These boards that we’re talking about are really important in helping a governor administer the law, and it’s the reason the court has held that the governor should continue to have a majority of the appointments to those boards. I believe that the legislation is unconstitutional,” Cooper told reporters in June.

Berger has a different view.

“We disagree with him as to whether or not it’s constitutional. And we’ll see what the courts say if he decides to sue,” Berger said earlier this summer.