As a TV talk show moderator my job is to ask questions. Lately, I’ve been fielding them, mostly about HB2. People want to understand how North Carolina got into this mess and how we get out of it.
We may never know all the facts but here are several conclusions I’ve reached, understanding some might be wrong.
First, contrary to what some might believe this isn’t really about bathrooms or about LGBT persons. This is political gamesmanship and pandering to constituencies.
Charlotte deliberated its anti-discrimination ordinance for more than a year, had several options, but decided to include the bathroom provision with the encouragement of and prodding by national political and special interest groups. The effective date of April 1 was set with the full knowledge that the legislature was coming back into session April 25th. This clever strategy was designed strategy to bait Republicans while stirring the Democratic base into action.
Republican legislative leadership took the bait, swallowing it hook line and sinker. Governor McCrory wouldn’t call them into special session, suggesting they wait for Charlotte’s ordinance to become effective, acting only seeing its impact. The legislature refused, not only overturning the bathroom provision, but going much farther, pandering to their political base. Did they know the uproar their actions would create or just not care?
They didn’t care because they didn’t have to. 90 percent of the legislators who voted for HB2 either face no opponent this fall or come from districts so gerrymandered they won their last elections by more than 10 percentage points. 42 percent of all legislative candidates are running unopposed this fall. If you ever needed proof why we need redistricting reform this should provide it.
There are three primary parts to HB2. We think lawmakers were on pretty solid ground on two of them. North Carolina is not a “home rule” state. Local governments are the creation of and under the control of the state. The legislature has the constitutional authority to overturn any ordinance established by any local government. Agree or disagree with their actions but legislators were well within their authority to overturn Charlotte’s bathroom ordinance. They were similarly justified in overturning local government attempts to raise minimum wage levels in their municipalities above the state proscribed level.
Where lawmakers outran their headlights was in denying EEO and discrimination lawsuits from being filed in state courts, a deliberate attempt to eliminate or greatly curtail the numbers of these suits. Most folks have neither the money nor the patience to pursue them in the lengthy proceedings in federal courts.
How do Republican leaders extricate this big, sharp fishhook they swallowed? Governor McCrory’s Executive Order 92 was an acknowledgement of the damage done, but may have come too late. It allows the private sector and local governments to establish employment, bathroom and locker room policies as each sees fit and expands North Carolina’s employment policy to include sexual orientation and gender identity. McCrory will also urge the legislature to rescind the provision refusing discrimination cases in state courts.
Seldom do politicians admit they are wrong but a failure to fix this could cost Republicans a U.S. Senate seat, the Governor’s office, many down-ballot elections and some big Republican fish could end up being served on Democratic tables come November 8th.
Tom Campbell is the executive producer and moderator of N.C. Spin.