A perplexing recent comment from North Carolina’s attorney general suggests now might be a good time for a refresher course about the way people exercise power in our system of government.
“The voters don’t realize that they’re giving up their own power and giving it to the legislature.” Josh Stein delivered that line to reporters July 31, just after the conclusion of a “work session” of the Constitutional Amendment Publication Commission.
State law assigns that three-member commission the task of writing plain-language descriptions of proposed constitutional amendments. Stein joined fellow commissioner and N.C. Secretary of State Elaine Marshall for the July 31 session. The third member, Legislative Services Officer Paul Coble, skipped the meeting. Coble’s absence prevented Stein and Marshall from taking any official action.
The lack of a quorum didn’t stop the two Democratic Council of State members from criticizing the six proposed constitutional amendments N.C. voters will see in November. Both Stein and Marshall complained about misleading ballot language. During the meeting, Stein used the analogy of voters buying a birthday cake but ending up with cat food.
“My concern is that we can describe it accurately, but what we are describing has no relation to the language that’s on the ballot that the voters will be voting on,” Stein said to reporters.
He followed up that comment with the statement about voters giving their own power to the legislature.
Voters giving up their power? Really? Which of the six constitutional amendments would achieve that dubious end?
To analyze the attorney general’s comment, it’s important to remind ourselves about key details of the constitutional amendment process.
The N.C. Constitution acts as state government’s fundamental document. It spells out powers for various government actors and sets limits for them. It reminds people — and government — about inviolable rights. It supersedes any other state law and defers only to the dictates of the U.S. Constitution.
Our state constitution is so important that only the people can amend it. They have opportunities to approve amendments only after three-fifths, or 60 percent, of both the N.C. House and Senate endorse proposals for voters to consider.
When people vote on amendments, they do not give up power. They exercise power.
In general, voting offers one of the few opportunities in our system of government for “the people” to exercise power. In most cases, voters delegate their power to elected officials. If the system works well, those officials reflect the choices and priorities of the people who elected them.
Fans of limited government support those limits precisely because elected officials can deliver — at best — only a rough approximation of the sovereign people’s wishes. Limit government to its proper sphere, and there’s less likelihood of elected officials misusing the people’s power.
One doubts that Attorney General Stein actually misunderstands the facts about the people’s power. It’s more likely that his statement about people giving up power actually meant to convey his concern about a change in the current distribution of the people’s delegated power.
If so, then it’s worthwhile to examine the six proposed constitutional amendments. While critics have raised at least some concern about each one, not all seem likely to have contributed to Stein’s questionable comment.
Amendments to strengthen crime victims’ rights and to protect North Carolinians’ rights to hunt and fish have attracted the least opposition. A louder chorus has objected to a proposal to lower the state’s cap on maximum income tax rates. Critics also have assailed an amendment that would require photo identification for voters.
But none of these four says much about the distribution of the people’s power. If anything, the first two (victims’ rights and hunting and fishing) purport to give people more power over government agencies. The tax amendment tweaks one number in the existing constitution. It shifts no power. The voter ID amendment, if implemented appropriately, could strengthen the people’s power to some extent. It would set up a larger obstacle for those who want to dilute legitimate votes through fraud.
That leaves two amendments for consideration. One changes the process of filling judicial vacancies. The other changes the composition of the state elections and ethics board and clarifies appointment powers for government boards created by state law.
The judicial vacancy amendment clearly gives the General Assembly a larger role in determining who will fill the job of a judge who leaves office before her term ends. Rather than have the governor play the primary role in filling those unexpired terms, lawmakers would sift through all qualified candidates and submit at least two names for the governor’s consideration. If the governor refuses to name one of those candidates, lawmakers would choose. The chief justice of the N.C. Supreme Court would take on the appointment duty under limited circumstances.
Regardless of the details of these appointments, voters maintain the ultimate power. They will endorse the new appointee or choose an alternative in an election. Nothing about the amendment changes the judicial election process.
Republicans are likely to argue that the amendment gives people an even larger role in the judicial selection process. The amendment gives members of the public the chance to make initial recommendations of candidates to fill judicial vacancies. From the list of names submitted by the public, a new merit commission would send a list of qualified candidates to the General Assembly.
This amendment clearly would affect the distribution of government power. It would not amount to the people giving up power.
That leaves one final amendment dealing with election and ethics oversight and government appointments. The portion of the proposal dealing with elections clearly makes no change in the people’s power. State government already operates a board overseeing elections and ethics enforcement. That group takes no power away from the people if its members are appointed by Republican and Democratic legislative leaders, rather than the governor.
As for appointment powers, here’s what the amendment proposes. “The legislative powers of the State Government shall control the powers, duties, responsibilities, appointments, and terms of office of any board or commission prescribed by general law. The executive powers of the State government shall be used to faithfully execute the general laws prescribing the board or commission.”
Critics contend that this amendment would give the General Assembly control over every appointment to every state board or commission. Perhaps that’s the goal. But it’s just as likely that the General Assembly simply wanted to clarify in the constitution its “historic, constitutionally prescribed authority to make the laws,” as one N.C. Supreme Court justice recently described legislative power.
Recent court cases have threatened the once well-accepted principle of legislative predominance. The same justice warned of “perilous consequences” of a January court ruling suggesting that the governor has a new “constitutional power to enact personal policy preferences, even elevating those preferences over the duly enacted laws when they conflict.”
Once again, this issue represents a debate over distribution of power. If voters adopt the amendment, they would hold no more and no less power over government than they did before Election Day.
All six constitutional amendments deserve a thorough debate. Thoughtful voters will consider each proposal carefully, rather than accept each one blindly or devote themselves equally blindly to the #NixAllSix cause.
As voters weigh the pros and cons, there’s little reason to worry that they are giving up power. Instead their votes will represent the most basic form of putting the people’s power into action.
Mitch Kokai is senior political analyst for the John Locke Foundation.