NC’s Coming Constitutional Crisis

Thurs., Sept. 9: Judge vs. NCGA + Manchin vs. Dems + Politico vs. journalism


1. NCGA to Defy Judge’s School Funding Demand

In 1997, the state Supreme Court ruled in a case referred to simply as Leandro that all North Carolina kids have a constitutional right to a “sound basic education.” Seven years later, SCONC ruled that the General Assembly wasn’t funding education sufficiently to meet that standard.

And so began the long, winding road that culminated in June, when Judge David Lee signed a Comprehensive Remedial Plan—agreed to by the Democrat-run State Board of Education and Governor Cooper, but not the General Assembly—that required $690.7 million in new funding this year and $1.06 billion next year.

Needless to say, that’s significantly more than Republicans in the General Assembly put in their respective budget proposals, despite having billions in the rainy-day fund.

  • The Senate’s budget proposes $191.6 million this year and $213.7 million next year.

  • The House’s budget proposes $370 million this year and $382 million next year.

Lee was not amused.

State Superior Court Judge David Lee said Wednesday that the General Assembly has woefully underfunded a plan that calls for at least $5.6 billion in new education funding by 2028. Lee gave an Oct. 15 deadline to fully fund the plan and said if that doesn’t happen he’ll entertain options at an Oct. 18 court hearing about how to correct that “deficiency.”

Judges in other states have taken steps such as fining lawmakers and holding them in contempt of court in school funding cases. Lee said he’s aware of the steps taken in those states and will consider them at the next court hearing. …

“There’s not only a willful refusal to act here, but the means for compliance are extraordinary in this case,” Lee said. (N&O)

Senate leader Phil Berger’s office responded by saying, in effect, “Make me.”

“I don’t know how much clearer we can be. If Judge Lee wants to help decide how to spend state dollars—a role that has been the exclusive domain of the legislative branch since the state’s founding—then Judge Lee should run for a seat in the House or Senate,” Pat Ryan, a spokesman for Senate leader Phil Berger, said in a statement Wednesday. “That’s where the Constitution directs state budgeting decisions be made, not some county trial judge.”

To the degree it matters, the “county trial judge” was assigned the case by the state Supreme Court in response to a state Supreme Court ruling. But even if you believe Lee is in the right on the merits, I’m not sure how much power he has to enforce the plan if the General Assembly simply ignores him.

  • He can’t force the NCGA to add education money to the budget. But sanctioning representatives for their policy choices raises separation-of-powers issues.

  • His decision will end up back before the state Supreme Court, which currently has a 4–3 Democratic majority—and is already in the midst of a partisan firestorm.

RELATED: On July 23, attorneys for the plaintiffs in NAACP v. Moore and Berger, the effort to overturn the voter ID and income-tax cap amendments, filed a motion to disqualify Justices Phil Berger Jr. and Tamara Barringer.

  • The former, obviously, is the son of the Senate leader, a defendant.

  • The latter was a member of the state Senate, meaning she voted to place the amendment on the ballot and was a member of the General Assembly when it was sued.

  • These are, to my mind, reasonable arguments. But—as Moore and Berger’s response pointed out—the NAACP didn’t include Justice Anita Earls, a lead attorney in the gerrymandering lawsuits before she joined the court.

    • Gerrymandering is central to the case. The plaintiffs’ premise is that, as an illegally elected body, the General Assembly did not have the authority to place the amendments on the November 2018 ballot.

    • Presumably, this same logic would apply to all four amendments that passed that year—voter ID, an income tax cap, a right to hunt and fish, and Marsy’s Law—though these are the only two being challenged.

The John Locke crowd is riled up.

Here’s former NCGOP executive director/Carolina Journal columnist Dallas Woodhouse, also throwing around the c-word.

It would be outrageous.

It would be unprecedented.

It would damage the credibility and validity of North Carolina’s highest court for decades.

It would be nothing short of a bloodless coup d’état by the Democrat majority on the state Supreme Court that would bloody North Carolina’s judiciary for years to come.

It would be a lawless decision, driven solely by politics.

It would render 9.6 million legally cast votes by North Carolina citizens meaningless.

It is likely to happen.

BACK TO LEANDRO: When this constitutional standoff reaches the Supreme Court, this song will be playing in the background. Democrats went 0 for 8 in statewide judicial races last year, and Republicans believe they can reclaim the court’s majority next year and protect the General Assembly’s redistricting.

  • Of course, forcing a constitutional crisis to not fund schools might not play well in the suburbs.

  • On the other hand, “judicial activism” has been a conservative rallying cry since Gingrich, and there are few ways Democrats on the Supreme Court could better feed the beast than by removing Republican justices from a contentious case, then sanctioning Republican legislators for not spending more money.


Do you know how much members of the General Assembly make? Well, you probably do, because my readers are obviously the most enlightened folks around. But the proles? Not so much, Western Carolina University professor Chris Cooper writes in The Washington Post.

Members of the New Hampshire Executive Council are paid $100 a year, North Carolina General Assembly members make $13,951, Wisconsin state legislators earn $50,950, and members of California’s State Assembly earn the highest state legislative salary in the country ($100,113). …

In North Carolina, the average respondent in my survey estimated that General Assembly members make around $125,000. The Wisconsin average, according to survey participants, was around $110,000, while California respondents pegged legislator salaries around $165,000, and New Hampshire respondents said their state legislators earned around $81,000.

Tl;dr: State lawmakers usually don’t earn much, and residents always think they earn more than they do.

2. Biden Wants Solar, Manchin Wants to Hit the Brakes

Yesterday, the Biden administration released a blueprint for producing 45% of the country’s electricity from solar power by 2050, which would require doubling production every year.

The expansion of solar energy is part of President Biden’s effort to fight climate change, but the new target would represent a huge leap with little historical precedent—solar energy contributed less than 4 percent of the country’s electricity last year.

Such a large increase, laid out in an Energy Department report, is in line with what most climate scientists say is needed to stave off the worst effects of global warming. It would require a vast transformation in technology, the energy industry, and the way people live. …

Getting there will mean trillions of dollars in investments by homeowners, businesses and the government. The electric grid—built for hulking coal, natural gas and nuclear power plants—would have to be almost completely remade with the addition of batteries, transmission lines and other technologies that can soak up electricity when the sun is shining and to send it from one corner of the country to another. (NYT)

I’ve written before that climate change is the signature challenge of this century, first among equals in terms of the world’s crises. I’m less than optimistic that anything like this will happen, at least beginning anytime soon.

Right now, the president’s $1 trillion infrastructure deal and especially his $3.5 trillion budget proposals—which together contain ambitious climate plans—are on the rocks.

Sen. Joe Manchin (D-W.V.) has privately warned the White House and congressional leaders that he has specific policy concerns with President Biden's $3.5 trillion social spending dream—and he'll support as little as $1 trillion of it.

At most, he's open to supporting $1.5 trillion, sources familiar with the discussions say. …

Manchin has voiced concerns about Biden’s plan to spend $400 billion for home caregivers.

He's also talking about means testing on other key proposals, including extending the enhanced Child Tax Credit, which provides up to an additional $300 per child per month, free community college, universal preschool, and child care tax credits. (Axios)

Manchin—or “sources familiar with the discussions”—apparently did not mention the bill’s climate provisions, or at least didn’t mention them prominently, but considering the progressive-versus-moderate infighting that has threatened to torpedo the whole thing, any significant crack becomes dangerous.

  • Also, Manchin comes from a coal state and, in June, said he was “very, very disturbed” by the climate pieces of the Democrats’ budget proposal.

  • “If they're eliminating fossils, and I'm finding out there's a lot of language in places they're eliminating fossils, which is very, very disturbing, because if you're sticking your head in the sand, and saying that fossil [fuel] has to be eliminated in America, and they want to get rid of it, and thinking that's going to clean up the global climate, it won't clean it up all. If anything, it would be worse.”

  • He and fellow moderate Sen. Kyrsten Sinema have a friend in Kentucky.

RELATED: Treasury Secretary Janet Yellen says the U.S. could default on its debt as early as next month if Congress doesn’t raise the debt ceiling. That would be very bad.

3. Read This: Politico and Modern Political Journalism

I’m not saying I agree with this piece by Perry Bacon Jr. in its entirety, but I’m not saying I don’t. I do think it’s worth a read. In short, it faults Politico’s politics-as-sports style for political journalism becoming terrible.

At its start, Politico rightly identified two shortcomings in political media: It was too slow and too dull. Politico pioneered the fast-paced coverage of Capitol Hill and campaigns that now thrives on Twitter and cable news. And it recognized that there is a real audience of people who love the behind-the-scenes machinations of politics. I was a political reporter when Politico was founded and was envious of its compelling and often fun coverage.

In 2007, the political media was indeed slow and dull, but it also suffered from several other problems: a bias for politicians and policies that were considered bipartisan or centrist; little racial diversity among journalists and a White-centric news approach; an obsession with placating Republicans who cast the media as too liberal; little coverage of politics beyond D.C.; and coverage of politics like it was a sport. Remember that the Washington press corps (myself included) had a few years earlier largely accepted the Bush administration’s case for war in Iraq. That was a massive failure that happened in part because journalists were wary of too harshly criticizing a GOP administration and because the war was supported by members of both parties in Congress, giving it a centrist and bipartisan sheen.

Politico largely embraced those prevailing orthodoxies of political journalism, particularly in its early days—it was Beltway-focused, obsessed with not offending Republican readers, sometimes resembled sports coverage and its leading reporters were nearly all White. It was in many ways just a faster, more interesting version of how politics had long been covered. And that really worked. …

But early in the Obama years, it became clear that the fights of the past weren’t over; they were, instead, perhaps becoming even more tense. The most important stories in American politics were the deepening polarization of the American electorate along cultural and racial lines and the growing radicalization of the GOP. But a Politico-ized national political press was both largely unwilling and in some ways unable to center its coverage on those realities. So the press spent much of the Obama years acting as if the opposition to him was solely because he had a liberal policy ideas on issues such as health care—and not because Obama had become both the leader and a symbol of a multicultural America whose values are opposed by many on the right. Wary of angering Republican readers, much of the mainstream press refused to cast the GOP as drifting into radical and racist behavior, even when prominent Republicans would not acknowledge that Obama was born in the United States.

“The Politico model of insider coverage and savvy style of analysis is premised on conditions in politics that became less true over time, which then undermined the model,” said New York University journalism professor Jay Rosen. “Conditions like two roughly similar parties obeying democratic norms, with similar establishments in both parties and competing for swing voters.”

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