The fallout from House Bill 2, with its usurpation of local powers and its codification of discrimination, is broad and ongoing. But one aspect of this legislative disaster remains mysterious and unexplored: How did a bill packed with so many profoundly divisive provisions get swept through the legislature in a one-day special session and signed into law within hours of its passage?
An excellent picture of the origins of HB2 lies in a Sept. 29, 2015 story reported by The News and Observer’s Colin Campbell. It’s a rare and now valuable account because it focuses not on what passed at the chaotic end of the session but on an attempted legislative coup that failed.
The story reports on the work of a conference committee, a panel appointed to work out differences on bill language between the House and Senate. The committee was chaired by two Republican lawmakers from Wake County, Rep. Paul Stam and his former staffer and now state senator, Chad Barefoot. The committee took up competing versions of a bill about professional counseling and added unrelated, sweeping amendments that later re-emerged as key provisions of HB2. And it may explain why the “bathroom bill” oddly contains a provision on the minimum wage.
Campbell wrote that the rewritten bill “seemed to overhaul a wide range of nondiscrimination ordinances, housing regulations and workplace regulations that some cities and counties have adopted.” The new version also barred the establishment of a local minimum wage.
The N.C. League of Municipalities quickly opposed the bill. Gay-rights advocates protested that the bill was a backdoor version of the Religious Freedom Restoration Act that failed to advance earlier in the session. They said it would eliminate local nondiscrimination ordinances. The bill might have been spurred by a debate in Charlotte. Campbell wrote, “Charlotte leaders narrowly voted down a nondiscrimination ordinance earlier this year, which would have added sexual orientation and gender identity to protected categories. Opponents said the proposal would force businesses to serve gay and transgender people.”
Democrats used a procedural tactic to get the wildly amended bill sent to the Rules Committee. And there, in their last act of legislative sanity, Republicans joined Democrats in a 14-7 vote to keep the bill off the House floor.
That thwarted intention sat dormant through the winter, but the Charlotte ordinance gained new life because of a city council reconfigured by Charlotte’s local election last fall. Here the plot thickens. Someone in Gov. Pat McCrory’s political camp saw the ordinance coming back and saw an opportunity. McCrory should vigorously oppose it on the basis that it granted transgender women who were born male access to women’s bathrooms and raised a security threat to women and girls. That stand would help the former moderate Charlotte mayor gain strength with skeptical conservatives and evangelicals.
Meanwhile, McCrory’s strong opposition would put his Democratic opponent, Attorney General Roy Cooper, in a no-win situation. He could join McCrory in opposing the ordinance, but that would cost him liberal support. Or Cooper could support it and risk turning off moderates.
McCrory went all-in on the bathroom aspect even before the Charlotte ordinance passed. He joined a lawsuit in Virginia in which he sided with local officials who are fighting a federal lawsuit brought by the ACLU on behalf of a 16-year-old student. The lawsuit backed by the Obama administration seeks to allow transgender students to use the school bathroom that conforms to their gender identity. Cooper declined to get involved in the Virginia case. That prompted a Nov. 24 news release from Republican Senate leader Phil Berger headlined: “Shame on AG for putting politics above student safety.”
After Charlotte passed the ordinance with the transgender protection provision, the McCrory campaign began pressing Cooper to take a stand on it. Cooper eventually said that existing law covers any bathroom dangers and that he saw no need for a new law to block the ordinance.
N.C. GOP Executive Director Dallas Woodhouse said in a March 1 statement, “After months of hiding from the press and stonewalling, Roy Cooper chose to side with a few radicals in Charlotte who believe that men should be able to use the women’s bathroom.”
Those who thought they had backed Cooper into a corner didn’t realize that they were putting McCrory’s re-election chances into far greater jeopardy. In the haste and secrecy of the March special session, the get-Cooper bathroom gambit got combined with the Stam-Barefoot wish list. The mixture was explosive. It blew up into a national story, chilled the state’s appeal to businesses, entertainers and tourists and has McCrory backpedaling while declaring no retreat.
Meanwhile, a decision in the Virginia case McCrory so pointedly joined is expected any day. If the plaintiffs prevail, North Carolina could be looking at a loss of billions of dollars in federal aid for violating the rights of transgender people. This is a situation in which Republican lawmakers and strategists thought they were being clever but did something as dumb as it will be costly.
Barnett: 919-829-4512, firstname.lastname@example.org