State Politics

Berger analyzes what went wrong in failed HB2 repeal

Berger frustrated after failure to repeal HB2

NC Sen. Phil Berger, Republican President Pro Tempore, expresses his frustration over the failure to pass a bipartisan bill that would repeal House Bill 2 while answering questions from the press following the North Carolina General Assembly’s fif
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NC Sen. Phil Berger, Republican President Pro Tempore, expresses his frustration over the failure to pass a bipartisan bill that would repeal House Bill 2 while answering questions from the press following the North Carolina General Assembly’s fif

In a post-mortem on the day after the General Assembly failed to repeal House Bill 2, Senate Leader Phil Berger described a cascade of mistrust that in a matter of hours unraveled a fragile consensus that had been days in the making.

“It just astonishes me,” Berger said in a half-hour phone interview Thursday, still stung by the events of the previous night.

The state Senate on Wednesday turned back Berger’s attempt to pass a bill repealing Charlotte’s LGBT anti-discrimination ordinance but impose a moratorium on Charlotte or any city or county from attempting to enact similar ordinances. HB2 rolled back Charlotte’s ordinance allowing transgender people to use the public restrooms of their choice.

The bill was scotched by Democrats who opposed that provision and voted with Republican senators who were against repealing HB2 under any circumstances.

Things looked much more optimistic on Monday morning.

When the Charlotte City Council unexpectedly announced it would repeal its ordinance if the legislature repealed HB2, Berger said, he first checked in with his GOP caucus to see if there were enough votes to accomplish that. He said he knew it would be a challenge because a portion of his members would never agree to it.

“I fully understand and respect that many of my members would not be in favor of a repeal of HB2, for numerous valid reasons,” he said.

So he worked to build more than a majority, knowing he would need at least 26 senators in the 50-member chamber to vote for it. He assumed he could count on Democrats to vote for repeal.

“That took a good bit of talking and walking through things,” Berger said.

Some members raised concerns that if the law was repealed other cities would start enacting their anti-discrimination ordinances that many Republicans find objectionable. Berger says he reassured them that he thought Charlotte was making a good-faith effort, and that this was a chance to cool off and start again on how to resolve a contentious issue that has cost North Carolina millions of dollars in lost revenue and untold loss of prestige.

Gov. Pat McCrory was apprised of the events and Berger and House Speaker Tim Moore agreed to work to get enough votes to make it happen, he said. About that time, governor-elect Roy Cooper issued a news release announcing lawmakers would call a special session for the repeal following extensive behind-the-scenes work by his staff over 10 days.

“I started getting a little bit worried because it looked like Cooper was trying to take too much credit,” Berger said.

Then it turned out that Charlotte’s commitment to repeal its ordinance carried a Dec. 31 deadline for the legislature to act, which some members interpreted as a threat, he said. By Tuesday night it was discovered that Charlotte had repealed the bathroom provision of its ordinance but not all of the ordinance – in fact only one of five pages had been repealed.

“Just the optics of that, in terms of the members, really started questions flying,” Berger said.

Additionally, Charlotte Mayor Jennifer Roberts and Rep. Chris Sgro of Equality NC took to social media about that time calling for an expansion of anti-discrimination protections.

“By the time we got to the session Wednesday morning, a good bit of the support I had been able to cobble together for repeal had dissipated,” Berger said.

Rather than bail out, the Senate GOP leader said he crafted a bill that would repeal the ordinance but impose a six-month cooling-off period during which all the interests could discuss the best way forward to address concerns about discrimination. He told Senate Minority Leader Dan Blue what he wanted to do, and was encouraged that the proposal would work.

As word of that plan spread, Cooper contacted Senate Democrats and urged them to stick with the repeal-only deal, Cooper has acknowledged. Berger says that’s where it all fell apart.

“Disappointed is not a strong enough word,” he said.

Berger made one last bid by using a legislative maneuver to split the bill into two up or down votes, first on the repeal and then on the moratorium. All 16 Democrats joined 16 hardcore Republicans to defeat the repeal and end the drama.

“We had all 16 Democrats vote against repealing a bill that for nine months now they have said has been a disaster for the state,” Berger said.

Democrats said the moratorium, which Berger revised to 30 days past next year’s adjournment, which usually happens around July or later, in effect made the repeal pointless.

Sen. Angela Bryant, a Rocky Mount Democrat, said on the floor that Berger’s proposal was “smoke and mirrors.”

“I don’t know if you think the public is stupid or we’re stupid,” she said.

By then, all trust over the issue had evaporated, Berger said.

“The tragedy here, to me, is not only we missed an opportunity to move us a step closer to getting this thing resolved,” Berger said. “The tragedy here is it will be extremely difficult to try to cobble this back together.”

NC Sen. Floyd B. McKissick, Jr, a Durham Democrat, and Phil Berger, Republican Senate President Pro Tempore, exchange sharp words over HB2 and Senate Bill 4 during the North Carolina General Assembly’s fifth special session Wednesday, December 21,

Craig Jarvis: 919-829-4576, @CraigJ_NandO

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