State Politics

What’s behind the collapse of the HB2 deal?

In the end it came down to trust. More precisely, the lack of it.

Republicans’ distrust of Democratic Gov.-elect Roy Cooper and Charlotte Mayor Jennifer Roberts.

Democrats’ distrust of Republicans and their leaders.

It all played out in Wednesday’s epic collapse of a legislative session called with the hope of repealing North Carolina’s House Bill 2, the law blamed for the loss of jobs, concerts and sporting events.

By the time lawmakers adjourned after 10 hours amid flaring tempers, a deal negotiated by the state’s top political leaders had fallen apart.

In the wake of the collapse, state NAACP President William Barber said Thursday he would ask his national organization to launch an economic boycott of the state. Other boycotts were expected to continue.

Senate Republican Leader Phil Berger, who showed rare emotion Wednesday night, lashed out at Democrats.

“They’re brass-knuckled politicians who want to wage a nasty culture war with divisive issues so they can keep filling their campaign coffers with cash from fringe liberal activists,” he wrote on Facebook.

HB2 blocks local governments from giving anti-discrimination protection to LGBT individuals and requires transgender people to use the restrooms and locker rooms of the gender on their birth certificate in government buildings. It was a response to a Charlotte ordinance that would have extended LGBT protections and would have allowed transgender people use the bathroom of the gender with which they identify.

That lawmakers were in a position to vote on a repeal at all was the week’s first surprise.

Cooper told The Charlotte Observer in a Thursday interview that the deal quietly came together over the last 10 days. He and his staff met with representatives from the NBA, NCAA and businesses that oppose the law. Friday – the same day lawmakers were meeting in special session to pass laws limiting his powers – he met face-to-face with Berger and House Speaker Tim Moore.

“We talked on the phone several times before that, and of course we had staff members talking back and forth,” Cooper said Thursday. “What they wanted most of all was for the Charlotte City Council to take action.”

So in a routine meeting Monday morning, the council found itself voting to rescind the February ordinance. Later, Republican Gov. Pat McCrory called the special session to consider repeal of HB2. And Wednesday, lawmakers gathered in Raleigh to do just that.

So what went wrong?

The Charlotte ordinance. Somebody in the General Assembly – it’s not clear who – noticed that Charlotte City Council had failed to repeal the entire ordinance that prompted HB2.

In February, the council amended three existing nondiscrimination ordinances. One covers “public accommodations,” including bathrooms and locker rooms; one covers passenger vehicles for hire; and one covers companies that do business with the city. The council added gender expression and sexual orientation as protected classes to all three ordinances. HB2 didn’t block the part covering contracting.

On Monday, council members repealed the changes related to public accommodations. That removed the controversial bathroom and locker room provisions. They believed that would satisfy the legislature.

But Tuesday, lawmakers noticed the discrepancy.

Alarmed the deal would fall through, City Council met again Wednesday morning and repealed all of the February ordinance. Council members also repealed a provision that would have restored their ordinances if the legislature didn’t repeal HB2 by Dec. 31.

Republican council member Kenny Smith said he believes the two repeal votes hurt the city’s credibility and “may have cost a few votes.” It made some Republicans wary.

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

Rep. Chuck McGrady, a Hendersonville Republican, said, “Whatever people were for repeal were now against it. … You’ve got to have some trust.”

Republican votes. McGrady said the original GOP plan was to file a repeal bill in the House. Shortly after convening Wednesday, Republicans recessed into a closed-door caucus. It was a pattern they repeated throughout the day.

The 75-member House Republican caucus was divided. Ten of the most conservative members even voted against the rules for the special session – a vote that’s typically a formality.

Along with the Charlotte re-vote, Republicans began seeing warning signs. If they were to repeal HB2, what would stop cities from passing ordinances like Charlotte’s? And there would be nothing to prohibit Charlotte from bringing back its nondiscrimination ordinance.

Sen. Jeff Tarte, a Cornelius Republican, pointed to Durham city councilman Charlie Reece, who had tweeted that repeal would mean cities “will be able to take actions currently prohibited by HB2 to prevent discrimination” and that “Durham will stand with our trans brothers and sisters and … against discrimination and bigotry in all forms.”

The city of Charlotte said it “is deeply dedicated to protecting the rights of all people from discrimination and, with House Bill 2 repealed, will be able to pursue that priority for our community.”

The Human Rights Campaign, a national gay rights group, said the city’s repeal “must be temporary.” At the same time, Republicans were getting pressure from their base. Groups such as the N.C. Values Coalition “lit us up with emails,” said Sen. Tommy Tucker of Union County.

Berger’s bill. When the House failed to act, Berger introduced Senate Bill 4. It called for repeal of HB2 as well as a moratorium on local ordinances like Charlotte’s. The “cooling off period” was an effort to placate lawmakers who distrusted Democrats and their allies.

Cooper said the bill “just came out of thin air.” Other Democrats agreed.

“I’m sorry, this was not the deal,” Democratic Sen. Jeff Jackson of Charlotte told the Senate. “The deal was Charlotte repeal fully and you all repeal fully.”

After another recess, Berger came back with a new proposal: Split the bill in two – the repeal and the moratorium – with separate votes on each.

“What you have before you today is not some gimmick,” Berger said. “It is a good faith effort given the passion and disagreement around this issue.”

Cooper’s call. When Democratic senators met to discuss the bill, they got a call from Cooper.

“What such a moratorium period would do is inject uncertainty back into everything,” Cooper said Thursday. “It doubles down on discrimination and does the very same thing that House Bill 2 does. … And you know how moratoriums go in the General Assembly. They are enacted and continued and continued and continued. And that was not the deal.”

He was persuasive.

“(A moratorium) was not a deal breaker for us because it’s reasonable,” said Sen. Joel Ford, a Charlotte Democrat. “But Cooper felt it was a deal breaker.”

Berger says that’s where it all fell apart.

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

The vote. The Senate voted on the first part of Berger’s bill: the repeal. It failed, 32-16, with as many Republicans as Democrats voting no.

“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.

Cooper called the move “legislative trickery.” Jackson, the Charlotte Democrat, said if Democrats would have voted yes on repeal, the entire bill – with the moratorium – could have become law.

“We would have directly and crucially enabled that part of the bill to which we were deeply opposed,” Jackson said. “They needed our votes in order to get the moratorium and that parliamentary move was how they tried to get them.”

Only four of the 16 Republicans who voted against repeal represent one of North Carolina’s 10 most populous counties – the areas that have seen most of the economic losses from sporting events, conferences and jobs boycotting the state over HB2.

“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.”

Craig Jarvis of the (Raleigh) News & Observer and Ely Portillo of The Charlotte Observer contributed.

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