How to Kill a Deal: The inside view of what just happened with HB2

Last week, I wrote in this space about the surprise special session that ambushed us with legislation stripping incoming Gov. Cooper of various powers. 

I swear I thought that was it for the year.

On Monday morning, I got an early phone call that woke me up.  About 20 seconds into the call, I moved the receiver away from my mouth and called out to my wife in the next room, “Hey Marisa – you’re not going to believe this.”

I had just been told that Charlotte City Council was minutes away from voting to repeal its ordinance and that we would be going back into a special session – our fifth for the year – to fully repeal HB2.  A deal had been struck.

Two days later, we gaveled back into session at 10 a.m. Senate Republicans immediately called for a recess to meet privately.   

By noon we still hadn’t seen a bill.  The deal had been repeal-for-repeal, meaning that the delay couldn’t be simply a matter of working out the legislative language.  If their intent was to follow through on repealing HB2, the bill would only need to be a few sentences long. 

That only left one explanation: They didn’t have the votes.

It’s important to understand the basic political math here.  The state Senate has 34 Republicans and 16 Democrats.  Even if you get every Democratic vote – which a full repeal of HB2 certainly would – you still need at least 10 Republicans.  Upping the difficulty is the fact that, realistically, Senate Republicans would be deeply reluctant to bring any bill to a vote knowing that most Republicans wouldn’t support it.  That just isn’t done.

And word was starting to get out, not just from Senate Republicans, but from their counterparts in the House.  The votes for full repeal weren’t there.  Some Republicans were suspicious of the fact that it took the Charlotte City Council two votes to fully repeal the ordinance; some were simply still wedded to HB2. 

By 12:30 p.m., we could feel the wheels start wobbling.  Evidently the Charlotte Chamber could, too, because it put out a press release asking its chamber members to call legislators and ask them to support full repeal.

An hour later, I decided to file a bill that would fully repeal HB2.  My thinking was that, if Republican leadership wanted to keep its word, a simple repeal bill should be all they needed. 

Now, look – they’re not going to pass my bill.  Even if they agreed with every word of it, I’m a member of the minority party, so as a simple matter of politics they would never let my bill be the one to cross the finish line on an issue this significant.  They would sooner file an identical bill with different names at the top than pass mine, which is fine.  But in theory, my bill was exactly what they agreed to in exchange for Charlotte City Council’s repeal of the ordinance.  Every Democrat in the Senate signed onto the bill for full repeal and we resumed our wait.

At 2:30 p.m., Senate Republicans filed their bill.  It repealed HB2 but also included a six month moratorium on any new non-discrimination ordinances.  After another recess, Republicans re-emerged and amended the moratorium from a firm six months to a period of time extending one month beyond the close of next year’s legislative session, likely pushing the moratorium into the 6-8 month range.

And that wasn’t the deal.  Part of the reason Charlotte was willing to go forward with repealing its own ordinance was to take a symbolic step toward re-establishing trust with the General Assembly.  Now, on the day of the special session, and without consulting the city, Senate Republicans had changed the terms of the deal in a significant way.

There was another problem with the moratorium, also related to the question of trust: There seemed little to stop the General Assembly from indefinitely extending the moratorium and creating, in effect, a perpetual HB2.  At a minimum, we knew there would intense pressure on Republican leadership to do that very thing as the moratorium deadline approached.  This approach seemed ripe for abuse.

And it was presented as an ultimatum.  Take it or leave it. 

By this point, it was clear that there were going to be lots of Republicans voting against any version of repeal – with or without the moratorium.   If the bill was going to pass, it was going to need Democrats. 

In the last moments, there was a parliamentary maneuver to try appease both sides, but it appeased neither, failing in bipartisan fashion, 32-16.  Seeing the failed vote, Republicans in the House voted to adjourn without taking up any version of repeal and everyone went home.

We can draw a few quick conclusions. 

First, it’s clear we were called back into session before Republicans really knew they had the votes for repeal.  With supermajorities in both chambers, it was always going to take substantial Republican support to get repeal done.  A major insurrection within their ranks, like the type that occurred, was something that had to be avoided if this was going to work. 

Second, the political attachment to HB2 by a sizable number of Republicans runs beyond the Charlotte ordinance, as a full half of the Senate Republicans were ultimately unwilling to support its repeal even with the moratorium.  HB2 has become a symbol of resistance in certain parts of the state, and those symbols die hard.

Third, no one knows how this ends.  Charlotte has gone as far as it legally can and apparently that was insufficient. 

We head back into session in late January.  We owe this state a full repeal of HB2.  It should be the first thing we do. 

Jeff Jackson is a Democratic N.C. Senator from Charlotte.