A Republican-controlled N.C. Senate committee voted Thursday to issue a subpoena to force one of Gov. Roy Cooper’s Cabinet secretaries to attend confirmation hearings.
The Senate Committee on Commerce and Insurance voted to approve the subpoena after a third attempt at a confirmation hearing with Larry Hall, a former Democratic state representative and the secretary of the N.C. Department of Veterans and Military Affairs.
Senate leader Phil Berger, R-Rockingham, said at a news conference held before the 1 p.m. committee meeting that he would sign a subpoena request.
The subpoena, if deemed valid, would require Hall to attend the committee’s March 2 meeting, The News & Observer of Raleigh reported.
“Believe me, that is not how we want this to go,” Berger said of issuing a subpoena. “But that is up to Gov. Cooper and Secretary Hall.”
Cooper’s office could not be reached for immediate comment on the subpoena of Hall. Cooper has said he believes the confirmation process currently violates a court order.
The N.C. Democratic Party said the “unlawful threat to subpoena Larry Hall, someone who is unquestionably qualified, offers further proof that Republicans in the General Assembly care more about political stunts than doing what’s right for North Carolina.”
The Cabinet-approval law, created under House Bill 17, was passed Dec. 19 by the Republican-controlled legislature during the 2016 special fourth session and signed by then-Gov. Pat McCrory, a Republican.
Part of the law formally requires Senate advice and consent of the governor’s secretaries. The advice and consent element is in the North Carolina Constitution, but previous governors have not been required to adhere to it.
Cooper filed his initial legal complaint Jan. 11, calling the law an “unprecedented” legislative effort to interfere with his duties. He said it could have played a detrimental role in his potential Cabinet selections, eight of whom have been appointed and are serving.
Sen. Bill Rabon, R-Brunswick, has said he doesn’t expect any of Cooper’s nominees to be vetoed by a committee if they can meet the three stated criteria regarding their qualifications, potential conflicts of interest and willingness to obey the law.
Berger would not say whether a failure to attend a confirmation hearing would result in a no vote from a committee.
The legality of the confirmation attempts remains unclear after a Feb. 14 decision by a panel of state Superior Court judges to end a temporary order preventing the Senate committees from holding confirmation hearings.
However, the panel also said Cooper could re-submit an irreparable harm motion if a secretary or a nominee is not confirmed by a Senate committee.
At Wednesday’s meeting of the Senate Commerce Committee, Sen. Wesley Meredith, R-Cumberland, said it was his opinion that Hall’s failure to attend a confirmation hearing would provide a legal reason not to confirm him because it would indicate Hall was not willing to follow the law.
Mitch Kokai, a policy analyst with the John Locke Foundation, a conservative research group based in Raleigh, said Thursday that Senate leaders believe it is within their power — under both the state constitution and the law approved in December — to compel testimony from the Cabinet secretaries.
“If those secretaries are unwilling to participate, this is the Senate’s only recourse,” Kokai said. “It’s likely that all of this will be resolved at some point in the courts.”
Berger said the Senate committees are attempting what he has called “a straightforward, transparent and fair process to exercise the Senate’s constitutional authority to confirm Gov. Cooper’s Cabinet secretaries.”
“Giving the people of this state an opportunity to learn about unelected department heads who control billions of their tax dollars is not something anyone should be fighting over,” Berger said. “Nor should it be controversial that public officials must — like everyone else — follow the law.”
However, Berger and other Republican Senate leaders did not make similar requests to confirm McCrory’s Cabinet secretaries, some of whom appeared or were later proven to have had scant qualifications for their position.
“It is mind-boggling that this is even considered controversial and that the governor is fighting back so hard on this,” Berger said.
He hinted that Cooper may have an interest in his secretaries not going through confirmation.
“Are these potential deal breakers? Not necessarily,” Berger said.
“But don’t the people of this state deserve an opportunity hear how these secretaries will address the concerns that were raised by the State Ethics Commission?” he asked. “You bet.”
A court hearing on Cooper’s lawsuit challenging the constitutionality of the advise and consent law is expected to begin March 7. Cooper has not submitted any Cabinet nominees to Berger. He has until May 15 to do so, under the law.
Cooper spokesman Ford Porter said on Feb. 14 that “we are satisfied with the (judges’ panel) ruling,” including that the panel made clear that the advice and consent process can’t begin until nominees are submitted.
“The governor plans to wait for the full hearing on the constitutionality of this law to go forward on March 7 before submitting his nominees, which he believes will not be necessary,” Porter said.
The Senate has planned to hold confirmation hearings through March 17.
The Senate appears to have saved the two most potentially contentious candidates for last in Michael Regan for the N.C. Department of Environmental Quality and Dr. Mandy Cohen as state health secretary.
Regan has been criticized by Republicans for serving as a longtime advocate for the Environmental Defense Fund.
Cohen served as a top Medicaid and Medicare administrator of President Barack Obama’s health-care overhaul.
Cooper’s attorneys argue that statutory officers, such as Cabinet secretaries, are beyond the advice and consent edict. The attorneys say an amendment to the state constitution, which would require voter approval, is necessary to give that consent role to the Senate.
In January 2016, the N.C. Supreme Court ruled that the General Assembly took powers away from the executive branch by permitting its leaders to appoint most of the statutory members on three environmental regulatory commissions.