What’s the solution to NC’s broken bathroom law? Just look to the Founders.
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H.B. 2, North Carolina’s controversial bathroom law, continues to plague the state. We’re in finger-pointing disarray, and we’re suffering from boycotts — banishing even basketball.

The Republican General Assembly and Democratic governor are tantalizingly close to compromise. There’s much agreement about repealing the crux of H.B. 2, the bizarre rule that your birth certificate determines the bathroom you use — the kind of rule that led to the headline “Transgender boy wins Texas girls wrestling championship.” The stumbling block is H.B. 2’s ban on local nondiscrimination ordinances (NDOs) covering things like city jobs and public housing.

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H.B. 186, proposed by Rep. Chuck McGrady, several other Republicans and a few Democrats, would allow those NDOs. The hang-up is whether NDOs need voter approval via plebiscites — that is, referendums or referenda — as a check on local authorities. 

 

Our nation’s Founders, worried about limiting government, deliberately left plebiscites out of the Constitution. But two techniques they relied on, sunsets and supermajorities, could help North Carolina.

Plebiscites

Limiting government power is a classic conservative concern. But plebiscites are not a classic technique. In Federalist Paper 49, James Madison warned against a proposed plebiscite because of its “danger of disturbing the public tranquillity by interesting too strongly the public passions.”

Some Republicans say city councils might run amok. They say Charlotte voters would never let “gender expression” determine bathroom use. Charlotte would never have started the fight, they say, if its ordinance had faced the threat of a plebiscite.

Some Democrats see the H.B. 186 plebiscite compromise as a deal-killer. It’s well known that “minorities fare worse in plebiscites than before legislatures.” Seekers of dignity get loose with language, though, when they say that the H.B. 186 plebiscite compromise would let voters take away people’s “rights.” City councils don’t grant rights. Constitutions do. Courts, not city councils or voters, decide questions of constitutional interpretation. City councils do something else: They grant privileges, or entitlements, or protections. Not rights. 

New Orleans, for example, allows open containers of alcohol on public sidewalks. In lay terms, you might say, "I have a right to drink on the sidewalk." But if New Orleans stopped allowing that, the city wouldn’t be taking away anyone’s rights. 

If there’s a right to something, city council action wouldn’t be needed to ratify it. And voters couldn’t overrule it. 

Eventually, the courts may decide many of the issues presented by H.B. 2, on the basis of what constitutional rights exist. But in the meantime, the General Assembly can stop the boycotts by getting rid of H.B. 2.  

Underneath the “rights” rhetoric is a valid argument. Dignity isn’t sidewalk drinking.

Issues of dignity benefit from cool deliberation, in small groups. For dignity, a “small r” republican way is more courteous than a “small d” democratic way. So city councils protect dignity better than plebiscites do. 

A plebiscite might showcase animosity toward transgender folks — demonization, rather than dignity. Even gay folks worry they might get targeted again, as they were with North Carolina’s Amendment One gay marriage plebiscite.

In North Carolina, we could stand to turn the volume down. Plebiscites might turn it up.

Sunsets

Plebiscites aren’t the only way to prevent some rogue city council from overriding the will of the people. Sunsets do that, too.

A sunset is a fixed expiration date written into a law. When that day comes, the law dies. To bring it back to life, the governmental body that passed it needs to come back and pass it again.

The Founders put time-limited rules in the Constitution. Several constitutional provisions sunset in 1808. This one remains: “To raise and support Armies ... no Appropriation of Money ... shall be for a longer Term than two Years.” The Constitution restricts Congress’s power to legislate for the future. The General Assembly could do the same for localities.

A guaranteed revote after the first post-NDO council election, or more often, would protect against a council that overreaches. That is, the old council’s NDO would expire shortly after the new council takes office. Addressing the classic conservative concern, a sunset limits government power, by shifting power to tomorrow’s voters.

Sunsets protect both dignity and privacy better than plebiscites. With a sunset, a council race can serve as a substitute for a plebiscite on an NDO, though indirectly. The actual campaign is not “NDO: Yes or No?” It’s “Vote for Candidate X,” or “Vote against Candidate Y.” The relatively restrained campaign of a council race should be kinder to LGBTQ folks and disturb “tranquillity” less than the hoopla of a plebiscite.

Supermajorities

The U.S. Constitution is full of “supermajority” rules that limit governmental power. The Constitution requires two-thirds votes of one or both Houses of Congress for impeachment, for treaty ratification, to expel a member, to override a veto, and more. And three-fourths of states are needed to approve a constitutional amendment.

If there’s a concern about city councils running amok, supermajorities are a way to put the brakes on. The original Charlotte bathroom ordinance passed 7-4. With 11 members voting, a two-thirds supermajority requires means eight votes; three-fourths requires nine. A supermajority could be tough for Democrats to take — but better than keeping H.B. 2.

American states mustered a supermajority to enshrine our nation’s Bill of Rights. Maybe supporters of “rights” in a local NDO could do the same.  

Conclusion

A one-party fix to H.B. 2 might not stop the NCAA boycott, and Republicans haven’t yet produced one. Democrats resist the Republicans’ plebiscite plan.

An uncomfortable compromise is the best we can hope for from the Founders’ sunsets and supermajorities. But those techniques, or some other imperfect fix for H.B. 2, can make things better — and bring back basketball.

 

Pat Oglesby is director and founder of the Center for New Revenue. He previously served as chief tax counsel at the U.S. Senate Finance Committee and as international tax counsel at the Joint Congressional Committee on Taxation.


The views of contributors are their own and are not the views of The Hill.