Here’s a little secret of the legislative process: Absolutely every time a legislative body convenes, anywhere, some of its members introduce bills that they know stand not a snowball’s chance in Hades of seeing the light of day.
Why would they do that?
The bill may represent a dearly held belief. Sometimes it’s just to please some folks back home.
No matter the motivation, though, at some point the legislator or legislators in question knew or should have known that the measure was fatally flawed – either impractical, unpopular or flat-out illegal and/or unenforceable.
Sometimes, they don’t even file a bill; all they do is stand up and make a speech that includes phrases to please certain audiences but doesn’t mean anything. In fact, North Carolina is the source for one term for this: bunk, as in “That’s a lot of bunk.” It is said that in February 1820, as Congress was debating the Missouri Compromise, U.S. Rep. Felix Walker, who was from the Asheville area, rose to speak but assured his colleagues, “I shall not be speaking to the House, but to Buncombe,” and went on to deliver a speech that had absolutely nothing to do with anything under consideration. Bumcombe became bunkum became bunk.
Which brings us to the measure that made North Carolina a national punchline this week.
When I was the state editor of the Winston-Salem Journal, our state capital reporter routinely reported to me on certain, well, unusual pieces of legislation. One that springs to mind would have mandated that prison inmates sleep in shifts around the clock – you could use one bed for three inmates, so each prison could house three times as many inmates as it was intended to house. My response always was to ask whether the bill in question stood a chance of getting anywhere. The reporter would check around, and almost without fail the answer was no, the people in charge knew the measure was impractical, or nuts, so it wouldn’t even get to a committee debate, it would just disappear into the archives.
Back then, before Facebook and Twitter, that would have been the widespread response to House Joint Resolution 494. Introduced by Rowan County legislators, it appeared to be crafted to satisfy folks upset about an ACLU challenge of local governments starting their meetings with an overtly Christian prayer. What made it stand out, and what made it spread virally across the Internet, is that the proposal declares that the U.S. Constitution prohibition against government establishing an official religion doesn’t apply to anyone but Congress, so that “states, municipalities, or schools” would be free to do so.
Imagine, if you can, the free-for-all of a United States where individual towns or even schools can declare their own official religions. Want an officially Muslim town somewhere? A mini-Israel in the mountains up North? An officially Buddhist village in the Carolina coastal plain? And then after the next election cycle the official religion could change again? This kind of idea would make it possible. It has all kinds of unintended consequences.
Aside from that, though, even as the resolution itself states, the nation’s courts at every level have consistently interpreted the establishment clause as applying to everyone, not just Congress. So, passing anything to implement the idea would have zero legal effect. None.
In other words, the legislators expressed support for something that on its face would be unconstitutional – violating not just the U.S. Constitution but the state constitution as well. And that is where the stuff hit the fan and splattered across Facebook, Twitter and all the tubes of the Internet. “North Carolina is going Taliban,” the commentary suggested.
But here’s the other thing: Because the legislative sponsors introduced it as a resolution, they never really intended to try to make their idea the law of the state. A resolution is more like standing up on a box and declaring to the folks all around, “Here is what I think is a really good idea.” They were speaking to Buncombe.
John Hood of the conservative John Locke Foundation said as much in a column Friday: “A resolution is not a bill. A bill introduced is not a bill enacted. And a bill enacted is not necessarily a major policy change that will affect the everyday lives of North Carolinians.”
That’s what I kept trying to tell people when I saw them flipping out on Facebook.
And on Thursday, what I expected came to pass: The House leadership declared that the measure would never even come to a vote.
So ends another week in the sausage-making business.