Reform and Restructuring
Proposed in 2014 Legislative Session
Altering the Selection Process for Judicial Merit Selection Commission Members (Filed 2/27/14)
Companion bills H.4806 and S.1064 would change the member selection process for the body that nominates all South Carolina judges. Currently the ten members of Judicial Merit Selection Commission (JMSC) are appointed by three politicians, the Speaker of the House, the Senate Judiciary Chairman, and the Senate President Pro Tempore. Current law also stipulates that six of the current ten members of the commission be lawmakers. We’ve written before that South Carolina’s judicial selection method is highly unusual among the states. Only one other state (Virginia) has legislatively appointed judges on the Supreme Court and Court of Appeals, and only one other state (Tennessee) has a judicial nominating committee appointed by the legislature. These kinds of unusual practices ignore the traditional separation of powers which has the executive appoint judges, and are a black eye to our state.
The companion bills seek to change the current process by expanding the JMSC to fifteen members and having the state legislative delegations for each of the seven South Carolina federal congressional districts appoint two members to serve two year terms. The Governor would appoint the final member to the commission. The bills also forbid current General Assembly members from serving on the commission, and further forbid former General Assembly members from serving on the commission until five years after they have left office. This outlined process would be a small improvement to the current system by taking member nomination out of the hands of three powerful politicians. True reform however, requires much more. Until judges are appointed by the Governor with the advice and consent of the Senate, South Carolina will remain a state where proper separation of powers is ignored and judges are dangerously indebted to legislators.
Telling Local Governments to Give More Notice for Budget Hearings (Pre-filed 12/10/13)
H.4410 would force local governments to give additional notice of public hearings before budget adoption; such as sending electronic communications, making telephone calls to registered voters, posting the notice online, etc. Public notice of budget hearings is important, as these hearings are an essential medium for taxpayers to get their voices heard on what their tax dollars (and how much of it) is being spent on. Ironically, the sponsor of this bill serves on the House Ways and Means Committee, which along with the Senate Finance Committee, routinely violates section 11-11-90 of the state code which mandates these committees to hold joint open hearings on the governor’s executive budget each year. Unfortunately, this looks like another instance of state lawmakers saying, “Do as we say, not as we do.”
Prohibition on Public Employee Collective Bargaining (Pre-filed 12/10/13)
S.814 would prohibit collective bargaining (union bargaining) by public employees at all levels in South Carolina. Labor unions are not inherently bad or irreconcilable with the free market, but public labor unions, in addition to receiving the rewards of their bargaining from taxpayers, also don’t often face the same resistance from management in negotiations. This is because management in this case is government which doesn’t face the same cost constraints as private business. This problem of incentives or rather lack of incentives to limit employee compensation and costs has contributed to the bankruptcy of cities such as Detroit and Stockton, California. While unionization isn’t (even under right to work) and shouldn’t be prohibited in the private sector, fiscal prudence dictates that it be disallowed in the public sector.
Proposed in 2013 Legislative Session
S.22 is a government “restructuring” bill that would create a Department of Administration as a part of the executive branch. Unfortunately, like the similar bills that have failed to pass over the past couple years, the first version of this bill failed to restructure state government in a way that creates a clear separation of powers between the executive, legislative, and judicial branches. Furthermore, S.22 eliminates the provision in the state code requiring joint public hearings on the governor’s budget which lawmakers have chosen to ignore.
Update: The Senate Judiciary Subcommittee met again on January 17th and sent S.22 to the full Judiciary Committee with a favorable report after passing a number of important amendments to the bill. A more detailed analysis of this bill and its amendments can be found here.
Repealing Joint Open Budget Hearings Law
H.3647 would repeal the section of state code, 11-11-90, which mandates that the Senate Finance and House Ways and Means Committees hold joint open sessions considering the governor’s budget. As part of our 8-point agenda, we have written often and extensively on why this open budget law matters and how the legislature has ignored it altogether. Unfortunately, it looks like this bill would change the legislature’s status quo from “If a law mandates we do something we don’t want to do, just don’t follow it” to “If a law mandates we do something we don’t want to do, just get rid of it.”
Strengthening Ethics Laws
H.3407 would improve South Carolina’s ethics laws in a number of important ways. The bill would prohibit PACs organized by or for constitutional officers or members of the General Assembly (GA), allow GA members to be investigated by the State Ethics Commission, require disclosure of all governmental income including income from the federal government, prohibit lawmakers from serving as lobbyists for five years after leaving office instead of one, strengthen the reporting requirements for gifts or remuneration from lobbyists, vendors and employers on GA members statements of economic interest, and require copies of receipts for all campaign expenditures to be included on certified campaign reports.
While this bill does not address all of our ethics concerns, (for example, ending the legislative exemption to FOIA) it goes a long way toward achieving come of our desired reforms, most notably making members of the GA accountable to the State Ethics Commission. This bill, unlike some weaker ethics bills, appears to be a serious attempt to strengthen our state’s ethics laws.
Ending Legislative Self-Policing
S.347 would change the code to make lawmakers accountable to the state ethics commission like other state government officials, rather than the House and Senate Ethics Committees. Ending lawmakers’ ability to police themselves is the 5th point on our 8 point reform agenda as it is a necessary precondition for legislator accountability. The current system creates a perverse incentive to be lenient with fellow lawmakers in exchange for a quid pro quo or due to fear of retribution. This is a common sense reform whose time is past due.
Reforming Ethics Laws with a notable omission
H.3772 would make a number of reforms to state ethics laws but, noticeably fails to address one crucial aspect of ethics reform. The bill makes lawmakers subject to hearings by the State Ethics Commission and creates the Public Integrity Unit (comprised of the Executive Director of the State Ethics Commission, the Attorney General, the Director of the South Carolina Department of Revenue, the Chief of the South Carolina Law Enforcement Division, and the Inspector General) to carry out investigations of possible ethics violations referred to it by the State Ethics Commission and other partner organizations. The bill would further expand the definition of economic interest for public officials and would require that lawmakers disclose business income on their statements of economic interest.
Many of the changes made by this bill are laudable, but unfortunately the bill fails to fix a critical flaw in our current ethics law. While lawmakers would now be subject to State Ethics Commission hearings, they would still be punished for ethics violations by their fellow lawmakers in the House and Senate Ethics Committees. Most of the reforms provided by this bill are needed and should be pursued, but this conflict of interest concerning the ethics committees shouldn’t be neglected.
Requiring private source income disclosure and other reforms
S. 338 makes a number of changes to state ethics laws, including: raising lobbyist registration fees, expanding definitions of economic interest, requiring lawmakers disclose the source, but not amount, of private income (with exceptions for court order, interests on bank accounts and mutual funds), and prohibiting political actions committees organized by state and local elected officials, and agency members appointed by the governor. This bill addresses a number of important issues, most importantly the disclosure by lawmakers of private sources of income. Several important ethics provisions (though not all) that aren’t addressed by this bill are addressed in other bills by the lawmaker who introduced this piece of legislation.
Creating a “Commission on Ethics Enforcement and Disclosure”
H.3945, which is currently a “shell” bill in that it only has a summary of the parts of code it would amend (and not the actual amendments), appears to eliminate the State Ethics Commission and create a new Commission on Ethics Enforcement and Disclosure—and provides its powers, duties, and procedures (without actually providing these). Among other amendments to the code, like some campaign finance reforms and provisions regarding abstention from votes when there are conflicts of interest, one part of the bill summary seems to directly contradict any notion of “ethics reform”:
“Relating to paid representation of clients and contracting by a member of the General Assembly or an associate in particular situations, so as to delete a prohibition against certain contracts with an entity funded with general funds”
In other words, this bill would allow lawmakers to contract with entities that get state money. While some parts of this bill at least have a chance to be beneficial to the efforts of ethics reform (even though hardly any details are given), this provokes a question: What is the point of an ethics reform bill if it actually provides for more cronyism and potential conflicts of interest?
Restoring Judicial Independence
S.197 and S.200 would remove the power of the legislative branch of being the sole arbiters of choosing judges in South Carolina. S.200 proposes a constitutional amendment to provide that Supreme Court justices, judges on the Court of Appeals, and Circuit Court Judges be appointed by the Governor with the advice and consent of the Senate rather than elected by the General Assembly. In addition, it repeals provisions requiring the General Assembly to establish a Judicial Merit Screening Commission. S.197 would amend the state code to provide these same provisions for appointing Family Court and Administrative Law Court judges.
Currently, South Carolina is the only state in the nation in which the legislature is involved in both the nominating and appointment process of state judges. Enacting these reforms would eliminate lawmakers’ power of being the only ones who have a say in who is judging the laws they make. Additionally, it would give the Governor, who represents the ENTIRE state— not just a district, some say in making judicial appointments. We would be hard pressed not to mention these proposals as they fit perfectly into Reform No. 1 on our 8-point Reform Agenda.
Shortening Session (Somewhat)
H.3094 would force the General Assembly to adjourn on the last Thursday before Memorial Day in May, rather than the first Thursday in June, shortening session by two weeks. Moreover, it deletes their authority to extend the session past that day. The longer your lawmakers are in session, the more time they have to spend your money on superfluous programs, listen to lobbyists and consultants, make decent legislation egregious, and congratulate holes-in-one at exclusive golf clubs. The bill would be a step in the right direction, but a step is just a step, and there’s no reason why session South Carolina’s session, among the longest in the country, shouldn’t be substantially shorter.
H.3340 goes a step further than the bill above, as it proposes a constitutional amendment that provides that the General Assembly not convene until the second Tuesday of February and must adjourn sine die not later than the first Thursday in May.
H.3259 would shorten session by one month starting the General Assembly session on the second Tuesday in February rather than January.
Expanding Income Disclosure Requirements
H.3083 would require a slightly more stringent level of income disclosure. Lawmakers would have to disclose income from all governmental sources, including the federal government, compensation received from lobbyists, and compensation from vendors who hold contracts with the state. While this would shine some light on the many ties between lobbyist and politicians, we would argue for further expansion of disclosure, including sources of private income.
Raises for Legislators
H.3108 would raise legislators’ salaries to $50,000 a year starting in 2015. We have long expressed the need for a citizen legislature. Legislators should spend less time in the capital using up fewer state resources and allowing themselves to earn more income from other professions outside politics. Raising legislative salaries would further entrench the concept of the professional legislator and would move more resources to both House and Senate, which have been already raising their respective budgets in recent years.
Enforcing Agency Audits Every Five Years
S.104 would provide that the Legislative Audit Council (LAC) conduct audits of state agencies every five years and submit reports on their findings. Currently, the LAC only conducts audits if “authorized by the council, upon request of the General Assembly or either of its respective bodies, a standing committee, the Speaker of the House, the President Pro Tempore of the Senate, or not less than five members of the General Assembly”. With all of the recent concern on ethics, this bill may be necessary since we cannot count on our politicians to conduct audits of themselves voluntarily.
Allowing Citizen Legislative and Constitutional Initiatives
S.16 would put a question on the next general election ballot to amend the constitution to allow citizens to place legislative and constitutional initiatives on future ballots after circulating petitions and getting signatures of ten percent of the qualified electors from the last general election. This represents an effort towards handing some of the power in South Carolina back to the citizens and providing a small check on our excessively powerful legislature.
Removing the Power of an Unaccountable and Duplicative Agency
S.209 and H.3476 would place the State Transportation Infrastructure Bank, (STIB), under the Department of Transportation and would further eliminate the STIB’s board of directors. These bills would also make any project for STIB ineligible for funding unless the STIB currently has funds available to see the project through to completion. Moving the responsibility for funding more transportation projects in the state back under the direct control of the DOT would make the department and the executive more accountable for these projects, and would likely lead to more careful consideration when contemplating controversial projects like the I.526 expansion.
Shortening the Path between Law-Maker and Law-Checker
Current state law prohibits members of the General Assembly from being Administrative Law Judges for four years after their stint as a lawmaker. H.3304 would shorten this prohibition period to one year. Without a doubt, this would open the door to cronyism by blurring the lines between the legislative and judicial branches even further. Interestingly enough, the same sponsor of this bill previously attempted to add this provision as an amendment to an unrelated crime bill, as explained by The Nerve.
Strengthening FOIA (Somewhat)
H.3163 would take various measures to strengthen the current Freedom of Information Act (FOIA) law such as providing that records must be furnished at the lowest costs to the person who requested them. The deposit that the government requests couldn’t be more than 25 percent of the total cost of furnishing the documents. A response would have to be given back to the person who requested the documents within 7 calendar days of the request, and if granted it would have to be made available in 30 calendar days.
This bill fixes some issues with the current FOIA law, but it does not deal with one of the worst parts of the law, Section 30-4-40, which exempts nearly everything from being public record including the “(m)emoranda, correspondence, and working papers” of lawmakers, as explained by The Nerve here.
Prohibiting Nepotism in University Boards and the Judicial Branch
H.4068 would prohibit members of the General Assembly and their immediate family members from being elected or appointed to boards of public colleges and universities and for one year after the legislator is no longer in office. The code is also amended to prohibit immediate family members of General Assembly lawmakers from being elected to a judicial office and for one year after the lawmaker has left office. The timing of this bill could quite possibly be a reaction to Wednesday’s joint session where a brother, sister, and a former lawmaker were all elected to university and college boards. Nepotism is rampant in South Carolina, so any change that would help eliminate these conflicts of interest, or if nothing else, the perception thereof, would certainly be welcome.
Eliminating the Cross-Over Deadline in First Year of Legislative Session in the House
H.4048 would amend the rules of the House of Representatives to allow the consideration of bills originally introduced in the Senate throughout the full first year of the two-year legislative session. Current rules provide that bills originally introduced in the Senate may not begin consideration in the House after May 1st of the first year. This bill would move the May 1st deadline to the second year.