Thursday, January 17, 2013
Soon after I joined the South Carolina Senate in 1989 an FBI sting, Operation Lost Trust, landed several SC legislators in jail for bribery. The remaining legislators passed a new ethics law considered then to be the toughest in the nation. Today a special Commission appointed by Governor Nikki Haley, and two legislative committees, are studying proposals to strengthen SC’s ethics laws again.
A high priority ethics law change should be to give an independent SC state ethics commission authority to handle alleged violations by legislators of the state ethics laws, as is done now regarding the Governor and all other SC elected officials, and as occurs in some form in thirty six other states. That would replace the current practice of giving SC legislators exclusive authority to handle ethics complaints against themselves.
There are many good policy reasons to make this change. It could help avoid the treatment, real, feared or imagined, of legislators less or more favorably than other officials. The public would have more confidence in an independent body judging legislators instead of legislators continuing to exclusively judge themselves. Legislators should be subject to the same laws they impose on others, including the same process for judging violations of the ethics laws.
Moreover, legislators should not be put, or want to be put, into the position of judging their legislative colleagues, because of inherent pressures on them due to that conflict of interest to be overly lenient or harsh based on friendships, personalities, fear of retaliation, favors, scores to settle, etc. Believe me when I tell you that some legislators retaliate and settle scores by withholding support because of their grievances against other legislators, real or imagined. For example, at the end of the last legislative term a Senator texted a message saying the following in part: “Based on last vote cast by [name withheld], it appears he does not want or need any help from me. He choose his friends poorly . . . .”
In addition, having Legislators’ state ethics law violations handled by an independent body would provide an additional check on the current excessive powers of the SC Legislature. The Federalist Papers warned against excessive powers by state legislatures and advocated having a strong, separate but equal Executive Branch, to help check the excessive powers of the Legislature. South Carolina is no exception.
South Carolina should adopt a system, as in many other states, of joint jurisdiction whereby its House and Senate can punish its members for disorderly behavior, including violating House or Senate rules, within the Legislature, but allowing an independent state ethics commission to handle complaints against legislators for violating state ethics laws, as exists now for all other SC elected officials. That joint system is allowed and not prohibited by Article III. Sec. 12 of the SC Constitution, which states: “Each house may . . . , punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member, but not a second time for the same cause.”
What happens in Texas is instructive. In that state all state ethics law violations by Texas legislators are handled exactly the same as for all other elected officials in Texas. According to the Executive Director of the Texas Ethics Commission, whose remarks I tape recorded during a two hour interview, Texas citizens and legislators have been happy with this system since its adoption in 1991.
In Texas an independent eight person ethics commission handles ethics complaints against all Texas legislators and other elected officials at all levels. That Texas commission is composed of an even number of members appointed 50% by the Texas Governor (from a list of ten nominees furnished by the Senate and House) and 50% by the Texas Legislature. That even composition of appointees by the Governor and the Legislature is deemed to comply with the separation of powers requirements of the Texas Constitution by preventing the Executive and Legislative branches from having excessive power over each other. That Texas construes that set up to be constitutional in Texas should be precedent for South Carolina since Section 11 of the Texas Constitution states virtually verbatim what Art. III Sec 12 of the SC Constitution says quoted above. Last year I introduced in the SC Senate a bill to restructure the SC Ethics Commission patterned after the Ethics Commission in Texas.
There is additional precedent in SC for allowing an independent body to judge Legislators’ violations of state ethics laws. The Judiciary adopts specialized rules for its attorneys and judges, and handles internally violations of those rules. Similarly, the SC House and Senate adopt its specialized rules and can discipline its members for violating them. However, members of both the SC Judiciary and Legislature can be arrested and disciplined by the Executive branch for civil and criminal violations of SC laws having statewide application. Similarly, the requirement of keeping the Executive and Legislative branches separate should not prevent an independent ethic commission from enforcing violations by legislators of SC state ethics laws.
Michael T. Rose
January 14, 2013
Michael T. Rose is a Summerville attorney who served thirteen years in the SC Senate.