MY LAST NERVE: Retaliation at the State House?

April 11, 2014

Inside Insight

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Bobby HarrellWHY THE MAD RUSH TO AMEND THE CONSTITUTION?

Occasionally those of us who watch the State House are fairly sure we’re witnessing an act of retaliation. We can’t be sure because no one will admit it, but we have our suspicions. Let’s see what you think.

Earlier this week the House fast-tracked two bills – one of which is a constitutional amendment that would forever change the role of the state’s Attorney General – by bypassing the committee process and putting the two bills on the House calendar. A member of the House can request unanimous consent that the bill be placed on the calendar “without reference,” meaning it would not have to go through the typical committee process; instead it would go straight onto the calendar for consideration.

The first bill, H. 5072, would allow a special prosecutor to be authorized by a majority vote of both chambers in the event of an “alleged criminal violation” by a constitutional officer or other officer subject to removal from office by the governor. It would also permit the Speaker Pro Tem of the Senate and the Speaker of the House to choose the prosecutor who would oversee an investigation of said alleged criminal violation.

Until yesterday, the bill had more than 80 co-sponsors.

We’ve heard from a number of citizens who contacted their representatives about the implications the bill could have on the current grand jury investigation into Speaker Bobby Harrell. Some of the bill’s co-sponsors defended their decision. On a Facebook post thread, Rep. Dan Hamilton (R- Greenville) stated, “This has no implications for Harrell. The bill specifically states which offices a special prosecutor can be appointed and the Speaker of the House is not included. There is no reason to read into something that isn’t there.”

That may not be entirely true. A 1962 Attorney General opinion defined “constitutional officers” as follows: “when the Constitution creates an office and fixes the term thereof and prescribes the mode to filling it, the legislature is without power to abolish the office, or remove or suspend the officer, unless authority for such action can be found in the Constitution.” Effectively, House members (and senators, for that matter) could be considered constitutional officers, and in that case this bill would allow the legislature to authorize a special prosecutor in the matter currently pending against the Speaker.

It doesn’t matter whether this was the bill’s original aim. What matters is whether it would allow lawmakers to do what they have a well-earned reputation for doing – protect their own. (Think back to the 2012 ballot debacle, in which an extremely minor technical discrepancy between new and old law led to more than 200 challengers being thrown off the ballot – leaving most incumbents unchallenged. The lesson: Loopholes matter.)

H. 5073 – the constitutional amendment – would eliminate the language in the constitution that establishes the Attorney General as the state’s “chief prosecuting officer.”

So: Lawmakers want to effectively delete the Attorney General’s constitutional responsibilities, and they want to do this immediately – with a bill that doesn’t even go through the ordinary committee process.

These bills and the rush to get them on the calendar for a vote is a clear abuse of power by the legislature. Ironically enough, however, the main sponsor of the bill, Rep. Kris Crawford (R- Florence) argued that opposition to the bill amounted to supporting statist authoritarianism. “Unless you are against checks and balances or are just a fan of the executive authoritarian state. You need to read the referenced code and stop and think about the ancient question ‘quis custodiet ipsos custodes?’ [who watches the watchmen].”

So now we’re supposed to believe lawmakers’ chief concern is unchecked power. How strange, then, that in recent months they’ve failed to do anything about their own power to police each other’s ethics violations. Despite being widely – indeed almost universally – criticized for preserving a clearly corrupt self-policing arrangement, the system is still in place and is likely to stay that way for the foreseeable future.

Perhaps the most puzzling piece of this scenario, however, is that some legislators are telling their constituents that the bills are aimed at “clarifying” who would prosecute the Attorney General should he become subject of an alleged criminal violation.

Perhaps Rep. Crawford’s colleagues should follow Rep. Crawford’s own advice “to actually read the bill AND the referenced code.” If legislators would only read the constitution, they might know that there are already numerous ways for the Attorney General to be held accountable for any wrongdoing.

  • The A.G. is subject to impeachment under Article XV, Section 1 of the state constitution. “The House of Representatives alone shall have the power of impeachment in cases of serious crimes or serious misconduct in office by officials elected on a statewide basis, state judges, and such other state officers as may be designated by law.”
  • The Attorney General can be removed from office by the governor under Article XV, Section 3 of the constitution: “For any willful neglect of duty, or other reasonable cause, which shall not be sufficient ground of impeachment, the Governor shall remove any executive or judicial officer on the address of two thirds of each house of the General Assembly.”
  • The Attorney General is accountable to the State Ethics Commission for all matters related to campaign finance.
  • And in some instances the Attorney General may also be held accountable by the local solicitor in the county where the crime is committed.

Compare that system of accountability to the one avenue citizens have to hold the state’s most powerful politician – the Speaker of the House – accountable for public corruption. You begin to wonder why lawmakers are suddenly so impatient to create yet another way to hold the Attorney General accountable.

Thursday afternoon each of these bills were held over under the “24 hour rule” – meaning they hadn’t been on the calendar long enough to be debated on the floor. They will be considered when the House returns from its two-week furlough.

As of yesterday afternoon, Tyler Jones, Political Director for the SC House Democratic Caucus stated (via Twitter) that “All @SCHouseDems have or are in process of removing their names as sponsors of H 5072, the special prosecutor bill.” As of publication, the following had been recorded with the House Clerk as removing their name as a sponsor of H. 5072: Hiott, Southard, Simrill, Huggins, Tallon, Cole, Murphy, Newton, J.E. Smith, Rutherford, R.L. Ott, Sellers, Funderburk, Spires, Norrell, Cobb-Hunter, Robinson-Simpson, Howard, Dillard, McEachern, Neal, Willis, Skelton, Allison, Forrester, Bedingfield, Putnam, and Edge.

The following had also removed their name as a sponsor of H.5073: Murphy, Simrill, J.E. Smith, Rutherford, R.L. Ott, Sellers, Funderburk, Spires, Norrell, Cobb-Hunter, Robinson-Simpson, Howard, Dillard, McEachern, Neal, Huggins, Cole, Allison, Bedingfield, Forrester, Putnam, Edge, Hiott, Willis, Skelton, Newton.

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