Topics/Categories

Get The Nerve in your in-box every weekday morning!

Power Trip: The Legislature’s Double Standards on FOIA, Ethics and Spending

Call it a disorder of the legislative state:

In South Carolina, there is one set of rules for state legislators, and another set of rules for everybody else – even state and local elected officials.

This double standard exists in the key realms of transparency, ethics, pensions and public spending.

Indeed, in all of these important areas of state taxpayers’ business, lawmakers do things one way while requiring other South Carolinians to do things a different way. And that other way, defined in laws the General Assembly has imposed on everyone except its own members, is a more open, accountable and transparent way.

Translation: Do as I say, not as I do.

Going over the examples is an exercise in outrage.

When it comes to transparency, members of the Legislature are the only public officials in the state with a special exemption in the S.C. Freedom of Information Act for their internal communications. The carve-out allows legislators to shield their “memoranda, correspondence, and working papers,” and that of their “immediate staffs,” from disclosure.

The Legislature specifically wrote that secrecy provision into the law for itself.

On ethics, legislators are the only elected officials in South Carolina (excluding members of Congress for obvious reasons) who are not subject to state Ethics Commission oversight.

All other politicians, from the governor and lieutenant governor to local officeholders on down to the dog catcher, are under the jurisdiction of the Ethics Commission.

But lawmakers, they police themselves through separate, secretive House and Senate ethics committees.

“Right now a (ethics) complaint against a legislator may never be discussed,” notes John Crangle, director of the nonprofit good-government group Common Cause of South Carolina.

For their pensions, meanwhile, legislators have padded the rules to receive more generous retirement pay than all other state and local government employees in South Carolina except judges and solicitors.

That self-serving favoritism works mainly through a benefits multiplier, which is more than 2.5 times higher for legislators than the one for most other state and local workers – 4.82 percent versus 1.82 percent, respectively. The multiplier is used in an equation that includes average final salary and years of service.

Similarly, legislators can bill the state – and most do – a flat $131 for lodging and meals per day they conduct legislative business, regardless of whether the General Assembly is in session. And no expense documentation is required.

That’s the equivalent of a private sector employee collecting $131 per day from his employer for hotel and restaurant costs while traveling on company time even if the employee bunked with a relative and ate at Denny’s.

With a few exceptions, all other state employees receive actual expenses for lodging and meals and only if they provide receipts. Those rules are written into the state budget.

Budget Law Blow-Off

Then there are the operating budgets of the House and Senate themselves.

South Carolina law, Section 11-11-30, requires all entities receiving state funding to submit annual spending proposals to the governor by Nov. 1.

For many years running, however, the legislative chambers flatly have ignored that part of the law, even while setting their own spending levels as part of the Legislature’s duty to appropriate state dollars.

Coincidentally or not, both the House and Senate have fattened their coffers by a few million dollars annually in recent years.

As a result of the chambers ignoring the appropriations law, their operating budgets are not scrutinized the way other state entities’ are in public hearings and so forth.

Instead, it’s more like a good old-fashioned backroom deal where the clerks of each chamber (presently Charles Reid in the House and Jeffrey Gossett in the Senate) let the appropriate committee chairmen know how much money they’d like to have and – poof! “The number just magically appears,” says Rep. Harry Ott of Calhoun, leader of the minority Democratic Caucus in the House.

(By the way, don’t let the title “clerk” fool you. More appropriately it would be chief executive officer, as the House and Senate clerks are two of the most powerful officials – unelected, mind you – in state government.)

To be fair, these double standards were established long before most current members of the Legislature took office. And some lawmakers are fighting to even up the rules.

Examples:

  • Rep. Rick Quinn, R-Lexington, sponsored an amendment to end the legislative Freedom of Information Act exemption. A House committee recently added Quinn’s amendment to a bill that would strengthen the open-government law substantially.
  • Sen. Mike Rose, R-Dorchester; Rep. Kevin Ryan, R-Georgetown; and Rep. Boyd Brown, D-Fairfield, are sponsoring separate bills to end legislative self-policing on ethics.
  • And Sen. Chip Campsen, R-Charleston, is pushing legislation to overhaul the legislative pension system.

Leadership and Accountability

Yet despite those reform efforts, the rules are what they are. And as such, it falls to the leadership of the General Assembly to explain them.

To that end, The Nerve made inquiries last week and earlier this week with House Speaker Bobby Harrell and Senate President Pro Tem Glenn McConnell, both R-Charleston; Senate Majority Leader Harvey Peeler, R-Cherokee; and Senate Minority Leader John Land, D-Clarendon.

None of the four responded to phone and email messages.

But the other House captains were accessible and responsive.

Returning a call, House Majority Leader Kenny Bingham, R-Lexington, expressed approval for ending the double standards.

“I support that,” Bingham said of the Quinn amendment to abolish the legislative FOIA exemption. Bingham described the House committee’s adoption of the amendment as “a good vote.”

On ethics, he said, “Personally I don’t have any problem whatsoever with a separate ethics oversight board (for legislators).”

As for the House failing to follow the budget-process law, Bingham said, “That’s something that I am unaware of. I don’t have anything to do with the House budget whatsoever.”

Reached by phone, Bingham’s counterpart in the House, Minority Leader Ott, said this legislative session marks his 14th time through the yearly state budget process and he has never seen the House or Senate present an appropriations request like other state entities.

But they should, Ott says. “The House and Senate ought to stand up and justify why they need their money, too,” he says.

What about the FOIA special exception for legislators?

“I would tell you that unless there was a real issue with somebody’s constituent’s personal life history, I would say that things we do in the General Assembly should be open to full view,” Ott says.

Generally, he says, “I would prefer to see everybody treated exactly the same.”

Still unanswered, nevertheless, is where and when this gross distortion between what the Legislature does, and what it requires others to do, originated.

Perhaps in the state’s cultural makeup? You know, some sort of landed gentry type thing?

After all, South Carolina has been a legislatively dominated state basically ever since it became a state, and it continues today with the General Assembly wielding control over significant elements of the executive and judicial branches of state government.

“The story of the legislative state (here) goes back to colonial times,” says preeminent Palmetto State historian and University of South Carolina professor Walter Edgar. “The Legislature has always been very protective of its own prerogatives.”

Beginning with a budget showdown in 1740, what was known as the Commons House of the Assembly made it clear to the king of England that its members were going to do what they wanted to do, Edgar says. “They were sticking their finger in the king’s eye way before you get to John Hancock and Paul Revere.”

So does that explain the Legislature’s double standards?

That’s a question better suited for a political scientist than a state historian, Edgar replies.

Phil Noble is not a political scientist, not officially anyway. But he is political – the president of the centrist group South Carolina New Democrats.

On this matter, though, Noble leaves politics behind. “As a friend of mine said, South Carolina’s a one-party state,” Noble says. “But it’s not the Republican Party or the Democratic Party. It’s the good-old-boy party.”

“And I think that’s exactly right,” he adds.

Perhaps another way of putting it is power corrupts – and absolute power corrupts absolutely.

Reach Ward at (803) 254-4411 or eric@thenerve.org.

Accountability Budget Ethics General Assembly Transparency Legislative Power Trip

Rep. Rick Quinn Sen. Mike Rose Sen. Harvey Peeler Ethics Commission Charles Reid Rep. Kenny Bingham Senate President Pro Tem Glenn McConnell House Speaker Bobby Harrell Walter Edgar Jeffrey Gossett John Crangle Common Cause of South Carolina Sen. Chip Campsen Phil Noble Rep. Boyd Brown Rep. Harry Ott Sen. John Land Rep. Kevin Ryan