MIND THE FINE PRINT
Two thousand fifteen was supposed to be the year of ethics reform for South Carolina. Granted, 2014 was supposed to be the year of ethics reform, too, but let’s be generous and focus on this year. The once untouchable Speaker of the House not only fell from power but also agreed to cooperate with prosecutors on any future corruption cases. Promises were made to fix the system that allowed former Speaker Bobby Harrell to flout state law and stay out of reach.
So far, though, those promises haven’t been fulfilled. Nor do things look promising at present. In fact, it seems that the result of reform in 2015 has so far been less about ending legal and illegal corruption on the part of public officials and more about punishing anyone who speaks out against it.
Consider a few major proposals:
File one too many FOIA requests and your government can drag you into court.
A recently passed House bill would establish a FOIA Court. It seemed as though our elected officials acknowledged that the process of obtaining public documents from our government can be painstaking, and therefore they established a system for recourse for citizens. However, a closer look at the bill revealed that House lawmakers created a system in which public bodies could take citizens to court for filing requests for information they found to be “unduly burdensome, overly broad, or otherwise improper” – or, as one lawmaker put it, annoying.
File a complaint against a judge that is found to be “groundless,” and you might go to jail.
Under a House bill, the willful filing of a “groundless” ethics complaint against a South Carolina judge could result in a maximum one-year prison sentence or a fine of up to $1,000 if convicted of the criminal misdemeanor charge. Much like the above bill, neither the term “willful” nor “groundless” is defined in the bill, allowing for broad interpretation. As The Nerve reported earlier this week, the state’s judges rarely face any discipline despite several hundred complaints filed yearly. It’s hardly farfetched, therefore, to imagine this provision being used to protect public officials and punish citizens.
Allege that a lawmaker has engaged in unethical behavior, and you may be threatened with prosecution by the Attorney General.
One citizen found out the hard way that if you challenge a sitting senator within the current system, you might face the threat of criminal prosecution. Correspondence between a citizen and Sen. Luke Rankin (Chairman of the Senate Ethics Committee) obtained by the S.C. Policy Council alleging potential misconduct by a lawmaker ended with a threat by the chairman. Because the allegations against the lawmaker were not filed in a sworn, formal, notarized complaint, and because the filer may have shared the potential allegations against the lawmaker with a third party, the filer could have violated confidentiality provisions that are punishable by prosecution by the Attorney General. Or so Sen. Rankin claimed, citing Senate rule.
Distribute information critical of a lawmaker’s stance on the issues, and you’ll have to tell them who funds you.
Bills in both the House and Senate purport to correct current law that was thrown out in a court case several years ago. However, neither proposal actually fixes anything, and in fact may be perpetuating the same policy that lost a court challenge in 2010. Both bills would define an “electioneering communication” in such a broad way that it would encompass organizations and individuals that are simply engaging in issue advocacy and force them to either keep quiet or expose their donors to intimidation by public officials. Whatever the intent behind this provision, the effect will be to shut down nonpolitical criticism of our lawmaking class and the policies they promote.
Each of these bills has been promoted as “ethics reform.” Some have made their way from one chamber to the other. One ethics-related bill, however, has not yet crossed to the other chamber.
S.1 – the omnibus Senate ethics bill – died a well-deserved death a couple of weeks ago. A letter from Governor Haley distributed earlier this week to the Senate, however, could resurrect it. The stated reason for reviving S.1 is to establish some form of independent investigation of lawmakers’ ethics violations – that is, to eliminate the current system of self-policing. But not even the stronger, earlier version of the bill – the bill before the Rankin amendment – would come close to establishing independent investigation.
Worst of all, perhaps, S.1 would silence critics of elected officials – or at the very least allow them to silence their critics. And maybe that’s the point.
Jamie Murguia is Director of Research at the S.C. Policy Council, The Nerve’s parent organization