By RICK BRUNDRETT
For years, S.C. lawmakers have repeatedly tried through legislation and other means to intimidate citizens who run for legislative seats, raise ethical questions about legislators’ official or campaign activities, or criticize their positions on issues.
And lawmakers show no signs of letting up – at least not in this legislative session.
The Nerve revealed last month that citizens could be forced to testify before and turn over their financial records to every standing House or Senate committee under a bill prefiled by former Rep. Mike Pitts, R-Laurens, who chaired the House Ethics Committee before resigning his seat in a bid to become the next state Conservation Bank director.
After Pitts acknowledged to The Nerve that the legislation went too far, the House Judiciary Committee passed an amended version that cleared the full House last week.
But the new version would allow the House and Senate Ethics committees to subpoena banks and credit unions to “compel the attendance of witnesses and production of documents … and other relevant records to its investigation.”
As written, that could include “investigating candidates or former candidates’ campaign accounts,” or more broadly, potentially anything else “in the discharge of its (the committees’) duties.”
Such power would seem to conflict with a change in state law that took effect in 2017 requiring that the State Ethics Commission – not the House or Senate Ethics committees – initially investigate those types of complaints against lawmakers or legislative candidates.
The Ethics Commission must refer any potential criminal violations to local solicitors or the state Attorney General’s Office, which has the power to subpoena witnesses and documents through the state grand jury to determine whether criminal charges should be filed.
Under the law, the House and Senate Ethics committees are supposed to deal with only “inadvertent and unintentional” reporting errors on required income-disclosure or campaign reports.
Longtime state government watchdog John Crangle told The Nerve this week he has concerns about the legislative subpoena bill in its present form.
“I think there is a danger of using it to try to harass a candidate during an election or discredit them,” said Crangle, an attorney who made an unsuccessful bid last year for a state House seat.
The bill was amended by the House Judiciary Committee, chaired by Rep. Peter McCoy, R-Charleston, who did not return a phone message this week from The Nerve seeking comment.
Under current state law, standing House and Senate committees already can issue subpoenas to any state or local government agency. A bill introduced Thursday and co-sponsored by McCoy, who also serves on the House Ethics Committee, would extend that power to committees created by county legislative delegations.
Fines, seized tax refunds
Legislation isn’t the only way lawmakers try to protect their seats or stifle free speech.
The House Ethics Committee has aggressively pursued challengers for alleged late filings of campaign or income-disclosure reports. The Nerve, for example, reported in 2015 that the House Ethics Committee levied separate $5,100 fines – the single listed maximum penalty – over the previous three years to more than a dozen unsuccessful challengers for House seats. In contrast, incumbents were fined $100 for the same offenses.
One candidate told The Nerve then she was threatened with court action if she didn’t settle her collective $10,200 in fines with the committee.
The House Ethics Committee currently has an online list showing at least 45 candidates owing a total of nearly $200,000 in fines dating back to 2012 for alleged late or unfiled campaign or income-disclosure reports. The list includes 35 separate times when the single maximum $5,100 fine was levied.
In a separate Ethics Committee list of “public reprimands” for alleged late or unfiled disclosure reports, at least three House candidates had a total of $3,802 taken last year from their state income tax refunds under the “Setoff Debt Collection Act.”
Contacted Wednesday by The Nerve, House Ethics Committee chairman Murrell Smith, R-Sumter, who is a co-sponsor of the legislative subpoena bill that passed the House last week, said he didn’t have time to comment on the bill because he was busy on the House floor, but would return a call when he was free. He didn’t follow up by publication of this story.
The House also has tried to use its own rules – which govern only the chamber – to squelch opposition.
In 2014, a special House panel debate was held to discuss a proposed rule that would have required anyone testifying before standing or special House committees, including representatives of grassroots’ groups that have been vocal in promoting ethics law reforms, to submit a signed statement in advance of the testimony that would include a list of all donors and contributions to that organization within the previous year.
The discussion focused on the best approach to force private nonprofits to open their financial books and disclose their donors before being allowed to testify.
Smith, who recently was appointed the House Ethics Committee chairman, said this during the Oct. 30, 2014 debate: “You can get right at this anyway with placing them under oath. And that way, if they want to testify and you want to inquire and that’s your right to go into it, they’ve got an obligation to answer it. There’s no constitutional amendment to say, ‘I can’t tell you who my members are,’ or constitutional right (to say), ‘I can’t tell you who contributes to us.’ And that’s the way I think you attack at that.”
Smith later told The Nerve he didn’t believe that “there ever needs to be any form of intimidation for anybody providing legislative input.” The House rule as initially proposed by then-Rep. Kris Crawford, R-Florence, didn’t pass, though an amended version was recommended for adoption.
Lawmakers already carry a big stick in compelling testimony in certain cases. Under state law, anyone ‘wifully” giving “false, materially misleading, or materially incomplete testimony” before House or Senate oversight committees investigating state agencies is guilty of “contempt of the General Assembly” – a felony punishable by up to five years in state prison.
Over the years, lawmakers have attempted to expand that definition to include private citizens appearing before any legislative committee. There is no definition of “misleading” or “materially incomplete” testimony, and in several proposed bills, a majority vote of the committee would have been enough to seek contempt charges against private citizens.
The House isn’t alone in picking and choosing whom it tries to pressure.
In 2015, for example, The Nerve revealed correspondence between a citizen and then-Senate Ethics Committee chairman Luke Rankin, R-Horry. The citizen emailed Rankin with documentation of expenses by another senator and copied the then-research director of the South Carolina Policy Council, the parent organization of The Nerve.
Rankin first informed the citizen that his email didn’t meet the standards for a complaint, then followed up with a potential threat of prosecution by the state Attorney General for violating a Senate rule on confidentiality regarding ethics complaints.
“Additionally, you also may have violated Senate Rule 44(B),” Rankin, a lawyer, wrote in the Oct. 17, 2014, letter to the citizen, citing the language of the rule. “Accordingly, please be advised that ethics matters remain strictly confidential prior to a finding of probable cause by the Committee, if any, that an alleged violation may have occurred. Disclosure of confidential information pertaining to an ethics complaint can result in prosecution by the Attorney General.”
Rankin admonished the citizen to “please refrain from discussing this matter with anyone …”
The citizen responded with another email raising questions about Rankin’s campaign spending, which prompted a response by the Senate Ethics Committee attorney defending Rankin’s expenditures and reiterating the threat of potential prosecution by the attorney general.
Asked whether the attorney general could prosecute someone for violating Senate or House rules, Robert Kittle, the spokesman for Attorney General Alan Wilson, said in a written response Friday to The Nerve that any prosecution would be “based on violation of a statute or common law, not the House or Senate rule.”
Although there is no specific law banning lawmakers from intimidation tactics, under state law it is a felony punishable by up to 10 years in prison to intimidate a witness or potential witness “in the discharge of his duty” in any court.
The legislative subpoena bill that passed the House last week is now before the Senate Judiciary Committee, which is chaired by Rankin. He did not return a phone message Thursday from The Nerve.
First Amendment threats
In recent years, lawmakers have slipped in “electioneering” provisions in ethics bills that would have, if enacted, deterred the right of citizens to criticize politicians. Those proposals in effect would have banned nonpartisan groups and individuals from criticizing politicians within a broad period before an election, and exposed them and their donors to intimidation if they violated the proposed rule.
And lawmakers have tried to curtail First Amendment rights through other legislation. Consider:
- In 2013, an ethics bill would have required any citizen or representative of a grassroots organization wanting to testify before a legislative committee or subcommittee to register as a lobbyist and pay a $200 registration fee.
- A 2016 bill would have required all journalists to register with the Secretary of State.
- Two other 2016 bills would have restricted citizens’ rights to protest at the State House.
Whether lawmakers will attempt similar moves this legislative session remains to be seen. The regular session ends in May.
Brundrett is the news editor of The Nerve (www.thenerve.org). Contact him at 803-254-4411 or firstname.lastname@example.org. Follow him on Twitter @RickBrundrett. Follow The Nerve on Facebook and Twitter @thenervesc.
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