Big Change: Senate Passes Ethics Reform

January 20, 2011

Investigative Reports

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The NerveOn Tuesday, in a victory for transparency and accountability, the S.C. Senate changed its operating rules to significantly strengthen the chamber’s roll call voting requirements.

On Wednesday, in another win for open government, the Senate voted to let the sunshine in on ethics cases involving statewide and locally elected officials – as well as members of the Senate itself.

“It would certainly be hypocritical for us to put the requirements for open government on the rest of state government and leave the Senate out,” Sen. Wes Hayes, R-York and chairman of the Senate Ethics Committee, told The Nerve in an interview last week.

It is unclear whether the House will hold its members to the same sunshine standards when it comes to unethical conduct.

Republican Sen. Mike Rose of Dorchester, meanwhile, is advocating a measure that would take the question of legislative ethics enforcement out of the General Assembly’s hands – a constitutional amendment.

The ethics issue has not received nearly the same amount of attention as roll call voting. But it is perhaps even more important in terms of legislators and other elected officials keeping to the straight and narrow in their conduct.

Replete with legislative intrigue, the ethics story exemplifies a continuing struggle over the separation of powers as envisioned by the Founding Fathers.

This latest case in point originated in the 2010 legislative session, and it reached a critical juncture Wednesday when the Senate cast separate votes to override a gubernatorial veto and change its operating rules.

The override enacts into law a bill, H. 4542, that Rep. Jim Harrison, R-Richland, sponsored in last year’s legislative session. The House overrode the veto toward the end of the session. Both chambers must vote by a two-thirds margin to override a veto.

Harrison’s bill amends the state Ethics Act, which governs matters such as campaign practices and lobbying activity. The State Ethics Commission enforces the act.

The amendment to the Ethics law allows the commission to publicly disclose ethics cases upon finding probable cause that a violation of the law has occurred. The information subject to disclosure includes “all investigations, inquiries, hearings, and accompanying documents,” the amendment says.

Previously, the Ethics Commission was barred from releasing any details related to a case until it was closed, unless the subject of the proceeding waived his or her right to confidentiality.

Good-government advocates have long criticized that veil of secrecy. They say it shut the public out of the Ethics Act enforcement process, cloaking it in the shadows of closed doors.

“I think the citizens and taxpayers and voters are entitled to this information,” John Crangle, state director of the nonprofit government watchdog group Common Cause, told The Nerve for a previous story.

Crangle argues that point with regard to all elected officials in state and local government in South Carolina.

He makes that distinction because there is a giant qualification to the Ethics Act: It applies only to South Carolina’s nine constitutional officers, a core group of appointed state officials and locally elected representatives of the people.

By contrast, members of the General Assembly police themselves in ethics concerns via separate House and Senate Ethics committees.

“It’s just really outrageous and shameful in my view that House and Senate members judge themselves,” says Rose.

The legislative ethics panels rarely disclose their activities. “It’s a very serious problem,” Crangle says.

In the 2010 legislative session, former Gov. Mark Sanford vetoed Harrison’s bill because it did not apply to state lawmakers.

“We’re vetoing this bill on the grounds that what is good for the goose is good for the gander,” Sanford said in a written message informing House members of why he nixed the bill. “We shouldn’t have two ethics processes, one for legislators and another for everyone else in the state. Allowing this bill to become law would perpetuate this inequitable dual system.”

Enter Hayes and his solution.

To help remedy a situation he describes as hypocritical, Hayes sponsored a resolution, S. 326, to change the Senate’s operating rules such that the chamber’s Ethics Committee must adhere to the same disclosure requirement as set forth in Harrison’s bill.

The rule change will let the sunlight in on the Senate Ethics Committee’s proceedings “so it won’t just be, you know, what’s done behind closed doors,” Hayes said last week. “So I think it’s very positive for open government.”

Last year, Harrison’s bill was amended so that it would pertain to legislators. But that provision was deleted at the behest of Senate President Pro Tempore Glenn McConnell, R-Charleston.

McConnell argued that the language applying the bill to lawmakers violated the S.C. Constitution, because the constitution gives the House and Senate authority to establish their own operating protocols.

The South Carolina Press Association, of which The Nerve’s parent organization, the South Carolina Policy Council, is an associate member, drafted the bill and asked Harrison to sponsor it.

“I think McConnell recognized the constitutional question,” Press Association director Bill Rogers toldThe Nerve at that time, “and I don’t quarrel with that. It wasn’t our idea to add the amendment on there. I think the overriding thing is we need to get these ethics things open.”

The question now becomes, will the House follow the Senate’s lead and change its rules accordingly?

Support among House members to do so appears to exist, but to what extent is difficult to gauge.

“I could very easily support a rules change,” Harrison said in an interview with The Nerve the night before the Senate enacted his bill and changed its rules. “I think the House would do it, too. I mean, my gut feeling is the House would pass that rule change.”

Harrison said he does not know of any proposals to that effect pending in the House.

Efforts on Wednesday to reach House Rules Committee Chairman Brian White, R-Anderson, were unsuccessful.

In a Senate Rules Committee hearing on Jan. 12, Sen. Jake Knotts, R-Lexington, asked McConnell to re-explain his rules argument. “Can I get the senator from Charleston to explain what he explained so eloquently last year about the rules superseding the law, or the statute?” Knotts said.

“Senator,” McConnell replied, “I can only tell you that the constitution says that each house shall set or shall prescribe its rules of procedure. The reason that you have a Senate Ethics Committee and the House committee is because the Ethics Commission is part of the executive branch, and it deals with the ethics of the executive branch.”

Continuing, McConnell said, “The House and the Senate committees deal with the ethics of another branch of government, just as the judicial system has its disciplinary committee that deals with matters in the judicial branch.”

In summary, the president pro tempore said, “It’s a separation of powers question.”

Rose says he doesn’t buy that argument. But to address it, he is sponsoring a joint resolution, S. 324, to amend the constitution to allow for Ethics Commission oversight of legislators. “What we need is independent scrutiny to make it honest,” Rose says.

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