Bobby’s Rules

September 19, 2013

Inside Insight

Print Friendly, PDF & Email

ariail bobby rules

No One Is Above the Law, Not Even the House Speaker

By Ashley Landess

The decision to file an ethics complaint against the House Speakers was not an easy one. The investigation is still ongoing, and whatever the outcome, at least the public should have answers to questions about multiple possible ethics violations.

The attention was understandably on the complaint itself, but perhaps the most troubling revelation was the process by which ethics violations by a House Speaker would have been judged. The self-policing of legislators through their own ethics committees is finally the subject of serious debate – citizens on both sides of the aisle have made it clear they want an independent body to investigate ethics complaints against legislators. Not surprisingly, legislators want to continue to investigate themselves.

The obvious conflicts of interest are disturbing enough, but what emerged during the process of filing the complaint against the Speaker merits a much broader discussion. Simply put, the House Ethics Committee could not have handled the complaint without posing a serious threat to the right to due process that must be afforded to all participants. The Speaker of the House controls virtually all functions of the House, and thus there is no way to assure all parties to a complaint process that the matter would be objectively handled.

It’s bad enough that an entity comprised of legislators has the power to investigate alleged violations of state law by their colleagues. It’s worse that the committee conducts proceedings in secret, and has subpoena powers and can “gag” participants to keep them from talking about the process. The fact the existing process cannot endure objectivity with regard to an ethics investigation of the Speaker raises serious constitutional concerns

As we said in our letter to the Attorney General, a complaint against the Speaker of the House presents unique conflicts for which there is no formal process to resolve. The Speaker is the presiding officer of the House, and thus has ultimate authority over all employees of the House, including those who would have conducted the investigation. It would be impossible to assure any complainant of complete objectivity on the part of any House staff member, just as it would be unreasonable to ask those staff members to participate in an investigation of their boss. The Speaker would ultimately be responsible for authorizing the hiring and payment of an independent investigator. A finding of the House Ethics Committee of probable cause would have to be presented first to the Speaker of the House himself.  And if the Speaker wanted to appeal any finding of the House Ethics Committee, he is the only one authorized to call the General Assembly into session for that purpose.

No one could confidently assume objectivity on the part of the Committee and the staff, even if everyone involved made every reasonable effort to practice it. The right to due process should afford the appearance of objectivity to the point that it can be reasonably assumed by all parties, not simply the assurance of it by those in charge.

To his credit, Attorney General Alan Wilson recognized the unique situation that was exposed during the complaint process and agreed to handle the matter himself. Still, nothing has been done by the legislature to correct the problem. At the very least, lawmakers should consider mandating the automatic referral of any complaint against legislative leaders to the State Ethics Commission where the staff is not directly accountable to them. It’s the least that should be done, but the conflicts presented by allowing a system controlled by the Speaker to investigate a complaint filed against him are among the worst in a deeply flawed government structure.

Too many South Carolinians accept without protest that legislative leaders are entitled to make all the rules and set themselves above the law. That has to change. Our rights have been eroded quietly and systematically for decades, and today most citizens don’t question the dangerous levels to which politicians have taken their own power. Our ability to hold them accountable is less clear now than ever – if we don’t reform this system, we might wake up one day and realize we have absolutely no control over our own government. That’s too close to true for comfort already.