Effort Grows to End Legislative Fox Guarding Ethics Henhouse

January 4, 2012

Investigative Reports

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The NerveLegislation to end the practice of state lawmakers policing themselves in ethics matters is now pending in both chambers of the S.C. General Assembly.

Freshman Rep. Kevin Ryan – R-Georgetown and, at 23, perhaps the youngest member of the Legislature – has pre-filed a bill to abolish the fox-guarding-the-henhouse system of legislative self-enforcement of ethics rules.

Lawmakers are scheduled to return to the State House on Tuesday to begin the second half of the 2011-12 legislative session.

In the Senate, Republican Mike Rose of Dorchester County also is sponsoring legislation to bring independence to legislative ethics.

“This issue is as fundamental – if not more fundamental – to good government as roll call voting,” Rose says.

Currently, the S.C. Ethics Commission oversees the state’s nine constitutional officers and a handful of high-ranking appointed state officials, as well as locally elected officials such as city and county council members.

The commission features an administrative staff and a nine-member board. The governor appoints the board members.

The Ethics Commission does not have jurisdiction over legislators, though. Instead, lawmakers police themselves through separate House and Senate ethics committees.

This situation is not unique to South Carolina.

“Forty states have some semblance of a legislative ethics committee,” says the website of the National Conference of State Legislatures (NCSL), a bipartisan research and service organization with offices in Denver and Washington, D.C.

But while legislative ethics committees are common across the country, so is the inherent self-policing dilemma they create – a fact even the National Conference of State Legislature seems to openly acknowledge.

“Nearly all committees are composed of legislators only, thereby making it imperative that committee members uphold the public’s trust and maintain credibility,” the NCSL website also says.

To critics like Rose, however, there is no trust and credibility to be found in a system in which lawmakers watch over each other for ethics violations. “The whole system’s designed to protect the people in power,” Rose says.

The dos and don’ts for legislators and the officials under the jurisdiction of the Ethics Commission are detailed in the state Ethics Act of 1991. It was passed in the aftermath of an FBI-led bribery sting, dubbed “Operation Lost Trust,” that ensnared several state lawmakers.

Ryan’s bill would essentially abolish the legislative ethics committees and empower the Ethics Commission to enforce the law as it applies to legislators.

“It’s just a commonsense issue,” Ryan says. “We just should not be policing ourselves.”

Ryan says part of the reason he is sponsoring his bill is to raise public awareness of the issue. “I think a lot of people don’t understand how the ethics system works in general,” he says, adding that “most people would be shocked” to know that legislators oversee their colleagues.

Ryan’s bill (H. 4421) was sent to the House Judiciary Committee.

“I’d be interested in hearing the debate on that,” says Rep. Jim Harrison, R-Richland and chairman of the committee.

Harrison says he doesn’t have any objections to Ryan’s bill, but he thinks it might not conform to the constitutional separation-of-powers doctrine.

That’s the argument used most often against taking ethics self-enforcement out of the Legislature’s hands – specifically, Article 3, Section 12 of the S.C. Constitution, which says each chamber shall “punish its members for disorderly behavior.”

Ryan says interpreting that to include ethics violations is going too far. “I think that’s applying it a little too broadly,” he says.

Taken to its logical extreme, Ryan says the constitutional argument could be used against enforcing speeding violations by lawmakers. “It is laughable, but I think it’s a good analogy.”

Still, in a nod to separation of powers, Ryan bill’s would vest in the highest-ranking member of each legislative chamber – the House speaker and the Senate president pro tempore – the authority to recommend one appointment each to the Ethics Commission board.

Rose says he too thinks the constitutional argument doesn’t hold up, describing it as a gratuitous, self-serving interpretation.

Nevertheless, the senator is working to bring more accountability to legislative ethics through constitutional means.

Rose is sponsoring a proposed constitutional amendment (S. 324) that would give the Legislature explicit authority to delegate ethics enforcement to an outside entity.

And, in conjunction with that measure, Rose is sponsoring a bill to retool the Ethics Commission board. Under the bill (S. 306), the board would have eight members instead of nine, with the governing appointing four, the House speaker appointing two and the Senate president pro tempore also appointing two.

Both of Rose’s proposals were sent to the Senate Judiciary Committee in January last year. No action has been taken on them since then, according to the Legislature’s website.

Senate President Pro Tempore Glenn McConnell, R-Charleston and arguably the biggest separation-of-powers champion in the General Assembly, is chairman of the chamber’s Judiciary Committee.

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