‘Extra Session’ Dustup Could Eclipse Vote to Nix BCB

June 6, 2011

Investigative Reports

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The NerveIn a perhaps unprecedented move, the S.C. Senate has voted unanimously to abolish the unique, long-criticized hybrid of the executive and legislative branches of state government that is the Budget and Control Board.

In doing so, however, the Senate set itself on a collision course with Gov. Nikki Haley in a showdown that could end up being decided by the third branch of state government – the judiciary.

The Senate might not have seen the clash coming, though, and probably does not relish it.

The chamber’s unanimous vote to eliminate the Budget and Control Board (BCB) occurred on Thursday, the last day of this year’s regular legislative session. With only three of its 46 members not voting, the Senate adopted an amendment to that effect.

The amendment significantly strengthens a restructuring bill. The legislation would create a cabinet-level Department of Administration and transfer many BCB functions to the new agency, which the governor would control.

But, as The Nerve first reported in an April 1 story, the bill would leave the Budget and Control Board in existence. And the BCB’s five-member governing panel – the governor, the state treasurer, the comptroller general and the chairmen of the House Ways and Means and Senate Finance committees – would retain a fair amount of its power.

The board wields authority over state spending, state property and other key issues.

To many advocates of nixing the Budget and Control Board, then, the bill remained half a loaf until the Senate approved the amendment.

In addition, the bill would create approximately $1.8 million to $2.3 million in new, annually recurring costs while generating “an indeterminate amount” of savings, according to a fiscal impact analysis of the legislation.

Rep. Garry Smith, R-Greenville, is chief sponsor of the measure, H. 3066.

The House passed it in early March and sent it to the Senate.

In that chamber, the bill worked its way through the committee process and received the second of three required readings, again unanimously, on Wednesday.

But the next day, the clock ran out on the regular session before senators finished debating the bill, although not until after they adopted the amendment.

“It would phase out the Budget and Control Board over a two-year period,” Sen. Shane Massey, R-Edgefield, told The Nerve on Friday.

Massey co-sponsored the amendment along with Sens. Tom Davis, R-Beaufort; Vincent Sheheen, D-Kershaw; and Brad Hutto, D-Orangeburg.

The amendment represents a remarkable milestone in a years-long effort by opponents of the BCB to dismantle it.

They argue that the Budget and Control Board violates the constitutional separation-of-powers principle by mingling executive and legislative purviews. The opponents also contend that the BCB undercuts gubernatorial authority.

Former Gov. Mark Sanford brought this issue to the fore of state government, working throughout his administration to do away with the BCB altogether and replace it with a Department of Administration.

Sanford’s successor, Haley, by contrast, would seem to be content with the half a loaf, at least at this juncture.

Shortly after the Senate closed out the regular session, Haley held a news conference and announced that she had issued an executive order calling the General Assembly back for an “extra session” to begin Tuesday at 10 a.m.

Lawmakers already had planned to reconvene next week to wrap up their work this year. But a resolution legislators adopted defining the parameters of their wrap-up work would not allow them to finish the Department of Administration bill then.

Haley, not wanting to wait until the 2012 session for it, said she was giving senators more time to get it done.

She also wants the Legislature to pass three other restructuring bills. Those would fold the Department of Probation, Parole and Pardon Services into the Department of Corrections; allow candidates for governor and lieutenant governor to run on the same ticket; and allow the governor to appoint the superintendent of education.

“Today I watched the Senate floor, and they told me they needed more time,” Haley said at her news conference. “So we are calling everybody back in Tuesday morning at 10 o’clock to give them the time that they need to have.”

But it remains to be seen whether an “extra session” will take place.

House Speaker Bobby Harrell reportedly plans to go along with it.

Senate President Pro Tempore Glenn McConnell, on the other hand, does not. An attorney, McConnell prides himself on his knowledge of the Senate’s self-governance and parliamentary procedures.

Late Friday afternoon, McConnell sent senators a message containing a memo prepared by the Senate’s lawyer, Michael Hitchcock.

“Attached please find a memorandum from our Senate Counsel advising me that the Executive Order issued by the Governor calling the General Assembly into extra session is unconstitutional,” McConnell told his colleagues.

“Based on this opinion and my own research, the Senate will not convene on Tuesday, June 7th and will instead convene on Tuesday, June 14th” as planned.

McConnell asked the S.C. Supreme Court today to settle whether Haley’s executive order is valid.

Massey said he was unsure what would happen. “I hope it’s resolved by Monday so the rest of us will know what we’re supposed to be doing,” he said.

Sen. Larry Martin, R-Pickens and a senior member of the Senate, told The Nerve on Sunday night that he too did not know whether the Senate will convene tomorrow. “We don’t know,” Martin said.

He noted that the Senate has three committee meetings scheduled this week, including one Tuesday at 5 p.m.

Martin said he and several other senators are planning to go to the State House tomorrow, but he does not expect it to be a majority of the body. “So there won’t be a quorum, I don’t think.”

To one extent or another, the dust-up over Haley ordering an extra session could overshadow the substance of the Department of Administration bill, and that could have negative consequences for it.

In her news conference, Haley said the Senate’s amendment process held up the bill.

“It’s not that you didn’t have senators focused on restructuring,” she said. “It’s the fact that it got bogged down with a lot of unnecessary amendments by a few people that didn’t want to see it happen.”

Massey describes that characterization of the amendment he co-sponsored to eliminate the Budget and Control Board as “absurd.”

“If you’ve taken the time to look at the bill and you know what’s in there, then I don’t know how anybody makes the argument that this is an attempt to kill the legislation,” he says.

Indeed, in contrast to what the legislation would actually do, Haley seemed to suggest that it would get rid of the BCB.

In her news conference, she spoke twice of sending the “big green ugly monster” packing, presumably referring to the Budget and Control Board. And Haley emphasized that she wants senators to pass at least two of the bills so she can tell South Carolinians that her administration accomplished restructuring.

“They expect restructuring,” she said. “They expect the fact that we’ve moved this big green ugly monster into a Department of Administration, and that’s what I’m going to make sure we get done.”

It would not get done entirely in the bill, however, without the Senate’s historic vote to eliminate the Budget and Control Board.

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