House, Senate Ethics Panels Avoid Sunlight

June 2, 2010

Investigative Reports

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The NerveS.C. Senate President Pro Tempore Glenn McConnell is protecting a system that wraps a cloak of secrecy around ethics cases involving members of the General Assembly.

If there are such cases.

As it stands, it’s virtually impossible for the public to know when and if a state lawmaker faces allegations of ethical wrongdoing – and if so, what if anything comes of the charges.

“Which is basically complete secrecy,” says John Crangle, director of the nonprofit government reform group Common Cause of South Carolina.

And McConnell apparently wants to keep it that way.

As president pro tempore of the Senate, McConnell, R-Charleston, presides over the chamber in the absence of its president, the lieutenant governor.

Which is more often than not.

McConnell does so with great deference for the Senate and its operating rules – standing steady at a rostrum overlooking the members of the body, hands clasped on the podium and addressing his all-male colleagues in gentlemanly tones – not by name; but, as is customary under Senate decorum, by their home districts: Senator from such and such, for what purpose do you rise? he refrains.

But behind his stately senatorial demeanor, McConnell is a power broker of the first order.

It is true not only because of his position as president pro tempore, but also because of a Senate modus operandi known as unanimous consent, which requires just that among its members to do pretty much anything, as well as a widely recognized balance of power in state government weighted heavily toward the legislative branch.

Ethics cases involving lawmakers represent one of the most egregious examples of the latter.

The State Ethics Commission has jurisdiction over ethics matters pertaining to the state’s nine constitutional officers, a core group of appointed state officials and local elected representatives across South Carolina.

But legislators police themselves on ethics issues via separate House and Senate Ethics committees.

It’s the old fox guarding the henhouse situation.

Only, typically there isn’t even a trace of feathers with the legislative Ethics committees.

In 20 years, neither one has publicly reported any of its activities – not even so much as a single finding of probable cause.

Never, not once. In 20 years. Two decades.

“It’s the God’s truth,” Crangle says.

He would know.

A lobbyist for Common Cause and an attorney, Crangle has been pressing the Legislature to open up its ethics process for about as long: lobbying, writing op-eds, giving speeches. “I’ve been complaining about it for 20 years,” he says.

Catalyst for Change

Then recently, as is often the case when change occurs, a crisis prompted a move to let the sunlight in on legislative Ethics dealings.

The crisis, resolved only last month, saw the Ethics Commission level 37 charges against Gov. Mark Sanford. The allegations related to some of Sanford’s travel on commercial airlines and state-owned aircraft, and how he used certain campaign funds that had been donated to him.

In March, Sanford paid a little more than $140,000 in fines and other costs to settle the case, admitting no wrongdoing. And in early May, S.C. Attorney General Henry McMaster announced that he would not pursue a criminal prosecution of the governor, citing a lack of sufficient evidence.

McMaster said then that his office considered the matter closed. “The time has come for our state to put this controversy behind us,” he added.

But as good things can come out of bad situations, advocates for open government saw the Sanford crisis as an opportunity to make that happen with respect to ethics cases.

Under state law, the Ethics Commission cannot disclose the details of such matters until final disposition of them, unless the subject of an ethics complaint waives his or her right to confidentiality.

Seizing upon the Sanford crisis, the South Carolina Press Association drafted a bill to change the law to allow Ethics Commission cases to become public upon “a finding of probable cause.”

The Nerve’s parent organization, the South Carolina Policy Council, a nonprofit free-market think tank in Columbia, is an associate member of the Press Association.

The Press Association asked Rep. Jim Harrison, R-Richland and chairman of the House Judiciary Committee, to sponsor the bill, as he would have original jurisdiction over it in the House because initially it would go to his committee.

Harrison agreed and introduced the bill, H. 4542, in mid-February.

About two months later, the Judiciary Committee amended the legislation, changing the threshold for Ethics Commission cases to become public to “a finding of probable cause or dismissal,” and shipped the bill to the House.

The House then passed it on April 21, albeit without roll-call votes on the second or third and final readings.

Next the bill moved to the Senate, where McConnell’s role in its fate became key.

On the Senate side, the legislation also first went to the Judiciary Committee, which McConnell chairs.

However, he did not see to it that the bill received a hearing in his committee or a subcommittee of it.

So, after more than two weeks of inaction on the bill in McConnell’s Judiciary Committee, the Senate on May 6 took the atypical step of recalling it from the committee in order to act on the measure.

Six days later, Sen. Jake Knotts, R-Lexington, proposed amending the bill to make the public disclosure provision apply to the House and Senate Ethics committees, too. The Knotts amendment was adopted and senators, including McConnell, unanimously gave the bill a second reading.

That vote was 38-0.

But a funny thing happened on the way to third reading of the bill.

Contestant No. 1 – and Only One

On May 14, two days after second reading, McConnell put his name on the bill, a procedural move that relegated the legislation to the Senate’s contested calendar and made it much harder to pass.

McConnell’s name remained on the bill as the only senator contesting it for almost two weeks.

Then, at around 1 p.m. on May 26, The Nerve left voice and e-mail messages at McConnell’s State House office seeking to interview him about the bill.

About three hours later, the Senate proceeded to take it up for third reading. But first, McConnell proposed nixing the Knotts amendment that would apply the sunshine language to the legislative Ethics committees.

Senators said OK and subsequently gave final approval to the bill. The vote was 41-0, with McConnell once again joining the ayes.

McConnell did not return the two messages left at his Senate office last week, nor one recorded on his home answering machine on Memorial Day.

Harrison says the bill is a high priority for him, but he’s at a loss as to a rationale for excluding the House and Senate from it. “I don’t know any reason why the House and Senate Ethics committees should be any different than the State Ethics Commission,” he says.

Bill Rogers, director of the Press Association, says it might have to do with a question of whether the amendment would conflict with the state constitution as it applies to the operation of the Senate. “I think it probably has to be done by (legislative) rule,” Rogers says.

To that point, Crangle asks, “Then why hasn’t he (McConnell) done something to push a rule that would require that disclosure? It seems to me he does not favor disclosure by statutory or rule means because he doesn’t want disclosure.”

The rule explanation is the same one McConnell and some other leaders of the Senate have proffered for opposing a bill by S.C. Rep. Nikki Haley, R-Lexington, to require all important votes by lawmakers to be on the record in roll calls.

The House has passed Haley’s bill unanimously, but it is hung up in the Senate.

“As Nikki Haley is finding out, they don’t even want – on the Senate side – their votes on the record,” Crangle says.

By a 98-0 vote, the House on Tuesday concurred with the Senate-amended version of the ethics bill. That means it needs only the governor’s signature to become law.

But if that happens, it will not apply to legislators.

“However you cut the cake, the inactivity – I won’t even call it the activity – the inactivity of the House and Senate Ethics committees should be disclosed,” Crangle says. “I think the citizens and taxpayers and voters are entitled to this information.”

Crangle describes the legislative Ethics committees as a fraudulent scheme designed to avoid disclosure.

And without disclosure, Crangle contends, there is no enforcement. And without enforcement, he says, all the ethics laws and rules in the world don’t amount to a hill of beans when it comes to legislators.

Reach Ward at (803) 779-5022, ext. 117, or eric@scpolicycouncil.com.