Interview: “Self-Policing” and the 1895 Constitution

December 2, 2014

Inside Insight

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ethics definition

WOULD IT BE ‘UNCONSTITUTIONAL’ TO ABOLISH THE ETHICS COMMITTEES?

In October, Jorge Roig, Associate Professor of Law at the Charleston School of Law, testified before a House committee on a variety of constitutional questions. The Nerve caught up with him to get his views on one of the topics now roiling State House politics – the idea that the 1895 state constitution somehow requires lawmakers to police each other’s ethics violations through the House and Senate Ethics Committees.
TN: What do you think of this argument – the argument that Article 3, Section 12 of the state constitution somehow prevents lawmakers from giving authority over their own ethics violations to an independent agency?
JR: I don’t subscribe to that view. First off, let’s look at the constitutional text. A lot of the work that we have to do here is interpreting exactly what “disorderly behavior” means.  It’s important that we look at the context in which that section exists, particularly with respect to Sections 7, 11, 13, and 14 of that same Article.
Section 7 sets out what it calls the qualifications required to be a member of the House or the Senate. So when Section 11 talks about judging the qualifications of its own members, we should look to Section 7 for those qualifications, which are basically the age of the candidate, the years of residence in the state, and so forth. Similarly, Section 11 talks about election returns – so the power to determine whether an individual has been elected as a legislator is granted to the legislative bodies themselves.
Section 13 grants the legislative bodies the power to arrest non-members of the legislature if and when they disrupt the proceedings of the legislature. And Section 14 lays out the well-known rule that legislators are immune from prosecution for the statements they make while in legislative session.
TN: So this helps us understand what “disorderly behavior” means in Section 12?
JR: Right. What Section 12 is referring to is any conduct that a legislator might engage in during legislative proceedings themselves. Section 12 delegates the power to deal with “disorderly behavior” in the context of establishing the privileges and immunities to which legislators are entitled during legislative sessions. The way it’s set up in the South Carolina constitution, as well as in other state constitutions and the federal constitution, lawmakers have a particular immunity when it comes to saying things in session. Precisely because they have that immunity, there is a need to control potential “disorderly conduct” during those sessions, and that ability to control disorderly conduct is explicitly granted to the chambers themselves – in Section 12.
TN: It sounds like the section doesn’t have much to do with lawmakers adjudicating, say, improper uses of campaign funds or other abuses of office. 
JR: That’s right. The way I see this working is this: if a legislator gets out of hand in the middle of a session and starts insulting someone, loses his or her temper, or just becomes disruptive, the legislative body itself can deal with that situation – which it would need to do, since the member would have immunity from prosecution by the executive branch for that same conduct. So I interpret Article 3, Section 12 as only granting this exclusive power to punish legislators with respect to “disorderly behavior” that occurs during legislative proceedings. In my view, it has nothing to do with unethical or criminal behavior of legislators in general, or conduct that occurs outside the context of legislative proceedings.
TN: Has this issue come up outside South Carolina?
Yes. There’s case law from New Jersey, Nevada, Massachusetts, and Vermont, as well as from the United States Court of Appeals for the D.C. Circuit establishing this limitation to what “disorderly behavior” means in the context of similar constitutional provisions. Some of these cases conclude that legislative bodies’ constitutional power to punish members is limited to “core legislative functions.”
TN: “Core legislative functions” meaning, essentially, what goes on during legislative sessions?
JR: Precisely. But all of these cases say that when you’re dealing with ethical conduct outside these core legislative functions – basically, what happens inside the chamber – the limitation is inapplicable. In those cases, the executive branch can investigate and prosecute, and the judicial branch can impose punishment, as usual. One of the cases, for example, explains that accepting a bribe is not a core legislative function. I think we would all agree with that.