Legislative Caucuses Don’t Believe FOIA Applies to Them

April 14, 2015

Investigative Reports

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By RICK BRUNDRETT

SC House Republican Caucus

Virtually everything about them is public, but somehow legislative caucuses aren’t considered public.

These days, the S.C. House Republican and Democratic caucuses enjoy the use of rent-free office space in a taxpayer-funded House building on the State House grounds.

That alone would classify those caucuses as a “public body” under the state Freedom of Information Act, according to a 2006 formal opinion issued by then-S.C. Attorney General Henry McMaster, who is now, by virtue of his position as lieutenant governor, the Senate president.

Being defined as a “public body” under the FOIA generally requires having open meetings, and allowing the public to inspect and receive copies of records.

The House and Senate GOP and Democratic caucuses, however, don’t believe they are subject to the FOIA. Under state law, a “legislative caucus committee” is defined as a “committee of either house of the General Assembly controlled by caucus of a political party or a caucus based upon racial or ethnic affinity, or gender.”

The Nerve recently sent FOIA requests to the four main legislative caucuses, which represent the 170-member General Assembly, requesting from each of those groups an itemized breakdown of all operating expenses for calendar years 2012 through 2014, as well as January and February of this year.

Last month, The Nerve revealed, based on a review of quarterly campaign reports filed with the State Ethics Commission, that the four groups collectively spent nearly $9.5 million from their operating accounts from 2008 through last year, though no details were revealed in the reports about how the millions were spent.

The Nerve previously has reported about secret meetings held by the caucuses at the State House during legislative session and at out-of-town locations when the Legislature was not in session.

In August last year, for example, the 78-member House Republican Caucus met behind closed doors at a Myrtle Beach resort to discuss, among other things, the House Republicans’ legislative agenda for this fiscal year, several legislative sources told The Nerve then.

For last month’s story, The Nerve asked caucus leaders and staff to voluntarily release specifics on their operating expenses. But there were no takers, so The Nerve sent formal FOIA requests to those groups.

Secret Expenses, Closed Meetings

Neither Charles Cannon, executive director of the House GOP Caucus, nor Duane Cooper, executive director the House Democratic Caucus, provided any formal response to The Nerve, and didn’t reply to follow-up written messages this month seeking a reply.

House Clerk Charles Reid told The Nerve for last month’s story that both the House GOP and Democratic caucuses are provided rent-free office space in the Blatt Building, where House members’ offices are located. He did not respond to written questions this week about whether the House caucuses receive any other type of taxpayer-funded support, such as chamber staff help, equipment, furniture or office supplies. During the legislative session, those caucuses regularly meet in the Blatt Building.

The House GOP Caucus typically holds a weekly open caucus meeting in the Blatt Building, though it usually has to do more with announcements and scheduling matters than any serious debates about legislation. Those discussions often occur in closed meeting rooms in the Blatt Building or at private locations outside the State House, including a swank, private club within walking distance of the capitol, several House members told The Nerve.

On the Senate side, Majority Leader Harvey Peeler, R-Cherokee, declined to reveal specifics of the 28-member GOP Caucus’ operating expenses, responding in a short letter last month to The Nerve.

“The Senate Republican Caucus operates as a legislative caucus committee and complies with all applicable provisions of South Carolina’s ethics and election laws,” Peeler said in the March 24 letter, written on caucus letterhead. “The financial disclosures required by these laws are filed on-line and are available for public review through the Ethic Commission’s website.”

The Senate Democratic Caucus used virtually the same language in its two-sentence written response, provided last week by Matthew Richardson, an attorney at the Wyche law firm in Columbia.

Asked in a follow-up question if his response meant he wasn’t going to release any details about the caucus’ operating expenses except for what already is online – which shows only total amounts – Richardson replied, “Yes, the required disclosures are publicly available online.”

The Nerve this week asked Senate Clerk Jeffrey Gossett if the Senate provides any taxpayer support to its caucuses, and whether the chamber charges the caucuses for use of meeting rooms in the Senate office building on the State House grounds.

“The Senate does not charge any organization that requests to use meeting space in the Gressette Building,” Gossett said in a written response Tuesday. “The Senate does not provide any taxpayer funded support to the political caucuses.”

Gossett did not respond to follow-up questions about how the free use of meeting space in the Gressette Building – a taxpayer-funded building – could not be considered taxpayer support, and what other groups besides lawmakers use meeting space in the Gressette Building.

Contacted Tuesday by The Nerve, Sen. John Courson, R-Richland and the Senate Education Committee chairman, said the Senate GOP Caucus typically has a scheduled, closed-door meeting once a week in the Gressette Building, as does the Senate Democratic Caucus.

“I didn’t go to caucus meetings for more than a year because I just couldn’t understand why they were closed to the public,” Sen. Lee Bright, R-Spartanburg, said when contacted Tuesday by The Nerve.

Bright said, however, he started attending closed meetings after Senate staff informed him the Senate “cannot enact legislation on its own.” He also pointed out that in the closed meetings, “there is a lot of strategy involved in passing legislation, and you don’t want the opposition to know your strategy.”

McMaster:  Caucus ‘Public Body’

But then-Attorney General McMaster in his May 19, 2006, written opinion – issued in response to questions by then-House Majority Leader Jim Merrill, R-Berkeley, and now-House Minority Leader Todd Rutherford, D-Richland – said, citing information from Merrill, that three (House GOP) staff members are “receiving office space in the Blatt Building rent-free,” adding, “That, in itself, in our view, meets the requirements of the (Freedom of Information) Act.”

“Moreover, according to Representative Merrill’s letter, the Caucus is using space, equipment and other resources provided to those members generally,” McMaster continued. “While it is true that these are resources received as a result of House membership, the fact that the Caucus is also obtaining access to these resources is a further indicia of the ‘support’ the Caucus receives from public funds.

“Finally, it is our understanding that other House staff personnel from time to time assist the Caucus. The salaries of these employees are not paid by Caucus funds, but by the State.”

Attorney general opinions don’t have the force of law, but public officials often use them for legal guidance.

In his letter to McMaster’s office, Merrill said the caucus is “not supported by public funds and is thus not a public body,” noting the caucus “exists almost exclusively as a result of its ability to raise private funds.” He also contended the use of House office space for the caucus is “nothing more than a de minimis (insignificant) use of public funds.”

McMaster, however, countered, that the FOIA, adopted in its present form in 1978, defines a “public body” as “any public or governmental body of political subdivision of the State … or any organization, corporation or agency supported in whole or in part by public funds or expending public funds.”

“Accordingly, we are of the opinion that the House Majority (GOP) Caucus is supported in whole or in part by public funds and is expending public funds,” McMaster wrote. “Thus, the Caucus is, in our view, a ‘public body’ and is, therefore, subject to the South Carolina Freedom of Information Act.”

‘Slush Fund’

Contacted this week by The Nerve, John Crangle, attorney-director of the government watchdog organization Common Cause of South Carolina, said he believes the caucuses should publicly release details of their operating expenses.

The Nerve’s review published last month found that over the past seven years, the four main legislative caucuses spent a total of $9.45 million from their operating accounts – three times more compared to the total spent ($3.09 million) from their separate campaign expense accounts.

Nearly the same ratio held true when the caucuses’ collective contributions to their operating accounts ($9.74 million) were compared to total contributions ($3.31 million) to their campaign accounts.

Contributions to the caucuses’ operating accounts came from a variety of sources, including large corporations and smaller businesses, political action committees, lawmakers’ campaign committees, and transfers from the caucuses’ campaign accounts, The Nerve’s review found.

“It’s an abuse of office to shake down special interests and then use that money as a slush fund,” Crangle said.

Reach Brundrett at (803) 254-4411 or rick@thenerve.org. Follow him on Twitter @thenerve_rick. Follow The Nerve on Facebook and Twitter @thenervesc.