MY LAST NERVE: A Survey of Recent Incumbent Protection Acts

March 6, 2015

Inside Insight

Print Friendly, PDF & Email

recent incumbent protection acts

IT’S ABOUT CAREERS, STUPID

I’ve never been accused of taking a rosy view of what South Carolina lawmakers spend their time on. But over the last year, even I’ve been surprised at how much energy they’ve spent on career protection.

In April of 2014, for instance, the House fast-tracked two bills that would have, in effect, shut down an ongoing investigation of then-speaker Bobby Harrell. One of the bills would have allowed a special prosecutor to be authorized by a majority vote of both chambers in the event of an “alleged criminal violation” by a constitutional officer or other officer subject to removal from office by the governor. The other would have eliminated the constitutional language establishing the Attorney General as the state’s “chief prosecuting officer.” This effort to protect their Speaker – who later pled guilty to six counts of public corruption and forced to give up his office – was sold to citizens as an effort to “balance unchecked power.” Left unmentioned was the fact that these bills would have almost certainly put an end to the probe into the former Speaker.

Senators would like you to believe it’s only the House that has an “ethics problem.” Don’t buy it. In fact, just a few months ago, correspondence between Sen. Luke Rankin (R-Horry) and a citizen demonstrated just how deep the problem runs in the Senate. In a letter, Sen. Rankin issued what can accurately be described as a threat to the citizen. Because the allegations against the lawmaker were not filed in a sworn, formal, notarized complaint – and because the filer may have shared the potential allegations against the lawmaker with a third party – the filer could have violated confidentiality provisions, and so could have been prosecuted by the Attorney General. And no, he wasn’t joking.

The practical effect of this and similar kinds of intimidation is that no one’s likely to challenge their lawmakers for apparent unethical behavior. Instead, House and Senate ethics committees will have to do it, and those bodies – with the rare high-profile exception – do literally next to nothing.

Let’s keep going. Following the downfall of former speaker Harrell, then-acting Speaker (and now current Speaker) Jay Lucas (R-Darlington) put together several study committees to look at issues related to ethics reform. At an October House Rules and Procedures Ad-Hoc Committee, former Rep. Kris Crawford (R-Florence) proposed a rule that would require any individual testifying before a House committee to meet extensive disclosure requirements about the organization he or she represents.

That measure was dropped when those concerned realized it had the potential to create bad press, so lawmakers then took a different course. They attempted to force anyone testifying before any House committee to first be sworn in by the presiding officer of the committee. Further, the new rule would allow any individual who “willfully gives false, materially misleading, or materially incomplete testimony under oath” to be found in “contempt of the General Assembly.”

So you could be prosecuted for giving “incomplete” testimony at a hearing: i.e., for saying something lawmakers disagree with. That provision, too, was quietly removed when word got out about it, but ask yourself: Who would risk their careers and reputations by criticizing lawmakers to their faces in legislative hearings if doing so ran the risk of landing you in jail?

The law establishing “contempt of the General Assembly,” by the way, goes back one year further. The provision established that “a person who is convicted of or pleads guilty to contempt of the General Assembly is guilty of a felony and, upon conviction, must be fined within the discretion of the court or imprisoned for not more than five years, or both.” And guess where it showed up? A stand-alone bill cracking down on false testimony? No – for one thing, no one I’m aware of has ever complained about such a problem. The criminalization of having “contempt of the General Assembly” was quietly slipped into the restructuring bill. That provision is law now.

I don’t want to depress you. Really I don’t. But it’s true: So often when you look at what South Carolina lawmakers are doing, and you don’t take their explanations at face value, you find it’s really about protecting their careers.