“Germane”? It Means Whatever Lawmakers Say

March 21, 2014

Inside Insight

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By JAMIE MURGUIA

state house

The ‘one topic’ rule depends on how lawmakers define ‘topic.’

In two days of a special session in October 2009, the General Assembly passed a major economic development bill granting Boeing more than $170 million in taxpayer-financed incentives. Originally, the bill had nothing to do with Boeing or special incentives at all; it had to do with assessable transfers of  interest of real property. That didn’t matter. The bill was gutted by the Senate Finance Committee and transformed into a gigantic incentives package for a single company.

In 2011 the General Assembly passed a bill granting a special tax break for Amazon.com that allowed the company to avoid collecting sales taxes on purchases made by South Carolina residents through 2015. Originally, the bill had nothing to do with Amazon or incentives. It exempted durable medical equipment from sales tax.

In 2012, lawmakers passed a massive incentives bill to benefit the state’s three main tire manufacturers — Bridgestone, Continental and Michelin. Originally, the bill they passed had made professional employer organizations eligible for job development tax credits — nothing to do with incentives or tire manufacturers. But in the last three hours of the 2012 session, lawmakers gutted the content of the original bill, and put the corporate welfare content in its place.

None of these three bills — and there are scores more cases just like these — was simply amended. Their content was stripped entirely, and new legislative language was put in its place. In the case of the 2012 sop to the tire manufacturers, the original bill had passed both chambers already; the bill they gutted was then in conference committee. So in effect lawmakers passed a corporate welfare bill that had not been voted on by the House or Senate.

The practice of inserting unrelated or “non-germane” language into legislation is known as “bobtailing.” Although it violates the spirit of parliamentary democracy, bobtailing is a longstanding practice in the South Carolina General Assembly. Indeed, state lawmakers have abused the practice so frequently that the state Supreme Court has rebuked the legislature on three separate occasions. In the first of these, then-Gov. Mark Sanford and then-Attorney General Henry McMaster actually joined a lawsuit filed by Ned Sloan against the legislature that contended that the so-called Life Sciences Act — at the time known as the “kitchen sink act” — was unconstitutional.

The state constitution’s requirement is plain. “Every Act or resolution having the force of law shall relate to but one subject, and that shall be expressed in the title” (Article 3, section 17).

Despite three separate Supreme Court rebukes, however, that provision is routinely and flagrantly ignored. Except when legislative leaders feel it’s to their advantage to abide by the constitution — then it’s adhered to rigorously.

That’s what happened Wednesday.

H. 3101, a bill introduced in the House as a bill to nullify Obamacare, was passed by the House as legislation that had little, practically, to do with nullification. For several days, the bill has been up for debate in the Senate. Sen. Tom Davis (R- Beaufort) had spent the non-session months chairing a committee on the bill and working on an amendment. He spent the last several legislative days on the floor of the Senate explaining his amendment, answering questions, and diligently trying to persuade the uncommitted of the bill’s merits. Senators supporting the bill worked for days to get the votes to invoke cloture – a move that would prohibit further amendments from being filed, and prompt a 20-minute debate limit on each remaining amendment before an up-or-down vote is taken on the final bill.

Just before Sen. Davis’ amendment came up for a vote, Sen. Brad Hutto (D- Orangeburg) raised a “point of order” under the Senate Rule 24A that the amendment was not germane to the original bill. Rule 24A says this, in part: “No clause shall be inserted in a Bill or Resolution unless the same is germane to the Bill or Resolution. In order to be germane, an amendment must be a natural and logical change or expansion directly related to the specific subject of the Bill or Resolution, as defined in the Bill or Resolution, and must not raise any new or independent matter different from the specific subject of the Bill or Resolution.”

Senator Davis’ amendment was obviously germane to the bill. Both the amendment and the original bill concerned the federal Affordable Care Act (ACA); both sought ways to allow the state to push back against the federal demands associated with the ACA; and Sen. Davis  had taken pains to ensure that the amendment was a “natural and logical change … directly related to the specific subject of the Bill.”

Despite this clear argument for the germaneness of the amendment, Lt. Gov. Glenn McConnell – who presides over the Senate as its president – sustained Sen. Hutto’s motion. That ruling killed the strike-and-insert amendment proposed by Sen. Davis and prevented it from coming to a vote. This ruling not only provided political cover for many senators who were being pressured by their constituents to support the Davis amendment and were struggling to do so, but also set a precedent for other similar motions that would later be made on Sen. Davis’ vigilant attempts to salvage any part of his original amendment.

After one of these amendments was proposed and a point of order raised, Lt. Gov. McConnell again ruled it was not germane. This time, however, Sen. Davis took the rare step of challenging the ruling of the president (in this case, McConnell). While speaking on his motion, Sen. Davis said that the Senate’s rules “should never be used to deny the people to see how their representatives are going to vote in a matter as important as this.”

That’s precisely what happened, however. The Senate voted 14-28 against overruling the president.

When it suits their purposes, then — mainly on legislation doling out corporate welfare — legislative leaders are happy to violate the spirit and letter of the state constitution and cram language into evacuated bill that has nothing to do with the bill’s original purpose. But when the bill might force lawmakers to take a vote on whether to push back against the federal government’s takeover of one fifth of the U.S. economy, they insist on irrational readings of the constitution’s germaneness requirement.

I think it stinks. What do you think?