MY LAST NERVE: Legislative Self-Policing Takes a Hit

October 31, 2014

Inside Insight

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legislative self policingTIME TO SAY GOODBYE TO A TERRIBLE IDEA

Legislators’ go-to excuse for retaining the power to police their own members – namely that the constitution somehow requires them to – took a big hit on Thursday. Jorge Roig, a law professor at the Charleston School of Law, told members of the Enforcement and Investigation Subcommittee of the Ethics and Freedom of Information Act Study Committee that, based on his study of the state constitution and relative case law, the legislature is “free to delegate” to a third party for investigations and is only bound to set their own rules.

Professor Roig is not the first constitutional scholar to conclude that the authority vested in each body to make their own rules via Article 3, Section 12 largely deals with the General Assembly’s power to stop disorderly conduct – not with members’ violations of ethics laws. John Simpkins, at the time a colleague of Roig’s at the Charleston School of Law, expressed a similar view while serving on the governor’s ethics study committee nearly two years ago.

The state constitution gives House and Senate the power to “choose its own officers, determine its rules of procedure [and] punish its members for disorderly behavior.” Many lawmakers claim this means legislative ethics committees must – not just should but must – adjudicate members’ ethical and even some criminal violations. Whether that view is shared by anyone outside the legislature is hard to say. Professors Roig and Simpkins, in any case, reject it.

Of course, the same lawmakers who espouse this implausible view of the constitution don’t actually believe the executive branch has no power to investigate criminal violations of the Ethics Act and public corruption. Hence their effort earlier this year to strip the Attorney General of his prosecutorial powers and allow legislators to choose a special prosecutor in such cases.

Lawmakers don’t have the blessing of the Supreme Court on this issue, either. The Court’s ruling in Wilson v. Harrell overturned a lower court ruling granting exclusive jurisdiction to investigate to the house and senate ethics committees.

Professor Roig hit on another problem that lurks beneath the surface of ethics reform: lawmakers’ misunderstanding of the principle of separation of powers. It’s long been a joke that, for South Carolina legislators, “separation of powers” means separating the executive branch from its power and placing it under the legislature. The idea that members of the legislature should police each others’ ethical conduct – and in some cases even criminal conduct – is premised on the notion that lawmakers hold preeminent, unchecked power.

Professor Roig pulled the rug from under that assumption. Non-lawmaking South Carolinians should thank him.