MY LAST NERVE: Who’s “Against Ethics Reform”?

February 28, 2014

Inside Insight

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Throughout this two-year legislative session, Gov. Nikki Haley on more than one occasion accused members of the legislature who’ve voiced opposition to the latest version of an ethics reform bill as being “against ethics reform” altogether. Some of those legislators have publicly stated that their objection to the bill is that, in multiple instances, it didn’t establish an independent investigative process for lawmakers’ potential ethical violations. In other words: they didn’t believe the ethics bill went far enough.

In her State of the State address this year, the governor said that “South Carolinians want an investigative process they can believe in,” which she defined as “a truly independent process.”

South Carolina is one of only seven states in which legislators get to police their own ethics cases. Current law allows House and Senate members to adjudicate their own violations – and much of the process is kept private. All other elected officials, as well as candidates for public office (except legislative office), are accountable to the State Ethics Commission. This independent authority is composed of nine members appointed by the governor, upon the advice and consent of the General Assembly.

While the governor has called for truly independent investigations, she has also thrown her support behind several different versions of an ethics bill that wouldn’t have accomplished that end at all. Let’s take a look at a few versions of the ethics bill’s “independent review”:

The bill passed by House last year would have established the Joint Committee on Ethics comprised of four members of each body elected by the members of their respective chambers (eight legislative members) and eight members who may not be members of the General Assembly or other public officials. Four of those members would have been elected by the Senate and the other four elected by the House of Representatives.

Early in this year’s session, a Senate committee amendment would have reduced the State Ethics Commission from nine to eight members. The governor would appoint four members, with no more than two allowed from the same political party as the governor. The advice and consent of the General Assembly for these nominations would no longer be required. The Senate President Pro Tem and the Speaker of the House would each have two appointments respectively. These appointments would be vetted by the appointing authority’s respective Ethics Committee. Essentially, the governor would choose whoever she wants to be on the Commission, and lawmakers would choose who they want to be on the Commission, and neither branch of government would have any check on the other. The State Ethics Commission would receive complaints and do initial investigations of General Assembly members but would then report findings to the House or Senate ethics committees, which could do further investigation and would ultimately still punish their own members.

So far, we have two altered versions of the current self-policing arrangement.

More recently, a separate amendment – drafted completely out of the public view in several closed door meetings – would have made the process of investigating lawmakers’ ethics violations even worse. Senate and House members would not fall under the jurisdiction of the State Ethics Commission. The House and Senate ethics committees would have remained in place, do initial investigations and determine whether or not a complaint against a lawmaker or candidate for legislative office should be referred to the State Law Enforcement Division (SLED). Any reports by SLED would then be referred to each chamber’s ethics committee.

Finally, the bill passed by the Senate Thursday contains no independent oversight because lawmakers couldn’t reach a compromise.

Not a single version of this bill would have established the truly independent investigative process South Carolinians wanted. Why? Because lawmakers aren’t about to give up their ability to protect their friends, their colleagues, and of course themselves. Sure, they claim their objects to an independent review process have to do with the state constitution, but the claim is preposterous: the constitution only authorizes the General Assembly to punish their own members for disorderly behavior – not violations of state law.

A truly independent investigative process would look like this: Investigations into possible ethical misconduct by legislators would be independently investigated by the State Ethics Commission under its current appointment process. Members of the Commission would be subject to the advice and consent of both legislative chambers. Should the independent investigation by the Commission find that violations of the Ethics Act have occurred, legislators would not be held accountable by their colleagues.

Simple as that. No need to create a joint committee, reconstitute the current Ethics Commission, or hold on to preliminary investigative and punishment powers.

While the bill that passed the Senate Thursday would allow for positive reforms – including full private income disclosure – it falls short of any sort of historical or monumental reform without addressing independent investigations of lawmakers’ ethical violations. As the bill stands now, it’s a significant step forward. But a historical ethics reform law it ain’t.

Jamie Murguia is Director of Policy for the South Carolina Policy Council.