Provisos: Legislators’ Earmarks – and Why They Love Them

February 2, 2012

Investigative Reports

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The NerveLots of politicians rail against federal earmarks in Congress, but the S.C. General Assembly has its own version of earmarks and many of them represent the very same kind of special-interest, pork-barrel spending.

The Legislature’s version of these little gems is called provisos.

A few of them currently in effect, as examples:

  • Prohibit the Department of Parks, Recreation and Tourism from reducing funding allocated to its regional tourism-promotion efforts or scaling back the agency’s full-time staffing levels at the State House gift shop and the Santee Welcome Center;
  • Rebate up to $114,000 in state admissions tax this fiscal year to the Darlington Raceway, a Darlington County facility that plays host to NASCAR races; and
  • Provide Hollywood welfare in the form of film incentives.

Those samples, however, are small potatoes compared to some provisos.

An especially odious one for state taxpayers prevented the Department of Health and Human Services from reducing Medicaid reimbursement rates for about three years.

“They (lawmakers) deleted it midway through last year,” HHS spokesman Jeff Stensland says. “So that proviso no longer exists.”

But the damage already had been done, as the proviso contributed to the agency running a $228 million deficit last fiscal year.

“Through a complex and sometimes-anonymous budget proviso system, it (the Legislature) protected the profits of special interests that benefit financially from our Medicaid system,” Sen. Tom Davis, R-Beaufort, wrote in an op-ed published in the Orangeburg Times and Democrat in March.

Provisos are specially crafted legislative decrees assigned a number and sandwiched, kitchen-sink style, into their own section of the budget. Lawmakers sponsor provisos. Agencies also frequently draft the measures, but legislators still must approve them.

The budget contains scores of provisos every year. The provisos section of this year’s spending plan exceeds a novel-length 100,000 words.

It’s unclear exactly how much money gets doled out through these edicts each year, but it easily totals tens of millions if not hundreds of millions of dollars.

Provisos expire after one year unless renewed, but many are continued as a matter of routine. Those that linger on the books for years usually get codified into permanent law.

And while provisos are part of the budget, they do not appear as line items to agencies and so forth in their appropriations. That makes it virtually impossible to get a true, comprehensive picture of most state entities’ spending.

Along those same lines, provisos, unlike bills that affect state tax collections, do not require fiscal impact reviews.

Similarly, provisos do not feature the same level of transparency as most legislative proposals, because lawmakers do not have to attach their names to provisos they sponsor.

Thus, if a legislator wants to steer $2 million to a certain health care foundation, as Republican Rep. Tracy Edge of Horry County did in 2010, he can do so quietly, and stealthily, through a proviso.

Although most provisos direct tax dollars to one pet project or another, not all of them do.

One of the measures newly on the books this year, for instance, places a gag order on the state Ethics Commission. The commission enforces ethics, lobbying and campaign finance rules for state and local elected officials, except legislators.

The Ethics Commission proviso prohibits its staff members “from making any public comment which in any way reflects a personal opinion about any matter” pending before the commission.

In other words, employees of the ethics agency have to watch what they say.

Reps. Murrell Smith, R-Sumter, and Jim Merrill, R-Berkeley, came up with that proviso. (For more on it, see this story by The Nerve.)

Merrill, as chairman of a key House Ways and Means Committee panel, wields frontline authority over many provisos. Ways and Means oversees appropriations and writes tax law in the House. Merrill heads the committee’s Legislative, Executive and Local Government Subcommittee.

In a less-than-two-hour meeting Tuesday afternoon, the three-member panel churned through some 85 provisos. A legislative staffer read the names of the provisos aloud – but not their wording – as the subcommittee approved renewing most of them with no discussion.

Of the others, the panel deleted a few, tweaked the language of a handful and deferred a decision on about a dozen.

“We put this in there last year because there were some folks who opined publicly about ongoing ethics investigations,” Merrill said of the proviso forbidding commentary by Ethics Commission staffers on pending matters.

The subcommittee deleted the proviso after commission director Herbert Hayden said the agency had addressed the issue through “internal procedures.”

Meanwhile, the panel planned to meet again this morning to deal with the provisos it carried over Tuesday. There’s not much time: Today is the deadline to submit provisos under the Ways and Means schedule for compiling a budget for next fiscal year, which starts July 1.

The due date shows just how routine the provisos practice has become in the Legislature. But despite that level of acceptance, one lawmaker is pushing to at least bring some transparency to provisos.

Sen. Mike Rose, R-Dorchester, is sponsoring a proposal dubbed “the Appropriations Bill Earmark Disclosure Act.” The legislation, S. 615, would require legislators to fill out a form with their names and other information about provisos they sponsor.

Rose also is backing a resolution, S. 614, to expand Senate rules to mandate the same for provisos originating in that chamber.

The senator introduced both measures last February and they were sent to committee. No action has been taken on them since then, and no other senators have signed onto either proposal as co-sponsors.

Reach Ward at (803) 254-4411 or eric@thenerve.org.