By Mike Rose || Soon after I joined the South Carolina Senate in 1989 an FBI sting, Operation Lost Trust, landed several S.C. legislators in jail for bribery. The remaining legislators passed a new ethics law considered then to be the toughest in the nation. Today a special Commission appointed by Governor Nikki Haley, and two legislative committees, are studying proposals to strengthen South Carolina’s ethics laws again.
A high priority ethics law change should be to give an independent state ethics commission authority to handle alleged violations by legislators, as is done now regarding the Governor and all other statewide elected officials – and as occurs in some form in thirty-six other states. That would replace the current practice of giving S.C. legislators exclusive authority to handle ethics complaints against themselves.
There are many good policy reasons to make this change. First it could help avoid the perception of legislators being treated differently than other officials – either more leniently or harshly. The public would have more confidence in an independent body judging legislators instead of legislators continuing to exclusively judge themselves. Legislators should be subject to the same laws they impose on others, including the same process for judging violations of the ethics laws.
Moreover, legislators should not be put – or want to be put – into the position of judging their legislative colleagues because of inherent pressures on them to be overly lenient or harsh based on friendships, personalities, fear of retaliation, favors, scores to settle, etc. Believe me when I tell you that some legislators retaliate and settle scores by withholding support because of their grievances against other legislators, real or imagined. For example, at the end of the last legislative term a Senator texted a message saying the following in part: “Based on last vote cast by [name withheld], it appears he does not want or need any help from me. He choose his friends poorly …”
In addition, having Legislators’ state ethics law violations handled by an independent body would provide an additional check on the current excessive powers of the S.C. Legislature. The Federalist Papers warned against excessive powers by state legislatures and advocated having a strong, separate but equal Executive Branch, to help check those excessive Legislative powers. South Carolina is no exception.
South Carolina should adopt a system, as in many other states, of joint jurisdiction whereby its House and Senate can punish its members for disorderly behavior, including violating House or Senate rules, within the Legislature, but allowing an independent state ethics commission to handle complaints against legislators for violating state ethics laws, as exists now for all other SC elected officials. That joint system is allowed and not prohibited by Article III. Sec. 12 of the SC Constitution, which states:
“Each house may . . . , punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member, but not a second time for the same cause.”
What happens in Texas is instructive. In that state all ethics law violations by Texas legislators are handled exactly the same as for all other elected officials in Texas. According to the Executive Director of the Texas Ethics Commission, whose remarks I tape recorded during a two hour interview, Texas citizens and legislators have been happy with this system since its adoption in 1991.
In Texas an independent eight person ethics commission handles ethics complaints against all Texas legislators and other elected officials at all levels. That commission is composed of an even number of members appointed 50 percent by the Texas Governor (from a list of ten nominees furnished by the Senate and House) and 50 percent by the Texas Legislature. That even composition of appointees by the Governor and the Legislature is deemed to comply with the separation of powers requirements of the Texas Constitution by preventing the Executive and Legislative branches from having excessive power over each other.
That Texas construes this set up to be constitutional should be precedent for South Carolina since Section 11 of the Texas Constitution states virtually verbatim what Art. III Sec 12 of the State Constitution says quoted above. Last year I introduced in the State Senate a bill to restructure the S.C. Ethics Commission patterned after the Ethics Commission in Texas.
There is additional precedent in the Palmetto State for allowing an independent body to judge legislators’ violations of state ethics laws. The Judiciary adopts specialized rules for its attorneys and judges, and handles internally violations of those rules. Similarly, the S.C. House and Senate adopt specialized rules and can discipline its members for violating them. However, members of both the judiciary and legislature can be arrested and disciplined by the Executive branch, and members of the Legislature can be judged by the Judicial branch, for civil and criminal violations of S.C. laws. Similarly, the requirement of keeping the Executive and Legislative branches separate should not prevent an independent ethic commission from enforcing violations by legislators of S.C. state ethics laws.
Mike Rose is a Summerville, S.C. attorney who served thirteen years in the South Carolina Senate.