How “Restructuring” Gave the Legislature More Power
NEW POWERS FOR LAWMAKERS?
Much has been made of the restructuring of state government through the Department of Administration bill passed in January. Proponents of the bill have labeled it historic reform and said it would move South Carolina away from unresponsive government. But analysis of the bill by the Policy Council showed that the legislation was more about renaming than restructuring (see page 17).
S.22 did create a new Department of Administration (granting the governor authority over such things as management of the state’s car fleet) but it did not return important powers to the executive branch that have long been held by the legislature and hybrid agencies such as the Budget and Control Board (BCB). Among the most powerful duties carried out by the state, procurement and bonding authority, should have been vested in the executive branch and legislative branch respectively – the first pertains to administrating state government, the second to appropriating money.
Instead, both functions were placed in the hands of a new hybrid agency called the State Fiscal Accountability Authority (SFAA). Its makeup and functions are almost identical to the five-member legislative/executive Budget and Control Board – the dismantling of which was supposed to be the major reason for restructuring.
One major provision of the new law, however, has gone largely unnoticed. Included in the original bill – a bill supposedly designed to restore power to the executive – was a provision establishing legislative oversight over every executive agency, board, and commission. That’s right: new powers for the legislature.
Under the provision, standing House and Senate committees are tasked with conducting oversight studies and investigations into every executive body within the committee’s jurisdiction once every seven years. It’s important to remember that all entities (with only a few exceptions) existed prior to the Department of Administration, and legislators could have requested audits by the Legislative Audit Council (LAC) at any point. Further, every standing legislative committee already has the authority to subpoena witnesses and documents from any executive agency, and to form special subcommittees to investigate the performance and actions of executive agencies.
This provision will further shift the balance of power in South Carolina government from the executive to the legislative branch. Accordingly, state lawmakers are only now beginning to realize the hours of work and reorganization the new power will require.
At a House Ad Hoc Rules Committee meeting on October 16, House Clerk Charles Reid stressed to the committee just how much work the new law would require and how soon it must be implemented. The proposed seven-year review schedules, for example, must be published in the House and Senate Journals on the first day of session in January. Reid also stated he did not believe there was enough time during session for standing House or Senate committees to adequately perform both legislative and oversight functions.
So a rule change was proposed that would create a new 20-member committee (composed of representatives appointed by the House Speaker) dedicated exclusively to oversight. Reid also referenced a Senate plan to conduct their oversight internally through the Senate Clerk’s office.
Further, the clerk alluded to the need to hire seven to eight additional House employees to staff the proposed oversight committee. No members objected. Of course, hiring seven or eight new staffers will require funds, but the House carried over more than $19.6 million in surplus funds into the current fiscal year.
The discussion of both of these approaches clearly demonstrates that legislators did not think through all the provisions of S.22. And in fact, the rule change may violate S.22 itself. The authority to conduct regular legislative oversight studies of executive agencies is expressly placed in the hands of standing legislative committees, not some new committee created for the purpose.
The law provides some leeway by authorizing chairmen of standing committees to appoint or request the appointment of joint investigative committees or investigative subcommittees to carry out the required investigations and studies. As the law is written, though, standing committee chairmen must be involved in the creation of any joint investigative committee or investigative subcommittee; this requirement can’t be changed by House rule alone.
The Senate, however, doesn’t even have that much leeway. Senators simply are not authorized under the law to pass off their legally prescribed duties to staff in the Clerk’s office.
S.22 was never meant to restructure South Carolina’s imbalance of power – though its proponents gave that impression. Now, though, it’s clear that they didn’t think through what they were doing. S.22 actually gives the legislature more, not less, in the way of administrative responsibility, and members don’t want the extra work.
Rather than add additional layers of government over an already complex structure, legislators should repeal the legislative oversight provision of the restructuring bill. It is the governor’s responsibility – not the legislature’s – to ensure that executive agencies are faithfully and competently executing the law. In the event that the governor fails in this duty, there are venues through which the legislature may investigate and make recommendations to agencies, such as special investigatory committees and the Legislative Audit Council. The last thing South Carolina needs now is a further enhancement of legislative power.