Lawmakers File Scores of ‘Ethics’ Bills for 2015
WHICH ONES DESERVE THE WORD ‘REFORM’?
Two years ago, many, perhaps most, lawmakers dismissed the need for ethics reform. They know better now. As the 2015 session begins, already more than 30 ethics-related bills have been filed.
Some would accomplish worthy goals, to be sure. Yet most contain troubling and dangerous provisions that would loosen rather than strengthen existing ethics requirements, make corruption easier rather than harder, and encourage rather than abolish secrecy.
Meet the new bills – same as the old?
S.1, S.14, S.74, S.202, H.3227, and H.3184 are all “omnibus” ethics bills that contain some of the negative provisions from last session’s failed omnibus “ethics” bill. The troubling provisions from last year’s bill include:
- Allowing campaign funds to be spent on almost anything.
- Defining any individual who maintains a bank account containing contributions as a candidate.
- Striking the requirement for candidates to report written promises of campaign pledges/contributions.
- Codifying the power of legislative ethics committees to issue confidential advisory opinions.
- Allowing political action committees (PACs) to avoid reporting requirements as long as less than 50 percent of their spending is on direct electoral advocacy.
- Forcing non-political groups who make “electioneering communications” to disclose their top donors.
For this last provision, electioneering communication is broadly defined as any person or group that, in broadcast or print material, even references a candidate within 60 days of a general or 30 days of a primary election. Essentially, non-partisan organizations would be barred from criticizing politicians at any time within that window. Groups that shouldn’t have to disclose their donors, moreover, would face tougher reporting requirements than full-on political action committees.
A new provision in S.14 would allow legislators to represent clients before governmental entities in matters that “may” become contested cases – essentially allowing our legislators to lobby. Further, the bill creates the South Carolina Ethics Violations Study Committee, which can recommend decriminalizing certain ethics violations.
S.74, S.202, and H.3184 all amend the membership of either the State Ethics Commission or the legislative ethics committees. Under these three bills the State Ethics Commission would be given the power to investigate legislators, but the power to punish would be left with the legislative ethics committees. This may be nice for appearances’ sake but it isn’t an effective reform for preventing legislative self-policing.
Below are several categories of reform and an explanation of what each of the major bills would accomplish – or fail to accomplish:
▲ indicates positive reform;
▼ indicates a backward or regressive change;
► indicates the possibility of improvement.
► H.3174 would eliminate the House and Senate Ethics Committees and make legislators subject to the Ethics Commission’s jurisdiction. This would be an improvement over the current system and would at least require lawmakers to be judged by the same system as other elected officials. There is one problem with it, however. No matter what entity enforces the Ethics Act, that entity will still be enforcing a separate set of laws for politicians from the one governing the general public. The trouble with the Ethics Act is that, wherever it comes into play, what ought to be criminal offenses almost invariably become mere ethical violations. Eliminating that possibility altogether is the better long-term solution.
▼ H.3175 proposes a constitutional amendment specifying giving responsibility for disciplining legislators to a state agency tasked with investigating and enforcing ethical conduct.
This might seem to make sense, but on closer examination it’s actually dangerous. Lawmakers have argued for years that the constitution requires them to police their own ethics violation, and Article III, Section 12 of the constitution is often cited as justification for this position. The constitution requires no such thing. A proposed amendment is almost certain to fail, but it would implicitly concede lawmakers’ fictitious interpretation of of the constitution and so give greater credibility to legislative self-policing.
▼ H.3237 would require state and local elected officials to complete a course of “ethics instruction” provided by the State Ethics Commission or, in the case of incumbent lawmakers, by their respective Ethics Committees. This would not accomplish any meaningful reform. If the law already made it clear that, for example, using campaign funds for personal use was the same crime as embezzlement, lawmakers wouldn’t need any special instruction.
▲ S.111 is a constitutional amendment that would require Supreme Court, Appellate Court, and Circuit Court judges to be appointed by the governor with advice and consent of the Senate. It would also eliminate the Judicial Merit Selection Commission (JMSC), which currently screens all candidates to the aforementioned courts – functioning in effect as the legislature’s arm of control over the appointment of judges. This is a long overdue reform. It could be strengthened, however, by requiring confirmation hearings on the governor’s appointments to be held by the standing Judiciary Committee of the Senate.
▲ S.112 would similarly require the governor to appoint judges to the Administrative Law Court and Family Court with advice and consent of the Senate. Just like S. 111, a clear process for confirmation hearings on the governor’s appointments should be established.
Together, S.111 and S.112 would create an independent judicial branch by eliminating the General Assembly’s stronghold over judicial screening and elections.
▲ S.104 would prohibit former legislators from holding judicial office for 20 years after they leave legislative office. That’s a worthy reform for two reasons: first, because the bench shouldn’t consist of a lot of former lawmakers – the people who write laws shouldn’t typically be the same as the people who interpret them – and second, because in South Carolina lawmakers have sole discretion over the screening and selection of judges. Lawmakers cozying up to their erstwhile colleagues in order to get a seat on the bench is an invitation to corruption. What’s ultimately needed, however, is for the legislature’s unilateral power over the judiciary to be removed.
▲ S.124 would prohibit a senator, individuals with whom he is professionally associated, and any law firm with which he is otherwise professionally associated from representing a client before a magistrate whom that senator recommended to the governor for appointment. Considering the substantial and improper power senators wield over magistrates, this proposal makes sense.
► H.3123 would amend the state constitution to allow Supreme Court, Appellate Court, and Circuit Court justices to be appointed by the governor with the advice and consent of the General Assembly – both House and Senate. Currently the House doesn’t confirm other appointments made by the governor, and since all South Carolinians are already represented in the Senate, there is no reason to diffuse accountability by allowing more lawmakers to be involved in judicial appointments. Under the current system, the House dominates the judicial appointment process by sheer force of numbers – the House can elect a judge without that candidate getting a single vote in the Senate. Accountability means fewer politicians having a hand in the process: the House should be excluded.
▼ H.3186 would require lawmakers to disclose their private income sources and require more disclosure on their Statement of Economic Interests (SEI). Unfortunately, the bill fails to require the reporting of all income and all matters from which an elected official can obtain an economic interest. Further, the bill does not revise the phrase “business with which he is associated” to cover businesses in which the legislator has less than a $100,000 or 5 percent interest – an obvious reporting loophole.
▼ H.3196 would amend the law requiring members of the General Assembly to abstain from votes on governmental decisions in which they, their family, or individuals with whom they are associated have an economic interest. Under current law, when a legislator determines he has a conflict of interest, he must prepare a written statement for the presiding member of his chamber describing the matter requiring actions/decisions and the nature of his potential conflict. Once the statement is presented to the presiding officer, he will have the statement printed in the chamber’s journal and require the member with a conflict be excused from voting on the matter in which the he has a conflict.
This bill would add the word specific before the phrase “nature of his potential conflict of interest.” This change may help to avoid vague statements and therefore better inform citizens and watchdogs of any conflicts legislators may have. But it is essentially the honor system and so hardly worthy of the term ethics reform. The best method for determining conflicts would still be full income disclosure, which H.3196 would fall far short of providing.
▼ H.3198 aims to “strengthen” recusal laws by adding that a public official, member of the public, or public employee who must recuse themselves over an economic conflict of interest do so any time the matter is before “the body a regular or standing subset of the body, or agency of which the public official, public member, or public employee is a member.” The bill would also extend the time a member of the General Assembly is prohibited form representing a client for a fee in a contested case if that contested case is before a governmental body and the member has voted in the election, appointment, recommendation, or confirmation of a member of the body. Under current law this prohibition on representation is for one year; this bill would extend the prohibition to two years.
The problem is that it does not require lawmakers to disclose their sources of private income. The public would therefore still have to rely on lawmakers’ judgment as to whether there is a conflict or not.
▼ H.3171 would require all candidates for public office to receive written approval from the appropriate supervisory office for any reimbursement to themselves from their campaign account for more than $500. Once approved, the reimbursement would have to be reported on a campaign disclosure report.
It’s not uncommon for candidates to reimburse themselves from their campaign account and give only a vague description for the reimbursement. But while regulating that sort of thing may be a good idea, a better and more pertinent reform would be simply to prohibit campaign funds from being used on non-campaign purposes.
▼ H.3176 would prohibit legislators and the governor from soliciting or accepting contributions any time the General Assembly is in session. There would still, however, be no limitations on the uses of campaign funds in the period they are allowed to solicit contributions – which is the major problem.
▼ H.3187 would amend the legal definition of a “committee” – that is, political action committee or PAC – to a group or individual that has “major purpose” of nominating, electing, or defeating a candidate, or promoting or defeating a ballot measure. This is important because committees are subject to certain public disclosure requirements. Under this proposed law, a group could spend money on electoral advocacy but avoid disclosure by stating that advocacy is not its “major purpose.” It’s imperative that citizens be able to access information on groups trying to influence elections, and this bill would make accessing that information more difficult.
▼ H. 3195 seems to ban using campaign funds to pay fines, fees, or other charges as a result of a criminal charges. The prohibition, however, would only apply once an elected official is found guilty of the crime. To put this into perspective, the recent case of public corruption involving former speaker Bobby Harrell resulted in campaign expenditures in excess of $113,000 for the former lawmaker to defend himself against the charges, according to a recent story in The State. Under this proposal, that would still be allowed. Campaign funds should not only not be used to defend an elected official against crimes he may have committed in his official capacity, but they also shouldn’t be spent on any other official duties.
▼ H.3189 turns one of the worst provisions of last session’s atrocious “ethics” bill into a piece of stand-alone legislation. H.3189 would require groups that make an “electioneering communication” to disclose their donors. Electioneering communication is broadly defined as any person or group that, through broadcast, cable, satellite, mass postal mailing, or telephone bank, even references a candidate within 60 days of a general or 30 days of a primary election. This bill would infringe on South Carolinians’ rights of association and speech. This would force SCPC, among many other nonprofit organizations, to disclose expose their donors to threats and intimidation, while still allowing legislators not to disclose their sources of income.
▼ H.3194 turns another negative provision from last session’s omnibus ethics legislation into its own bill. It would give added protection to incumbents by broadening the definition of “candidate” to include anyone who maintains an open bank account containing contributions. Since candidates have more restrictions on them regarding lobbying, spending, etc., this new provision seems aimed at coercing incumbents’ opponents into emptying their accounts so they can’t contemplate another run without raising the same resources again. This would do nothing more than protect incumbents from competitive campaigns.
► H.3185 is an attempt to strengthen the penalties for various ethics violations. Under the proposed law, both offering a bribe to a public official or witness in order to influence testimony, and soliciting a bribe by a public official or witness would be felonies punishable by up to ten years’ imprisonment, a $10,000 fine, and a permanent disqualification from serving as a public official. The bill would also make misuse of campaign a misdemeanor if the amount is less than $2,000 and a felony if the amount of campaign funds used exceeds $2,000. While this represents an increased penalty for misuse of funds, the bill fails to alter current law that allows officeholders to use their campaign funds on expenses related to their office – a loophole that has been stretched by politicians to allow use of campaign funds for all kinds of questionable expenses. Penalties for additional crimes – like unlawful nepotism – would also be increased under this bill.
While these are positive reforms, they will almost certainly make no difference without concurrent reforms. Increased penalties for misuse of campaign funds will become far more meaningful when misuse of campaign funds is more narrowly defined so as to prohibit the use of campaign funds on “official duties” of a public office. Likewise, many of these other penalties will be difficult to enforce without the information provided by income disclosure laws mandating that public officials disclose all sources of income.
► S.200 would eliminate language in the state code that currently allows legislators to operate leadership PACs (political action committees). Leadership PACs are PACs that are “directly or indirectly established, financed, maintained, or controlled by a candidate or public official or any other entity maintained by or affiliated with a candidate or public official.” Leadership PACs allow public officials to fundraise outside their own campaigns and donate the money they raise to other candidates and public officials. This practice enables select officials – especially legislative leaders – to accumulate a large degree of influence over their colleagues. The House and Senate currently both prohibit leadership PACs by rule, but removing code language permitting the practice would further solidify the stance both chambers have taken.
S.200 presents a sensible change to South Carolina law, but it falls short of full reform by failing to prohibit candidates from accepting contributions from political parties or legislative caucus committees. Powerful public officials would still be able to use these vehicles like they previously used leadership PACs. (Related: H.3188.)
► H.3199 legally restricts the use of contributions accepted by candidates to retire campaign debt to the purpose for which they were intended. In other words, these contributions can be used only to retire debt, not on new spending. This is a sensible reform that will help prevent some, but far from all, misuse of campaign funds.
Freedom of Information
▲ H.3192 is a response to a recent State Supreme Court decision stating that public bodies need not post an agenda prior to meeting. This legislation would require all public bodies to post an agenda in a publicly accessible place and on a website (if they have one) at least 24 hours prior to a regularly scheduled or special meeting. The bill would also prohibit public bodies (including legislative committees) from adding an item to a meeting agenda without a 24-hour notice to the public; members of public bodies can only override this latter provision and add an agenda item without notice by a two thirds vote. Finally, public bodies would be required to give notification of meeting places and agendas 24 hours in advance to any member of the public who requests that notification.
In general, this provision would alleviate the effects of the Court’s pernicious decision. The bill could still be improved, however, by strengthening subsection 30-4-80(c), which requires select subcommittees merely to make reasonable efforts to give timely notice of meetings. All committees and subcommittees should be subject to the same 24 hour rule.
► At first glance H.3190 does narrow the near-total exemption legislators currently enjoy from the Freedom of Information Act (FOIA). The more narrowly defined exemption is also, however, expanded to other members of the government. The bill amends current law by extending the FOIA exemption of “working papers” of legislators and staff to the working papers of any elected or appointed public official or their staff. While this doesn’t entirely eliminate the exemption, it does take a step toward reform. The bill could be significantly improved by not limiting access to information related to legislation to only those bills that have been filed.
The legislation would also create a new FOIA exemption for written or electronic correspondence sent from a member of the public to a public official, provided the member of the public isn’t a lobbyist, public official, corporation, partnership, or association. This exemption should be eliminated in its entirety: state law already stipulates that “information of a personal nature where the public disclosure thereof would constitute unreasonable invasion of personal privacy” is exempt from FOIA. Thus the new exemption seems calculated to encourage secrecy.
▼ H.3191 is another attempt to strengthen FOIA by creating the Office of FOIA Review, which would be headed up by the Chief Judge of the Administrative Law Court and will hold hearings when individuals or public bodies allege the FOIA law isn’t being properly followed or is being abused. The bill further seeks to strengthen FOIA by capping both search fees (capped at $100 an hour, and the first two hours free) and deposit requirements (limited to 25 percent of the total cost of reproduction of records). The required response time to a FOIA request would also be slightly reduced. Yet another provision would require that pubic bodies make available online all documents produced by the body over the past six months.
Most of the bill’s provisions, unfortunately, are either suspect or pointless. One provision, for example, would turn violations of the FOIA into a civil rather than a criminal offense. The reasoning behind this proposal is unclear; it’s enough to point out that ethics reform shouldn’t be about relaxing laws governing the conduct of public officials.
The bill’s most worrisome provision would allow public bodies to petition the Office of FOIA Review to seek relief from “unduly burdensome, overly broad, vague, repetitive, or otherwise improper requests”. Whether a request falls into any of the preceding categories is of course completely subjective. Depend on it: public bodies will end up using this provision to avoid the disclosure of any information they’d rather keep secret. In short, this provision violates the entire spirit of the FOIA law.
Further, search fees and deposits could and should be eliminated rather than simply capped. And it’s unclear why a new government office is needed when a citizen can already take a FOIA complaint to a court – as the South Carolina Public Interest Foundation successfully did against Ethics Commission Director Herb Hayden, who denied the existence of a public record to The Nerve.