Prefiled 2016 Legislation – Mostly Bad News

Worst of the worst:
 Forcing citizens to undergo training before even buying a gun.
 Creating a new crime of failing to notify law enforcement after gun theft.
 Rolling back roll-call voting requirements.
● Repealing the state’s right-to-work law.
● Creating a state minimum wage.
 Making all misdemeanor convictions, including those resulting from
Ethics Act violations, eligible for expungement.
 

Prefiles for 2016 are officially in. If the bills are a good indication of the mentality of legislators heading into 2016, it’s going to be a demanding year for advocates of liberty. In areas ranging from gun rights to government spending, from civil liberties to regulations, the majority of prefiled bills would further restrict our liberties and/or increase the size and power of government.

Some of the most noteworthy prefiled bills include the following.

Gun rights

There are 15 bills prefiled that would decrease Second Amendment rights in South Carolina and only three that would protect them. The bills protecting our rights are quite limited: H.4491, a reduction in penalties for concealed carry offenses; H.4473, allowing CWP holders to carry outside military recruitment facilities; and H.4499, allowing CWP holders to carry on any premise (except for a school or federal property) during a declared state of emergency.

The bills restricting Second Amendment rights are more far reaching. Two of the bills, H.4440 and S.939, would ban “assault weapons,” a category that has no meaning outside of legislation. A study by the federal Department of Justice wasn’t able to find any reduction in violence resulting from the federal assaults weapons ban that lapsed in 2004.

Seven other bills would increase background check requirements for the purchase of firearms; the most notable of these are S.941 and H.4399, both of which would prohibit the sale or transfer of any firearm (privately or through a dealer) prior to the completion of a background check. Two other bills, H.4564 and S.943, would create a gun registry for all privately held guns in South Carolina. S.940 would require all firearm owners to immediately (the bill gives no definite time frame) report the loss or theft of a firearm to law enforcement; failure to do so would result in a misdemeanor with penalties up to a $1,000 fine and or one year imprisonment. The most restrictive bill, S.942, would require citizens undergo training and receive a permit, before they could even purchase a firearm.

Many of these bills were no doubt filed in response to some of the highly covered mass shootings that have occurred this year. The first and most obvious point to be made here is criminal aren’t deterred by gun laws. Law abiding citizens shouldn’t be deprived of their right to defend themselves in pursuit of the unreachable goal of disarming criminals. Second, it’s worth noting that the most recent publicized mass shooting, the shooting in San Bernardino, occurred in a state where almost all of these proposed restrictions are already in place. A recent fact check column in the Washington Post confirmed that none of the mass shootings in America over the last several years would have been prevented by these forms of gun control. This new evidence further corroborates a history of research by authorities such as the National Academy of Sciences and the Center for Disease Control that could find no gun control measures that meaningfully reduced violent crime.

Health care

Two prefiled bills, H.4504 and H.4540, would create additional barriers to consumer choice in the insurance market by imposing new restrictions and mandates on insurers. Bills like these reduce the number of insurance options open to consumers while simultaneously driving up costs among the plans that do remain.

Three prefiled bills would actually improve patients’ access to various treatments and medicines. S.929 and H.4542 are both “right to try” bills that would allow terminally ill patients to receive and legally use medication that has not fully completed the Federal Drug Administration (FDA) approval process. H.4550 would expand on the work of Act 221 of 2014, which permitted the use of cannabidiol (a non-psychoactive cannabis extract) to treat patients with forms of epilepsy. H.4550 would permit the legal use of cannabidiol to patients suffering from other illnesses including: cancer, glaucoma, HIV, hepatitis C, Crohn’s disease, etc.

Education

Seven prefiled bills impose new mandates on public schools. Five of these seven bills would impose costs on public schools that are allegedly suffering from insufficient resources. These cost imposing bills include:

  • 4382 – mandatory instruction in voting.
  • 4433 – mandatory instruction in swimming and water safety.
  • 4435 – requirement that schools must provide elective instruction in “advanced manufacturing.”
  • 4482 – mandatory school uniforms.
  • 4543 – schools buses must be equipped with seat belts.

It’s doubtful if any of these bills will improve academic outcomes, but they will drive up costs for public school districts, and in some cases costs for families.

By contrast, H.4530 would consolidate school districts, so there is no more than one school district per county. A 2005 study mandated by the General Assembly found that reducing the number of school districts to one per county could save the state more than $21 million annually.

Two other bills seek to improve the exceptional needs tax credit scholarship program. S.907 extends the application deadline for independent schools to participate in the program. H.4537 would write the program into permanent law (it currently exists as a budgetary proviso that must be renewed annually). Unfortunately, no prefiled bill seeks to expand tax credit scholarships or other forms of school choice to students to whom they are not already available.

Transportation

Two prefiled bills, H.4484 and H.4452, would implement largely meaningless reforms at the Department of Transportation (DOT) and the State Infrastructure Bank (STIB). The bills in question would increase the governor’s appointment power over the DOT commission, the STIB board, or both. Unfortunately, H.4484 leaves effective control over the DOT with legislators: DOT commissioners would still have to be screened by the legislatively controlled Joint Transportation Review Commission (JTRC) prior to serving. H.4452 would give the governor full power over the STIB board, but this is an entity that, due to its focus on road expansions over maintenance and debt financing, should be abolished altogether.

The reforms proposed by H.4484 and H.4452 wouldn’t solve our state’s road problems because they don’t address the heart of the issue. All state road funding should go through one agency answerable to one elected official (the governor) who is accountable to the entire state electorate.

One other bill, H.4417, would direct DOT to build a pedestrian overpass in Charleston. This is wasteful meddling in DOT operations. Apparently, it isn’t enough that the legislature controls the DOT leadership, they must also mandate specific projects through legislation.

Government spending

The executive budget has yet to be released but legislators are already filing standalone bills that would increase budget line items. H.4459 and H.4460 each increase the size of state based scholarships for higher education. The problem is that increased state-based funding of higher education, whether through scholarships or direct budgetary appropriations, ais great for universities and their administrators but bad for students. National studies have found that increases in government provided student financial aid have gone hand in hand with tuition increases. On the state level, a 2007 study by the South Carolina Policy Council found that universities responded to an increase in higher education scholarships by raising tuition.

Another bill, H.4569, would require $326.5 million of the projected $1.2 billion surplus (which as The State’s Cindi Scoppe explains is actually closer to $560 million) be sent to the governor’s office, which would in turn use the money to make financial grants to families affected by the recent flooding. There are better uses for this funding more in line with the proper role of government. A far better use of these funds would be returning them to taxpayers, or using them to pay for the state match portion of the federal disaster relief funds that have already come into our state. In any case, individuals affected by the flooding can still apply for federal aid, and we simply don’t know the full costs of the flooding making such a massive appropriation premature.

Other bills would prohibit counties and towns from including projected ticket revenue in their budgets (H.4385), and prohibit police being assigned ticket quotas (H.4387). These reforms would help dis-incentivize the use of police as revenue collectors and would allow them instead to focus on more serious crimes with real victims. H.4385 and H.4387 would help protect citizens’ liberties and wallets.

Time wasters

Usually legislators leave their time wasting measures (congratulating teams, naming something after someone) until they are officially in session. For some reason, however, ten time-wasters have already been prefiled. These bills range from naming laws after individuals shot by police, to naming roads after police officers. They also attempt to dedicate months and days – for instance, the Fred Korematsu Day. Finally, some ask Congress to take specific actions like restoring parts of the Glass Steagall Act or providing debt free higher education.

The full list of time wasting prefiled bills include:

  • 914Declaring Fred Korematsu Day.
  • 927 – Inviting the commander of the American legion to speak to the General Assembly.
  • 950 – Naming a highway after a Police Officer.
  • 4420 – Existing police body camera law to be labelled the Walter L. Scott Body Camera Law.
  • 4436 – Encouraging churches to install security cameras.
  • 4443 – Declaring Mother Emanuel Nine Day.
  • 4461 and H.4462 – Making June Bradley S. Blake Month.
  • 4486 – Asking congress to reenact parts of the Glass Steagall Act
  • 4529 – Memorializing congress to provide debt free higher education.

These kind of time wasting bills cost taxpayer money by contributing to South Carolina’s lengthy legislative session. They also set a bad precedent by implying that it’s appropriate for government to determine what causes and individuals are worth honoring.

Reform and restructuring

Three prefiled bills would further insulate legislators from accountability. H.4400 and H.4401 would remove the roll-call requirement for certain legislative votes. Under the bills legislators would be able to vote on up to ten budget sections, or ten sections worth of budget vetoes in one vote. This would largely defeat the purpose of the roll-call voting requirement, which is to ensure citizens know how their legislators voted on any one particular measure. Voting on multiple budget sections at once would also deprive some legislators of votes they would otherwise make. Conflict of interest problems could force legislators who have financial interest in one of the sections (a pharmacist who receives Medicaid funds, for example, would have an interest in the HHS budget) to abstain from voting on bundled sections of the budget.

The essential point is this: that lawmakers do not have the right to hide their votes. South Carolina citizens finally forced members of the General Assembly to record their votes in 2011 – it was the first time in many years that citizens rose en mass to put a stop to one component of legislative hegemony in South Carolina – and current lawmakers ought to be finding ways to build on that achievement, not roll it back.

Another noteworthy step back (H.4442) would make all misdemeanor offenses eligible for expungement. This is particularly relevant for legislators who are subject to the Ethics Act, which only contains one felony. In other words, almost all crimes that could be committed by abusing elected office could be wiped off ones’ record by H.4442.

Two other bills, H.4487 and H.4567, would impose term limits on legislators. This not quite the major reform that some might imagine. The problem with South Carolina state government isn’t long serving legislators; it’s the fact that our current structure of government allows the legislature to dominate the other branches.

One positive prefiled reform bill is H.4479, which would shorten session by a month and implement a biennial state budget. A stronger version of this legislation (S.123), which would cut session by 8-12 weeks depending on whether it’s an odd or even numbered year, was filed in 2015.

And one additional genuine reform effort, H.4524, would require that before any nonprofit receive funds from a state agency, it must disclose how it plans to use those state funds, a copy of its adopted annual budget, and its most recent operating financial statement. State funding of nonprofits for dubious purposes is an ongoing problem in South Carolina government. Any attempt to bring transparency into this practice would be welcome.

Judicial reform

Prefiled legislation on judicial reform mostly misses the central problem.

H.4402 and H.4406 would respectively make family court judges and state Supreme Court justices popularly elected. H.4494 would require that judges who were disciplined during their term due to a complaint or who are facing an active complaint, be rescreened by the legislatively controlled Judicial Merit Selection Commission (JMSC) before they can be reappointed for another term. H.4517 would require the governor to appoint some of the members of the JMSC, and that the JMSC release the list of all qualified candidates for any judgeship – instead of three – for the legislature to vote on.

All of these bills, especially those dealing with the JMSC, fail to address the problem of legislative control of the entire judicial system. South Carolina is one of only two states where the legislature is involved in both the nomination and the election of judges (the other is Virginia). True reform to our state’s judicial system isn’t tweaking the current process or making certain judges popularly elected. South Carolina should be emulating the American constitution’s model, with judges appointed by the executive with the advice and consent of the Senate.

The one positive judicial reform bill is H.4404, which would prevent family members of legislators from being elected to judgeships until five years after the legislator to whom they’re related has left office. This is a small but genuine attempt to prevent conflicts of interest.

Fighting the feds

Legislators have prefiled multiple bills that purport to resist potential federal actions or amend the operation of federally created programs.

Five bills relate to the potential settling of Middle eastern refugees in South Carolina. Four of these five (H.4477, H.4408, H.4488, and S.928) prohibit any state resources being used to assist in the resettlement of refugees. Another bill, H.4396, would allow the state office for refugees to suspend settlement of refugees in a town or county if it’s determined that the community lacks “sufficient absorptive capacity.”

States can’t be compelled to enforce federal law, but neither can they actively prohibit its enforcement. The U.S. Supreme Court, in cases such as Truax v. Raich, has struck down laws that attempted to prevent the free movement of individuals legally in the United States. While they are clearly opposed to assisting resettlement, none of these bills seem to rise to the level of barring refugees from entry (save perhaps H.4396).

Four other prefiled bills attempt to impose further regulations on the entitlement programs SNAP (food stamps) and TANF (welfare). H.4410 and H.4411 would impose further restrictions on food stuffs that can be purchased with SNAP, in one case asking for federal waivers to do so. The federal government already imposes restrictions on the foods that can be purchased with SNAP, and further restriction will require further bureaucratic as well as private resources to enforce.

H.4409 designates the Department of Social Services as the sole administrator of SNAP, and clarifies that able bodied adults without dependents (ABAWD) are limited to only 3 months of SNAP benefits in a 36 month period unless they work 80 hours a month or participate in a workforce program. This bill seems to largely copy existing federal work requirements for ABAWD’s laid out in The Personal Responsibility and Work Opportunity Reconciliation Act of 1996.

Finally, H.4412 would require drug tests as a prerequisite to receiving SNAP or TANF benefits. There are potential constitutional conflicts with this bill. The federal Court of Appeals for the Sixth Circuit previously affirmed a decision striking down a Michigan law requiring drug testing as a prerequisite for welfare benefits. The law, the court said, didn’t rise to the category of constitutionally permissible suspicionless testing. Beyond constitutional concerns, when other states have implemented this policy the costs have far outweighed any savings. In 2013 Missouri spent $500,000 to conduct 636 drug tests and turned up 20 positive tests. Prior to its law being stuck down Florida conducted 4,086 drug tests from July through October of 2011 turning up 108 positive tests. Florida spent $115,000 on the tests and was forced to reimburse welfare recipients who had lost their benefits to the tune of $600,000.

These attempts to alter or fight federal policy miss the central issue. If states do not want to have policy dictated to them by the feds, they need only reject federal funds. The federal government gets states to fall in line by attaching mandates to federal funding. The Policy Council has laid out a process through which the acceptance of federal funds with attached mandates could be openly debated, making it far easier for the state to reject unwanted federal policy.

Civil liberties

There are at least 10 prefiled bills that would restrict civil liberties, and there are three bills that further protect them.

Five of the restrictive bills (H.4463, H.4485, H.4533, H.4439, and S.915) are hate crime laws that impose additional penalties on criminals who committed a violent or threatening act against an individual, because of the individual’s race, religion, sexual orientation, etc. First, hate crime laws violate freedom of speech by punishing an individual not for something he or she did, but for something felt or thought or said. Second, the federal government already has hate crime laws; state equivalents would be redundant.

Two more bills would restrict the use of an unmanned aerial aircraft, more commonly known as drones. H.4425 would prohibit the operation of armed drones. H.4421 would require drones be registered with the aeronautics commission, and make it a misdemeanor to fly a drone in an unlawful airspace. Seemingly reasonable regulations on private drone use present enforcement problems (tracking ownership), and could be used as a stalking horse to further restrict civil liberties (drone regulation could be used as a means to stop recordings of police in public).

New dashcam and body camera laws present privacy concerns. S.913 would make police dashcam videos subject to FOIA. While this could help punish and prevent abuses of police power, it could also enable the use of dashcam video by third parties for purposes of shaming or profit. H.4432 would mandate that school bus drivers, school crossing guards, and resource officers wear body-worn cameras. It’s not unreasonable for students to expect to not be recorded at all times, and this policy would come with a large cost for little if any benefit.

S.946 would allow the owner of a vehicle that unlawfully overtakes a school bus to be ticketed even if the driver of the vehicle can’t be identified. This directly contradicts the presumption of innocence.

Somewhat similar to S.946, H.4422 would allow a law enforcement agency to photograph a motor vehicle with an illegal defect and then contact the owner of the vehicle by phone or mail informing them of the defect. Once notified the owner will have 30 days to correct the defect and notify the law enforcement agency of the correction. If the owner fails to take either action they will be charged with a motor vehicle violation. This is another attempt to turn police into revenue collectors. It also raises privacy concerns as law enforcement agencies could use this law to photograph vehicles while they are parked at a private residence.

One bill that would protect citizens’ liberties is S.906. This bill requires that any police interrogation conducted on a person in custody, and related to a felony or Class A misdemeanor, be recorded in its entirety by both audio and video means (with some exceptions). This bill could help further protect citizens’ right to due process and protect individuals from having coerced or fabricated statements used against them.

Finally, H.4496 and H.4522 each attempt to protect innocent citizens from police surveillance by respectively prohibiting automatic number plate recognition systems and cell-site simulator technology or devices (commonly known as stingrays). Both of these devices, whether through the tracking of an individual’s cell phone or license plate, can allow police to conduct warrantless surveillance, raising serious Fourth Amendment concerns.

Tax favors

There are eight prefiled bills that would expand existing tax credits or create entirely new credits.

  • 951 – Income tax credits for the construction or purchase of geothermal machinery and equipment.
  • 4390 – Creating an income tax credit for an employer who allows an employee to attend an educational activity for his child.
  • 4397 – Increasing the homestead tax exemption.
  • 4416 Certain schools and volunteer fire departments are exempt from impact fees.
  • 4450 – Increasing the size of property tax exemptions for seniors as they progress in age.
  • 4503 – Creating an income tax credit equal to 10 percent of any federal assistance an individual received from FEMA after the flooding.
  • 4556 – EMT’s are “eligible owners” for the purpose of qualifying for a property tax exemption for permanently and totally disabled individuals.
  • 4558 – A developer of real estate in this State who assists in relocating a displaced individual who is displaced due to the developer redeveloping the dwelling place of the individual is entitled to an income tax credit.

Tax favors distort the market by giving some businesses and individuals a government provided advantage over others. It’s not the government’s place to be picking economic winners and losers, and there’s little evidence tax favors have led to economic growth. Rather than trying to run the economy through incentives, the state should aim at providing a level playing field through low taxes for all businesses and individuals.

Regulation

Matching the historical trend the majority of prefiled regulation bills would pile new regulations on to South Carolinians rather than reduce the existing burden.

Three of the bills (S.953, H.4447, and H.4574) would create new licensing and or permit requirements. These new licensure laws are aimed at estate liquidators, mobile barbershops, and Electrologists. While these laws are billed as a means of protecting consumers, studies have shown they have little connection with quality of service. However licensure laws are effective at reducing competition and thereby driving up prices.

Another bill, S.938, is yet another attempt to create a state minimum wage that exceeds the federal minimum wage. The principal effect of such a policy would be to prohibit voluntary employment at a wage rate below the mandated minimum and thereby increase unemployment. Minimum wage laws price the lowest skilled workers out of the market.

H.4555 would repeal South Carolina’s right-to-work law, allowing union membership to become a prerequisite for employment. That would, in other words, allow unions to force workers to join whether or not they want to be members – a form of coercion that not only harms economic growth and mobility, but, of equal importance, infringes on individuals’ right to sell their own labor. Historically, right to work states have outperformed their non-right-to-work counterparts in employment, migration, and have had lower levels of taxation and state spending.

Fearmongering and/or nanny state regulations include H.4430, which would require that all movie theaters, sporting arenas, and concert venues install metal detectors; and H.4431, which would require manufacturers of imitation firearms to only produce imitation firearms that are translucent or painted with bright colors. Both of these regulations would impose costs on private businesses for “feel good” policies that are unlikely to have a significant effect on public safety.

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