Ethics Bills Perpetuate Self-Policing

• A pair of omnibus ethics bills now in the General Assembly purport to end legislative “self-policing.”
• They don’t.
• Instead, both bills perpetuate a system in which lawmakers have special laws written only for themselves, and in which they “investigate” and “punish” each other.

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The issue of the day is “independent investigation” of lawmakers. Indeed, based on the language of some of Columbia’s politicos – including the governor – it’s the sum total of “ethics reform.”

Gov. Haley, along with several advocacy groups, have urged senators to pass an omnibus ethics bill only if it contains “independent investigation.” There is little doubt that the current system in which legislators investigate their own for ethics violations, encourages corruption and protects corrupt politicians. The fact that the current system is deeply flawed, however, does not mean that any change will be an improvement.

State officials, legislators, and other groups calling for “independent investigation” are muddling two important principles. What’s needed is independent policing, not independent investigation. Calls for reform limited to independent investigation tacitly accept a system in which legislators themselves are allowed to punish their colleagues for violations – including some criminal violations. The fixation on “independent investigation” has also led some well-meaning reform advocates to support proposals that don’t even achieve independent investigation – let alone independent punishment.

This is about more than rearranging a few ethics laws. It’s about the separation of powers. The reason lawmakers are being forced to deal with the question of self-policing at all, in other words, is that state lawmakers, unlike any other elected officials in South Carolina, are governed by their own set of laws – a set of laws they and they alone enforce and adjudicate. That’s a large part of what allows them to control the other two branches of government, ignore the concerns of citizens, and profit from state government.

The only way to end legislative self-policing is by putting lawmakers under the same laws that govern everybody else. After all, every other person in South Carolina is independently policed: why should state lawmakers be any different?

Now, on to the bills currently before the legislature. Both of these bills give legislators the power to choose at least some of the members who will serve on an “independent” investigatory body, while also retaining the legislative power to punish their own. Genuine ethics reform must place investigation and enforcement of ethics law violations in bodies that are neither staffed with nor appointed by legislators. That would mean, among other things, getting rid of laws that carve out special criminal violations for lawmakers: “Converting campaign funds to personal use,” for example, is called “embezzlement” in the world of non-lawmakers, and shouldn’t be investigated or punished by a body over which the defendant has any direct or indirect control.

Senate proposals

There are two versions of S.1 still being debated: the current bill as amended by Sen. Luke Rankin, and the committee version. While the Rankin-amended version is more egregious than the earlier committee version, both versions perpetuate some form of self-policing. (Although the amended version of S.1 was defeated, the bill may be “reconsidered” – meaning it may come up for a vote again. It is possible that the Senate will vote to amend S.1 back to the committee version, or the version prior to the Rankin amendment being adopted.)

The Rankin amendment 

  • The bill’s amended version creates a joint legislative ethics commission to investigate ethics complaints against lawmakers and their staff.
  • The commission would be comprised of two senators, two House members, and five non-legislative members (three appointed by the governor with advice and consent of the General Assembly, and two appointed by the attorney general).
  • Ethics complaints against lawmakers could still be filed with the House and Senate Ethics Committees and would then be referred to the Joint Committee. At that point the Joint Committee would conduct an “initial investigation” and then refer its findings back to either the House or Senate Legislative Ethics Committees.
  • The legislative ethics committees would retain the power to conduct follow-up hearings and issue the punishments – if any – they feel are appropriate.
  • Current law does not put any limitations on the documents that can be released after a determination of probable cause. Both versions of S.1 would specify which documents associated with the investigation are to be released, thereby implying all other documents may be kept secret. Specifically, all documents would be kept secret except the complaint itself, a response by the subject of the complaint, the notice of hearing, the commission’s findings, the final order, and the exhibits introduced at the hearing cited in the final order.
  • Both versions of S.1 also redact personal information from exhibits introduced at the hearing prior to their public release. As personal information is undefined this provision could be a serious impediment to the release of information citizens have a right to know.

The committee version

  • The pre-amendment version of the Senate bill reconstitutes the State Ethics Commission into an eight-member commission with four gubernatorial appointments and four legislative appointments (two non-lawmaker nominations by the Speaker and two by the Senate President Pro Tem).
  • Ethics complaints against lawmakers would still be filed with the House and Senate Ethics Committees and would only then be referred to the State Ethics Commission for an “initial investigation.”
  • Even after the State Ethics Commission determines probable cause to believe a violation has occurred, the House and Senate Ethics Committees retain the power to conduct follow-up hearings and punish their own members – if they determine punishment is appropriate – for violations of the Ethics Act.
  • Limits the investigation documents that can be released after a finding of probable cause, and redacts personal information prior to the release of exhibits introduced at an ethics hearing, as discussed above.
House proposals

H.3184 (now in the Senate, having passed the House) and H.3722 (up for debate this week in the House) both attempt to address the issue of independent investigation. H.3722 is an omnibus ethics bill that includes the provisions of H.3184. Like the Senate bill, both House proposals preserve the system of lawmakers punishing lawmakers.

  • Both bills reconstitute the State Ethics Commission into a 12-member body comprised of four members appointed by Governor, four members elected by the Supreme Court, two members elected by the Senate, and two members elected by the House.
  • Ethics complaints against lawmakers would still be filed with the House and Senate Ethics Committees and would only then be referred to the State Ethics Commission for an “initial investigation.”
  • Even after the State Ethics Commission determines there is probable cause to believe a violation has occurred, the House and Senate Ethics Committees retain the power to conduct follow-up hearings and punish their own members – assuming they determine punishment is appropriate – for violations of the Ethics Act.
  • Like both versions of S.1, both House bills would specify which documents associated with the investigation are to be released, thereby implying all other documents may remain secret. Specifically: all documents would be kept secret except the complaint itself, a response by the subject of the complaint, the notice of hearing, the commission’s findings, the final order, and the exhibits introduced at the hearing cited in the final order.
  • Also like S.1, both House bills mandate the redaction of personal information from exhibits introduced at the hearing prior to their public release.

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