Conference Committee Misses Mark on Ethics Reform
ONE STEP FORWARD, TWO STEPS BACK
The conference committee on H.3945 (the “ethics bill”) met on Wednesday to hash out differences in the House and Senate versions of the bill before agreeing to draft a conference version of the legislation. Below are some of the notable provisions that were kept in (or left out of) the bill.
Commission on Ethics Enforcement and Disclosure Removed
The committee agreed to remove the House language creating the Commission on Ethics Enforcement and Disclosure, a 12 member body that would investigate ethics violation allegations against all three branches of government. The commission provision was an attempt to create the appearance of independent oversight in policing of ethics violations, but was ultimately toothless as the 12 member body had the power to investigate but not punish ethics violations. The punishing power was to remain in the jurisdiction of each respective branch. Further, the legislature would have had influence over the selection of all 12 members of the commission thereby retaining a firm control over members of the ethical investigatory body.
Without this provision, the status quo of investigation and punishment of legislators by other legislators will remain in place. This is not necessarily a negative however, considering the choices that were available to the conference committee. While independent investigation and punishment of ethics violations is needed, the Commission on Ethics Enforcement and Disclosure was an illusory reform that would have left the legislature the ultimate power to investigate and punish its own members.
Speaker Protection Act Retained
Senators on the conference committee agreed to retain much of the House language altering SC Code 18-13-1348. The most relevant House language in this section was a provision defining the “official responsibilities” of lawmakers. This is important because lawmakers are allowed to spend campaign funds for purposes of official responsibilities. The House language accepted by the committee defines official responsibilities to include (but not be limited to) “political party events, official appearances, meetings for which reimbursement is not offered by the governmental entity, and educational forums or conventions to which an officeholder is invited in their official capacity.” This definition is expansive enough to include almost any use of campaign funds a legislator could think of.
This is by far the most troublesome provision to be included in the conference report. While such a change in the law would clearly have significant repercussions for lawmakers into the future, it is extremely significant at a time when the House Speaker is under investigation for improper use of campaign funds. This provision if codified could undermine the ongoing investigation into the actions of the House Speaker, as under the proposed language the improper uses of campaign funds of which the Speaker is accused may not be illegal.
Study Committee on Ethics Violations Retained
The committee retained a House provision creating a study committee to be tasked with issuing a report advising which provisions of the Ethics Act should carry civil and which should carry criminal penalties. Under current law, every violation of the Ethics Act is a criminal violation. If some Ethics Act violations become explicitly defined as carrying only civil penalties, public officials charged with these violations will effectively be permanently protected from independent investigation and punishment. This change in law if codified will have the much the same effect as Judge Manning’s ruling, which if upheld will insulate lawmakers from criminal prosecution for ethics violations.
Income Source Disclosure
While the committee indicated they had come to an agreement on income source disclosure provisions prior to the meeting, a staffer later expanded on these comments. The staffer indicated that the committee had agreed to language that would require public officials disclose all sources of income with the exception of income received from court orders, saving, checking or brokerage accounts, and mutual funds.
The conference committee’s bill contains one strong positive provision in the form of income source disclosure; however, there are several over provisions that could potentially be steps backwards on ethics reform. We will be diving deeper into the report now that it’s available to find possible implications of other provisions as well.