Posted by South Carolina Policy Council on Tuesday, February 2, 2016
DANGEROUS ‘ELECTIONEERING’ PROVISION SCRAPPED, BUT LEGISLATION STILL CONSISTS MAINLY OF REGRESSIVE NON-REFORMS
The Senate Judiciary Committee has just passed another omnibus ethics bill, H.3184. The bill has a tortured history, having been completely rewritten several times. The amended bill is not yet available to the public (this is the case with more and more legislation, incidentally). But we think, based on what was said at the committee meeting, that most of the bill’s content is identical or nearly identical to a previous ethics bill. Our analysis of H.3184 is below.
One caveat, however. Recent manifestations of this bill have contained a provision that would define “electioneering” in such a way as to put a chill on criticism of state lawmakers. We’ve contended strongly that this provision is flatly unconstitutional. At Tuesday’s Judiciary meeting, lawmakers opted to leave that provision out, with at least one member calling it a “poison pill.”
Overall analysis: thumbs down
Despite the absence of that egregious electioneering provision, the bill as a whole isn’t just weak but regressive. As it stands now (and as we understand the text to be), H.3184 would
- not achieve truly independent investigation and enforcement of ethics laws.
- legalize the practice of lawmakers receiving de facto permission from House and Senate ethics committees to engage in ethically doubtful activities.
- require recusal for only some decisions in which the lawmaker has a personal interest.
- require the disclosure of some private income, but with wide loopholes.
- loosen the requirements on public income.
Two major problems are worth mentioning in detail. Its supporters claim it ends the practice of legislative self-policing and that it brings more transparency to potential conflicts of interest. It does neither.
Legislative self-policing: cosmetic change
Would this bill put legislators under the State Ethics Commission? Sure, but not without giving the legislature greater control over the Commission – which defeats the point.
It would reconstitute the Ethics Commission to eight members, with four members appointed by the governor (only two of whom may be from the same party as the governor), two members appointed by the Senate (one from the majority caucus and one from the minority caucus), and two appointed by the House (one from the majority caucus and one from the minority caucus). All of these appointments must be done with the advice and consent of the General Assembly.
At first this may seem reasonable, given that the current commissioners serve upon the advice and consent of the General Assembly. However, this bill would allow the legislature to make four appointments to the commission withoutthe oversight they exercise over the gubernatorial appointments – meaning that not only will they advise and consent on four of the appointments, but they will also make four additional appointments to the commission without any check at all.
Similar to S.1, this bill would limit the documents that can be released after a finding of probable cause. The complaint itself, a response by the subject of the complaint, and the notice of hearing – these are the only documents the public would have access to even after the committee finds probable cause. It also limits documents subject to disclosure after the final order is issued to the order itself and all exhibits introduced at the hearing.
Further ensuring that the bill won’t involve serious reform, several provisions allow the legislative ethics committees to review the commission’s findings as it pertains to complaints against lawmakers; and it allows those committees to overrule the Ethics Commission regardless of whether the Commission has found probable cause. This would allow the complaint to be dismissed and all related documents to remain confidential. That sounds like a lot of things – “independent investigation and enforcement” isn’t one of them.
Income disclosure: one step forward, two steps back
Not only would the bill preserve the status quo; it actually makes current law worse. The bill does require a higher level of private income disclosure, but it removes disclosure requirements on government income.
Currently elected officials are required to report the money they earn from government contracts in their statement of economic interests, or SEI, including the amounts earned. H.3184 would free officials from even that modest provision by requiring only the disclosure of direct payments to the business or individual who holds the contract. So, for instance, if a lawmaker makes large amounts of money by winning cases before the (state) Workers’ Compensation Commission, he would only have to disclose that his firm earns the money, not that he does.
The bill would provide an exemption for reporting private income, too. In addition to exemptions for income from court orders and brokerage accounts, the bill specifically exempts income received from consulting with lobbyist principles as long as they are paid at fair market value (see 8-13-1120)(11).
The bill now heads to the Senate floor.