As disappointing as it was for the legislature to end the 2013 session with ethics reform undone, the dilatory tactics that prevented its passage could prove to be a blessing.
The tight timeframe meant that if a final vote had been within sight in the Senate, supporters would have been tempted to give in and water the bill down even more than it already had been in order to secure the votes they needed. Debating and passing such complex legislation during the hectic final week of the session also would have resulted in mistakes that, like the mistakes made in writing the current ethics law, we could still be living with decades later.
The bill before the Senate, while better than the version passed by the House, is far from perfect. It requires legislators and other public officials to report more about who signs their paychecks, but not enough. It increases enforcement mechanisms more than the House bill does, but not enough. (Neither does more than an average job of closing the multitudinous campaign-finance loopholes.)
The Senate plan actually sets out a promising arrangement for oversight – allowing an independent ethics commission appointed by the governor and legislature to investigate complaints against lawmakers and publicly report its findings to the House and Senate Ethics committees for action. But of course this was what drew the most objections when the bill finally hit the floor, less than 24 hours before mandatory adjournment.
And this is where the potential blessing comes in. Even as the chance of passing the ethics bill was evaporating, Senate President Pro Tem. John Courson was appointing a special panel of three Republicans and three Democrats to study the issue over the interim with a goal of crafting a new approach that can pass the Senate in January.
Obviously there is no guarantee that this panel will come up with anything workable. All three Democrats – Brad Hutto, Darrell Jackson and Gerald Malloy – worked furiously to prevent the Senate from even debating the bill last month, and Republican Luke Rankin, whom Courson named to chair the panel, delivered the final death blow when he objected passionately to the idea that anyone besides senators should review senators’ compliance with the law. But opponents, to varying degrees, say their opposition was to the rush as much as to the substance of the legislation, and support from those six would go a long way toward ensuring the Senate passes a reform measure early next session.
The key will be making it a measure worth passing.
Worth passing means that public officials are required to report the source of income for themselves, their immediate family members and business associates and, at the least, the amounts received from lobbyists, lobbyists’ employers and the government. It means closing a host of loopholes that allow people to evade campaign donation limits and hide the fact that they’re spending money to influence our vote. It means increasing the civil and criminal penalties for violating the law, giving the Ethics Commission more staff to enforce the law and requiring random audits of disclosure reports.
Most of all, it means sticking to the Senate plan, or some close variant, to let an independent entity investigate legislators’ compliance with the law, and make its findings public.
And of course this brings us back to the ostensible problem (with senators, you never can say for sure what their actual objection is to legislation they oppose, or even whether the legislation they are opposing is really the legislation they oppose): Many senators don’t want even independent investigations – much less independent enforcement – of their ethics compliance.
Opponents claim, dubiously, that a provision in the state constitution requires them to retain sole power to decide how to punish each other for violating the law. What the constitution actually reserves to legislators is the power to punish each other for “disorderly behavior,” and to expel each other for any reason. In any event, they’re certain to use the Supreme Court’s majority opinion last month in Rainey v. Haley to bolster their claim.
But contrary to the impression left by a quick reading, the court did not close the door to independent investigations; at best, it muddied the waters, with a gratuitous pronouncement that it did not support with any on-point case law. Beyond that, only three of the five justices signed the opinion that seemed to say only legislators could review legislators’ ethics. And by the time a lawsuit challenging any new law makes it to the high court, it’s possible that one or even two of the justices who signed that opinion might no longer be there.
Of course, legislators’ objection to independent investigations of their ethics has nothing to do with the constitution; that’s a pretext. If they wanted to be held accountable like all other public officials, legislators would propose amending the constitution. In fact, it would be a simple enough thing to do both: Put the independent investigations language into the law while simultaneously putting a constitutional amendment on the ballot.
That way, if the Supreme Court ruled that the law was unconstitutional, it would be so only until the amendment passed. And if the amendment failed – like that’s going to happen – then it would mean the public wants the Legislature held to a lower standard than everyone else, and that’s how it should be.
Cindi Ross Scoppe is an associate editor with The State newspaper in Columbia.
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