Extra-legal activities

The hallways outside The State's newsroom are lined with framed front pages from some of the most important events in our state's history. My favorite, since long before I understood our Byzantine governmental structure well enough to comprehend its significance, was always the 1935 page with a headline that screamed in two-inch-tall letters: "GOVERNOR'S GUNS RULE HIGHWAYS."

The article recounts one of the most extraordinary, and bizarre, episodes in South Carolina's political history: First-year Gov. Olin T. Johnston, having been rebuffed by the Highway Commission in appointing new commissioners after the Legislature adjourned for the year, declared the agency in a state of "rebellion, insurrection, resistance, and insurgency" and called up the National Guard to take control of all roads. The guard planted machine guns at the entrances to the department's headquarters to prevent the holdover commissioners from entering, and the governor sent in his own people to run the agency.

The guard stood guard for nearly two months over our banana republic, until the Supreme Court declared the governor's recess appointments invalid and his state of emergency unlawful.

This extra-legal exercise of gubernatorial authority ended precisely as any student of S.C. politics might predict: with the Legislature stripping the governor of the power to appoint highway commissioners. (The fact that governors once had such power might be the most surprising part of this story.) And our state suffers from Gov. Johnston's legacy to this day. The highway commission, renamed the Transportation Commission two decades ago in the Legislature's first of (so far) two faux reforms, still is composed of members who are selected not by the governor or even the entire General Assembly, but by the legislators who live in each district. It is a system designed to do what it still does best: Make road-building and -improvement decisions based on political horse-trading rather than the needs of the state.

Gov. Nikki Haley was not nearly as dramatic as Gov. Johnston in her first year in office, but what she lacked in drama she made up for in audacity.

The summer saw her ham-handed attempt to force the Legislature back to pass a restructuring bill that it simply wasn't going to pass. That at least was legally debatable, and in fact two members of the Supreme Court said she had the authority to act, but it was so politically poisonous that lawmakers are unlikely to remember the legal niceties; they remember merely that she attempted to act outside of her constitutional authority, in an effort to increase her own statutory power.

Her most recent extra-legal excursion targeted a group with few friends inside the State House - quite the opposite of Gov. Johnston's attack, which he launched precisely because he knew he couldn't win a fight in the Legislature against the highway commissioners, who at that time were about the only officials in the state with favors to dole out to legislators.

But in some ways that makes her arrest of Occupy Columbia protesters even more disturbing: Rather than simply ignore such a pathetically small group of rabble-rousers camped out on the State House lawn, Gov. Haley assumed powers that did not exist - and that, had they existed, would not have been hers to act upon - and staged a made-for-TV arrest of 19 of them.

The governor so clearly lacked authority to impose a curfew (or even declare camping off-limits, as she did in an attempt to backtrack) that Columbia Police refused to let the Department of Public Safety use its paddy wagon to haul the protestors to jail, and Solicitor Dan Johnson promptly dismissed the unsupportable charges.

This governor might not have so seriously overstepped her authority if not for a quirk of timing: Public Safety Director Leroy Smith had started work just the day before, with no South Carolina experience and apparently not even a clear understanding that under state law he does not work for the governor - something that most people, including the current and previous governors, seem not to comprehend. It's hard to believe that a more experienced director would have taken seriously Ms. Haley's request to enforce rules that, as U.S. District Judge Cam Currie noted in issuing a restraining order against her, the governor was "making up" as she went along.

Last month, the five-member Budget and Control Board, that the governor chairs but does not control, appropriately adopted rules barring camping on the State House grounds. But not until after the other four board members filed a brief telling Judge Currie that the governor had made up her curfew without so much as consulting them, much less getting their approval. And of course the board empowered the agency, not the governor, to enforce these new rules.

But in a year when one of the governor's top priorities is to dismantle one of the most dysfunctional governmental arrangements in the nation and give the Budget and Control Board's powers to herself, will it matter that pretty much the entire state power structure supports the belatedly written no-camping rules?

Coming atop the governor's extra-constitutional attempt to bully the Legislature and her practice of telling tall tales and backing out on agreements with the Legislature and her policy of deleting emails that even a governor with some claim to fame besides transparency would have known had to be kept, will the extra-legal arrests be the final straw?

On the same day that Judge Currie signed off on the legitimate anti-camping regulation, Gov. Haley announced that her office would work with the state Archives Department to create a new policy for record retention because "as we always do, when we see something that needs to be fixed, we fix it."

Actually, this is the first time I can recall Gov. Haley acknowledging that she needed to "fix" something she had done wrong. But let us not quibble. Let us look for signs of progress. In the optimistic spirit of a new legislative year, let us hope that this is a new beginning, that our governor has happened upon some humility.

Because if she hasn't, I fear that the emasculating response that Gov. Johnston provoked in the 1936 Legislature will seem like the mildest of rebukes compared to what our emboldened lawmakers do to this increasingly unpopular governor.