The first step toward holding the legislative leadership accountable for their actions is to hold legislators accountable for their votes.  The people of South Carolina have a fundamental right to know how their legislators are voting. Yet, in spite of widespread public support for roll call voting, three-quarters of all votes remain off the record. 

1. The General Assembly recorded only 25 percent of its votes in 2010, the same as in 2009.
2. The percentage of recorded votes in the House declined from 31 percent in 2009 to 27 percent in 2010. In the Senate, the percentage increased from 16 percent in 2009 to 22 percent in 2010.
3. The General Assembly routinely passes significant legislation on anonymous voice votes. This includes measures seeking to: create new agencies; grant targeted tax exemptions and corporate subsidies; and impose new business regulations and fees.
4.  By contrast, 45 other states require a recorded vote on every bill that becomes law.
5. 37 states have a constitutional requirement that lawmakers hold a recorded vote on every bill that becomes law.

 In 2008, the Policy Council pushed for reforms that prompted rules changes in both the House and Senate that led to more recorded votes for the 118th General Assembly. But not only do these rules changes not have the force of law, they also didn’t lead to many more recorded votes. If roll call voting is necessary to a representative democracy, this duty should not be subject to the whims of the legislative leadership in its rulemaking capacity. Rather, it should be a right protected by statute, if not constitutional law.

The solution is simple:

1. Protect the right of citizens to know how their representatives are voting by providing for a statutory roll call voting requirement.
2. In the meantime, change the rules in both the House and the Senate so that every bill, resolution and amendment with the force of law receives a recorded vote during the 119th General Assembly Session for 2011-2012.

However you define it, roll call voting is essential to accountability. With it, everything in the Legislature will become more transparent. Without it, little will change. The future of South Carolina depends on it.

Policy Report: Record Every Vote

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The first step toward holding the legislative leadership accountable for their actions is to hold legislators accountable for their votes. Yet, the Senate and House combined voted on the record less than 25 percent of the time in both 2009 and 2010. By contrast, 45 other states require a recorded vote on every bill that becomes law.

It is a basic principle of representative democracy that constituents have a right to know how legislators are voting. After all, one of the primary tasks of the legislator is to re-present, or be present for, individual voters. In this regard, legislators are expected to vote on behalf of their constituents. A legislator who fails to do so, who repeatedly votes in favor of his own whims and self-interests, is not properly representing his district—with the result (usually) being that he is not reelected.

In short, there is no defense for not recording votes. Not doing so undermines representative government and fosters a lack of accountability and transparency. In turn, these problems facilitate corruption, self-aggrandizement, and the abuse of power. And, as we have written in the two companion reports to this policy brief, the South Carolina Legislature is in need of reform precisely because a culture of political careerism and political privilege has taken hold in Columbia. Recording votes is a necessary first step to breaking this power monopoly.

Why record every vote?

It would seem no one is arguing the General Assembly should not record at least some votes—that is, perhaps, 25 percent of votes. Instead, the legislative leadership has suggested most votes are not “important enough” to be recorded. The implication is that it would be a waste of time to record these votes.

Yet this claim implies that much of what the General Assembly does—75 percent of its daily business—is not very important. Or, at least, not so important that citizens need to know how their representatives are voting on these issues. Indeed, as we have demonstrated in the companion piece to this report, Shorten South Carolina’s Legislative Session, the General Assembly does waste a great deal of time on trivial matters. In turn, this is why session should be shortened to 45 legislative days.

Moreover, the question of whether a bill is “important enough” to receive a recorded vote is subjective. Who decides whether a bill is important?Ultimately, the question can be used as an excuse not to record votes on controversial legislation. And this is what often happens in the General Assembly. During the 2009-2010 session legislators anonymously voted on the following matters:

• Targeted Tax Exemptions (H 3482): This legislation exempted air carriers operating a hub terminal facility in South Carolina from paying the property tax on personal property, including aircraft. (This bill passed the House and Senate on a voice vote, but the Senate did take a roll call vote to concur with the amended House version.)
• The Creation of New Agencies (S 1323): This legislation would have created an I-95 Corridor Authority empowered to carry out economic development and educational improvement activities in counties within 30 miles of I-95. The bill passed the Senate on a voice vote, but died in committee in the House.
• Corporate Subsidies (H 4343): This legislation sought to appropriate $15 million to create an Air Service Incentive and Development Fund to benefit airline carriers. The bill passed the House on a voice vote, but stalled in the Senate.
• Capital Construction Projects (S 700): This joint resolution authorized the University of South Carolina to build a new business school facility in the Innovista district. Construction was funded via bond revenue, thanks to another piece of legislation (H 3664) that also did not receive a recorded vote.
• Business Regulations and Fees (S 166): This joint resolution authorized the Department of Transportation (DOT) to develop an outdoor advertising control pilot project aimed at eliminating what the Federal Highway Administration describes as nonconforming billboards. The resolution permits the DOT to charge application, annual, or other fees necessary to defray the administrative costs of implementing the program.

From the above examples, it is clear legislators routinely pass substantial legislation on an anonymous vote. For this reason, every bill and joint resolution, no matter how minor it may seem, should be given a recorded vote. (This excludes, of course, congratulatory resolutions and other measures that do not have the force of law.)

Simply put, every bill, resolution and amendment that would have the force of law should be given a recorded vote before it becomes law—for instance, on second reading. (Bills are read three times, with the second reading generally being the time for substantial debate.)

Percentage of Recorded Votes (Bills and Resolutions with Force of Law): 2009 to 2010

Why a rules change is not enough

In 2008, the Policy Council pushed for reforms that prompted rules changes in both the House and Senate that led to more recorded votes for the 118th General Assembly. But despite widespread public support for roll call voting, three-quarters of all votes remain off the record.

In addition, the rules changes made by the General Assembly do not have the force of law. Moreover, such procedural tinkering almost serves to reinforce the notion that the General Assembly is not obligated to record its votes. If roll call voting is necessary to a representative democracy, this duty should not be subject to the whims of the legislative leadership in its rulemaking capacity. Rather, it should be a right protected by statute, if not constitutional law.

Toward this end, the S.C. House passed a bill (H 3047) in 2010 that would have required more recorded votes. The Senate balked at the change, arguing that such a law would be an unconstitutional infringement of the chamber’s rule-making authority.

The measure passed by the House would have required a roll call vote on:

• Each section of the state budget on second reading
• Second reading of all bills and joint resolutions
• All amended bills and joint resolutions on third reading
• Amendments proposed by the opposite chamber
• Conference committee reports (necessary when House, Senate versions of a bill differ)

By contrast, current Senate rules only require a recorded vote on the following:

• The state budget as a whole
• Second reading of contested bills (one Senator may contest a bill)
• Second reading of bills authorizing expenditure of funds or with fiscal impact of $10,000
• Third reading of amended bills
• Conference committee reports

The Senate leadership’s argument that it would be unconstitutional to require recorded votes seems to be little more than a delay tactic. At the very least, the point is debatable, evinced by the fact that the House did not seem to think the legislation it passed was unconstitutional. In addition, constitutional scholars believe the law passed by the House would withstand a constitutional challenge. Writes John Simpkins, Assistant Professor of Constitutional Law at the Charleston School of Law:

There is a compelling argument to be made that the goal sought by H 3047 is more substantive than procedural. While the Legislature may craft procedural rules for its daily operations, those rules may not infringe upon fundamental rights. H 3047 is arguably a law that would have an impact on the direct relationship between citizens and their elected representatives, not simply a rule governing how the Legislature is organized or conducts its daily business. However, even if the proposed legislation is considered to be procedural in nature, the plain language of the South Carolina Constitution demonstrates that the houses of the General Assembly do not have the exclusive authority to determine their procedural arrangements.

To summarize Simpkins, legislation requiring recorded votes cannot be reduced to a mere procedural issue, but touches upon a matter so important that it may be considered a fundamental right.

In the end, constitutional objections to roll call voting are purely academic, at best. The solution to any potential constitutional road block is simple:

1. Change the rules in each chamber to require roll call voting on every bill and resolution
2. Pass legislation requiring roll call voting on every bill and resolution

Roll call voting is essential to accountability

Any remaining objections to roll call voting may be easily dispensed with. The cost to record votes is trivial (and the House already has the technical means to do so). Moreover, by discouraging the passage of special-interest legislation, requiring recorded votes will reduce spending, which hit an all-time high in 2010. Likewise, modern technology can streamline the voting process to a matter of seconds.

But questions of cost and efficiency are secondary to the fact that South Carolina citizens have a right to know how their representatives are voting. However you define it, roll call voting is essential to accountability. With it, everything in the Legislature will become more transparent. Without it, nothing will change. The future of South Carolina depends on it.

Nothing in the foregoing should be construed as an attempt to aid or hinder passage of any legislation.

Copyright © 2010 South Carolina Policy Council.