The Rules Apply to Everyone. (Except Us.)

WHY THE HOUSE & SENATE ETHICS COMMITTEES SHOULDN’T EXIST – AND WHY IT MATTERS

South Carolina is often said – correctly – to be dominated by the legislature. What does that mean, exactly? Partly it means that the General Assembly takes the lion’s share of power over most areas of state government. But it also means this: that over time the legislature has filled the law code with provisions that favor and protect legislators as an elevated class of public officials. The state’s Freedom of Information law, for example, applies to all state agencies and employees except for members of the General Assembly; and despite a popular misconception, present lawmakers – unlike other state employees – are still allowed to draw salaries and pensions at the same time.

There’s no more perfect example of this system-rigging than in the realm of ethics. Taxpayers maintain an entire state agency, the State Ethics Commission, whose purpose is to govern the professional behavior of state officials. This includes all constitutional officers: the governor, lieutenant governor, secretary of state, treasurer, comptroller general, attorney general, education superintendent, adjutant general, and agriculture commissioner.

The only state officials not under the authority of the ethics commission are members of, and candidates for, the General Assembly.

Which agency does have authority in ethical matters over members of the General Assembly? Why, the General Assembly – in the form of the House and Senate Ethics Committees (article 3, section 12 of the state constitution). Title 8, chapter 13, section 320[9] of the state law code explicitly removes members of the General Assembly from the Ethics Commission’s jurisdiction.

All charges dealing with perceived ethics violations on the part of state lawmakers are referred to one of the two legislative ethics committees. These committees have powers otherwise belonging to the Ethics Commission: administering a private or public reprimand, expelling a member from the House, referring the case to the state Attorney General’s Office, imposing fines of up to $2,000 per violation, and forcing the forfeiture of “gifts, receipts, profits or the value of them” deemed to have been obtained improperly.

Here’s the most remarkable part: Until recently, hearings dealing with ethics violations were kept strictly private – the public knew nothing about them – unless and until a conviction was handed down. With other elected officials at the state level, by contrast, the whole process was and is carried out in public. Even now, after rules changes first in the Senate and then in the House, ethics cases against lawmakers only become public if the panels votes to find “probable cause” of a violation. Otherwise, state lawmakers accused of ethics violations are at the mercy of fellow lawmakers with whom they often have chummy relationships.

The arrangement is especially suspect in cases in which legislative leaders find themselves under investigation for possible ethical violations. No one knows, to take an example currently in the news, whether the House Speaker can fully account for the $325,000 in campaign funds with which he reimbursed himself for expenses. Maybe he can, maybe he can’t. But the House Ethics Committee is extremely unlikely to find this out. The Speaker exercises enormous power over members of his chamber: he can assign committees, get bills to the floor, decide which bills get debate and for how long, and a great deal besides. It’s difficult to believe the Speaker wouldn’t get preferential treatment in the ethics committee of his own chamber.

How unusual is South Carolina’s arrangement in relation to the rest of the country? Very. The only other states in which ethics commissions don’t have authority over legislators are North Carolina, Michigan, and Ohio. Unlike these, however, South Carolina is a state whose government is dominated by the legislature in almost every area.

How likely is change? It’s hard to say, but in 2012, lawmakers introduced at least three bills – S.1373, H.4633, and H.4634 – that would have abolished the legislative ethics committees and transferred their authority to the Ethics Commission, putting legislators’ ethical matters under the jurisdiction of an independent authority. It’s interesting and telling to note that not one of them ever got out of committee.

No prizes for guessing why.