Abolishing the Ethics Committees

CAN SOMETHING SO SIMPLE REALLY BE SO DIFFICULT?

Among the state’s commentators and editorialists, ethics reform is expected to be the issue of the 2013 legislative session. What exactly “ethics reform” means depends on whom you ask. The Policy Council does not take the view that reforming our ethics laws should require a lot of deep technical expertise in the abstruse minutiae of the state constitution and law code. On the contrary, ethics reform is a matter of restoring the balance of power in South Carolina government – which means taking power from the hegemonic state legislature and putting it back in the hands of the state’s chief executive and the citizenry. We’ve boiled it down to eight very simple principles here.

In any case, nearly everyone – nearly everyone outside the legislature anyhow – seems to agree that the House and Senate ethics committees should be abolished and their power given to an outside agency. South Carolina, as The Nerve revealed last June, is one of only seven states in which legislators get to police their own ethics cases, and in August the governor herself openly supported the idea of scrapping the legislative ethics committees (though, admittedly, she did so on what could fairly be described as therapeutic grounds: “I don’t want want any other person to go through what I went through”).

Recently, however, some lawmakers have put forward the idea that abolishing the ethics committees won’t be so easy: doing so, they argue, would require an amendment to the state constitution. This line of reasoning began when, in November of last year, the dean of the USC School of Law, Rob Wilcox, contended to a House GOP study panel on ethics reform that Article 3, Section 12 of the constitution puts the committees’ power in the hands of the legislative chambers and therefore can’t be devolved to an outside agency without a change to the constitution.

Specifically, Article 3, Section 12 states that “each house shall choose its own officers, determine its rules of procedure, [and] punish its members for disorderly conduct.”

Note that the constitution does not create the ethics committees. Those are established by statute. It’s hard to see why committees created by statute could only be abolished by constitutional amendment.

The trouble with Prof. Wilcox’s argument is that it conflates legislative rules, which apply only to members of the General Assembly as members of the General Assembly, and state ethics laws, which apply to all state public officials. Or to put it another way: Ethics laws are part of the law code, whereas Article 3, Section 12 has to do with non-codified “rules of procedure.” The constitution simply does not prevent the General Assembly from assigning to, or sharing with, another entity the duty to enforce ethics laws.

(Incidentally, Prof. John Simpkins of the Charleston School of Law recently pointed out at the governor’s Ethics Reform Study Commission, that Article 3, Section 12 has preponderantly to do with the General Assembly’s power to stop disorderly conduct – and thus not with members’ violations of ethics laws. Click here, and fast forward to 23:30.)

Granted, the General Assembly would have to change the constitution if members wished to give an outside agency power to amend their internal rules of procedure. But clearly that’s not the intention here.

The underlying principle here is plain: Lawmakers shouldn’t have the power to punish the ethics violations of their colleagues, friends, and allies. Other public officials, from the governor down, face an independent agency, and so should members of the General Assembly. Making that a reality does not require a constitutional amendment. It requires only that the General Assembly admit the obvious, and relinquish an improper power.

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