WHAT WOULD THE FOUNDERS DO ABOUT S.C.’S GOVT. STRUCTURE?
As we stand today, South Carolina’s state government is full of blurred lines of responsibility across the legislative, executive, and judicial branches. Executive boards are full of legislature appointees. The power over government purchases – that all-important power boringly known as procurement – stands with a hybrid board of legislators and executive officers, the Budget and Control Board. And the judicial branch is full of judges unilaterally appointed by lawmakers.
Under the guise of making these lines clearer, S.22, currently in conference committee, would “restructure” government by, among other things, creating a Department of Administration as a part of the executive branch. In our annual guide to the legislative session, The Best & Worst of the General Assembly, we took the admittedly mischievous liberty of categorizing the bill as “government reshuffling.” Here’s why. Although both House and Senate versions of the bill eliminate the Budget and Control Board, both create essentially the same board – or rather several smaller boards – and give them different names. Neither version of the bill places the improperly hybrid function clearly under either the legislative or executive branch.
The term “government restructuring” seems calculated to make one’s eyes glaze over. Any topic with such a soporific name can’t be that important. And yet South Carolina’s government structure as currently configured encourages precisely the thing the American founders wanted to avoid: concentrated, unchecked power.
Madison’s definition of tyranny is well known, but it’s worth remembering that he might as well have been describing South Carolina’s 1895 constitut5ion. “The accumulation of all powers, legislative, executive, and judiciary, in the same hands,” he wrote in Federalist No. 47, “whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”
Consider also Madison’s Federalist No. 84. “An elective despotism was not the government we fought for; but one in which the powers of government should be so divided and balanced among the several bodies of magistracy as that no one could transcend their legal limits without being effectually checked and restrained by the others.”
Washington, too, warned against the tendency toward concentrated power, and he thought that concentration most likely to happen when one “department” – we might say branch – “encroaches” on another. “It is important,” he said in his 1796 Farewell Address,
that the habits of thinking in a free country should inspire caution in those entrusted with its administration, to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism. A just estimate of that love of power, and proneness to abuse it, which predominates in the human heart, is sufficient to satisfy us of the truth of this position.
Why does “encroachment” lead to concentrated power? When one branch of government shares a specific power with another branch – the power to contract with private companies, for instance, or the power to cut the state budget, or the power to approve bonds – no one person or entity or body is accountable for them. And when no one is accountable for a particular power of government – that is, when no one suffers consequences because the power was used badly or illegally – the power increases. The result, in South Carolina, is that state elected officials hold vast powers over the lives of citizens and over the economy, and no one remembers giving them those powers. It happened quietly, over time, in the recesses of unaccountable government bodies.
What would the founders do about South Carolina’s government restructure? We think they’d separate and diffuse powers, concentrate accountability, and abolish the whole idea of hybrid government. Here’s what it would look like.