ARE WE HEADED INTO ANOTHER YEAR
OF WEAK ETHICS LEGISLATION? HARD TO SAY.
The indictment and subsequent conviction of former Speaker Harrell on ethics charges has brought renewed calls for reform at the State House – and rightly so. Following the former speaker’s indictment, acting speaker Jay Lucas (R-Darlington) was quick to establish a number of ad hoc committees to study and propose reform ideas. One of these committees, the Ethics and Freedom of Information Act Study Committee, has published its proposals.
The proposed legislation is a mixed bag. We can be thankful that members restrained themselves from producing another omnibus ethics bill, the last one having been full of irrelevant and, in some cases, mendacious provisions. But of the six shorter bills introduced so far, only two would be worth pursuing.
Requiring Agendas for Public Meetings
The first bill is a response to a recent State Supreme Court decision stating that public bodies need not post an agenda prior to meeting. This legislation would require all public bodies to post an agenda in a publicly accessible place and on a website (if they have one) at least 24 hours prior to a regularly scheduled or special meeting. The bill would also prohibit a public body (including legislative committees) from adding an item to a meeting agenda without 24 hour notice to the public; members of public bodies can override this latter provision and add an agenda item without notice by a two thirds vote. Finally, public bodies would be required to give notification of meeting places and agendas 24 hours ahead of time to any member of the public who requests that notification.
In general, this provision would alleviate the effects of the Court’s pernicious decision. The bill could still be improved, however, by strengthening subsection 30-4-80(c), which requires select subcommittees merely to make reasonable efforts to give timely notice of meetings. All committees and subcommittees should be subject to the same 24 hour rule.
Addressing Exemptions to FOIA
At first glance this bill seems to narrow the near-total exemption legislators currently enjoy from the Freedom of Information Act (FOIA), but on closer inspection it’s not clear that this exception is being reduced at all. Even worse: it’s being expanded to other members of the government. The bill amends current law by extending the FOIA exemption of “working papers” of legislators and staff to the working papers of any elected or appointed public official or their staff. “Working papers” is also further defined to mean “internally created deliberative precursors to legislation, amendments to introduced legislation, or an ordinance.” Because we don’t know how “working papers” was interpreted before, this new definition may not be restricting the exemption at all.
The legislation would also create a new FOIA exemption for written or electronic correspondence sent from a member of the public to a public official, provided the member of the public isn’t a lobbyist, public official, corporation, partnership, or association. What’s notable about this provision is that it would still allow individuals representing special interests to contact a legislator without public knowledge, provided the individual is acting as a “private individual.”
Legislators should eliminate this exemption – not expand or redefine it.
Creating the Office of FOIA Review
The third bill is another attempt to strengthen FOIA by creating the Office of FOIA review, which would be headed up by the Chief Judge of the Administrative Law Court and will hold hearings when individuals or public bodies allege the FOIA law isn’t being properly followed or is being abused. The bill further seeks to strengthen FOIA by capping both search fees (capped at $100 an hour, and the first two hours free) and deposit requirements (limited to 25 percent of the total cost of reproduction of records). The required response time to a FOIA request would also be slightly reduced by the proposed law. Yet another provision would require that pubic bodies make available online all documents produced by the body over the past six months.
Most of the bill’s provisions, unfortunately, are either suspect or pointless. The most worrisome provision, for example, would turn violations of the FOIA into a civil rather than a criminal offense. The reasoning behind this proposal is unclear; it’s enough to point out that ethics reform shouldn’t be about relaxing law governing the conduct of public officials.
Further, search fees and deposits could and should be eliminated rather than simply capped. And it’s unclear why a new government office is needed when a citizen can already take a FOIA complaint to a court – as the South Carolina Public Interest Foundation successfully did against Ethics Commission Director Herb Hayden, who denied the existence of a public record to The Nerve.
Revising the Definition of Committee
This proposed bill seeks to legally redefine “committee” in a manner reminiscent of last session’s failed omnibus ethics legislation. We have the same concern about this change now as we did then. Under the current bill, a committee would be defined as an organization that has the “major purpose” of supporting or opposing a candidate or achieving the nomination, election, or defeat of one or more candidates; or in the case of a ballot measure committee the “major purpose” of promoting or defeating a ballot measure. “Major purpose” is left undefined, but in last session’s omnibus bill “major purpose” was established by outright declarations by an organization or 50 percent of an organization’s expenditures going to support the nomination or election of a candidate. This kind of criteria would allow committees that manage to avoid “major purpose” designation to exempt themselves from reporting requirements and give to candidates, with the public none the wiser.
Moreover, the bill would no longer count payments to an individual by a third party in exchange for service to a candidate or committee as a contribution unless the service rendered was for the purpose of “influencing an election.” This provision would enable donors to fund a portion of a candidate’s staff, provided the staff aren’t directly involved with the campaign or electoral advocacy. Essentially this would allow in-kind contributions: allowing a third party to clandestinely pay for staffing expenses would free up more funds for the candidate to spend on campaigning and advocacy.
The bill does contain one positive provision, though. It would delete some exceptions to the definition of “contribution.” But this is small stuff compared to the bill’s overall effect of weakening laws governing the financing of campaigns.
Income Disclosure
A bill from the Campaign Finance Reform subcommittee, chaired by Rep. Kirkman Finlay (R-Richland), falls short on full income disclosure for elected officials. The bill revises the definition of “business with which he is associated” under the current law to require that public officials only have to report business interests if they or an immediate family member hold 5 percent or more of the interest in the company and if his share is valued at more than $100,000. This is confusing. There is no threshold in the bill for the reporting of public or private income – which is a good thing – and no reporting requirement on the amount of income received. Why, then, would public officials only have to report business interests that meet these criteria? Clearly, members can have an interest constituting a conflict if that interest only comes to $99,000, or only 4 percent.
Requiring elected officials to disclose their income and business interests – all of which is to allow citizens to clearly see where their elected official may have a conflict – should be as simple as possible. The standard for reporting interests is already murky, and the process by which the House Ethics Committee issues clarifying opinions is anything but clear. Where there is any room for interpretation, lawmakers have erred on the side of under-reporting. There should be no loopholes, no wiggle room. All income, material benefit, and business interests should be reported.
PACs
The Campaign Finance Reform Committee seems not to have considered serious reform. Under its proposals, lawmakers could still use their campaign accounts as personal slush funds.
One bill specifically limits an elected official’s ability to receive contributions from a so-called leadership PAC (a political action committee that is “directly or indirectly established, financed, maintained, or controlled by a candidate or public official or any other entity maintained by or affiliated with a candidate or public official”). Fair enough. But for some reason the ban doesn’t apply to legislative caucus committees or political parties. In May, The Nerve reported that from 2010 through 2012, the House Republican Caucus Committee made 82 donations totaling $397,000 to GOP House candidates. Further, a PAC with ties to former House Speaker Bobby Harrell (the Palmetto Leadership Council) donated a collective $332,750 from 2009 through 2013 to Republican organizations – $290,750 of which went to the House GOP Caucus. This proposal wouldn’t touch this practice.
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