THE SENATE BILL IS GONE. THE HOUSE BILL IS BACK. WHAT DOES IT ALL MEAN?
The ethics debate in the Senate got very interesting this week as the Senate took up H.3184 the “ethics” bill on special order.
In order to explain exactly what happened in the Senate chamber, we first need to provide some background on the history of the bill. H.3184 was prefiled in the House in December, and at the time it revised the makeup of the State Ethics Commission, made lawmakers accused of ethics violations subject to investigation by the Ethics Commission, and further made judges accused of ethical violations subject to Ethics Commission investigations and the Commission on Judicial Conduct. By the time the bill passed the full House, it also contained increased penalties for certain ethics violations.
When the bill was sent to the Senate it was referred to the Senate Judiciary Committee, where Committee Chairman Larry Martin (R-Pickens) pushed through a strike and insert amendment that replaced the text of the bill with text based on S.1, another piece of ethics legislation filed by Senator Martin. However, when a bill is amended in committee the amended language must still be approved by the full chamber (in this case the Senate) before it becomes the official text of the bill.
When the full Senate finally turned to debate H.3184 this week, Sen. Gerald Malloy (D-Darlington) raised a point of order that Sen. Martin’s committee amendment was not germane to the text of H.3184 as passed by the House and was therefore ineligible to become the text of the bill. After a short recess, Lieutenant Governor/Senate President Henry McMaster sustained the point of order – meaning, in effect, that Martin’s bill reverted back to what it was when the House passed it.
McMaster’s decision also means that further amendments to the bill that do not address the investigation of ethics violations or penalties for ethics violations are unlikely to be permitted. This means the “electioneering” language, which places unconstitutional burdens on issue advocacy speech and which some senators wished to include in H.3184 is extremely unlikely to be added to the bill.
Now – what about the bill as it stands now?
Addressing legislative self-policing
Like the committee amendment, the House version of H.3184 purports to provide “independent investigation” of lawmakers accused of ethical violations, but what it really does is allow lawmakers to have influence over the supposedly “independent” Ethics Commission. The bill would allow the legislature to elect some of the members of this new commission. Further, both versions of the legislation permit the ethics commission to investigate ethics complaints against lawmakers, but the House and Senate Ethics committees (comprised entirely of lawmakers) would retain the authority to punish, or not punish, lawmakers for ethical violations.
Income source disclosure
The now-defunct committee amendment had provisions related to lawmaker income disclosure, albeit with significant loopholes. The current version of H.3184 as passed by the House doesn’t address income source disclosure at all. Under this language, lawmakers would still be able to keep all their private income sources a secret.
For a full analysis of the current text of H.3184 click here.
Bottom line
With income disclosure, and by implication electioneering, being ruled non-germane to H.3184, the major piece of ethics legislation before the Senate has been restricted to addressing self-policing and penalties for ethics violations. Even restricted to this topic, a worthwhile bill could certainly be proposed, but H.3184 is not that bill.
As it stands, H.3184 simply puts legislative self-policing in a new form. It purports to end the practice while actually giving the legislature more power by allowing them to appoint commissioners to a body that judges members of other branches of government.
It’s also worth emphasizing that the unconstitutional electioneering language favored by many lawmakers is not dead for this year. H.3189, H.3722, H.3227, S.1, S.14, and S.74 all contain the electioneering language and H.3189 and H.3722 have both already passed the full House.
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