Senate Passes Unconstitutional Bill in “Phantom Session”

Yesterday, a brand-new piece of legislation was filed, bypassed the committee process, and was scheduled for second reading on Friday – all in the span of two minutes.

This is particularly significant for two reasons: One, the bill is blatantly unconstitutional; and two, the Senate does not hold session on Fridays.

1. Unconstitutional local legislation

The bill in question is S.1183, which would allow the Richland County legislative delegation to remove the governor’s appointment authority over the Richland County Recreation Commission and transfer it to the Richland County Council.

This is concerning on several fronts: Most importantly, the bill violates the constitutional prohibition on special laws (Article III, section 34), emphasizing that bills must be general in nature, with a few specific exceptions (none of which apply to this bill).

The South Carolina Supreme Court struck down a nearly identical bill in 2007 for this very reason. That bill would have directly removed the legislative delegation’s authority to appoint Richland County Recreation Commission members, transferring it to the Richland County Council. The Supreme Court, referencing a prior decision striking down yet another unconstitutional special law, stated in Davis v. Richland County Council,

“The enactment of Act No. 784 is exactly the type of special legislation which is prohibited by Sections 1 and 7 of Article VIII of the South Carolina Constitution as it was not intended that after the ratification of the constitutional amendment, the General Assembly could repeatedly inject itself into local affairs.”

S.1183 raises another problem – namely its approach to imposing accountability on the notoriously unaccountable Richland County Recreation District (RCRD). The real issue is not the governance structure of this special purpose district – it’s that the district should not exist to begin with.

The RCRD is one of over 500 special purpose districts in the state of South Carolina. These mini-governments are a relic from the days prior to the establishment of home rule, and provide nothing that county and municipal governments could not provide. Moreover, special purpose districts are often unaccountable to the people they serve (as is the case with the RCRD).

A similar bill, but general in scope, was filed last year. While that bill did not violate the constitutional special laws prohibition, its attempt at imposing accountability would have simply given more power to legislative delegations – who already hold too much control over their counties. That bill never made it out of committee, and was featured as one of the worst bills in the 2017 session in our annual publication Best and Worst of the General Assembly 2017.

The solution is not to further empower the already-too-powerful legislative delegations by allowing them to strip some of the governor’s authority. The solution is to abolish special purpose districts altogether.

2. Nontransparent, unaccountable legislative “process”

The other issue with S.1183 is the Senate’s willingness to ignore the proper legislative process in order to rush the bill through.

The state Constitution requires every bill to have three readings on three separate days. This delay mechanism is there for a reason: It allows lawmakers – and more importantly, the people they represent – to examine legislation before it has a chance to become law.

Lawmakers in a hurry to pass their bills often get around this provision by agreeing to give legislation its next reading on Friday in what The Nerve has called a “phantom session”: No lawmakers are present, no one actually gavels in the session, and no votes are taken, yet the bills are considered to have received their next readings.

The actual votes took place on Thursday, when lawmakers agreed (usually by unanimous consent) to give the bill a Friday reading. This happens frequently and has done so for years.

Normally, “phantom sessions” are employed for the more or less procedural third reading votes (second reading is when bills are debated and amendments are filed). S.1183, however, is getting its second reading in phantom session – although to be fair, many local bills do not receive any debate on second reading anyway.

This procedure subverts the supposedly open, accountable legislative process and enables lawmakers to slide bills under the radar and rush them through the process – as they have with S.1183.

The bill will likely receive third reading next week, and unless anyone calls attention to its unconstitutionality, that third reading will be as uneventful as its  “phantom session” second reading was.