Bills to watch in 2020: Part one

It’s nearly the end of the year and South Carolina’s legislative session is rapidly approaching! The first day of session begins on January 14, 2020.

Since 2019 was the first half of the two-year session, bills that did not pass this year could still become law next year.  Lawmakers filed nearly 2,500 bills and resolutions in the 2019 session alone, several of which could have a significant impact on education, transportation, and Second Amendment rights.

Below is an overview of a few of the most consequential bills that could resurface in 2020.  

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S.780: Instituting tolls to pay for new roads

This bill would allow the Department of Transportation (DOT) to impose tolls in order to finance nearly any type of road project – including new road construction, interstate widening, non-interstate road reconstruction, bridge replacement, etc.

Moreover, the DOT would no longer be required to remove the toll after the project was paid for. The bill would also strike current law tying toll revenue only to the project on which it was imposed, and revenue from a toll road could be used to finance “improvements to the highway corridor.”

S.780 bypassed committee and was placed directly on the Senate floor calendar the same day it was filed.

Status: Senate floor calendar

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S.5: Diverting gas-tax-hike revenue to interstate widening

S.5 would divert gas-tax-bill revenue away from road repair and into a new interstate widening fund. The fund – controlled by the S.C. Transportation Infrastructure Bank (STIB) – would be used to finance revenue bonds for the construction of new lanes on “mainline interstates”, in addition to any rehabilitation projects necessary to add new lanes. In selecting projects, the bank must consider factors such as feasibility, public safety and, unsurprisingly, statewide economic benefit – hardly a factor that should determine whether or not a pothole gets filled.

As mentioned previously, the bill would reduce the amount of funding currently being used for resurfacing by roughly 14%, undercutting lawmakers’ promises to spend the new revenue on road repair during the 2017 gas tax debates.  While the gas tax increase was carefully designed to allow the money to, in fact, be diverted away from repairing existing roads, this current bill does so blatantly.

Status: Senate Finance Committee

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H.3757: Data warehouse

This bill would create a massive data collecting system to track children from preschool through the workforce (and possibly beyond). Data would be pulled from a number of agencies, including the Department of Education, Department of Social Services, Department of Commerce, institutions of higher education, and more. The bill would allow any other state agency to be brought into the database as deemed necessary by lawmakers.

The database is part of a large project that would pose numerous privacy threats. Even aside from its problematic goal – to help meet the needs of the state’s economy and to improve the workforce delivery system – the potential for abuse creates a massive risk for citizens’ privacy.

Status: Passed the House

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S.679 & H.4332: Authorizing more state debt for economic development

Two bills would expand the possible use of economic development bonds, which are backed by the taxpayers’ personal property. Currently, these bonds can be issued for anything from land acquisition to employee training. This bill would add “freight transportation” to that list.

More importantly, the legislation would also create a subcategory of economic development projects – “strategic infrastructure projects” – which are not subject to the job creation and capital investment requirements that companies must usually meet for bonds to be issued.

Status: H.4332 passed the House. S.679 is in Senate Finance Committee.

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H.3045 & H.4203: Mandating donor disclosure for non-electioneering communications, regulating political speech

H.3045 would define “independent expenditure committee” as any group that spends over $500 on election communications, and would require the disclosure of the group’s major donors. As “election communications” would include communications that support or attack a candidate within 45 days of an election, this could regulate political speech that is not campaign speech, particularly given that the primary season in South Carolina overlaps the legislative session.

H.4203 would revise the definition of “committee” struck by the state Supreme Court in 2010 for being overly broad. Committees are subject to a plethora of regulations in the Ethics Act, and accordingly should be narrowly defined in order to regulate only campaign speech, not issue advocacy. Both of these bills are broadly written with key terms left undefined, and the regulations would be triggered by expenditures too small to carry a major public concern of quid pro quo. As such, this legislation could have a chilling effect on constitutionally protected political speech.

Status: House Judiciary Committee

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S.139: Constitutional carry

Four bills would allow individuals to carry a handgun, whether concealed or not, without a permit. It would still be against the law to carry into law enforcement buildings, courtrooms, public schools, hospitals, etc.  Currently, South Carolina residents must obtain a permit in order to carry a handgun, which must be concealed in public.

These bills are known commonly as “Constitutional Carry” legislation. Fifteen other states have passed similar laws.

While none of the bills passed committee, one (S.139) was recalled from the Senate Judiciary Committee and placed on the Senate Calendar during the final days of session earlier this year.

Status: S.139 – Senate floor calendar. S.400, H.3456 & H.3999 – Senate/House Judiciary Committee.

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H.3275: Seizure of weapons without due process

Known as “red flag” legislation, H.3275 would allow a judge to order the seizure of an individual’s firearms and ammunition, even if no crime is committed. If a solicitor, assistant solicitor, or two police officers bring a complaint to the judge that an individual is a risk to himself or others, the judge could issue the warrant to confiscate the firearms. Only after the weapons and ammunition were taken would the owner would get a hearing in probate court. If at the hearing the judge decides the gun owner poses a risk of imminent injury to himself or others, the state could hold the guns for up to a year, and the court would notify the Department of Mental Health.

At least five other bills filed this year threaten the Second Amendment, which can be viewed here. None of these bills made it out of committee.

Status: House Judiciary Committee

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 H.4087: Banning gun ownership for minor offenses

This bill would prohibit anyone convicted of a crime carrying a maximum prison sentence of over one year from owning a gun. To demonstrate how extreme this proposal is, here are just a few examples of violations that would permanently strip citizens of their 2^nd Amendment rights:

• Contempt of the General Assembly
• Trespassing on state park property
• Recording a movie in a theater on a cell phone (second offense)
• Use of altered or counterfeit tickets or reuse of tickets
• Defrauding a drug or alcohol screening test
• Construction of a fence which impedes the free range of deer
• Perjury and subordination of perjury
• State lottery fraud

It should be noted that none these are violent offenses, and most are misdemeanors. This list is merely a sample of the hundreds of other minor offenses that could ban a person from owning a gun.  If passed, anyone who illegally possesses, transports or receives a gun or ammunition under this law could face up to three years for their first violation.

Status: House Judiciary Committee

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H.3759 & S.419: Reshaping public education

These massive education omnibus bills approach the education system as a “workforce development system,” (a term used in last year’s proposed data warehouse) in which schools are less about educating students, and more about supplying businesses with qualified workers.

For instance, the House version would create a new unaccountable state board to monitor the “education and workforce pipeline.” The board would collect data on reading and math scores, high school graduation rates, college enrollment, and job attainment. It even goes so far as to track the percentage of South Carolina residents, up to age 65, who have college degrees or received certain work certification. While the Senate version does not create a new board, it assigns similar responsibilities to the existing State Board of Education.

The bills would also create a “career pathways” system that could begin as early as kindergarten. Under this system, a number of state agencies, such the Department of Education, Department of Commerce, and Department of Employment and Workforce would align the k-12 education system with state and regional “workforce needs,” among other things.

The bills would make several other changes including, but not limited to: (1) raising the base teacher salary to $35,000 (which is now in effect via budget proviso) (2) adding up to five new literacy tests in elementary school, while removing social studies testing in grades 3 – 8, and (3) requiring elementary school teachers to pass a new “rigorous test.”

The House passed its bill last session, while the Senate has spent much of 2019 working on its version. That bill is currently in the Senate Education Committee, and lawmakers have indicated they expect to bring it to the Senate floor early in the upcoming session.  

Status: H.3759 passed the House. S.419 is in Senate Education Committee.

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S.1: Stripping some of the governor’s interim appointment power

S.1 would undercut the governor’s power to make interim appointments when the legislature is not in session. If this bill becomes law, the governor will not be able to make any interim appointments if a) the office became vacant before the previous legislative session, or b) if the Senate rejected his previous appointee. This creates an unreasonably narrow window for when interim appointments can be made.

For instance, say an office becomes vacant during the summer (after session has ended) and the governor makes an interim appointment shortly thereafter. If the Senate rejects his appointee (or simply doesn’t take a vote) when they return the following year, the governor cannot appoint anyone else to that position on an interim basis. This could leave central government positions vacant for an extended period of time. S.1 is a direct attack by the legislative branch on the governor’s constitutional duty to administer state government.

The Senate passed this bill back in January, but it stalled in the House. In response, the Senate added the bill’s language to several unrelated bills before returning them to the House (despite the Constitutional prohibition on multiple subject bills). These amendments were all eventually struck, and the House added S.1 to the list of matters that lawmakers could consider in special session. They did not do so, however, and the original bill remains in the House.

Status: Passed the Senate

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S.259: A fund to acquire private property to turn into floodplains

This bill would create the “South Carolina Resilience Revolving Fund” for the purpose of acquiring properties to turn into floodplains (an undefined term) or open spaces. The fund would provide grants and low interest loans to local governments, state agencies, and environmentalist constructs called land trusts.

These entities could use such funds for home buyouts and floodplain restoration – defined as “any activity” toward returning the land to its “natural state.” To be eligible for buyout, the home must have suffered flooding-related damage of over $1,000 twice in ten years – a remarkably low bar. The property would not have to be turned into a floodplain, however; it could also be converted to open space with an easement to prohibit any future development.

Status: Passed the Senate

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S.227: Allowing certain counties to impose a property tax

S.227 (and identical bills S.113, H.3168 and H.3457) would allow the 60 municipalities in South Carolina that do not currently have a property tax to impose one. State law currently limits how much the local property tax rate (called “millage”) can be increased by using rates from the previous year. Therefore, if a municipality doesn’t already have a millage rate, it can’t impose one.

Under this bill, any municipality without a property tax (or any new municipalities created after January 1 of this year) could now do so. The initial tax would be capped at a rate sufficient to generate one-third of the previous year’s general fund expenses. After its imposition, the tax would be subject to the increase limits in current law.

Status: S.227 passed the Senate. H.3457 passed the House. Neither bill has passed both chambers.

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H.3968: Eliminating civil asset forfeiture 

This bill would ban civil asset forfeiture, which occurs when government confiscates property that is suspected of being connected to a crime, with or without a criminal conviction (or even charge). Under this bill, property could only be forfeited (1) after a conviction and (2) when asset forfeiture is an explicit penalty for the crime committed. The bill also places parameters on the types of property that could be forfeited, stating that proceeds and property must be “derived directly” from or used in the commission of a crime.

A few exceptions would allow the state to temporarily seize someone’s property during the criminal process, such as during an arrest or if the state believes the property is in danger of being destroyed.

Status: House Judiciary Committee

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H.3307: Creating a searchable database for property seized through asset forfeiture

This bill would require the Prosecution Coordination Commission to maintain a list of all property seized by a law enforcement agency, including when the property was taken, the crime prompting the seizure, the property’s market value, and the category of forfeiture (criminal or civil).

An amendment banning civil asset forfeiture was inserted in the bill during debate earlier this year, but was later removed. The bill as passed by the House only includes the searchable database.

Status: Passed the House

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S.110:  Creating another legislative guarantee to refinance utility debt

S.110 would authorize a new ratepayer charge to back a refinancing of SCANA’s debt. Under this bill, the Public Service Commission (PSC – the utility regulatory body accountable to lawmakers) could authorize SCANA to refinance its remaining debt from the failed nuclear project through a process called “securitization.”

Essentially, SCANA would issue new bonds through a “special purpose entity” (such as an LLC), and charge a new ratepayer fee to pay those bonds. Once the PSC issued the securitization order, it could not amend or terminate that order or the new ratepayer charge (except to ensure the necessary amount is collected) – much like the Base Load Review Act, which tied regulators’ hands in favor of the utilities.

The bill would also create a legislative covenant with the bondholders that protects the ratepayer charge from (1) future legislative action, (2) action by the PSC, and (3) any reduction until the refinanced debt is paid.

Status: Senate Judiciary Committee

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S.366 & H.3660:  Legalizing medical cannabis

Two bills would legalize the sale and consumption of medical cannabis, while heavily regulating the process. Cannabis treatment would only be available for patients suffering from a “debilitating medical condition,” which includes things like terminal illness or severe chronic pain. Patients would also need to obtain an identification card from the state and permission from their physician. Once qualified, a patient may purchase cannabis from any licensed dispensary – limited to a fourteen-day supply.

The number of distribution licenses is also capped under the bill. For instance, the state may only issue 15 cultivation licenses, 30 processing facility licenses, and one dispensary license for every twenty pharmacies operating in the state. Each would require the applicant to pay an unspecified fee.

Lastly, it creates the Medical Cannabis Advisory Board that would seat doctors, a cannabis expert, a cannabis card holder, and several others. Its biggest responsibility would be adding new conditions to the list of qualifying medical conditions.

Status: S.366 is in the Senate Medical Affairs Committee, and H.3660 is in the House Medical, Military, Public and Municipal Affairs Committee.

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H.4258: State retirement plan for private employees

This bill would create a state retirement plan for private employees. The 401(K)-style plan, called the “Palmetto Work and Save Plan”, would be available for employees of private businesses, nonprofits, and even those who are self-employed. However, individuals who work for private businesses would be automatically enrolled unless they opted out, and the default employee contribution would be 6% of the individual’s paycheck.

It is unclear why lawmakers would propose a state-administered retirement plan when such programs already exist in the private sector. Moreover, the automatic enrollment of individuals – and assigning them a contribution rate – is a highly troubling policy, as is another provision in the bill allowing the appropriation of tax dollars to initially fund components of the plan, despite the $81.9 billion deficit in the state employee pension plan.

Status: House Ways and Means Committee

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S.283: Exempting universities from state oversight

This bill would allow public universities to establish entities called “auxiliary divisions” or “enterprise divisions.” These divisions’ capital projects (and their financing) would enjoy significant exemptions from state oversight.

While universities’ acquisitions and projects are subject to supervision by the Commission on Higher Education (CHE), the State Fiscal Accountability Authority (SFAA), the Joint Bond Review Committee (JBRC) and/or the Department of Administration, enterprise/auxiliary divisions would dodge much of this oversight.

The Senate Finance Committee, moreover, added language exempting public universities themselves from general state government personnel policies and laws, and from oversight by the CHE over capital improvement projects. It should be noted that the CHE has given significant pushback on higher education spending and debt proposals, and that lawmakers have been attempting to remove the CHE’s oversight of those proposals for the last several years.

Status: Senate floor calendar

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S.298: Increasing higher education spending

This bill would increase higher education spending, tweak financial aid policy, and crack down on student loan defaults.

First, it establishes a higher education funding formula that ties university and college appropriations to General Fund revenues. For example, if the General Fund revenues are projected to increase, lawmakers would have to increase funding to colleges and universities by that same percentage (not to exceed 5%). If revenue were to decrease, however, lawmakers could only cut higher education funding by that same percentage – although they would not be required to.

Second, the bill makes notable changes to the distribution of financial aid funding, favoring needs-based scholarships at the expense of merit-based scholarships. Tuition assistance for students attending for private colleges would be eliminated.

Finally, it requires the SFAA to find a vendor to administer a “Student Loan Default Aversion and Financial Literacy Program.” For context, South Carolina’s colleges have some of the highest default rates in the nation, and colleges with high default rates risk losing their eligibility to participate in federal student loan/grant programs. This year, South Carolina’s Denmark Technical College was one of fifteen schools nationwide that was subjected to sanctions due to high default rates.

It should be noted that this bill also contains the enterprise division language found in S.283.

Status: Senate floor calendar

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Since 2019 was the first half of the two-year session, these are only a portion of the bills that could become law next year.

Lawmakers have also begun pre-filing new legislation for 2020. The final date for pre-filing bills is December 11, and we will be publishing our annual overview of these bills shortly afterwards.

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