Scoppe: Don’t be distracted by constitutional claims on ethics

Associate EditorMarch 21, 2013 

 

— IF A REAL ESTATE agent who happens to be a legislator violates the law governing real estate agents, the Real Estate Commission, which is part of the Department of Labor, Licensing and Regulation, can fine him or suspend him or revoke his license, just like it would do to any other real estate agent.

If a lawyer who happens to be a legislator steals money from her clients, the Supreme Court can reprimand or disbar her, just like it would any other lawyer.

If a legislator robs a liquor store or shoots his wife, the city police or sheriff’s department can arrest him and the solicitor can prosecute him, just like they would any other criminal.

So why in the world would we need to change the state constitution in order to let an independent state ethics commission, instead of internal legislative ethics committees, enforce legislators’ compliance with the state ethics law?

Well, the argument goes this way: The constitution gives the House and Senate sole authority to “choose its own officers, determine its rules of procedure, punish its members for disorderly conduct.” It also says no member of the executive, legislative or judicial branch of government may “assume or discharge the duties of any other.” Therefore, this argument continues, no member of the executive or judicial branch may enforce legislators’ compliance with the ethics law.

No, it doesn’t make sense to me either. I’ve always considered it at best a misunderstanding of the issue — which has nothing to do with compliance with House and Senate rules and everything to do with compliance with state law.

The closest anyone has come to refuting that logic is by arguing that compliance with the ethics law is different from compliance with laws governing professional conduct or criminal laws, because a legislator wouldn’t have to follow them but for the fact that he is a legislator. I don’t quite understand why that would pose a problem when there’s no question that the attorney general can enforce the criminal provisions of the ethics law, but the fact is that logic doesn’t always win out in court.

Which is why I was intrigued by the legal analysis of John Simpkins, who teaches constitutional law at the Charleston School of Law. Rather than relying on logic, Mr. Simpkins studied the context of our “punish its members” provision. That is, he sought to understand the original intent of the framers of our state’s constitution, which is a sound legal tactic that should be particularly appealing to our conservative legislators, originalism being something they claim to admire. He reaches the same conclusion that I reached by logic, but in a way that might convince a court.

Significantly, he notes in an appendix to the McMaster-Medlock ethics report, the “punish its members” authority is followed immediately in the constitution by the legislative arrest power. That lets the Legislature imprison non-legislators who are “guilty of disrespect to the house by any disorderly or contemptuous behavior in its presence,” or “threaten harm to the body or estate of any member for anything said or done in either house, or who shall assault any of them therefor, or who shall assault or arrest any witness or other person ordered to attend the house.”

“Reading the two sections together,” Mr. Simpkins concludes, “the power to punish both members and non-members appears to be limited to the actual operation of the legislative branch. The sections mention only urgent impediments to the smooth functioning of legislative business such as ‘disorderly behavior’ and threats of ‘assault or arrest.’ Neither punitive section appears to contemplate a role for sanctioning conduct not immediately threatening to legislative proceedings.”

I would add that the section of the constitution immediately following those two is of a piece, providing that legislators “shall be protected in their persons and estates during their attendance on, going to and returning from the General Assembly, and ten days previous to the sitting and ten days after the adjournment thereof.” Fun fact of the day: That’s the provision that legislators have been known to cite in trying to get out of traffic tickets.

Bolstering Mr. Simpkins’ argument — and undermining the idea that the Legislature cannot by law allow a state agency to enforce legislators’ compliance with the law — is another provision in the constitution that says legislative officers “shall be removed for incapacity, misconduct or neglect of duty, in such manner as may be provided by law, when no mode of trial or removal is provided in this Constitution.”

Less significantly, but still worth note, is a statutory provision in the ethics law that gives the State Ethics Commission the authority to investigate legislators’ compliance with the law “unless otherwise provided for under House or Senate rules.” That suggests that the House or Senate could relinquish enforcement duty via internal rule, which is much easier than passing a law.

The two attorneys general for whom the commission is named agree with Mr. Simpkins’ analysis, as did all of the members of the panel, which was appointed by Gov. Nikki Haley and unanimously recommended turning legislative enforcement of the law over to an independent commission by statute.

Sen. Wes Hayes, who has served as the chairman of both the House and Senate Ethics committees and is responsible for many of the strongest provisions in the current law, told me he realizes there might be a way to make the change statutorily; he just thinks it’s safer to “go ahead and take out the constitutional argument” so there’s no question.

Which of course is true. But here’s the thing: A statute can be changed immediately; the constitution could not be amended until 2015, at the earliest. Granted, that’s not a long time to wait for a change that should have been made decades ago, but here’s the other thing: It requires only a majority vote in the House and Senate to change the law; it takes a two-thirds vote in both bodies to amend the constitution.

It has become so obvious that the Legislature shouldn’t be policing itself that few legislators would dare vote against changing the law. Unless they come up with a plausible excuse not to.

Although some legislators, like Mr. Hayes, genuinely believe it’s safer to amend the constitution, that approach also creates for others a convenient excuse, a ruse: Since a constitutional referendum must be approved separately from statutory law, legislators would be able to vote for all the other changes to the ethics law and still ignore one of the most important changes.

Ms. Scoppe can be reached at cscoppe@thestate.com or at (803) 771-8571.

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