Scoppe: Home Rule dispute not quite what it seems

Associate EditorSeptember 25, 2013 

— FLORENCE County Council Chairman James Schofield’s email advising me to check the latest filings in the state Supreme Court had an ominous, and believable, feel to it. “This is about the sanctity of three branches of government,” he warned. “Or whether the senator through the budget can influence the other two. Citizens should be concerned.”

So I checked, and the lawsuit that Attorney General Alan Wilson had filed to stop Florence County’s Nov. 5 capital sales tax referendum, while a bit unusual, didn’t seem extraordinary. The county’s response, however, did: It focused more on politics than the law and, in keeping with Mr. Schofield’s notes to me, accused Mr. Wilson of doing the bidding of one of the most powerful members of the Legislature.

The lawsuit is a naked assault on Home Rule, the county declared, a clear case of Senate Finance Chairman Hugh Leatherman trying to dictate how his home county spends money under a law that allows the imposition of a temporary sales tax to pay for roads and other infrastructure projects.

“The Petition hearkens back to a South Carolina where local policy and local priorities were dictated from Columbia through each county’s legislative delegation in a process that was inconvenient, inefficient, and contrary to direct local decision making,” Columbia attorney John Moylan wrote in a reply filed last week. “The process was burdensome not only for local communities but also for the General Assembly itself, which was forced to take up all sort of matters more easily decided at the local level. The Petition should be denied for seeking to turn back the clock on four decades of evolution of Home Rule. Senator Leatherman should not be allowed to thwart the will of the voters and the exercise of powers granted to Florence County merely because he disagrees with how the County is using its powers to address its own distinct problems and provide for its own distinct solutions.”

That’s a poetically accurate description of the way things used to be done in South Carolina, and too often still are done, and combined with Sen. Leatherman’s clear opposition to the county’s tax plan, it makes for quite a compelling argument.

Until you read the lawsuit. And the law.

The county’s defense refutes charges that the lawsuit doesn’t make, and opposes an outcome that the attorney general goes out of his way to say he’s not advocating. And while the law itself is convoluted, I believe the attorney general’s interpretation makes a lot more sense than the county’s.

This might be nothing more than political theater, interesting only to political insiders, if not for the fact that counties increasingly are using the same approach as Florence County to extend the life of the capital sales tax.

With nearly a third of them collecting the capital sales tax, Florence County contends that the lawsuit seeks to “cripple counties across South Carolina from using what has become one of their most critical funding sources for the construction of courthouses, police and fire stations, jails, and other major capital projects.” The S.C. Association of Counties, in a letter to Mr. Wilson, says that if the court rules in the state’s favor, “All 46 counties would eventually be impacted to the detriment of the State of South Carolina.”

The Supreme Court obviously agrees that the stakes are high. It agreed last week to hear the case and set it on a dizzyingly fast track, giving the attorney general just two business days to file its brief and the county five days, until Thursday. Oral arguments are scheduled for Tuesday.

The question before the court has nothing to do with whether elected county governments get to run their counties, as Florence asserts. It’s not even about whether a county can impose a new sales tax for new projects after the first one expires, as the county also asserts. Even if the county is completely correct in its interpretation of the law, the case is about a narrow and technical question of the circumstances under which a county can impose that new tax.

Florence County voters approved a capital sales tax in 2006. Unlike the 22-year transportation sales tax approved by Richland County voters last year, the capital sales tax can be collected for only eight years, unless it is extended for seven more years through another public referendum. With the Florence tax set to expire in April, the County Council scheduled a referendum for next month to collect it for another seven years. But instead paying for the six road projects that it was initially supposed to fund — only one of which has been completed — the tax would pay for fire and EMS stations, sewer projects, ballparks and a new list of roads.

The attorney general says counties are free to abandon their unfinished projects when the initial tax expires and institute a new tax to pay for new projects. Or they can extend the initial tax to pay for projects that haven’t yet been completed. But they can’t do both, and the rules are different for each option: A referendum to extend the tax can be held whenever the County Council chooses; but a new tax to pay for new projects must be approved during a general election.

As Solicitor General Bob Cook argues in the state’s petition: “The county seeks to undo, in a special election, what the voters approved in a General Election. Voters have a right to expect that their will is honored. Otherwise, democracy becomes illusory.”

Florence County says there is no legal distinction between new and extended taxes, an interpretation it borrowed from a handful of counties that already have accomplished this maneuver. It looks to me like a stretch. And I get why local governments stretch the limits of tax laws: The Legislature never fully relinquished control of local government.

If you threw a rock in the House or Senate chamber while the Legislature was in session, you’d almost certainly hit a legislator who has dictated decisions in his home county, in violation of the Home Rule Act. That’s one of the things that holds our state back and deprives voters of the representative democracy they are promised by the state constitution.

But the larger assault on Home Rule — the assault at play here — is the Legislature’s completely constitutional and legal refusal to let local governments make taxing decisions. It’s the Legislature’s insistence on limiting their options to the overburdened sales tax — and then putting restrictions on how revenue can be spent. It’s requiring referendums on taxes to begin with.

The answer to that problem isn’t to ignore the law. It’s to fight harder to convince the Legislature to change the law — or to convince the voters to change the Legislature.

As Mr. Cook puts it: “While Home Rule is important, to be sure, even more important is that ‘a county ordinance not disregard state law.’ ”

Ms. Scoppe can be reached at cscoppe@thestate.com or at (803) 771-8571. Follow her on Twitter @CindiScoppe.

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