Columbia, SC — HAVING AN independent commission investigate legislators’ ethical lapses and let the House and Senate Ethics committees retain their roles as judge and jury wasn’t the goal when we started talking about putting someone besides legislators in charge of policing legislators’ ethical lapses.
It was the compromise. The fall-back position, dreamed up after legislators decided to stand their ground in support of an interpretation of the state constitution that could generously be called liberal, ahistoric, out of context. Not so generously: Self-serving. Insulting. Absurd.
Yet, the way the compromise was originally spelled out by Sen. Chip Campsen, and embraced by the Senate Republican leadership and some Democrats, it could accomplish the same goal as turning all enforcement duties over to an independent commission.
Senators still would decide how and whether to punish their fellow senators for ethics-law violations, and House members would make those decisions for fellow representatives. But they would make those decisions based on the findings of an independent investigation that was open for all the world to see.
Half the commissioners would be appointed by the governor, a quarter by the House and a quarter by the Senate; all would be limited to a single term and could not be removed but for cause. It was an arrangement that even the most creative legislators could not claim ran afoul of a constitutional provision that allows the House and Senate to judge the “disorderly conduct” of its members.
But as we found out on Thursday, even that was too much for some of our senators.
Of course, we can’t say for sure which ones, or even how many, because we’ve never had a public vote on that part of the ethics reform bill — or any part of it. Or even a real debate. What we’ve had are closed-door meetings, as senators tried to work out a grand compromise that they could present as a done deal.
Which is the Senate way.
Yes, it’s cleaner and neater to deal with omnibus legislation that way, in place of the messiness of a public debate over every significant element of the package. And I get that it’s sometimes necessary to do some horse-trading in private. Where it becomes a problem is when it ceases being in addition to the public debate and becomes instead of. Where it becomes a way to cut through not only the negotiations but the votes. Which is what happened in the Senate.
While public votes too often result in responsible people voting for irresponsible ideas, because they know that there are a lot of dishonest people who will mischaracterize their votes, those public votes also can force people to do responsible things. How many senators would have been willing to vote publicly against increasing the criminal and civil penalties for violating the ethics law? Or allowing independent enforcement of that law?
In one of those brief periods this past week between recesses, when the Senate was actually in session and talking about the ethics bill — or at least talking about whether to take yet another recess to have some more secret talks about the bill — Sen. Joel Lourie proposed that senators stop recessing and start voting on amendments. That, he said, was the only way they would know what would or wouldn’t pass. Because it’s one thing to say in private that you won’t vote for independent enforcement, or higher penalties. It’s another thing to actually vote against those reforms, in public.
His colleagues rejected the idea and, lacking that clear knowledge of what would and wouldn’t sell, took the path of least resistance, stripping out those provisions that some of them said in private they wouldn’t support.
I’ll give senators this: At least they’ve been honest about the fact that they are keeping themselves in charge of ethics enforcement. The House took the Orwellian approach: It created a body composed of four senators, four representatives and eight non-legislators appointed by legislators and called it an independent enforcement entity.
That would be an improvement over the current law, but not a lot of one, and it certainly wouldn’t be independent.
The reason we need independence in enforcement is clear to everyone except legislators, and it’s not just about the friendships that senators develop with other senators and representatives develop with other representatives — friendships that thank goodness still cross party lines.
It’s also about the there-but-for-the-grace-of-God mindset that can make even the most honest legislators worry about their own susceptibility to charges if they look too hard at their colleagues’ activities. It’s about how easy it is to watch business as usual, year after year, and begin to think what’s really not OK is. And let’s not sugar-coat this: It’s about how easy it is for one determined legislator to sabotage another legislator’s priority bills.
Those problems will remain problems, and will undermine public trust, as long as legislators serve as investigator, judge and jury.
Ms. Scoppe can be reached at firstname.lastname@example.org or at (803) 771-8571. Follow her on Twitter @CindiScoppe.