Scoppe: Senate reformers compromised on more than independent oversight

Associate EditorFebruary 25, 2014 

— THE SENATE’s refusal to let an independent body police legislators’ compliance with the ethics law was such a huge setback that it was easy to overlook the other area where reformers caved to the wishes of anti-reformers.

I did just that until Tuesday, when I was reviewing my conversation with Senate Judiciary Chairman Larry Martin, in which he explained why he and others agreed to abandon what a lot of us considered the most essential reform. (More on that in a moment.)

That’s when I came across this point that I had typed into my notes without digesting: “rather than get into a discussion about the changes, we agreed to go back to the current penalties.”

What that means is that even if the Senate reverses course and allows independent oversight of legislators’ ethics, violators still will face the same penalties that they currently face. Which are inadequate.

No matter how thorough a law is, people who are dishonest will disobey it if they think they can get away with it, or that they won’t get punished severely. Conversely, even the most dishonest people will think twice before violating the law if they think they’re likely to get caught, and to be punished severely.

This is more than a trifling matter. It is nearly as important as who enforces the law.

Why penalties matter

Toughening penalties means more than just increasing fines and prison time; it also means prohibiting people from running for office again if they are among the majority of violators who haven’t paid their ethics fines. And an enforceable law means more than independent reviews; it also means random audits — like the ones the IRS does on taxpayers to see if they’re claiming bogus deductions or leaving off income — to check the names and numbers on their disclosure reports against bank records.

Neither the bill passed by the House nor the Senate Judiciary Committee proposal required random audits or kept ethics-law scofflaws off the ballot, although the Senate proposal did and does increase funding for the State Ethics Committee. Which won’t be reviewing legislators’ compliance with the law, but is overworked and does need more staff to keep up with all the non-legislators whose ethics it’s supposed to police.

But the Senate Judiciary Committee had proposed to increase penalties for criminal violations, for instance making it a felony for legislators to participate in matters that affect them financially.

That’s what was stripped from the legislation last week in order to seal the deal on the grand compromise that a few senators are trying this week to unseal, in order to get some of those crucial reforms back into the bill.

It could be worse. The Senate compromise could have increased the standard of proof for criminal convictions — as the House bill does.

Which brings us full circle, to why Mr. Martin decided it was worth giving up on independent enforcement in return for getting the rest of the bill approved, and letting the Senate move on to other bills that have suffered inattention from two snow weeks.

He does not argue, like some colleagues, that the Senate Ethics Committee is doing a fine job. Frankly, the only people who can say whether that’s the case are members of the committee, because all we see is what the committee does. We see more now that the Senate opened the process, to make complaints public once the committee decides they’re worth pursuing, but we still don’t know what the committee decides not to do. What cases it dismisses that someone who wasn’t a senator would pursue.

And even if the Senate Ethics Committee does a fine job, that tells us nothing about what the House Ethics Committee is doing. There are more questions about that, and the only way the Senate can change what the House is doing is by changing what both are doing.

But while Mr. Martin does tend to believe that at least the Senate is doing a fine job, that’s not what makes him comfortable leaving independent enforcement behind for the time being.

Attorney general’s role

What makes him comfortable is the attorney general.

“The fact of the matter is that there’s a grand jury investigation going on right now,” Mr. Martin said. “Most of these ethics-law violations are in fact a violation of the criminal law, because they carry criminal penalties. It’s not just the job of the ethics committees to deal with them, even though they’re doing that, at least on our side.

“If any of us thumb our nose at the ethics law and a complaint is made, as has been made in at least one other case we know about, the attorney general has the ability to go after that person. Nobody’s above the law, and the ethics law’s not written in such a way to make us above it.”

Thirteen months ago, I would have considered that argument as lame as many legislators’ contention that a constitutional provision meant to let legislators break up fisticuffs on the House and Senate floor somehow precludes their empowering an independent commission to bring charges against them for violating a law that they wrote.

But that was before Attorney General Alan Wilson agreed to investigate an ethics complaint against House Speaker Bobby Harrell, rather than deferring to the House Ethics Committee, as would be normal. Last month, Mr. Wilson and SLED Chief Mark Keel sent the matter to the State Grand Jury for further investigation.

Mr. Wilson also has taken out a lieutenant governor on ethics charges, which sounds more impressive than it is but still is not insignificant. If he were to convict one of the most powerful people in this state of ethics violations, that could be a game changer, providing that reason politicians need to worry even if the law doesn’t get a new watchdog, with or without better teeth.

But that’s a huge if: Mr. Harrell hasn’t even been charged, much less convicted. Most people don’t have the political clout that S.C. Policy Council President Ashley Landess did to convince the attorney general to ignore his standard protocol and investigate.

And even if the Harrell investigation launches an era of crusading attorneys general, most ethics violations won’t rise to the level to command the attention and resources of the state’s top law enforcement officer.

Which is why, even though criminal investigations are possible, we still need an independent entity to review legislators’ compliance with the law. And whether a new entity or the existing ones, we need to give our watchdog the tools to do the job, and serious enough penalties to make the job manageable, by making politicians worry a little more about what happens if they get caught violating the law.

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

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