I just noticed that the column in mentioned in my last post about The Legislative State isn’t online any longer. So I’m posting it below, along with a very brief piece that ran with it explaining the steps that need to be taken to dismantle the Legislative State. The good news is that the Legislature made a little bit of progress toward one of those steps earlier this year when it passed legislation to abolish the Budget and Control Board and give much of that agency’s power to the governor.
THE LEGISLATIVE STATE
A FEW DAYS AFTER THE election that Richland County officials so thoroughly botched, during that brief period when she thought she had been re-elected - after having first been told she had lost and before eventually being told that again - County Councilwoman Val Hutchinson expressed worry that lawmakers would just kick out the director of the voting office and say they had solved the problem.
“It’s not enough to say ’we’ll fire this one person’ and they become the scapegoat for a much larger plan,” Ms. Hutchinson said, as she called for putting the County Council instead of the county’s resident state legislators in charge of running the elections.
The next day, the former No. 3 official with the FBI, in Columbia for a conference on computer hacking, said governments make themselves particularly vulnerable when agencies operate in “silos” rather than coordinating their information technology programs. While he wasn’t privy to any details about the massive computer breach at the state Department of Revenue, Chris Swecker said hackers almost always infiltrate computer systems through top executives, who tend to be clueless about security risks.
Two breathtaking failures of our government to protect the most basic rights of its citizens, debacles that directly impact our lives in a way that few governmental failures do. One that exposed 5.7 million South Carolinians’ most sensitive financial data to theft, robbing them of their peace of mind, at the least, perhaps for the rest of their lives; one that robbed hundreds, perhaps thousands, of citizens of their vote, and stole the time, patience and trust in the electoral process from tens of thousands more. One caused by a state government controlled by Republicans, one by a county government controlled by Democrats.
And one common thread: If not precisely the predictable or inevitable fruits of the Legislative State , both fiascos were exacerbated by its legacy. Both are made more difficult to correct by its lingering effects.
Southern historian V.O. Key first identified our “ Legislative Government” as a uniquely South Carolina problem in his classic 1949 book, Southern Politics. The term “ Legislative State “ was coined, best as I can tell, by S.C. historians Walter Edgar and Blease Graham, who described it as essentially an 18th-century English colonial political system.
In a 1990 guest column in The State , Drs. Edgar and Graham traced the Legislative State to the period between 1719 and 1776, after South Carolinians deposed the Lords Proprietors and before they kicked out the British, when the colonial Commons House of Assembly became the dominant branch of government. “Royal governors were cowed or ignored,” they wrote. “Local government was stifled. Members of the Assembly wanted to ensure that as much authority as possible remained in their hands.”
After the Revolution, the Assembly became the General Assembly, but otherwise, little changed. Over the centuries, demands grew for more government services, but rather than putting governors in charge of administering services and creating local governments to handle local needs, legislators handled everything themselves.
They created boards and commissions to deliver the services, and they appointed the members. Eventually, they did create county governments, and they let the governor appoint some boards, and after our last big governmental failure, two decades ago, they put the governor directly in charge of a third of state government. But they left themselves ostensibly in charge of much of the rest of the state government and too-large swaths of local government; in reality, no one was in charge.
Which brings us back to the monumental governmental failures of 2012.
The direct cause of the election debacle appears to have been incompetence, and the direct cause of the hacking appears to have been a careless error by a Revenue Department employee and outdated security systems.
But the basic underpinning of the Legislative State is the ability of a small group of senators to rule this state through an informal network of personal connections. It is a government built around people rather than laws, which means it works well when highly competent people happen into critical positions, not so well when they don’t.
It doesn’t take much effort to trace the bungled election and the computer breach to that characteristic.
The opposite of the Legislative State is a government that can work when people fail. It has clear lines of authority. Someone who answers to the public, the governor, can hire and fire agency directors. County councils deliver local services. Commissions hold authority only in those special cases where the risk of political meddling is clearly greater than the need for political accountability. And agencies are kept to a reasonable number, so whoever is in charge can manage them and coordinate their activities.
The election debacle traces its lineage directly to the Legislative State . Last year, the Legislature passed a law that merged Rich-land County’s elections and voter registration offices and created a new commission that state legislators would appoint to oversee the combined office. This was a clear violation of the constitution, which has prohibited single-county laws since the Legislature finally created county governments four decades ago.
To make matters worse, legislators gave themselves the power to appoint the first director of the new agency, and promptly passed over the person who had successfully run our elections for nearly 40 years in favor of the politically connected person who had run the voter registration office for five or six years. A very Democratic way of doing things.
The new election commission misinterpreted the law as saying that since it had no control over the director’s hiring, it had no control over her. And we got seven-hour waits to vote, because the elections office deployed far fewer voting machines than state law required, and didn’t take reasonable steps to make sure the ones it deployed were working. And then all those lost-and-found ballots.
The database breach has a more indirect link to our colonial government.
The governor controls the Revenue Department, and Gov. Nikki Haley must accept some degree of responsibility. But that’s only part of the story.
The other part has to do with the back-office functions of government. Unlike nearly all of her counterparts, South Carolina’s governor does not control the state ’s central administrative agency, and the information technology division within that agency doesn’t have any authority; it’s essentially a vendor, selling its services to agencies that want to buy them. A very Republican way of doing things.
Now recall what the retired FBI agent said about computer systems walled off by agencies that don’t talk to each other, which they tend not to do especially when they don’t report to the same person.
And recall what he said about hackers targeting executives because they’re clueless about computer security. In our state , those are the people who decide which requests from their information technology directors to follow and which to ignore.
Even the best IT professionals can’t protect an agency whose director wants to spend his limited budget on more visible services, like, say, hiring more auditors, instead of the extra security - which is just going to slow everybody down anyway - that those paranoid geeks in IT keep nagging him about.
Yes, a central IT division empowered to set standards across state agencies still would have to answer to a non-IT director. But the director of a central administrative agency would be more likely to understand the importance of listening to the professionals than the director of a revenue department or a health agency or any other service-delivery agency.
And no, I don’t think this governor or her predecessors would have been tech-savvy enough to get out in front of the hacking. But I do think that if we had a Legislature that focused on setting state policy and providing oversight to make sure it’s carried out well, someone might have raised questions about an agency that went a year without an IT security chief.
And I think it would make a difference if we had a Department of Administration reporting directly to the governor rather than to a five-person board of independently elected officials. At the least, when the governor realized that computer security needed to be a priority, she could make it so across the entire government, and not just in the agencies that answer to her.
The Legislative State might have served its purpose in the days when slaves picked cotton for the wealthy plantation owners whose interests it was crafted to serve. It might have worked a century ago, when the textile magnates controlled our government and could depend on it to provide those limited services that they needed. Maybe it even served its purpose in the ’50s, when South Carolina still could pretty much ignore the rest of the world, and government didn’t do a lot more than educate white people and pave roads for the industrialists and planters.
It does not serve its purpose, or our purpose, or anybody’s purpose today.
When things go well, it gives us state agencies that waste money and provide inferior services because they have overlapping mandates and don’t work together or even talk to each other. It hamstrings governors’ ability to deliver on the agenda the voters elected them to implement. It diverts state legislators’ attention from fixing our state ’s problems, as they busy themselves delivering patronage and fixate on parochial matters that should be handled by local governments.
And when things don’t go well . Well, then it gives us botched elections and identity theft on a massive scale and officials who lack the legal authority to make things right.
It’s time for a change.
And here’s the solution:
DISMANTLING THE LEGISLATIVE STATE , IN FOUR EASY STEPS
1. Empower governors. Let them hire and fire the directors of nearly all state agencies, including those now overseen by the elected education superintendent, agriculture commissioner and adjutant general, and hold them responsible for the results. This would allow governors to carry out the agenda on which voters elected them. Real gubernatorial authority will attract a more competent class of candidates.
2. Consolidate agencies. We have more than 70 agencies in the executive branch of government: six that deliver health services; five responsible for natural resources and environmental programs; four that handle jobs and economic development. We have 33 colleges and, in a state with just 46 counties, 85 school districts, some with fewer than 1,000 students. This wastes money and makes coordination and efficient management impossible.
3. Empower local governments. The power to appoint county-level officials should be turned over to county councils, or else, as with elections, the local entities should be abolished and their duties given to the state . Single-county special-purpose districts should be dismantled and their duties turned over to counties. County councils should be free to set taxes and spend money as they see fit; voters can decide whether their policies are acceptable.
4. Transform the Legislature. Freed from meddling in state agencies and local matters, legislators would have time to focus on what legislatures in the rest of the country do: setting state policy and making sure it is carried out effectively and efficiently. Lawmakers need to overhaul their committee system, so the focus of every committee is to understand the missions of and provide oversight for agencies in its purview.