Critics have deplored the Senate’s decision to strip a reconstituted Ethics Commission from the Senate ethics bill, calling it a scheme to allow legislators to continue to investigate themselves for ethics violations.
In fact, the plan by Sen. Luke Rankin to create a new joint legislative ethics committee to handle investigations of legislators suspected of civil violations of the ethics law is not a serious problem and should not prevent the passage of S.1. Those who object to the Rankin proposal favor a provision in the House bill, H.3722 that would shift investigation of legislative misconduct to the State Ethics Commission, arguing that the commission would provide outside scrutiny by non-legislators.
Under the Rankin plan, a new legislative ethics committee would have two senators, two House members and four non-legislators. It is much less likely that this committee would conspire to whitewash complaints because of the presence of non-legislators and the fact that two of the legislators would not be from the same chamber as the legislator being scrutinized. Given the historic antagonistic relationship between the House and Senate, it is not very likely that a senator would show any special sympathy from a House member, or vice versa.
Even more significant is the fact that any complaint against a legislator alleging criminal conduct would not be referred to either the House or Senate or the State Ethics Commission, since neither the committee nor the commission has criminal jurisdiction under the current law or under S.1 or H.3722. Only the attorney general does.
Any and all complaints and prosecution alleging crimes under the ethics laws would fall exclusively under the authority of law enforcement, and especially the attorney general, pursuant to his authority under the South Carolina Constitution. The Fifth Circuit solicitor also has statutory authority over some violations of the ethics act.
The state Supreme Court finally demolished the old Grendel’s den myth that all ethics complaints against legislators had to be taken first to dark precincts of legislative ethics committees.
The action of Ashley Landess of the S.C. Policy Council in filing a complaint against then-House Speaker Bobby Harrell directly with Attorney General Alan Wilson resulted in Wilson brushing aside the House Ethics Committee and launching his own investigation. Wilson then fought off erroneous court rulings by Circuit Judge Casey Manning by filing a successful appeal to the Supreme Court. It is now crystal clear that any citizen can take a complaint alleging criminal conduct by a legislator or any other public official directly to law enforcement without having to start in an old-style ethics committee made up entirely of legislators from the same chamber and most likely burdened by conflicts of interests.
Based on the Harrell case, it would be pointless for a citizen to take a complaint alleging a crime against a legislator to either a legislative ethics committee or the State Ethics Commission, because neither has any criminal jurisdiction whatsoever.
Thus the worst that can happen, regardless of whether the new ethics reform law uses a reconstituted Ethics Commission or a legislative committee, is that the committee or commission will handle trivial non-criminal complaints. Of course, the attorney general also has plenary constitutional authority to assume jurisdiction over such civil complaints if he wants to.
Therefore, it is not critical that any new ethics reform law confer investigative authority over legislators to the State Ethics Commission. The Rankin proposal would be satisfactory. Both S.1 and H.3722 have many excellent reform provisions. The main thing now is to pass S.1 and move it to conference committee, so that the Senate and House can agree on a bill to send to Gov. Nikki Haley.