WHATEVER ethics reform law the Legislature passes this year — assuming it passes one — will be no stronger than the best provisions in the bills passed by the House and the Senate.
Language that isn’t included in either the House or the Senate bill won’t even be considered when a House-Senate conference committee meets to negotiate a compromise between the two versions. That means we have one last opportunity to resuscitate important reforms that neither body adopted, when the House decides whether to go to conference with the bill it passed in May or make changes to that measure. That could happen as early as today.
Both bills fall short in most areas of the full-throated reform we deserve, but by far the most important missing element is independent enforcement of the ethics law.
House leaders say they created an independent enforcement agency. And their new joint legislative ethics committee does in fact mark an improvement over our current arrangement, because senators would help police House members’ ethics and House members would help police senators’ ethics, and there’s really more competition and distrust between the two bodies than most people realize. But that’s only a marginal improvement; it’s certainly not the same as having non-legislators policing legislators.
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The measure does make half the members of the joint panel non-legislators, but like the legislators, they would be elected by the House or Senate. The bill even specifies that the chairman and vice-chairman must be legislators — which is hardly necessary, since elected officials always take over when you put them on a panel with people who are not elected. Even when the legislators are in the minority, they dominate the discussion, and the citizens follow their lead, to such a great degree that there’s really not much point in the citizens being there.
What the people of South Carolina need, what we deserve, is a truly independent commission, along the lines of what the Senate Judiciary Committee proposed but the full Senate rejected.
But even if the House were to go along with that — and I have no reason to believe it would — the Senate has made it clear that it won’t. That means that substituting an independent enforcement or even investigative panel for the House’s joint committee could ensure that we get absolutely no change on oversight.
So the question is whether we can improve the House’s plan enough to make it better than giving up and fighting this part of the battle another year, but without going so far that the Senate will reject it outright. That is: Is there a compromise of the compromised compromise that’s still worth having?
I believe there is, and it is this: Remove the legislators from the joint ethics committee. Senators and representatives still would elect the members of the committee, but they would all be non-legislators.
The House bill makes no provisions for removing committee members before their terms end, which is supposed to provide independence but also provides a Richland County Board of Elections and Voter Registration sort of situation, where people who clearly lack the integrity or intelligence or some other necessary something remain in office because no one can remove them. That also needs to be fixed.
The way to provide a layer of independence without the possibility of chaos is to spell out a limited set of causes for removal — malfeasance, misfeasance, absenteeism, criminality and the like — and to restrict members to a single term, so they don’t have to worry about being reappointed. The House bill restricts committee members to two terms.
Legislators might insist on limiting this no-legislators panel to conducting investigations, like the Senate Judiciary Committee proposed for its independent commission, and retaining the current House and Senate Ethics committees to mete out punishment. There’s even less justification for that bifurcated process if the investigative committee is a creature of the Legislature, but frankly, that would be better than the arrangement in the House bill, and it would be better than the status quo.
Although giving the ethics panel some independence is the most important improvement that the House could make heading into conference committee, it’s certainly not the only one.
A last-minute amendment to the Senate bill increased criminal penalties for the most serious ethics violations, which should make elected officials think twice before violating the law. But most elected officials don’t commit the most serious violations, so we also need to raise the fines for violating other parts of the law. And we need to prohibit candidates from running for re-election if they refuse to pay their ethics fines, as most do.
The Senate also adopted at the last minute a provision requiring legislators and statewide elected officials to file the bank statements of their campaign accounts with the House or Senate Ethics committee or the State Ethics Commission. That will make it easier for those offices to catch inadvertent or deliberate misreporting of donations and expenditures — and therefore make it a little more dangerous for officials to try to get away with that.
But while that could make a significant difference in the Senate, where the Ethics Committee staff could have time to review all of those records, its usefulness could be marginal in the understaffed House Ethics Committee and State Ethics Commission. A smart amendment would require the enforcement offices to conduct at least some minimum number of random audits; say, 10 percent a year. This would provide the same sort of low-cost deterrence as random IRS audits, making everyone a little worried that he or she could be scrutinized this year.
Even if House members add all of these reforms to the ethics bill, there’s still no guarantee that we’ll end up with a good law. There is always a risk that rather than taking the strongest provisions from each bill, the conference committee will adopt the weakest. But that’s a battle for another day. For today, we just need to get the strongest provisions we can into play.
Ms. Scoppe can be reached at firstname.lastname@example.org or at (803) 771-8571. Follow her on Twitter @CindiScoppe.