LEGISLATORS are talking big and bold — brazen even — about making SCE&G pay for the nuclear debacle, with promises to exchange the law that almost certainly violated ratepayers’ constitutional rights with one that would almost certainly violate the utilities’ constitutional rights.
But when it comes to the other problems that led to $9 billion worth of work on two now-abandoned nuclear reactors — the parts of the law that lawmakers can change without any fear of constitutional problems — they’re taking tiny, timid little steps.
Yes, the House did vote to heal one of the sorest of thumbs of last decade’s genuflection to regulated utilities, deciding that the Office of Regulatory Staff should represent the interests of ratepayers only instead of ratepayers and the utilities (H.4379).
But other changes to that office take us backward, and the changes to the Public Service Commission, the Santee Cooper board and the legislative committee that oversees all utility-related agencies are, at best, timid. And legis-centric.
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The problem is that when the Legislature is in charge of how state agencies work, everybody’s in charge. And when everybody’s in charge, nobody’s responsible.
The Legislature would still control who serves on the Public Service Commission, and commissioners still would have job protections that would make the mightiest union boss blush. Current law and H.4377 both allow the governor to appoint an interim replacement if a vacancy occurs, but neither specifically provides a way for the governor, or the Legislature, or anyone to remove commissioners before their terms end.
This means PSC members would continue to have stronger job guarantees than people in such sensitive posts as the Ethics Commission and the Election Commission, who can be removed only if they refuse to show up for work or do their jobs or commit other actions that would subject them to criminal prosecution. Under current law and the bills proposed by legislative leaders, members of the Public Service Commission could only lose their jobs under a legal provision that allows governors to remove any public officials who are convicted of a financial crime or a crime of moral turpitude.
The bill allows a legislative committee to fire the governor’s appointee if it merely ‘loses confidence’ in him.
The House bill scheduled for debate this week also adds a requirement that “Before making a determination, the commissioners shall question the parties thoroughly during hearings of contested cases when appropriate.” Which makes you wonder what kind of people the Legislature has been appointing to the commission, and intends to keep appointing.
Santee Cooper board members still would be appointed by the governor under H.4376, and they wouldn’t have the same ridiculous insulation as members of the Public Service Commission. But they would continue to have the same job protections as Ethics and Election commissioners.
Here’s the problem with that: Santee Cooper board members aren’t regulators. They are simply people who run a state agency. A state agency that, we have found, can go into debt for billions of dollars and stick its customers — who have no choice but to be its customers — with the bill. The governor should be able to remove them simply because he wants to. And certainly when they show reckless judgment by helping another utility hide information that regulators need to decide how much it can keep raising rates.
When the Legislature acknowledges that the governor is head of a co-equal branch of government, it acts as though the three branches are the executive, the House and the Senate.
Current law gives the director of the Office of Regulatory Staff, appointed by the governor, the same job protections as Santee Cooper, Ethics and Election commissioners, which is probably appropriate. But H.4379 allows a legislative committee to fire the director if it merely “loses confidence” in him. Which should clear up any confusion as to who the director actually works for. (Recall that House leaders tried to bully the director into resigning this fall, but Gov. Henry McMaster refused to accept his resignation.)
The most under-appreciated problem with lawmakers’ timid reform packages involves that legislative committee, the Public Utilities Review Committee, which decides who can be considered for appointment to the PSC, Santee Cooper and director of Regulatory Staff. The House voted last week to rename it the Utility Oversight Committee and let the governor appoint four of its 12 members (H.4378). Which legislators consider a huge deal.
This allocation of appointments is typical of how the Legislature looks at the world: On those occasions that it recognizes that the governor is head of a co-equal branch of government, it acts as though the three branches are the executive, the House and the Senate. (They’re actually the executive, legislative and judicial.) So if the governor gets four appointments, the House gets four appointments, and the Senate gets four appointments. The bill also allows legislators to remain on the panel, which nominates candidates for legislators to elect.
If the Legislature appoints PSC members, the governor needs to control the screening process.
The current committee is modeled after the state’s judicial nominating commission, which lawmakers call a “merit” commission but which the national organization that advocates merit selection of judges refuses to label as such. The American Judicature Society says that since legislators control the nominating process and also elect the judges, there’s no independence, and thus no merit.
The same is true, if less constitutionally troublesome, with utility regulators. And letting the governor add his token appointees doesn’t fix that.
I don’t know that it’s essential for the governor to appoint the PSC, although I think that would probably be an improvement. But if the Legislature is going to appoint the commissioners, the governor needs to control the screening process. And under no circumstances should legislators be part of that process.
Here are some other pieces I’ve written about this that you might find helpful:
Ms. Scoppe writes editorials and columns for The State. Reach her at firstname.lastname@example.org or (803) 771-8571 or follow her on Twitter or like her on Facebook @CindiScoppe.