Sunday, Sep. 02, 2007

How far will the Legislature go to usurp executive power? Read on

IF ATTORNEY General Henry McMaster (or Education Superintendent Jim Rex or any other constitutional officer) wants to give a certificate of recognition to a secretary with 25 years of service to the state, he has to get written permission from Senate Finance Chairman Hugh Leatherman and House Ways and Means Chairman Dan Cooper.

I doubt the law is enforced, but for the last decade, it has been the law: No state funds can be used by a constitutional officer other than the governor “to purchase plaques, awards, citations, or other recognitions without unanimous prior written approval of the Budget and Control Board.” That means any of the board’s five members — the two legislators, the governor, the comptroller general and the treasurer — can veto employee recognition certificates of the sort that the Senate hands out to its own employees every year, without getting anyone else’s permission.

I don’t think lawmakers intended to get into such minor recognitions of loyal employees; this requirement was part of a law limiting all kinds of potentially self-promotional activities by constitutional officers, prompted by $90,000 worth of newspaper inserts then-Treasurer Richard Eckstrom had purchased listing people with unclaimed funds and featuring a big picture of Mr. Eckstrom next to the headline: “With your help, I can return $54 million to the people of South Carolina.”

What’s so telling is that it didn’t occur to anyone to suggest that the law was inappropriate or constitutionally offensive.

That’s changing. In the hands of ChangeSCNow, that simple little budget proviso, which passed the House to wild cheers, is held up as one of a string of instances of the legislative branch of government unconstitutionally inserting itself into executive matters, through two legislators’ seats on the Budget and Control Board.

“It is difficult to imagine a less significant and more personal executive function than offering trinkets of recognition to hard-working men and women that make any executive office successful,” the group, which is closely tied to Gov. Mark Sanford, argues in a lawsuit filed last month. “Yet, even to this minute level, the General Assembly has embedded itself into the executive branch of South Carolina.”

The lawsuit is centered on the argument that the two legislators seized control of the board when they elected a fellow legislator to replace Thomas Ravenel as treasurer. But the more compelling part of the suit uses the trinkets law and others to show how the Legislature has crafted state laws to give the two legislators on the board power that no legislators should have in this country. And that points to the central problem: It’s inappropriate to have any legislators on the board, whether they acquiesce to the will of the governor (as routinely happened with previous governors) or vote down his preferences.

Whether this argument convinces the Supreme Court that it’s time to overturn a very bad precedent or not, it should help the rest of us look anew at this board, and the Legislature’s unrelenting campaign to hoard power that rightly belongs to governors.

Everybody knows by now about the “Competitive Grants Program,” the ironic name given to a legislative slush fund controlled by four legislative appointees and one gubernatorial appointee. What most people don’t know is that the money is actually budgeted to the Budget and Control Board and the departments of Commerce, Parks Recreation and Tourism and Health and Environmental Control, and those agencies are “legislatively prohibited from transferring these executive branch funds to any other program or withholding or delaying the committee’s access to the funds.”

“In essence,” the suit argues, “the General Assembly allocated ($9) million through the executive branch and to a committee which is 80% controlled by the four most powerful legislators in the State, with a specific prohibition against the executive branch exercising any control over the funds.”

Two other budget provisos round out the argument.

With the 2006 elections approaching and Treasurer Grady Patterson — who routinely sided with legislators on the board — looking more and more vulnerable, the Legislature prohibited the Budget and Control Board from reorganizing its various divisions without legislative approval. Then this year, after Mr. Patterson had been replaced by Sanford ally Ravenel, lawmakers prohibited the board from making changes at the even lower, office, level without their approval.

“Even a casual observer can recognize this as a transfer of power (usurpation) from the Board to the Legislature in anticipation of reduced influence on the Board after the statewide election of Governor Sanford, Comptroller General Eckstrom and Treasurer Ravenel in 2006 (and thus thwarting the will of the people of South Carolina),” the suit argues.

Finally, the suit cites a provision that prohibits the Budget and Control Board from releasing money from a special pot for homeland security without special permission from the president pro tempore of the Senate and the speaker of the House.

Putting the two top legislative officers directly and solely in charge of how executive agencies spend money the Legislature has already authorized them to spend marks a new level of audacity even for our Legislature, and it suggests that an out-of-control situation is worsening by the year.

If the court doesn’t put an end to this charade of separation of powers, don’t be surprised to see lawmakers vote to make the governor get their permission each time he needs more paper for his office fax machine.

Ms. Scoppe can be reached at cscoppe@thestate.com or at (803) 771-8571.

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