Wednesday, Jul. 02, 2008

Ruling adds potentially useful element of uncertainty to bobtailing

LAST WEEK, the state Supreme Court once again struck a unanimous blow against South Carolina’s special brand of legislative logrolling, and all the critics of bobtailing could do was complain that the ruling was too tepid.

The attorney for Greenville good-government gadfly Ned Sloan, who brought this and an earlier lawsuit to force the Legislature to obey the state constitution’s mandate that bills relate to “a single subject,” was disappointed that the court again chose to throw out items that had been attached to unrelated bills while letting the core of the bills stand.

Gov. Mark Sanford’s spokesman griped that by not declaring the entire bills unconstitutional, the court was giving lawmakers “just a slap on the wrist” that provides “no disincentive for the General Assembly to just continue thumbing their nose at the constitution.”

Even Justice Costa Pleicones — the only member of the high court who did not serve a legislative apprenticeship before donning the black robe — warned that “severing certain portions of an act neither prevents nor corrects log-rolling.”

I suppose a bit of disappointment is understandable. Mr. Sloan’s first lawsuit had produced a bold, sweeping ruling, eloquent in its description of the perils of stringing unrelated bills together into one massive conglomeration in order to secure votes for ideas too weak or suspect to pass on their own merit.

And there was one clear disappointment in Sloan 2: After initially signaling it would rule, the court instead punted on the challenge to several single-county laws, saying Mr. Sloan didn’t have standing to challenge laws that affect only counties where he doesn’t live. It seems obvious to just about anyone familiar with the constitution that the only thing that allows local laws to stand is the absence of a lawsuit challenging them, so we must continue to wait for one (or many) that the court will hear.

On the central subject of bobtailing, though, I think reformers are selling last week’s ruling short. No, it didn’t break new ground. Yes, it let stand most of the add-ons in the challenged laws — including 67 of the 69 sections in the monstrosity of a “Job Development Credits” law, which the court said were “sufficiently related to the subject of raising revenue to withstand a ‘one-subject’ challenge.”

But sewn within the ruling could be the seeds of the destruction of this time-honored tradition.

Ironically, Mr. Pleicones’ warning about the dangers of the ruling hinted at this, when he wrote that invalidating only the unconstitutional sections of bills “creates uncertainty and promotes arbitrary enforcement of the one-subject rule.” Translated into political terms, it gives rank-and-file legislators reason to think twice before they agree to vote for a bill they don’t particularly like just because they managed to get their pet provision attached to it.

Consider this scenario: Legislative leaders are having trouble rounding up the votes to pass their top-priority bill, so they start making offers to hold-outs. You know that bill you’ve been trying for years to pass, they say; we can attach it to our bill.

Up until now, that’s sounded like a good deal, particularly if the legislator wasn’t dead-set against the leaders’ bill. But Sloan v. Harrell introduces a couple of wild cards into the game.

First is the court’s somewhat surprising decision to pare off individual pieces of bills even though the Legislature had not included a “severability clause” — a statement that if parts of the bill are ruled unconstitutional, they should be severed, and the remaining parts allowed to become law. Those clauses are the Legislature’s way of saying that it would have passed the bill even if the offending sections had not been added.

In many cases, that’s a lie — adding the offending sections is essential for securing the votes needed to pass the bills — but legislators say it anyhow. By acting as though there were a severability clause when none had been attached, the court seemed to signal that it intends to be aggressive about excising those vote-generating add-ons.

The second red flag is what the ruling reminds us about how “the House” and “the Senate” decide how to respond when the Legislature is sued. They don’t take a vote. The leaders of each body decide what to do, in consultation with whomever they choose. In this case, the court tells us, the “respondents” decided in three instances to “concede the added provisions violate” the constitution.

What a perfect set-up for a double-cross. Legislators agree to vote for the leadership bill in return for getting their pet projects added on. Someone files a lawsuit challenging the bill. Maybe it’s someone who has a legitimate beef with the bill; maybe it’s someone the leadership put up to it. The House and Senate file responses admitting that all those add-ons are unconstitutional. The court severs them, and presto, legislative leaders have the law they wanted, and the initial holdouts have nothing — except a very strong feeling that they’ve been suckered.

Now, I seriously doubt that legislative leaders would deliberately do that to their colleagues; they maintain their positions largely on trust, and that’s a sure way to destroy it. But the court’s demonstrated eagerness to pare off offending sections of bobtailed bills while preserving the core takes away any incentive they might have to put up a fight for the parts they didn’t care about to start with — and it gives any legislators who aren’t part of the leadership good reason to hesitate about joining in the logrolling.

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