Thursday, Aug. 14, 2008

I hate to say ‘I told you so,’ but lawmakers leave me little choice

I WORRIED that perhaps I was being a bit alarmist when I warned that rank-and-file legislators might find themselves suckered by legislative leaders the next time they started tacking unrelated amendments onto bills, in violation of the state constitution.

Fact is, although the Supreme Court had just made it much easier for those leaders to act with the same results, regardless of intent, it didn’t seem terribly likely that they would follow the scenario I painted — agreeing to support their colleagues’ unrelated amendments to their bills, in return for those colleagues’ votes on the bills, with the intention of rolling over if a lawsuit was filed to challenge the add-ons.

Who knew House and Senate leaders would throw their colleagues under the train, again, in a matter of weeks?

The speaker and president pro tempore speak for the House and Senate in lawsuits, and in a response filed last month to the lawsuit challenging the Legislature’s latest adventure in logrolling, House Speaker Bobby Harrell, Senate President Pro Tempore Glenn McConnell and Lt. Gov. Andre Bauer declined to defend the most vulnerable add-on. That was the amendment, to an unrelated sales-tax holiday bill, that would force oil companies to sell raw gasoline to the distributors in our state, so the distributors can “splash-blend,” or mix it with ethanol, themselves.

Technically, they didn’t acknowledge that the amendment was unconstitutional; but the practical effect is the same. “Respondents do not intend to assert any defense to the constitutionality of Section 3’s inclusion in Act 338,” their response says. The closest they come to defending the splash-blend amendment is to deny that it was never debated in the House, “because on June 4, 2008, the House concurred in the Senate amendment adding Section 3.” Which is entirely true — and more than a little picky, since it has no bearing on the legal issues at hand.

Don’t get me wrong. I’m delighted that the Legislature isn’t going to waste taxpayers’ dollars and the court’s time arguing that the state constitution allowed it to string these ideas together in a single bill; it clearly does not. The constitution says each bill must be confined to a single subject, a wise restriction designed to prevent the kind of vote-trading and logrolling — “bobtailing” is the S.C. term — that allow small factions of legislators to join in collusion to pass provisions that would be defeated on their own.

But what we’re left with is the leaders of the Legislature essentially acknowledging that they knowingly passed an unconstitutional act.

In fairness to Mr. McConnell, he warned his colleagues of that, and voted against the measure. (Mr. Bauer’s position is irrelevant; although the lieutenant governor presides over the Senate, he has no authority in such matters, and it’s really quite absurd that lieutenant governors get named in these suits.) But Mr. Harrell is a different matter altogether. He can usually command a solid voting majority if he wants. This time, if he wanted, it was in service of an unconstitutional act: He voted for the legislation.

What the McConnell-Harrell response makes clear is that the priority for the Legislature is saving the underlying bill — or, perhaps even more, saving the principle of saving the underlying bill.

You see, what was so interesting about the Supreme Court’s most recent ruling against legislative logrolling, issued just two months ago, was that the justices went out of their way to salvage the original part of the bill, rather than throwing it out along with the unconstitutional appendage. (That’s what prompted my speculation about legislative leaders suckering their colleagues in future bobtailing cases.)

Justice Costa Pleicones dissented, arguing that the Legislature would never stop passing these unconstitutional conglomerations as long as the court kept carving away just the add-on and leaving the main part of the law intact.

Unlike me, Justice Pleicones isn’t the type of person who’d go around saying “I told you so.” But then, he doesn’t have to. When he argues this time that the court needs to throw out every bit of the contaminated bill, his audience will be smart enough to remember — and realize how right he was. I doubt the other justices failed to notice that the Legislature passed this latest abomination before the ink had even dried on that last ruling — which itself had struck down parts of a law that was passed just a year after the court first made clear it would enforce the single-subject rule.

Does the word “incorrigible” come to mind yet?

My guess is that legislative leaders are smart enough to know that the question when the court discusses this case will be not whether but how much of the bill to invalidate. That’s why their legal defense is focused entirely on preserving the underlying bill. I doubt they’re terribly interested in this particular bill, even though it was introduced by Sen. McConnell; the big concern has to be what happens if the court adopts the Pleicones approach and declares a zero-tolerance policy for unconstitutional legislation.

That’s what’s most important for the rest of us, too. It’s possible that legislative leaders have proved me prophetic, but there is no question that the Legislature has proved that of Justice Pleicones.

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