Tuesday, Jun. 02, 2009

Scoppe: Profile in courage: Henry McMaster

BACK IN 2004, Henry McMaster took the unorthodox step of siding with the plaintiff who was challenging the constitutionality of a hodgepodge bill that legislative leaders said was crucial to our state’s economic development.

In doing so, he introduced a new concept to South Carolina: The job of the attorney general is first and foremost to defend the South Carolina Constitution, and when a law is unconstitutional, that means you have to willingly lose the lawsuit on behalf of the state. It’s similar to the idea (also too infrequently practiced) that prosecutors are supposed to make sure that justice is done, even if that means they lose a case.

It’s not an unconventional idea; in fact, there is no moral or professional justification for any other approach. It’s just one we hadn’t seen much in our state.

But while Mr. McMaster’s Life Sciences non-defense defense was unexpected, it was an easy move from a purely political perspective: He was siding with a very popular governor, against an unpopular Legislature, in a case that was sure to be either ignored or supported by the general public. In fact, the main thing legislators could manage in response was to blubber that he was playing politics by siding with Gov. Mark Sanford, who also had been highly critical of the practice of “bobtailing” in general and the Life Sciences Act in particular.

The politics are anything but easy today, as Mr. McMaster finds himself playing the pivotal role in the tug-of-war between the Legislature and a governor who, while tumbling in popularity among the general public, still is widely popular among the hard-core Republicans who will decide whether Mr. McMaster gets to carry the party mantle into next year’s gubernatorial election.

The cynic might say — as Mr. McMaster’s former partisan nemesis Dick Harpootlian bizarrely did after the attorney general filed a response that was largely supportive of his lawsuit against the state — that the result is a tepid response. But a closer reading of the court documents shows that the attorney general is being anything but tepid in handling a case that he and the governor call a crucial constitutional challenge to the powers of the governor’s office. He has in fact left little doubt where he comes down on the question of whether the Legislature can force the governor to seek federal stimulus funds — and it is, once again, on the side of the state constitution.

It would be nice to live in a world where there is nothing remarkable — and certainly nothing praiseworthy — about an elected official taking a consistent, principled stand. Unfortunately that is not the world in which we live, and so I think it’s important to take note of the professionalism and integrity that Mr. McMaster has thus far demonstrated in a case that could help determine not only whether he becomes governor but also how much authority he has if he does.

I feel compelled to state very clearly that this is not an endorsement of Mr. McMaster’s gubernatorial campaign. Though I hope not, it would not surprise me terribly if — freed from the constraints he feels as an officer of the court — a Gov. McMaster morphed back into the irresponsible political hack he was back when he ran the state Republican Party and Mr. Harpootlian ran the Democratic Party. One of the challenges we face in the 2010 campaign is determining how likely that is to happen.

I’m sure my critics will say I support Mr. McMaster’s position because I think our state should accept the federal stimulus funds that we’ll pay for whether we get them or not. But I actually would prefer that the governor of South Carolina had more authority — in which case, we likely would have a very different type of person living in the Governor’s Mansion today, making this whole case moot. More significantly, whatever you might want the outcome to be, the fact is that Mr. McMaster is the only person who has put forth a legal argument in this dispute that makes any sense.

Mr. McMaster was thrust into the stimulus fight in March, when Senate President Pro Tem Glenn McConnell requested an attorney general’s opinion on whether the Legislature could request $700 million in federal funds that Mr. Sanford refused to request except under his own terms, which conflict with federal law.

His opinion, which was widely misinterpreted early on by practically everyone as saying it couldn’t, has pretty much driven the debate since then. In it, he spelled out what the Legislature needed to do in order to claim the money, and explained why chances were good (although not certain) that the state Supreme Court would side with the Legislature — which it all but did in a non-opinion opinion dismissing Mr. Harpootlian’s first lawsuit as premature.

The Legislature did precisely what Mr. McMaster suggested, and today Mr. McMaster is the named defendant in both the case filed by Mr. Sanford in which the governor seeks to avoid having to request the funds and the case filed by Mr. Harpootlian that seeks to force the governor to request the funds.

The court filings and legal arguments so far have been about which court should hear the cases, not about the merits. But sprinkled through Mr. McMaster’s filings are several clear indications that he’s not backing down from his analysis that while federal law appears on its face to require that funding requests come from governors, in fact the Legislature was perfectly free to pass a law requiring him to make that request.

In one motion in which there really was no need to spell out the state’s legal argument, the attorney general went out of his way to make the point that the federal law could be read not as empowering governors to request the money but rather as empowering the “State” to request it through the governor. He went on to note that “South Carolina has a representative government whose citizens speak through enactments of the General Assembly.”

Whether he likes that fact or not is irrelevant; it’s clearly true.

In the Life Sciences bobtailing case back in 2004, Mr. McMaster put forward the nuanced argument that essentially became the state Supreme Court ruling, which has led to a string of successive bobtailing cases that are going farther than most people realize to rein in the power of the General Assembly.

If, as is widely expected, the court rules against Mr. Sanford in the stimulus cases, he will have put forward the argument (and strategy) that reduces the authority of the governor’s office, not legally but effectively, by emboldening the Legislature.

In both cases, Mr. McMaster will have strengthened our state’s constitution, by giving it the defense it deserves, regardless of the political ramifications.

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

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