Wednesday, Jun. 24, 2009

Scoppe: A refreshing uptick in constitutional behavior at the State House

PERHAPS it’s true, as Senate President Pro Tem Glenn McConnell is so fond of saying, that there’s no education in the second kick of a mule. But the third kick seems to have put some learning into the Legislature — at least temporarily.

For all the hoopla over the Supreme Court’s decision ordering the governor to obey state law, it’s the court’s other decision involving legislative power — in which it, once again, told the Legislature it couldn’t resort to bobtailing to pass laws — that has the potential to have lasting effect on our state.

The governor and his allies have been working overtime to convince everyone that there was something extraordinary about the ruling in Edwards v. South Carolina. But the only thing extraordinary about that case was that someone had to file a lawsuit in order to force a governor to obey state law.

On the other hand, there’s nothing extraordinary about the Legislature ignoring the state constitution. What’s extraordinary here is that the court finally said “enough” — and that the Legislature seems to be listening.

This was the first session I can recall in 21 years of covering the Legislature that wasn’t marked by a mad rush to pass controversial bills by tacking them onto unrelated bills at the last minute. This practice, known in most places as logrolling and here in South Carolina as bobtailing, has been a favorite target of Gov. Mark Sanford, and although the Supreme Court has done the heavy lifting, it could be the most important thing he’s remembered for.

Bobtailing circumvents the normal vetting process, shutting the public, and oftentimes legislators themselves, out of the law-writing process, because only the closest of observers even realize what’s going on until it’s too late. That secrecy is an invitation to corruption. When it’s done in the open, it violates good-government principles as well, thwarting majority rule by allowing several small groups of legislators to essentially trade off votes and pass laws that never would make it if they had to stand on their own.

The state constitution’s single-subject rule leaves room for some such vote trading. Pretty much any kind of tax measure, for instance, can be added to a bill dealing with taxes, if it’s written carefully enough, and the whole state budget revolves around the sort of trade-offs that characterizes bobtailing. But legislators have never been content to confine themselves to constitutional bobtailing. Until now.

The governor’s office, which bird-dogs legislation for bobtails better than anyone, could name only two bills that were loaded down with unrelated matters — and one of them was a close enough call that Mr. Sanford signed it anyway. (The other, whose veto the Legislature overrode last week, combined a new restriction on performance-enhancing drugs for polo horses with a restriction on who can appeal permits for livestock and poultry operations.)

Sanford spokesman Joel Sawyer suggests that this simply reflects a do-nothing session, and that is certainly part of it: With all that political energy going into the stimulus fight and, to a much lesser extent, payday lending, lawmakers didn’t get too worked up about much anything else.

But that’s not a complete explanation. The House — and the Realtors — certainly wanted to make sure that no one with rapidly appreciating property ever paid their fair share of property taxes, by extending the 15 percent cap on assessment increases even to property that had just been purchased. And no one tried to bobtail that.

Former Sanford chief of staff and now Sen. Tom Davis, who has been decrying the Legislature’s refusal to obey some pretty clear Supreme Court rulings on separation of powers, thinks it’s just a temporary pull-back after the court’s blistering bobtailing ruling in May. Sort of like how speeders slow down immediately after they get a ticket and then, over time, return to their normal behavior. And I’m sure there’s some truth to that theory, as well.

But so little positive came out of this year’s legislative session that this is worth celebrating. Besides, I’d like to think the court finally made itself heard.

Of course, the court was pretty loud this time.

In its first two bobtailing rulings, in 2005 and last year, the court carefully excised the offending sections of bobtailed bills but let the parts that were original to those bills, or that were reasonably related to them, remain law. The first ruling didn’t slow lawmakers down a bit. And last year, the Legislature responded — within hours after the court released its order by passing another clearly unconstitutional bill — tacking a gun tax holiday onto a sales tax holiday for energy-efficient appliances that already had attached to it a provision requiring oil companies to sell “unblended” gasoline so distributors could make money adding ethanol to it themselves.

So this year, the court said it would no longer separate the wheat from the chaff, and it threw out the entire bill. More significantly, it put the Legislature on notice that a similar fate awaited any new bobtailed legislation.

That was a heavy-handed move that nearly amounted to the court announcing that it would no longer do its job. But at least for now, it seems to have worked, and if the Legislature continues to keep itself out of court by obeying the constitution, it’s hard to see how anyone could complain about the justices’ warning.

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

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