Sunday, Aug. 02, 2009

Scoppe: My summer fantasy about the court, the Legislature and the governor

BEFORE THERE was the Mark Sanford sex scandal, there was the Mark Sanford stimulus scandal, which was brought to a close by a unanimous and decisive state Supreme Court ruling against the governor that was matched in its firepower only by the court’s unanimous and decisive ruling a month earlier against the Legislature.

Between them, those two high-stakes rulings — ordering the governor to request $700 million in federal stimulus funds as the Legislature required and striking down yet another bobtailing bill — might well have signaled something that will be remembered long after the governor’s indiscretions have faded from memory: the emergence of a high court that is becoming appropriately aggressive while (equally appropriately) remaining anything but activist.

Whatever you think of the underlying laws that were struck down or of the whole stimulus battle, this is a refreshing change for a court that for too many years played handmaiden to the Legislature that controls its budget, selects its members (traditionally from its own ranks) and hauls them back in for re-examination every 10 years. And it got me thinking about the possibilities.

I write a lot about how our state would be different if we had an empowered executive. But what if we had a court that was consistently bold? Not just uncowed, but aggressively defensive of our state’s constitution.

Could such a court do what Gov. Sanford has made a rallying cry and what our editorial board and pretty much every serious student of government in a century has recognized is essential to our state’s progress? Could it dismantle The Legislative State?

Now, before we go any further, let me stress that I do not have any insider information on some sort of grand plan within the court. This is merely whimsical speculation.

But the fact is that South Carolina owes its status as The Legislative State in large part to practices that are at best constitutionally suspect: The Legislature controls essential executive functions through a constitutionally offensive five-member board that has no like nationally; it controls what happens in local communities through clearly unconstitutional local laws; and it does this while neglecting many of the duties a legislature is supposed to perform.

An argument could be made that the Legislature still dominates pretty much all aspects of public life in our state not just because our Legislature has chosen to do so but also because 1) no one has filed the right lawsuits and argued them in the right way and 2) the court has been too willing to pass on those challenges that could shatter this legislative hegemony.

Consider the suit filed last year by Ed Sloan challenging a handful of laws that clearly violate the constitution’s unambiguous prohibition on laws that affect only one county. The 2008 court (which is not to be confused with the court that ruled on the stimulus and bobtailing cases this spring, or with the one we have today) declined to hear those challenges because Mr. Sloan did not live in any of the counties covered by the laws. Now, a court that was bold about defending the constitution could have decided that anyone in the state has standing because the passage of these laws undermines the governmental system in our entire state, and not just in the named counties.

Still, a string of successive retirements is changing the court, and even the one we had in 2008 — and for years before that — was consistent to the extreme in striking down these one-county laws once it actually considered them. It should be an easy enough thing to recruit defendants who do live in those counties.

So what could my constitutional fantasy produce? A far different state, that’s what.

A Legislature that was forced to comply with the state constitution on all counts would not be the dominant force that this one is.

Take away the power of individual legislators to tailor laws to their home counties, and you erode their power base, forcing them to pay more attention to their constituents’ concerns on state issues. You also allow city and county councils to mature into fully empowered governments, with all the responsibilities that entails. You give legislators more time to focus on their actual jobs of setting policy and providing oversight of agency operations that is so desperately needed. And you give them less cover when they don’t do these things.

Take away the ability of two powerful legislators to overrule the governor on the day-to-day operations of state government, and to micromanage any sensitive programs the Legislature chooses to house in the hermaphroditic Budget and Control Board, and you go a long way toward letting the executive mature, and take on the duties and responsibilities it should have.

That’s not as out of the question as it might seem. Although the Supreme Court declined to hear a 2007 case that directly took on the constitutionality of the Budget and Control Board, legal scholars I talked to said the lawsuit was little more than a political propaganda piece. Get some serious constitutional lawyers to bring suit, and the court could easily conclude that a board where two legislators need the support of only the treasurer or comptroller general to disempower the governor on bond issues, procurement rules and the day-to-day operations of the Confederate Relic Room (really!) is injecting legislators into executive business, in violation of the separation of powers clause.

Even the ruling that is the basis for what Sanford supporters absurdly called a further weakening of the executive branch could undermine legislative supremacy — by pointing legislators to their proper role as legislators. This might be a stretch, but there’s a small group of us who are coming to believe that a big reason the Legislature insists on meddling in all these non-legislative areas is that no one has ever sat it down and explained to it what it is that a legislature is supposed to do.

In its ruling ordering Mr. Sanford to comply with the law legislators wrote ordering him to apply for federal funds, the Supreme Court went further in doing that than anyone ever has. If lawmakers were paying attention, then perhaps the only thing standing in the way of our Legislature giving up its inappropriate actions and taking on its actual duties is Mark Sanford.

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

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