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A ban on bans: Are SC legislators killing local control as favor for Big Business?

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For nearly an hour Wednesday, S.C. House members debated a bill to ban local governments from passing more regulations on cigarettes and vaping products.

In the end, the ban on more local regulations passed, 69-37, on second reading. The bill still requires a third reading, which is normally perfunctory.

It is not the only debate likely this legislative session about limiting the control that local governments — cities and counties — have over local issues.

S.C. lawmakers have been “unusually active the last three years” stepping on the toes of cities and counties, said Lynn Teague of the League of Women Voters, trying to limit how cities and counties regulate a variety of activities — from cigarettes and vaping to plastic bags to billboards to poultry farms.

Why the push for statewide rules, rather than local ones?

Big businesses want them, critics say. And they are willing to spend big bucks in the Legislature to get their way.

Uniform statewide rules are needed to protect retailers, consumers and commerce from a patchwork quilt of rules that differ from town to town, some lawmakers and businesses argue.

However, opponents argue the pre-emptive statewide rules, imposed by legislators in Columbia, rob local communities of their authority to control local issues.

“There does seem to be this ongoing trend to preempt authority on the local level,” said Tigerron Wells, director of governmental affairs for the Municipal Association of South Carolina, which represents cities and towns.

“Oftentimes, a corporate interest (prefers) to go to the state level to preempt and secure their ability to operate freely when there’s a possibility local authority could be used in a way they don’t like.”

Supporters say the tobacco bill, which now goes to the state Senate, would prevent a patchwork of varying regulations across the state. They also argue another proposed tobacco bill — to curb teen smoking by making it illegal for anyone under 18 to enter a vape shop statewide without an adult — is a state priority that requires a broad, cohesive approach that supersedes local regulations.

”What the bill is doing is saying, ‘Hey, we understand that each and every one of us in our communities has problems with what’s going on, mainly with underage smoking,’ “ said state Rep. Nathan Ballentine, R-Richland. “We know it’s an epidemic. Let’s address it, and let’s not pass the buck and put it on our local governments.”

But preempting local ordinances infringes on the authority of cities and counties, critics contend.

“The reality is that not one size fits all,” said Michael Kent Lesesne, senior staff attorney with the S.C. Association of Counties, which represents counties.

Still, even opponents of state dictates to local governments say businesses are smart to try to persuade legislators to preemptively trample local laws.

If businesses succeed, they can fight an issue once — in the State House — rather than in hundreds of city halls, the Municipal Association’s Wells said. But, he argues, local ordinances that reflect what community members want — not legislators in Columbia — “should carry the day.”

The rise of Home Rule

Before 1975, the issue of local control over local issues was moot in South Carolina. S.C. counties were run by state legislators. But, in 1975, the Legislature passed the Home Rule Act, allowing counties to govern themselves.

The idea was championed by former S.C. Gov. Dick Riley as a legislator in the early 1970s. Voters approved the reform in a 1972 referendum, and the enacting legislation was passed in 1975.

The act was meant to limit state influence in local affairs. It gives local governments the power to pass regulations and ordinances, including “in relation to roads, streets, markets, law enforcement” and “for preserving health, peace, order, and good government.”

The only caveat was local laws could not interfere with the state Constitution and state laws. But, the Home Rule law says, the “powers of a municipality shall be liberally construed in favor of the municipality.”

Over time, however, state legislators have eroded away the power of local governments.

For instance, legislators restrict the type and amount of taxes that counties and cities can levy. At the same time, legislators require local governments to abide by more and more mandates set by the state, Riley said.

Banning tobacco bans

Take the House tobacco bill.

Local rules regulating tobacco just are a bad idea, says Fred Allen, a lobbyist for cigarette-maker Reynolds American Tobacco. The result of local rules, Allen says, would be a “hodge-podge” of regulations that cost retailers business, force customers to drive out of their way to buy products they want and a drop in the state’s tax revenue from tobacco.

And the opinions of Reynolds American Tobacco are not without clout in the Legislature.

Last year, the cigarette-maker spent $147,505 to influence S.C. lawmakers, including giving nearly $59,000 in contributions to elected officials, according to the state Ethics Commission.

The S.C. Petroleum Marketers Association, which also supports the tobacco bill, spent another $58,000 in 2018 to lobby lawmakers. The association, which represents convenience stores, also contributed $71,000 to S.C. candidates and political committees last year, according to disclosure reports compiled by the National Institute on Money in Politics.

Opponents of statewide regulation of cigarettes and vaping also spend money to influence legislators.

Two opponents, the Municipal Association and the Association of Counties, spent a total of $343,665 to influence lawmakers in 2018. The Municipal Association also donated $3,500 each to state Senate’s GOP and Democratic caucuses, as well as $1,000 to the House Democratic caucus.

Local governments object that rules on similar business transactions — Sunday alcohol sales, for example — already vary from one jurisdiction to another.

Confusingly, just as legislators consider taking powers from counties on tobacco regulation, they are considering giving counties more authority over liquor sales. A S.C. House bill would allow 10 tourism-heavy counties to decide whether they will allow Sunday liquor store sales.

“So, some of this is disingenuous,” state Rep. Beth Bernstein, D-Richland, said of the back-and-forth debate over local vs. state control.

For her part, Bernstein is sponsoring a bill this year to make it illegal for anyone under 18 years old to enter a vape shop statewide without an adult.

Lobbyist Allen says cigarette-maker Reynolds supports Bernstein’s bill as well as a proposal by House Democratic Minority Leader Todd Rutherford, D-Richland, to raise to 21 the minimum age statewide to buy tobacco products.

“Reynolds is firmly committed to more restrictive youth-access measures,” Allen said.

But, he added, differing local rules would create an “uneven” marketplace.

Michael Fields, with the S.C. Petroleum Marketers Association, agrees.

The tobacco bill is sponsored by Rutherford and GOP House Majority Leader Gary Simrill, R-York. Both have received campaign contributions from Reynolds American and the Petroleum Marketers in recent years, according to disclosure reports.

“This bill simply levels the playing filed statewide” for retailers, Rutherford said during House debate.

And if cities and counties don’t like it? Well, Rutherford said, “It is our right to do so as we created cities and counties.”

However, state Rep. Micah Caskey, R-Lexington, who also received contributions from Reynolds and the convenience store lobby last year, disagreed.

“A good law would be to say, ‘These are the rules,’ ” Caskey said. “But, instead, we’re saying, ‘No, you can’t make rules because we don’t want to step into that territory at risk of offending our friends in the lobby.’

“Where the city has an ability to do such a thing, we cannot then step in and take that power away.”

But the House decided it could.

Banning plastic bag bans

Last year, legislators attempted a similar override of local rules when the House approved restrictions on local governments banning single-use plastic bags. The bill died in the state Senate, and some local S.C. governments since have extended their plastic bans to cover other items, including straws.

Supporters of banning local governments from banning plastic bags say differing local regulations will lead to higher costs for businesses, hitting small business especially hard.

“(A)nd it’s confusing to consumers,” said Matt Seaholm, executive director of the American Progressive Bag Alliance, which represents plastics manufacturers. “If (plastic products) really pose any sort of issue, the state can address that.”

However, supporters of plastic-bag bans say local communities should be allowed to make those decisions themselves.

More than a dozen cities and counties, primarily along the state’s tourist-heavy coastline, have passed plastic-bag bans, joining a national movement aimed at reducing plastic pollution that kills wildlife and litters roads, waterways, beaches and forests.

Communities that enact plastic bag bans almost always do so after working with grocery stores and other businesses that rely on them for a smooth transition, said Emily Cedzo, a lobbyist with the S.C. Coastal Conservation League, which supports banning plastic bags.

“We’ve had decades of litter campaigns … but it’s not been enough, and you’re seeing communities who see that and want to find a more effective solution,” Cedzo said.

Bob Guild, an environmental attorney from Columbia, says the proposed ban on plastic bag bans was a legislative effort to pander to Novolex, a plastic bag manufacturer headquartered in Hartsville.

The company employs about 10,000 at 62 manufacturing plants worldwide, and contributes $34.6 million a year to South Carolina’s economy, according to the American Progressive Bag Alliance.

That alliance has spent about $88,000 over the last two years lobbying S.C. lawmakers to ban local plastic bag bans. It has been supported in that effort by the S.C. Retail Association, S.C. Manufacturers Alliance and S.C. Chamber of Commerce.

That compares to about $132,000 spent last year on state lobbying by S.C. conservation groups.

But others are spending to influence legislators on the issue, too.

Plastic bag-maker Novolex has donated $35,250 to S.C. candidates and political committees since 2015, including $29,500 to the House and Senate Republican caucuses, according to disclosure reports. The company also gave $1,500 to the S.C. Senate Democratic Caucus last year.

Also, Sonoco Products Co., a packaging company also based in Hartsville, has donated another $16,000 to candidates and political committees since 2015, including $1,000 to House Speaker Jay Lucas, R-Darlington, and $13,500 to the House GOP Caucus.

Lucas, who district is home to Novolex and Sonoco, introduced legislation in 2016 to protect the plastic bag industry. However, Lucas’ office said the powerful speaker is not interested in such legislation this session.

A Novolex spokesperson did not return a phone call seeking comment.

‘Game of whack-a-mole’

This year, the plastics industry group is supporting a bill introduced by state Sens. Wes Climer, R-York, and Scott Talley, R-Spartanburg.

Their proposal would roll back existing local plastic bag bans and prohibit future restrictions on bags, bottles, packaging, and other disposable or reusable containers.

“My view is no municipality should be able to ban any consumer good for any reason. Period,” Climer said. “I don’t believe that is an appropriate function of a municipality.”

Climer does not buy into the argument that big business buys influence with legislators through its lobbying expenditures and campaign contributions. “That is a loser’s argument for people who … rely on ad hominem attacks that gets at motivation rather than the substance of the issue.”

At the same time, however, Climer says the state unfairly “micromanages municipal finance.”

“As a state, once Home Rule was passed, it was passed without giving real definition to the size of the municipal sandbox,” he said. “(W)hat you’re seeing now is this game of whack-a-mole, where everyone’s sort of testing those limits.

“Ultimately, that wastes a lot of time that really ought to get spent on giving fair, reasonable definition to the powers of the municipality and the powers of the state.”

After that is done, said Climer, “Everybody ought to stay out of each other’s way.”

Teague of the League of Women Voters agrees boundaries are needed.

“I see why the temptation is there for the General Assembly to intervene at times,” she said. “But we need a firm understanding of where that boundary falls.”

This story was corrected to reflect a S.C. House bill that prohibits local governments from enacting laws related to the ingredients, flavors or licensing of tobacco and vaping products still requires a third, normally perfunctory vote.

Staff writer Bristow Marchant contributed to this article.
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Tom Barton covers South Carolina politics for The State. He has spent more than a decade covering local governments and politicians in Iowa and South Carolina, and has won awards from the S.C. Press Association and Iowa Newspaper Association for public service and feature writing.


Avery G. Wilks is The State’s senior S.C. State House and politics reporter. He was named the 2018 S.C. Journalist of the Year by the South Carolina Press Association. He grew up in Chester, S.C., and graduated from the University of South Carolina’s top-ranked Honors College in 2015.


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