Is state lawmaker raise constitutional? SC Supreme Court ponders in-district pay
A question over whether a lawmaker pay raise to help cover the cost of in-district expenses is constitutional is now in the hands of the state Supreme Court.
The state Supreme Court on Wednesday heard arguments over whether lawmakers can increase compensation for in-district expenses in the middle of their term. The court did not give a timetable for its decision.
Ultimately, the case comes down to a narrow question of what’s the definition of what qualifies as a “per diem.”
The state constitution says “no General Assembly shall have the power to increase the per diem of its own members.”
“In Scarborough, the court said the term per diem is used in connection with compensation, wages or salary, means pay for a day’s services,” Justice George James said referring to a previous case on lawmaker pay.
Lawmakers are paid $260 per day for 40 legislative days for a $10,400 salary. They also receive a per diem for traveling to the State House in Columbia to cover meals and the cost of a hotel. Before the lawsuit, lawmakers also received $1,000 a month as in-district compensation.
As part of this year’s state budget, lawmakers included a $1,500-a-month increase for in-district compensation meant for expenses of being a legislator while in the district and away from the State House.
Lawmakers argued the increase to $2,500-a-month from $1,000-a-month was needed to keep up with the costs of inflation. The in-district compensation was last changed in the mid-1990s.
Carol Herring, a retired educator who lives in York County, and State Sen. Wes Climer, R-York, who is also running to succeed U.S. Rep. Ralph Norman in the 5th Congressional District, sued to stop the pay raise. The state’s highest court halted all in-district compensation as it considers the case, keeping lawmakers from even receiving the $1,000-a-month they previously were paid for in-district expenses.
Climer and Herring’s lawyers argued the pay raise should go into effect in January 2027 after the election of the next General Assembly, rather than legislators giving themselves a pay raise in the middle of their own terms.
The pay for in-district compensation is taxable, and lawmakers don’t have to provide receipts or details of how the money is used.
“They’re free to spend personal expenses that they don’t have to account for in any way, that they won’t have to treat in any way differently than, you know, their personal income,” said Phillip Barber, an attorney for Climer and Herring.
Ken Moffitt, an attorney for the state Senate said the in-district compensation is for expenses incurred by lawmakers while at home, such as hosting town halls, attending constituent events, traveling to county, city or town council meetings. Lawmakers have said they use the money to buy stationary or even frame resolutions for constituents.
Moffitt, however, argued having the provision for in-district compensation is not meant to be a workaround to give lawmakers a raise.
But Justice James gave a different outlook.
“It doesn’t have to be used for expenses, you can use it for your mortgage payment, you can use it for your car payment. You can use it for anything you want. So, it is a workaround to increase compensation,” James said.
Moffitt said that is not the intent of the proviso, and added the provision has to be taken in the context of the state budget. The money comes from a line that is appropriated for expenses.
“These guys go home, and they experience an increase in expenses in the same way that we all have, prices have risen, and the proviso reflects that,” Moffitt said.
Chief Justice John Kittredge said the court understands the effect of inflation and how the jobs of lawmakers includes responsibilities outside the State House and outside the legislative session.
“We know that it’s not what it was a generation ago. It is essentially year-round service. We’re also very aware, as everyone in courtroom is, about the effects of inflation. So on the policy point, you’ll get no pushback,” Kittredge said. “It’s just a matter of whether this was done through an appropriate and constitutionally proper vehicle.”
Justices also appeared to signal how to fix the dispute by indicating the proviso should say “expenses” rather than “compensation.”
“The problem is, if the word expense were here in the proviso 91.13, I doubt would be here. But somehow we’re supposed to engraft and impute and infer that this is limited to expenses, and there’s not a hint of it in the language. And that’s a concern I have,” Kittredge said.
