IF THERE’S ONE thing we can always count on our Legislature to do, it’s provide drama in the most undramatic of places. Latest example: who assumes the all-but-meaningless position of lieutenant governor when that all-but moment occurs and the lieutenant governor becomes governor.
Until recently — which is to say, in all those times in the past 50 years when it didn’t matter a whit — the answer was undramatically obvious, spelled out in the state constitution: The Senate president pro tempore becomes lieutenant governor. Indeed, the printed copy of the constitution suggests that is the very reason the Senate is to elect a president pro tempore, which might surprise occupants of that powerful position. (“The Senate shall as soon as practicable after the convening of the General Assembly choose a President Pro Tempore to act in the absence of the Lieutenant Governor.”)
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But then in 2012 the Legislature very wisely asked voters to let gubernatorial candidates pick their running mates, rather than having us elect the lieutenant governor separately, and the voters very wisely said yes, and the Legislature … well, the Legislature was less than careful in writing the bill that completes the constitution-amending process.
You know, as it seems to be far too often. Like when lawmakers passed a law to require elected officials to file financial disclosure statements electronically but failed to notice that it also applied to candidates, and no one else noticed it either, until the Supreme Court ruled that 250 of them hadn’t filed properly and kicked them off the ballot. Or when lawmakers accidentally made it legal for 18-year-olds to have sex with 14-year-olds. Or when they accidentally legalized video gambling.
Clearly, some accidents aren’t accidents but the result of devious legislators pulling fast ones on their insufficiently attentive colleagues. But the lieutenant-governor mistake was pure carelessness, and besides, it will probably all work out just fine. And even if it doesn’t, it’ll still work out just fine, because, really, what does it matter whether we even have a lieutenant governor? Well, except on those rare occasions when it does … like if something were to happen to Henry McMaster once he ceases being lieutenant governor and becomes governor.
So, where were we? Oh yes, the 2012 Legislature figured that if future governors were going to pick their lieutenant governors, it wouldn’t make sense for a vacancy in that office to be filled by the president pro tempore; the governor should simply select someone new. And this would start in 2018.
Unfortunately, the bill the Legislature passed to ratify the constitutional amendment didn’t include the part about the governor not filling a vacancy until 2018. It’s clear from the text that legislators meant for it to say that, but it doesn’t say that. So the online version of Section 11 of Article IV of the South Carolina Constitution says if the office of lieutenant governor becomes vacant, the governor fills that vacancy. Which everyone agrees it shouldn’t say, but does. Just like all those laws that weren’t supposed to be laws, but are.
The old language, in the printed version of the constitution, is in the photograph above
None of this would matter if President-elect Donald Trump hadn’t picked Gov. Nikki Haley to be his ambassador to the United Nations. It wouldn’t matter, for that matter, if Senate President Pro Tem Hugh Leatherman hadn’t said he won’t fill Mr. McMaster’s seat — and strongly suggested that he wouldn’t let some other senator take his position long enough to become lieutenant governor. Because barring an objection by Mr. McMaster — who so far has been far too wise to express an opinion on this matter — I can’t think of anyone our Supreme Court would have granted standing to challenge the usual succession procedure.
But Mr. Trump did and Mr. Leatherman did, and so here we are, in the middle of another State House drama. And not a particularly significant one, since I feel confident that, if it were asked and agreed to answer, the Supreme Court would say the constitution says what the Legislature clearly intended it to say.
What’s potentially significant is the question of what happens if the president pro tempore refuses to do what the constitution says he “shall” do: Would anyone ask the Supreme Court to force him to either become lieutenant governor or quit being president pro tempore? Is there anyone the court would even grant standing to bring such a suit? Would the court actually tell the person who controls its budget that he has to do something he is determined not to do? If so, how would it enforce that order?
And what would it say about the rule of law to have the state’s most powerful politician in open defiance of it?
But as the ever-coy Mr. Leatherman said last week, we’ll cross that bridge when we come to it.
Meantime, let us hope that the current drama results in severe institutional embarrassment, because our Legislature really needs to learn that details matter.
Just as we have a lieutenant governor to make sure we’re covered on the extremely remote chance that we ever need one, we need our lawmakers to get the details right in bills to make sure we’re covered on the less remote chance that … we need to be.
Ms. Scoppe writes editorials and columns for The State. Reach her at firstname.lastname@example.org or (803) 771-8571, or follow her on Twitter or like her on Facebook @CindiScoppe.