Cindi Ross Scoppe

Was Leatherman out of line? History says no

SC Senate President Pro Tem Hugh Leatherman
SC Senate President Pro Tem Hugh Leatherman

I GET WHY most Senate Republicans tried last week to keep Sen. Hugh Leatherman from reclaiming his position as president pro tempore after he stepped aside to avoid filling the vacancy in the lieutenant governor’s office.

Even without the extra authority that comes with the Senate leadership post, Mr. Leatherman has tremendous power as chairman of the Senate Finance Committee. And that bothers a lot of Republicans because he frequently strays from Republican priorities and orthodoxy.

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Leatherman re-elected to lead SC Senate

Senators elect Kevin Bryant to ascend to lieutenant governor

Senate leader Leatherman resigns to avoid becoming lieutenant governor

Suddenly, intrigue over an office of little intrigue

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But when critics reverentially invoked former Sen. Glenn McConnell as the model for how a president pro tempore is supposed to act — when they asserted that humbling himself to take on the role of lieutenant governor was the honorable thing to do, was in fact the one thing the constitution required of a president pro tempore — they were conflating morality with power politics.

They were also ignoring state history.

Love him or hate him, the historical anomaly here was not Mr. Leatherman. It was Mr. McConnell.

As S.C. Solicitor General Bob Cook explained this month in a brief in the lawsuit over how a vacancy is filled, the state constitution “appears to have provided the basis throughout this state’s history for no automatic acceding to the position of Lieutenant Governor by the President Pro Tem of the Senate.”

In fact, aside from Mr. McConnell, Mr. Leatherman came closest of anyone in more than a century to respecting the goal of the constitution: Like John Courson in 2014, he acted to make sure the office of lieutenant governor would not remain vacant.

According to the Legislative Manual, only two presidents pro tempore before Mr. McConnell gave up their positions to become lieutenant governor: Robert Scarborough in 1899 and W.H. Timmerman in 1893.

Throughout the 20th century, when the office became vacant, Senate leaders let it remain vacant, for periods ranging from seven months to two years.

At first glance, the constitution seems clearly to require the president pro tempore to fill the vacancy. The Senate, it says, must elect a president pro tem “to act in the absence of the Lieutenant Governor,” and a senator “acting as Lieutenant Governor shall thereupon vacate his seat.”

But the language is much different when it comes to filling a vacancy in the governor’s office. Then, the constitution says, the lieutenant governor “shall be Governor.” And over the years, several attorneys general have concluded that the framers of the constitution must have made a deliberate decision to use different language.

So whether a president pro tempore had to become lieutenant governor always revolved around whether he was “acting” as lieutenant governor — and Senate leaders made sure not to do so.

The most dramatic example of this came in 1965, when Gov. Donald Russell resigned so Lt. Gov. Bob McNair could become governor and appoint him to the U.S. Senate. As Mr. Cook recounted in his brief, the legendary Sen. Edgar Brown went so far as to refuse to “act on” the resignation letter of a fellow senator, instead holding the letter as “information” so as to avoid triggering the mandate to give up his own Senate seat. The senator remained in limbo for two years, while the office of lieutenant governor remained vacant.

That was an encore performance by Mr. Brown: In 1945, Gov. Olin Johnston resigned to become U.S. senator, making Lt. Gov. Ransome Williams governor. And a much younger Sen. Brown, just three years into his 30-year rein as president pro tempore, allowed the position to remain vacant for two years.

The office also remained vacant from 1941 to 1943 when Sen. Richard Jefferies refused to become lieutenant governor after Gov. Burnet Maybank resigned to become U.S. senator and Lt. Gov. Joseph Harley became governor. But when Mr. Harley died less than four months later, Mr. Jefferies either considered the job of governor worth giving up his Senate seat or, more likely, felt compelled by the “shall be” language, and served the remaining 10 months of the governor’s term.

In 1922, Sen. Alan Johnstone asked Attorney General Samuel Wolfe whether he had to become lieutenant governor after Lt. Gov. Wilson Harvey replaced Gov. Robert Cooper, who had resigned. Mr. Wolfe cited the “act as” language and also concluded that the senator would not be lieutenant governor until he took the oath of office, which Sen. Johnstone refused to do, leaving the office vacant for the remainder of that year.

Is it fair to say that those earlier presidents pro tempore chose to “enjoy the powers and rights inherent in that office, yet avoid the discharge of the essential constitutional duty that goes along with enjoying those rights and powers,” as Sens. Tom Davis and Chip Campsen said of Mr. Leatherman? Well yes. But that doesn’t seem quite the same as a question of morality, honor or duty.

It never made sense to me to believe that the framers of the constitution set out to force Senate leaders to give up their positions; more likely, it seemed, they simply wanted to make sure we had a clear line of succession, should the office of governor become vacant. I rather imagine they would have approved of the creative solution devised by Sen. Courson and perfected by Sen. Leatherman.

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Courson resigns SC Senate leadership post in spat with Lt. Gov. McConnell

McConnell should make one more sacrifice: See out the session

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Whatever their intention, we finally have a better solution in sight: Starting with the 2018 election, gubernatorial candidates will select their running mates, and if something happens to the lieutenant governor, the governor will select a replacement.

So assuming new Lt. Gov. Kevin Bryant remains in good health and good legal standing and doesn’t get any better offers in the next two years, this is the last time a Senate leader will have to decide whether to give up an important position for a largely ceremonial post.

Ms. Scoppe writes editorials and columns for The State. Reach her at cscoppe@thestate.com or (803) 771-8571 or follow her on Twitter or like her on Facebook @CindiScoppe.

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