Cindi Ross Scoppe

What a difference an amendment can make

I DON’T KNOW that removing legislators’ secret veto power over the governor’s appointments to the state Transportation Commission gets us any closer to the “last resort” that Henry McMaster has set as a bar for raising the gas tax. But House leaders seem to think it could make him look more favorably on their plan to shift the burden of paying for our roads toward drivers from other states.

It ought to. Particularly if he understands what a joke senators made of last year’s “reform,” which pretended to give the governor the power that legislators used to have to appoint the commissioners.

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Panel: Raise gas tax by $60 a year

Why we still need reform at the SC Transportation Department

How to improve the House gas tax proposal

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The amendment that the Ways and Means Committee unanimously added to House Republican Leader Gary Simrill’s road-funding bill changes who confirms the governor’s nominees — from the legislators who live in the congressional district they represent to the entire Legislature. It also removes the requirement that those same legislators sign off before the governor removes an appointee. And that means a governor could actually appoint commissioners who make wise decisions about how to spend our limited road funds.

That’s a big enough deal to outweigh concerns about giving another $600 million a year to a commission that, controlled by legislators, made its decisions based on parochial horse-trades rather than the needs of our state.

It might even be significant enough to overcome concerns about the way the bill raises money to prevent our badly neglected road system from disintegrating under our axles.

To understand why, consider magistrate appointments.

Technically, the governor appoints magistrates, and the Senate confirms (or rejects) them. But by tradition, the Senate confirms county magistrates if the county’s senators want them confirmed; if the senators don’t want a magistrate confirmed, there’s never even a vote. So a long time ago, governors figured out they should just let the senators pick the magistrates. Senators send their choices to the governor, who officially appoints them, whereupon the Senate confirms them.

It works the same way with local governing commissions: They’re technically appointed by the governor, but only after the local legislators tell the governors who to appoint. This system is so engrained that most people don’t even realize that it is the governor instead of the county legislative delegation who makes the appointments — as we were reminded last year, when Richland County legislators had to come as supplicants to the governor, asking her to remove the disasters they had earlier asked her to appoint to the Recreation Commission.

This is the model Senate leaders insisted on last year when they finally agreed to let the governor appoint transportation commissioners. But instead of following this model by tradition, it’s written into state law: The governor appoints a commissioner from each congressional district, but the nominee doesn’t even get a confirmation vote unless the legislators who live in that district decide there will be a vote. If they don’t vote within 45 days, the law says, “the appointee is deemed to have been disapproved.”

Presidents occasionally do something like that, called a pocket veto. But when a bill gets vetoed without a veto message, we know who’s responsible. When legislators “veto” a gubernatorial appointment without a vote, we don’t know who objected. And we all know that secrecy tempts lawmakers to do things they wouldn’t dream of doing in public view.

This provision alone tells commissioners that they are at least equally beholden to legislators as to the governor. And the removal procedure — the governor may only remove a commissioner if those same legislators agree — turns them into lieges of the local legislators.

I can’t say for sure that legislators will take over the Transportation Commission appointments the way they took over appointments of magistrates and local boards. After all, those appointments involve legislators from a single county; here, although one of the congressional districts has only two counties, others have 10 or more. And more legislators involved increases the chance that someone would speak up if an appointee is railroaded because some legislators think he might be more interested in the state’s needs than their pet projects.

Of course, a public objection would only make a difference if a governor insists on picking his own people to serve on the commission, rather than the people legislators “suggest.” In fact, if the law isn’t changed, one of the first important decisions Gov. McMaster will have to make about his relationship with the Legislature is how to play this game: Will he appoint people who put the state’s interests first, or people who put powerful legislators’ interests first?

Likewise, I can’t say for sure that a standard confirmation process will prevent legislators from doing more than advising and consenting or rejecting. Powerful legislators will always have an outsized role in confirmation if they want to.

But getting more legislators involved in the vetting reduces the chance that it will be so secretive, and ripe for abuse. And over time, it should mean that legislators don’t feel quite so proprietary about the commissioners who, up until now, they actually did appoint.

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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