Cindi Ross Scoppe

Will an old law be read anew to super-empower SC governors?

SC Gov Henry McMaster
SC Gov Henry McMaster

THERE’S A certain logic to the argument that the governor ought to be able to name a temporary replacement for Sen. John Courson, who has been suspended from office since his indictment in mid-March on corruption charges.

After all, the governor names a temporary replacement if a U.S. senator dies or leaves office. The governor names temporary replacements for county officials and statewide elected officials if he suspends them from office.

Ah, but here’s where we get to that nursery rhyme about wishes and horses and beggars riding. There are so many things that ought to be the law, that we want to be the law, but that are not the law. And no amount of wishing can make them so.

I sometimes feel like my whole career involves writing about such things, and urging lawmakers to make them the law, since legislators are the people empowered by the constitution to change our laws.

But a lot of people aren’t content with relying on legislative bodies to write the law the way they want it written. So they urge courts to find new meaning in old laws. Sometimes — the most notable recent example was the U.S. Supreme Court’s same-sex marriage ruling — the courts say the law means something new because they believe the Constitution requires it to. Other times, the court re-interprets the law for reasons that have nothing to do with any constitution — reasons that seem sometimes legitimate and sometimes not.

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Cindi Ross Scoppe

That’s what happened last year in this very investigation: The state Supreme Court acknowledged that state law said only the attorney general could launch a State Grand Jury investigation but declared that the Legislature could not possibly have intended for it to say that, and so ruled that Solicitor David Pascoe could continue his legislative corruption investigation.

After that decision, I’m not about to predict how our court will rule on former S.C. Common Cause Chairman John Crangle’s lawsuit demanding that Gov. Henry McMaster replace Sen. Courson, or on another lawsuit that seeks a temporary replacement for state Rep. Jim Merrill, who has been suspended since his indictment in December.

What I will say is that both lawsuits seek to read an old law to mean something different than what we’ve always thought it meant: They ask the court to declare that state law gives governors far more power than Gov. Carroll Campbell thought he had during Operation Lost Trust, when 17 legislators were indicted on federal corruption and drug charges.

Lost Trust was extraordinarily disruptive, and while most legislators pleaded guilty — allowing the process of special elections to begin apace — several remained in legislative limbo while their cases played out. But Mr. Campbell never attempted to appoint replacements. And if you knew Mr. Campbell, you’d find it difficult to believe that he would have declined to use such power if he believed he had it.

The idea that the Legislature would allow a mere governor to appoint a legislator, even a temporary one, is simply laughable.

Mr. Crangle’s lawsuit attempts to get around this inconvenient truth by declaring that the law that he believes empowers the governor was passed as a reaction to Lost Trust. It wasn’t. The statute that his lawsuit says “was passed into law” in 1993 (8-1-100) was actually passed decades before that; it was amended in 1993, but only to add the introductory clause “Except as provided in Section 8-1-110,” which doesn’t seem to give the governor any new authority.

The attorney general offers several reasons he believes that 8-1-100 and 8-1-110 apply only to county and executive officers, and I think they make sense. But even if the law does give governors the power that Mr. Crangle says they have, there’s still a pretty big problem with his argument: the separation of powers doctrine in our state constitution.

It’s one thing for a governor to appoint a temporary replacement for a local official, since cities and counties are subdivisions of the state, or statewide elected officials, since they’re part of the executive branch. Or even a U.S. senator, since that involves a whole different government.

If we want to have a law like that, the appropriate way to get it is by persuading the Legislature to pass it.

But letting the governor appoint a temporary legislator would be no different than letting the Supreme Court appoint a temporary governor — or legislator. Or letting the Legislature appoint … well, that’s not a good example, since the Legislature empowers itself to do whatever it wants to do.

And that’s the ultimate flaw in this argument: Our constitution pretends that we have three co-equal branches of government, none of which may take on the duties of the others. In fact, the Legislature is more equal than the other animals, and the idea that it would empower a mere governor to appoint a legislator, even a temporary one, is simply laughable.

Should someone be empowered to appoint a temporary legislator when one is suspended and we have no idea when he might be either removed or reinstated? Perhaps; I’m agnostic about that.

But this I know: If we want to have a law like that, the appropriate way to get it is by persuading the Legislature to pass it. And don’t hold your breath waiting on lawmakers to give that power to a governor. Politically, and probably constitutionally, the only appropriate place for it to reside would be within the Legislature.

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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