THE WEDNESDAY before the Wednesday before this year’s regular legislative session ended might turn out to have been the House’s most productive day all year.
In nine hours that stretched into the wee hours of Thursday, representatives passed at least a dozen significant changes to state law, including some of the hottest topics of the session. Among them were measures to:
▪ Cut the legs out from under SCE&G’s efforts to keep charging ratepayers for the abandoned nuclear reactors, by defining “prudent” as it applies to decisions to keep constructing nuclear reactors.
▪ Require utilities to purchase more rooftop solar power from their customers.
▪ Require utilities to consider cheaper ways of procuring the electricity it sells.
▪ Require colleges to use a controversial definition of anti-Semitism in disciplinary matters.
▪ Defund family-planning programs that are affiliated with abortion providers.
▪ Make it easier to shut down some charter schools.
▪ Abolish a program that was designed to discourage double-dipping among state employees.
▪ Empower the attorney general to crack down on sanctuary cities, should any crop up in South Carolina.
The House had already passed many of those measures as stand-alone bills, but on May 2, with little or no advanced warning, it incorporated them into the state budget. And suddenly they were not simply bills, which can die in subcommittee without so much as a hearing, and even if they escape to the Senate floor, are unlikely to become law without the acquiescence of two-thirds of the Senate.
In that single orgy of productivity, they had been transformed from mere mortal bills into budget provisos, which need the approval of only two senators.
Well, technically, they require the approval of at least a majority of the Senate. In reality, not so much.
While budget negotiators might spend days or weeks coming to an agreement over the thousands of differences in the House and Senate versions of the budget, the negotiation ends when at least two of the three Senate negotiators and at least two of the three House negotiators sign a report. At that point, the whole package becomes a take-it-or-leave-it proposition — and if enough legislators leave it, they shut down the government.
It’s a very efficient way of doing government. It also shuts the public out of the law-writing process. And it’s very dangerous. It’s the way laws get passed without the public realizing they were even considered — and sometimes without legislators realizing they were passed.
Before the Legislature acknowledged the problem and cracked down on proviso abuse at the turn of the century, many of our most important laws were written either as budget provisos or with the budget as a lever to force actions that otherwise could not have succeeded. It was a terrible shortcut of the law-writing process even when good laws resulted, and too often bad laws resulted.
Most famously, the late Sen. Jack Lindsay surreptitiously legalized video gambling through a deceptively worded budget proviso; he also led the effort to give a retroactive tax break to bribe-paying multimillionaires — and got caught later trying to take it back after one recipient reneged on his bribe payment.
Lawmakers stopped slipping whole new, permanent laws in the budget bill in 2001, but they have continued to fill it with “temporary” provisos, which have the force of law but officially last only for the 12 months the budget is in effect. Some of those provisions were there when I first encountered the state budget as a reporter, back in 1988.
And while most temporary provisos are straightforward instructions to state agencies about how to spend the money allocated in the bill, some operate the same as new laws. Like the “prudent” proviso would, and the solar proviso, and the sanctuary cities proviso, and the rest of that bunch.
Of course, inappropriate is in the eyes of the beholder. Most legislators don’t really care whether provisos are appropriate or not. But some who do would argue with a straight face that even providing the “prudent” definition is fair game, because it’s telling a state agency (the Public Service Commission) what rules to operate under as it expends state funding (that is, as it does its job).
The way the Legislature handles the budget is that the House passes the first version, then the Senate amends the House-passed budget, then it goes back to the House, which traditionally amends it back to the House version, and adds in a few more changes, before sending it to conference committee.
Usually, the House uses that final pre-conference vote to spend some additional money, because the Senate budget spends more money than the House budget, and evening up the spending puts the House in a better negotiating position. Occasionally, the House might add its own version of provisos that the Senate added to the budget. But this year was different. This year was like nothing I can recall.
By my count, there were about a dozen provisos that shouldn’t be provisos that the House and Senate had added during their initial budget debates. On May 2, the House added 14 more. That’s right: It more than doubled the number of items in the budget that I believe should pass as individual bills, rather than as part of the take-it-or-leave-it state budget.
And while I would love to see some of those changes become law, I’m worried about what sort of message it will send to the House if the Senate allows that to happen.
Ms. Scoppe writes editorials and columns for The State. Reach her at email@example.com or (803) 771-8571 or follow her on Twitter or like her on Facebook @CindiScoppe.