IMAGINE — 11 years and $9 billion later — what would have happened if then-Attorney General Henry McMaster had stepped in and declared that the Base Load Review Act that the 2007 Legislature was about to pass violated the state and federal constitutions.
He almost certainly would have done that if he had asked his staff to look at the bill, which SCANA said it needed in order to begin work on the two new nuclear reactors that legislators wanted the company to build.
In September, Solicitor General Bob Cook, who was then and today still is in charge of writing attorney general’s opinions, put forth an extraordinarily persuasive case that the law is unconstitutional, because it forces customers to pay for a product they will never receive. (He actually said “constitutionally suspect,” and qualified it to the law “as applied” rather than “as written,” but those legal niceties don’t dilute the power of his argument.) I once asked Mr. Cook whether he would have seen those flaws if he had looked in 2007; he assured me he would have — and he is not a man to boast.
With that warning, the Legislature would have been forced to delete the provisions that gave SCANA a huge financial incentive to overspend — and to keep spending even after it was clear that it couldn’t finish the project. Maybe SCE&G and Santee Cooper still would have embarked on the project, and maybe they wouldn’t have. But we wouldn’t have paid an extra $2 billion, and counting, on our power bills.
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At least that’s the scenario that Catherine Templeton implicitly put forward all year, as she repeatedly suggested that Mr. McMaster could have stopped the Legislature from passing the law — at one point going so far as to charge that “Henry McMaster allowed this as attorney general.”
And, who knows? Maybe it would have worked that way. More likely, the Legislature would have ignored the warning and passed the bill, because legislators don’t tend to worry about the constitutionality of bills unless they already oppose those bills — and practically no one opposed that bill.
Why isn’t it the job of the attorney general to review legislation for constitutional problems?
But if the idea that Mr. McMaster could have prevented our nuclear disaster is a stretch, the question about why he didn’t say anything is a close relative of a very good question: Why isn’t it the job of the attorney general to review legislation for constitutional problems?
The attorney general has the authority to warn lawmakers about any bills they are debating. But there’s a big difference between having the authority to do something and being required, or even just expected, to do something.
What we have always expected of our attorneys general is to point out constitutional problems with bills or laws when officially asked to do so. By state or local officials.
I can’t recall an attorney general ever taking it upon himself to issue an opinion on the constitutionality of legislation. Or even of laws that haven’t been challenged in court.
Attorneys general recognize that the Legislature doesn’t care whether its actions are constitutional and it’s not wise to pick a fight with the Legislature.
Even if attorneys general did have a habit of warning lawmakers about constitutional problems with bills, I doubt the Base Load Review Act would have attracted the attention of the attorney general, because it didn’t attract much attention from anybody.
So the obvious answer to the political question was that Mr. McMaster didn’t try to stop the Base Load Review Act because that’s simply not what attorneys general in our state do. Unless someone asks them. Which nobody did.
But the really good question — the question that has nothing to do with political campaigns and everything to do with smart government — is why this isn’t something that attorneys general do. And: Shouldn’t it be?
If this whole nuclear mess taught us anything, it’s that complicated legislation, particularly when it has few opponents, does not get vetted the way it needs to.
My guess is that attorneys general recognize that 1) the Legislature doesn’t care whether its actions are constitutional and 2) it’s not wise to pick a fight with the Legislature.
There also are practical considerations. About 3,700 bills were filed in the 2017-2018 session, about 280 of which became law. There’s no way an attorney general’s office could review all of those bills without a much larger staff. Even just reviewing the bills that make it to the floor of the House or Senate would be a huge task. And if the attorney general were to pick and choose which bills to review, his opinions would be even less likely to sway anyone, because he would be accused of … picking and choosing.
But if this whole nuclear mess taught us anything, it’s that complicated legislation, particularly when it has few opponents, does not get vetted the way it needs to. And that needs to change.
At least it would put lawmakers on notice, and perhaps over time increase the pressure for them to fix the flaws.
At the least, we need a system where debate is delayed on certain complex bills — and certainly all bills dealing with regulated utilities — until they have been reviewed for constitutional flaws. And explained, in plain English, by knowledgeable, neutral experts. (We already do this for tax and spending bills.)
I’d give the job to the attorney general’s office, but that’s not essential. What’s essential is that the review occurs. That wouldn’t bar legislators from passing unconstitutional laws, but at least it would put them on notice, and perhaps over time increase the pressure for them to fix the flaws.
This isn’t the sort of “solution” the Legislature will consider when it returns to Columbia next week to deal with V.C. Summer-related legislation, but it’s something we need to demand until it’s done. Although it’s rare for the Legislature to pass laws that force us to pay billions of dollars for nothing, there is absolutely nothing rare about the Legislature passing laws that are unconstitutional — often without even realizing it.
Here are some other pieces I’ve written about this that you might find helpful:
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.