CAN THE Legislature just do anything it wants? Regardless of the law? It’s easy to get that impression from a recent audit of the state lottery.
The Legislative Audit Council concluded that the Legislature had shortchanged schools and colleges to the tune of $2.1 billion by ignoring the law that says it has to keep spending the same percentage of the state’s non-lottery revenue on education as it did before the lottery was created. (It shortchanged them another $400 million or so since that audit was released in June.)
But the audit also implied that there was nothing illegal about that because the Legislature can do pretty much whatever it wants as long as it doesn’t violate the constitution.
Which might be true. Or not.
And one caveat here before I explain: The question isn’t whether individual legislators are free to ignore state laws; they most certainly are not. The question is whether the Legislature as a whole can pass a law or in some other way take an official action that contradicts state law — or whether it has to change that law first.
At issue is the U.S. Supreme Court decision in Manigault v. Springs, which said that since it was “not a constitutional provision,” a general law “is not binding upon any subsequent legislature” and in fact “may be repealed, amended, or disregarded by the legislature which enacted it.”
The audit pointed to this case and noted that “The requirement that South Carolina allocate a minimum percentage of state non-lottery funds to education is not in the state constitution.”
A 2006 S.C. Attorney General’s opinion had first reached that conclusion about lottery spending requirements, noting that state laws are “not necessarily binding upon future legislative bodies,” and that as “long as a legislative body does not act in contradiction of a constitutional provision, it may repeal, amend, or even disregard the general law it enacted.” Because of this, the opinion said that if “the Legislature acted in opposition to the requirements set forth in the Education Lottery Act, such disregard for its own legislation may not render its actions invalid.”
Note that the audit, like the attorney general’s opinion, never directly said it was OK for the Legislature to ignore state law. They just sort of sound like they say that.
That’s because Manigault didn’t actually say a legislative body could never bind a future legislature. It said it had not done so in this particular case. And more than a century later, that remains the go-to authority on the question.
Most legislators ignore the freedom the decision might give them, taking care to repeal or at least suspend laws before ignoring them. In fact, it was bizarre for the audit to even mention this constitutional question, because the Legislature suspends the lottery funding requirement every year. So even if one Legislature can’t bind another Legislature, that’s not at issue here.
Yet some legislators embrace the idea that “one Legislature can’t bind another,” using it to make the absurd argument that it’s pointless for the Legislature to do whatever it is they oppose, because it won’t be binding on the next Legislature. It’s a favorite argument of people who want to get rid of the 2000 Heritage Act, which says state and local property “dedicated in memory of or named for any historic figure or historic event” can’t be “relocated, removed, disturbed, or altered” without approval by two-thirds of the House and Senate.
It’s reasonable to conclude that the Legislature can simply ignore the Heritage Act, based on the Attorney General’s lottery expenditure opinion. Until you look at what the attorney general’s office said in 2015, when asked specifically about the Heritage Act: “While, generally speaking, one General Assembly may not bind another, the provisions of § 10-1-165 facially require a two-thirds vote of each house in order to amend the Act. Such provision is binding.”
Of course whether S.C. lawmakers are bound by two-thirds statutory requirements is mostly a moot point, since one determined senator can keep all but the most important bills from even being debated (“important” being defined as a priority for a bunch of other senators), and even if they’re debated, determined opponents can filibuster to wear down supporters. So a bill that isn’t supported by two-thirds of senators is extremely unlikely to pass, even if it takes just a simple majority to pass it.
Manigault, by the way, was a Georgetown County property owner who negotiated an agreement in 1898 for his neighbor Springs (the court order doesn’t give first names) to remove a dam over Kinloch Creek. Five years later, the Legislature passed a law that authorized Mr. Springs to rebuild the dam. Mr. Manigault sued, claiming that the Legislature had violated its own law, which declared that “no bill for the granting of any privilege or immunity, or for any other private purpose whatsoever, shall be introduced or entertained in either house of the general assembly except by petition, to be signed by the persons desiring such privileges,” with extensive notice given.
It was this law that the Supreme Court said the Legislature was free to ignore, explaining: “As this is not a constitutional provision, but a general law enacted by the legislature, it may be repealed, amended, or disregarded by the legislature which enacted it. This law was doubtless intended as a guide to persons desiring to petition the legislature for special privileges, and it would be a good answer to any petition for the granting of such privileges that the required notice had not been given; but it is not binding upon any subsequent legislature, nor does a noncompliance with it impair or nullify the provisions of an act passed without the requirement of such notice.”
And that ruling, upholding a 1903 S.C. law that today would violate South Carolina’s constitutional ban on “special legislation,” is what said our Legislature, and others across the country, can ignore laws already on the books. Or not.
Ms. Scoppe writes editorials and columns for The State. Reach her at firstname.lastname@example.org or follow her on Twitter or like her on Facebook @CindiScoppe.