Cindi Ross Scoppe

Scoppe: The other problem with SC legislators policing their own ethics

Most state officials can no longer use their campaign funds to purchase memberships at the Capital City Club and other private dinner clubs. But legislators are unaffected by the new ruling.
Most state officials can no longer use their campaign funds to purchase memberships at the Capital City Club and other private dinner clubs. But legislators are unaffected by the new ruling.

THE STATE Ethics Commission ruled last month that it’s illegal to use campaign funds to pay for memberships or other expenses at the Capital City Club and the Palmetto Club and other private dinner clubs.

It’s a ruling that could have some serious lifestyle consequences for a number of elected officials, as the commission noted that several were using campaign money to cover these expenses.

A reporter at one newspaper wrote that state legislators now have to start paying their own dues. She even quoted several legislators on how they would cope with this new interpretation of the State Ethics Act.

Unfortunately, the reporter and the legislators she quoted had forgotten one of the many problems with the part of the law that lets legislators act as investigator, judge and jury over each others’ ethics compliance: It also lets them make up their own definitions of what the law says.

That means legislators are free to ignore the Ethics Commission’s interpretations of what the law does and doesn’t allow unless their legislative committees decide to adopt those same interpretations. Which they don’t always do.

A lot about the ethics law is straightforward and in no need of interpretation. A legislator can’t accept anything of value — not even a cup of coffee — from a registered lobbyist, for example. Statewide candidates can’t accept a donation of more than $3,500 from one donor in one election cycle. All candidates have to report the name, address, date and amount of any donation worth more than $100.

Other matters are murkier, and among the murkiest is the definition of “personal” in one of the most important provisions of the law: the part that prohibits the personal use of campaign funds. Actually, there is no definition of “personal” in the law, which says simply that public officials can’t use campaign funds “to defray personal expenses which are unrelated to the campaign or the office” and that campaign funds may not “be converted to personal use.”

You got the idea that there was a reason that word wasn’t defined when, shortly after the law was passed, the Senate Ethics Committee decided that presents for certain constituents constitute “ordinary expenses incurred in connection with an individual’s duties as a holder of elective office.” So too, the committee said, did donations to local churches and civic clubs and tickets to the Masters, where senators might run into some donors. (Suddenly, you start to understand how Sen. Robert Ford thought it was OK to buy sex toys that he said were for campaign workers, and even how House Speaker Bobby Harrell got the idea that it was OK to use campaign funds to fly his family to Florida on vacation.)

The House Ethics Committee never was as liberal in its definition of “personal,” and in 1996 it issued a memorandum that listed some allowable uses of campaign funds, which the Ethics Commission in its opinion noted did not include private club dues. But the committee didn’t list prohibited uses of campaign funds, and so it should be no surprise that House members have used other people’s money to pay their dues.

The Ethics Commission reasoned that since it long had considered meals to be personal expenses, even when candidates were dining with potential donors, it made sense to treat club dues the same way. It also noted that the Federal Election Commission had decided that a similarly worded federal ban on personal expenditures included club dues.

Of course, people who are charged with wrongdoing can always go to court to challenge an enforcement agency’s interpretation of a law — even if that agency is the House or Senate Ethics committee. But while you can challenge an agency for exceeding its authority under the law, you can’t challenge it for interpreting a law too narrowly.

I’m not saying that’s a bad principle of law; it’s actually quite smart. I’m just making the point that there is nothing outside of the Legislature itself that can subject legislators to the same rules that all other elected officials are subjected to.

Even if the law says that all animals are equal, some remain decidedly more equal than others.

I’m also not suggesting that the Ethics Commission always gets it right. It was the Ethics Commission, after all, that opened up the giant loophole that allowed political parties — entities that exist for the sole purpose of getting people elected — to maintain “operations accounts” that can accept unlimited donations and not even tell us who made those donations. It was the Ethics Commission that came up with the bizarre idea that the “income” elected officials have to report doesn’t include consulting fees, because they aren’t “salary” — a word not even found in the context of income in the ethics act.

But if senators were ever to allow an independent entity to investigate legislators’ compliance with the law — the House is quite willing to do so — legislators would be free to create a more muscular Ethics Commission. And they should.

Ms. Scoppe writes editorials and columns for The State. Reach her at cscoppe@thestate.com or (803) 771-8571 or follow her on Twitter @CindiScoppe.

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