THERE IS probably no legislator with a longer and deeper commitment to reforming the state Transportation Commission than House Speaker Jay Lucas. So it was more than a little jarring last month when Mr. Lucas introduced a bill and put it on the fast track to strip away the governor’s authority to appoint the Transportation secretary and give it back to the Legislature’s unaccountable, horse-trading commission.
Senate Judiciary Chairman Larry Martin was so shaken by the bill that he was talking about giving up his efforts to give the governor some real control. What’s the point, he asked rhetorically, as I assured him there had to be some sort of mistake.
Turns out it was no mistake — but neither had Mr. Lucas gone native. Instead, he was trying to protect the Legislature from a lawsuit whose damage could be debilitating. Left unsaid, but hard not to read between the lines, was the idea that he was trying to preserve a constitutionally questionable maneuver that lawmakers might need to use again this year to maintain the governor’s limited authority.
The lawsuit stems from a 2007 law that claimed to reform the Transportation Department but didn’t. It did allow the governor to appoint the transportation secretary, but only through June 2015, when that power would revert to the still-legislatively appointed Transportation Commission if the Legislature hadn’t extended it.
Last year, the House passed a bill to actually let the governor appoint the commission, but of course the Senate didn’t get around to passing (a very different version of) that bill until last week. So with the governor’s limited authority set to expire, the 2015 Legislature added a provision to the state budget extending it for one year.
Enter Ned Sloan, the Greenville businessman who has made a hobby of challenging the Legislature’s practice of cobbling together stand-alone bills that don’t belong together and then passing the whole massive result as one take-it-or-leave-it proposition that no one dares leave. In a lawsuit filed in December, Mr. Sloan argued that using the budget bill to extend the governor’s power violated the constitutional provision that limits bills to a single subject.
Lawmakers aren’t conceding that Mr. Sloan’s latest claim is valid — if you stretch hard enough, you can say that who runs the Transportation Department is “related to” spending transportation dollars. But they’re clearly worried, if only because, after ignoring Mr. Sloan for a few years, the Supreme Court agreed to bypass the lower courts and take original jurisdiction in his case; oral arguments are set for Tuesday.
More often than not, bobtailing, South Carolina’s term for logrolling, creates bad law. This is how video gambling and a bribery-tainted retroactive tax break got slipped into state law; it’s the practice that once enshrined the Confederate flag’s position on the State House dome, re-opened the Barnwell low-level radioactive waste landfill to the nation and advanced The Citadel’s unconstitutional fight to keep women out. It’s how many of the sales tax exemptions came to litter our tax code.
But one reason to bobtail is to get things done in a hurry, sometimes good things, when you get backed into a corner. That was the case last year. But that doesn’t make violating the constitution OK.
Maybe that makes it worse, because it means the good guys are violating the constitution now instead of just the bad guys. And here I need to admit that I was right there encouraging the Legislature to pass this bobtail, apparently having convinced myself that this one was in fact related to the budget. Ah, the road to perdition ….
Mr. Lucas told me that with the Senate deadlocked at the time over anything to do with the Transportation Department, he was looking for another way to moot the lawsuit before oral arguments, because otherwise the court could invalidate the entire state budget.
That sounds a little crazy, but then he reminded me that in 2009, the court announced that instead of excising unconstitutional bobtails from otherwise constitutional laws, henceforth it would invalidate the entire law. It has done so repeatedly.
After Mr. Lucas got less-than-enthusiastic support from the governor for his anti-lawsuit bill, he had it sent to committee, where he said it will remain unless the governor and Senate decide they want it passed. All of which means that Mr. Sloan’s lawsuit will proceed to oral arguments on Tuesday.
Although the court has gotten serious about policing bobtailing, I suspect it would be happy to find a way not to invalidate the state budget. One way is to slow-walk its decision until after the fiscal year ends June 30, which would moot the lawsuit, assuming the new budget doesn’t contain another extension. That sends a signal without doing grave damage to our state.
A better and surer resolution would be for the Legislature to pass a reform bill that not only eliminates the sunset provision but gives the governor serious control over the Transportation Department — no sure thing even though both officially support that.
We need the Legislature to do good things, but we need those good things done the right way.
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 @CindiScoppe.