Rules are rules, as the old saying goes.
And for the S.C. House and Senate, rules often trump everything – even state law.
Take the newly reorganized House Ethics Committee, for example.
State law (Section 8-13-510 of the S.C. Code of Laws) says the House committee is to be made up of six members. But at an organizational session last month, the House amended its rules (Rule 4.16 to be specific) expanding the committee to 10 members.
So what’s the big deal about that?
If you ask John Crangle, the attorney-director of the government watchdog organization Common Cause of South Carolina, the big deal is this: Say the Ethics Committee finds a House member committed an ethical violation and sanctioned the member – whether it was, as allowed under House rules, a public reprimand, a $2,000 fine for a “non-technical” violation, or a recommendation of expulsion for a serious offense.
The sanctioned member could ask a judge to throw out the punishment on the grounds that the makeup of the 10-member committee was illegal under state law because only six members are allowed on the committee, says Crangle.
“I feel a court would say, ‘Yes,’ and that would kill it right there,” Crangle told The Nerve in an interview Wednesday.
Effectively, that would render the Ethics Committee useless.
In a Nerve story last week, Crangle said he planned to ask the House Ethics Committee to recuse itself if any ethics complaints were filed against House Speaker Bobby Harrell in connection with the recent controversy over his campaign reimbursements. The Charleston Republican has denied any wrongdoing, and he has not been charged with any criminal or administrative violations.
Like its counterpart in the House, the Senate Ethics Committee, which has legal jurisdiction over senators, also has 10 members, which would be an apparent violation of state law. Critics of both legislative ethics committees say the committees should be abolished to avoid conflicts of interest, recommending that the State Ethics Commission be put in charge of policing lawmakers for non-criminal ethics violations.
Contacted Wednesday by The Nerve, Bob Bockman, who teaches full-time at the University of South Carolina School of Law, shared Crangle’s concerns about the legality of the makeup of the House Ethics Committee.
Bockman, who previously practiced law for 30 years at the prominent McNair Law Firm in Columbia, specializing in local governmental and municipal law, administrative law and regulated industries, said a judge in Crangle’s example could rule that the 10-member Ethics Committee was an “illegally constituted body,” and its decisions were “unlawful and unenforceable.”
“If there’s a conflict between a regulation and a statute, the statute would prevail,” Bockman said. “That would include, as well, internal operations of a branch of government, like the General Assembly.”
But legislative leaders typically bristle at that interpretation. They instead rely primarily on Section 12, Article 3 of the S.C. Constitution which says:
“Each house shall choose its own officers, determine its rules of procedure, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member, but not a second time for the same cause.”
For many legislative leaders, their reasoning goes like this: 1) The state constitution overrides state law; 2) The constitution gives each chamber of the Legislature the authority to make its owns rules; and 3) Given the first two points, a House or Senate rule generally trumps state law.
Legislative leaders relied on that reasoning in fighting efforts several years ago by grassroots groups and others, including the South Carolina Policy Council – The Nerve’s parent organization – to make roll-call voting state law. Despite that opposition, the bill eventually became law in 2011.
Lawmakers also have been using that interpretation to ignore a longstanding state law requiring that the House Ways and Means and Senate Finance committees hold joint public hearings on the governor’s proposed state budget for the upcoming fiscal year.
The question of the legality of the make-up of the current House Ethics Committee is more than just an academic question or a matter of internal legislative procedures, as the committee can consider complaints against House members filed by the public alleging violations of state ethics laws.
Bockman said the legal problem with the rule-trumps-statute position is that it “doesn’t take into consideration a specific conflict” between a House or Senate rule and state law.
Interviewed Wednesday after a House Ethics subcommittee meeting, Rep. Kenny Bingham, R-Lexington and the new Ethics Committee chairman, told The Nerve that in recommending last month that House rules be changed to expand the Ethics Committee to 10 members from six members, he and other supporters were relying on a decades-old state Supreme Court ruling that says “(legislative) rules govern.”
“The Supreme Court has said that until the (state) constitution changes, it stays this way,” he said.
Bingham, who is not an attorney, could not immediately cite the specific court ruling but said he would have staff lawyers research it and get back with The Nerve.
Bingham said he and other lawmakers, both Republicans and Democrats, wanted to expand the committee to promote “inclusion,” explaining that the previous Ethics Committee, of which he was not a member, was made up of five Republicans and one Democrat. The new committee is evenly split among the parties.
During Wednesday’s meeting, the House Ethics subcommittee began discussing a new set of procedural rules for the full committee. Rep. Murrell Smith, R-Sumter and an attorney, noted that the committee’s rules were last revised in 2000.
Smith, the subcommittee chairman, said any committee rules that eventually will be adopted cannot conflict with the main House rule governing the committee (Rule 4.16) or the “statutory framework,” though he didn’t specify the state law.
“I think the committee understands that Rule 4.16 and the statutory framework is what governs us,” he said. “And absent authority under the statutory framework or the rule, we’re not able to amend anything other than that.”
Reach Brundrett at (803) 254-4411 or rick@thenerve.org.