The makeup of the S.C. House Ethics Committee isn’t illegal if you ask new committee Chairman Kenny Bingham, though he introduced a bill last week in response to a Nervestory that raised questions about the legality of the committee’s size.
Bingham’s bill (H. 3429) would set the size of both the House and Senate Ethics committees at 10 members each. Current law (Section 8-13-510 of the S.C. Code of Laws) limits the size of each committee to six members.
The House last month amended its rules to increase the size of the House Ethics Committee to 10 members from six; the Senate Ethics Committee has been comprised of 10 members for years.
The day after The Nerve on Jan. 17 pointed out the conflict between state law and the amended House rules, Bingham, R-Lexington, said he would ask House staff lawyers to draft a bill to “fix it.”
H. 3429 was introduced Thursday.
“It’s just conforming the statute with our rules,” Bingham, the immediate past House majority leader who was elected the Ethics Committee chairman last month, told The Nerve when contacted Friday.
Asked if the 10-member makeup of the House Ethics Committee would be illegal without his bill, Bingham replied: “I do not believe the (current) statute is needed. At the same time, I also believe that the statute should be corrected. There shouldn’t be conflicts (with House rules) when a conflict exists.”
Whether the current makeup of the Ethics Committee is legal is more than just an academic debate. Legal observers earlier told The Nerve that House members who are disciplined by the committee in the future could try to convince a judge to throw out their sanctions, contending that the committee’s makeup is illegal.
(It’s not known whether there any pending complaints against House members before the House Ethics Committee. Last week, Ashley Landess, president of the South Carolina Policy Council, The Nerve’sparent organization, told the S.C Commission on Ethics Reform that the Policy Council is considering filing a formal ethics complaint against House Speaker Bobby Harrell, R-Charleston, with the House Ethics Committee.)
Bingham on Friday said House lawyers have instructed him that generally, a House rule dealing with the chamber’s operations “trumps statute.” He provided The Nerve with a 1963 written opinion from then-S.C. Attorney General Daniel McLeod, who contended that the House could pass budget bills even it didn’t hold joint, public hearings with the Senate on the bills, despite, according to the opinion, a 1919 state law requiring the joint hearings.
(The Nerve has repeatedly pointed out – most recently on Jan. 18 – that the Legislature’s budget-writing committees have failed to comply with the joint-hearings law (Section 11-11-90). No such hearings have been held this year, though House Speaker Pro Tempore Jay Lucas, R-Darlington, wrote a letter last week to Rep. Brian White, R-Anderson and the House Ways and Means Committee chairman, recommending that joint hearings be held.)
“That’s been the case (rules-trump-statutes position) since 1963, and the House has operated under that principle,” Bingham said, referring to the 1963 attorney general’s opinion. “No one has ever challenged that (in court).”
Attorney general opinions do not have the force of law, unlike statutes or court rulings. If Bingham’s bill becomes law, the size of the House and Senate Ethics committees would remain at 10 members each “(u)nless otherwise provided by the rules of the respective bodies.”‘
In effect, the law would allow the House and Senate to change the makeup of their respective committees through rule changes.
Asked last week by The Nerve to review the 1963 attorney general’s opinion, John Crangle, attorney-director of the government watchdog organization Common Cause of South Carolina, said he believed it was “basically irrelevant to the facts of this particular case.”
“It (the 1963 opinion) didn’t involve a clash between a South Carolina (legislative) rule and a South Carolina statute,” he said. “I don’t see any South Carolina case on point as a controlling authority.”
“I think (legislative) rules do not trump statutes,” Crangle added, “and I know of no precedent in South Carolina for that argument.”
Still, Crangle said he believes that Bingham is “showing good judgment” in authoring a bill to address the conflict between the current statute and House rules, noting, “I think he sees a problem, and I think he’s trying to do something about it.”
Bingham’s bill was placed on the House calendar “without reference,” meaning it will be debated directly on the House floor instead of first going through the committee-review process. Bingham said he expects the bill to be passed quickly by the House and moved to the Senate by the end of this week.
Reach Brundrett at (803) 254-4411 or rick@thenerve.org. Follow him on Twitter @thenerve_rick.