“If we want people to come up here and tell us how to spend the state’s coffers that we take at the barrel of guns … they should come and tell us the truth.”
So said Rep. Kris Crawford, R-Florence, before a special S.C. House panel, known as the Rules and Procedures Ad-Hoc Committee, on Oct. 30 voted to recommend a new House rule sponsored by Crawford and two other lawmakers that would require anyone testifying before a standing or special House committee or subcommittee to be sworn in before their testimony.
And here’s the kicker: If a House committee believes that you “wilfully” gave “false, materially misleading, or materially incomplete testimony,” those committee members could find you in “contempt of the General Assembly” and request that prosecutors seek a felony indictment against you.
Under Section 2-2-100 of the S.C. Code of Laws, which takes effect Jan. 1, “contempt of the General Assembly” is punishable upon conviction by up to five years in state prison and a fine “within the discretion of the court.”
It’s a pretty stiff potential penalty for exercising one’s First Amendment right to free speech.
The 124-member House at its post-election organizational session Tuesday and Wednesday in Columbia is expected to decide whether to adopt the rule proposed by Crawford, a physician and member of the standing House Rules Committee; House Majority Leader Bruce Bannister, R-Greenville and an attorney; and lawyer-Rep. Alan Clemmons, R-Horry and chairman of the standing House Rules Committee.
But after The Nerve last week pointed out to Rep. Murrell Smith, R-Sumter and the Rules and Procedures Ad-Hoc Committee chairman, that the proposed rule would grant lawmakers far more power than what the new state law covers, Smith said the rule, if adopted, likely would have to be limited to comply with the law.
“I don’t think there ever needs to be any form of intimidation for anybody providing legislative input,” said Smith, an attorney who voted for the proposed rule at the Oct. 30 meeting. “It’s a fundamental right, in my opinion.”
Rep. Eric Bedingfield, R-Greenville, and the only member of the ad-hoc committee to vote against the proposed rule, told The Nerve last week that he plans this week to “offer an amendment to eliminate that rule if someone else doesn’t do it.”
“I think it is a massive deterrence for people to come to speak before their elected representatives for fear of saying something improper and being held in contempt,” said Bedingfield, who is not a lawyer.
The Nerve last week left phone messages for Crawford, Bannister and Clemmons seeking comment on the proposed rule but received no response.
Expanded Contempt Powers
Under a nearly 30-year-old state law (Sections 2-69-10, 2-69-20, 2-69-30 of the S.C. Code of Laws), standing and joint study committees of the House and Senate can, though they are not required to, subpoena witnesses to testify before their committees, and place witnesses under oath. But unlike the proposed House rule, that law focuses on testimony by state or local government officials.
No criminal penalties are specified under that law. Section 2-69-60 says a Circuit Court of Common Pleas – a civil court – can find someone in contempt, upon application by the House or Senate, for failure to obey a subpoena or testify “as directed” by a legislative committee, though no sanctions are listed.
S.C. judges can find someone either in criminal or civil contempt of court. A civil contempt punishment is conditioned on compliance with a court order; someone who is jailed, for example, for civil contempt for failure to pay court-ordered child support can be released by paying the owed amount. In contrast, criminal contempt is “unconditional” and intended to “punish a party for disobedience and disrespect”; imposed jail sentences in those cases are for definite periods, according to a 2010 state Supreme Court ruling.
Not one specific example was cited by House members during the Oct. 30 ad-hoc committee meeting in which a person was found in contempt by a judge under Section 2-69-60 for failing to comply with a legislative subpoena or not testifying “as directed” by a legislative committee. Yet in explaining the need to require any citizen to testify under oath before House committees, Rep. James Smith, D-Richland and a lawyer, told committee members, “People ought to take seriously … coming here.”
Under the “S.C. Restructuring Act of 2014,” which created the state Department of Administration under the governor’s control, every standing legislative committee must conduct a review at least once every seven years of all state agencies under the respective committee’s jurisdiction. To help accomplish that mission, the new law (Section 2-2-70) requires that all testimony “given to the investigating committee must be under oath.”
It also requires the chairmen of investigating committees or subcommittees in cases of “contempt of the General Assembly” to “notify the Attorney General of South Carolina who shall cause charges to be filed in the appropriate county” (Section 2-2-110).
Besides being found in “contempt of the General Assembly” under Section 2-2-100 for “wilfully” lying or giving “materially incomplete” or “materially misleading” answers during testimony before legislative committees, a person also can be found guilty of criminal contempt, according to Section 2-2-120, if, after being subpoenaed to testify, he:
- Fails or refuses to attend without lawful excuse; or
- Refuses to be sworn;
- Refuses to answer any material or proper question; or
- Refuses, after reasonable notice, to produce books, papers, or documents in his possession or under his control which constitute material and proper evidence.
The penalty for violating that section is the same as under Section 2-2-100: A maximum five-year state prison sentence and a fine to be determined by the sentencing judge.
The criminal contempt charge, which takes effect on Jan. 1, is limited under that law to testimony “pursuant to this chapter” – meaning the responsibility of the Legislature to oversee state agencies. The Nerve’s review, however, found that the House rule proposed by Bannister, Crawford and Clemmons wouldn’t limit criminal contempt to state agency employees who House members believe lied under oath while testifying before committees conducting seven-year agency reviews.
Instead, the rule as written would apply to anyone testifying before a full House committee, subcommittee or special committee on any issue – in effect, potentially criminalizing what the new state law does not.
“In addition, all testimony (emphasis added) to a House committee, subcommittee, or ad hoc committee must be given under oath which must be administered by the presiding officer of the respective committee and the person desiring to testify shall swear or affirm that his testimony is true and accurate to the best of his knowledge,” the proposed rule reads.
When The Nerve last week pointed out that discrepancy to Rep. Murrell Smith, the ad-hoc committee chairman, he acknowledged that “there’s a thought process that this rule needs to be limited to government officials who are giving testimony before the General Assembly to be in compliance with that section (legislative oversight of executive departments).”
Asked if he believed “contempt of the General Assembly” is supposed to be limited to agency officials testifying before legislative committees, Bedingfield told The Nerve, “That was my understanding.”
Legislative Critics Targeted?
So why all the sudden interest by House members in requiring any citizen to testify before them under oath? The answer to that question can be found earlier in the Oct. 30 meeting of the ad-hoc committee.
Crawford initially proposed a rule that would have required anyone testifying on behalf of an organization not registered with the State Ethics Commission as a lobbyist principal – including grassroots’ groups that voice their opinions on legislative issues – to submit a signed statement in advance of the testimony that would include, among other things, a list of all donors and contributions to that organization within the previous year.
“I want to get the ones you want to get,” Rep. David Weeks, D-Sumter and an attorney, said to Crawford during debate on the initial proposal, though he didn’t specify which groups he was targeting. “But I think we’re sort of chilling the ones you don’t intend to get.”
“I don’t know that I don’t intend to get those people,” Crawford replied.
Rep. Murrell Smith added during the debate: “You can get right at this anyway with placing them under oath. And that way, if they want to testify and you want to inquire and that’s your right to go into it, they’ve got an obligation to answer it. There’s no constitutional amendment to say, ‘I can’t tell you who my members are,’ or a constitutional right (to say), ‘I can’t tell you who contributes to us.’ And that’s the way I think you can attack at that.”
Crawford withdrew his initial proposal, and the proposed oath rule authored by Bannister, Crawford and Clemmons was introduced later in the meeting. Based on a motion by Rep. James Smith, the phrase “may be punished pursuant to the provisions of Section 2-2-100 as applicable,” was removed from the revised proposal, though the phrase “guilty of contempt of the General Assembly,” which is part of 2-2-100, was retained.
“It is a felony if it is willful,” Bannister pointed out.
Rep. James Smith said a House committee wouldn’t have the authority by itself to punish someone it believed was in contempt. But lawmakers could refer those cases to prosecutors, he said.
“It’s just a civil thing – you’re in contempt without the power to fine them or anything. You’re just held in contempt,” Smith said. “The only time it would go to a felony would be either after a grand jury indictment … and some prosecutor is even willing to prosecute it. … And I think it would be a very, very rare occurrence.”
“This is nothing more than taking that ability for a chairman to decide whether or not he wants to put a person under oath, and requiring every person to be under oath when they bring testimony to us – for clarity’s sake,” Clemmons said.
But Bedingfield cautioned, “I just don’t want to do anything that would cause a citizen of this state to be fearful of appearing before a committee, for fear of making an inaccurate statement.”
“All we do up here is serious,” Crawford said just before the final committee vote recommending the oath requirement. “To imply somehow that we’re being mean by assuming citizens and adults who are the responsible people who make up the Republic can’t be held accountable in a legislative body the same way they are in a courtroom just doesn’t reflect the rest of the serious nature of the work we’ve done here today.
“It’s just not for us to be serious.”
Reach Brundrett at (803) 254-4411 or rick@thenerve.org. Follow him on Twitter @thenerve_rick. Follow The Nerve on Facebook and Twitter @thenervesc.