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ISSUE 12.23
Jun. 07, 2013

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Index

News :
Spinning wheels
Legislative Agenda :
Looking for Mr. Compromise
Radar Screen :
Slipperier than an oiled playground slide
Palmetto Politics :
Just what did pass?
Commentary :
Legislature shortchanges South Carolina
Spotlight :
ACLU of South Carolina
My Turn :
DUI breathalyzers need independent tests
Feedback :
Bill proposes ending nepotism on boards
Scorecard :
From guns to tuberculosis
Stegelin :
Choices
Megaphone :
Yes or no?
Tally Sheet :
Search SC legislative bills
Encyclopedia :
ACE Basin

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NUMBER OF THE WEEK

6

That’s how many of the state’s “most substandard bridges” are along Interstate 26, according to AAA Carolinas’ list of the worst bridges in the state. Five of the six are between Charleston and Columbia. More.

MEGAPHONE

Yes or no?

"It's a pretty simple question. Did somebody on behalf of this state pay a person or persons to retrieve that information.?… If they didn't, the question's answered."

-- State Sen. Brad Hutto, asking whether the state has, through Gov. Nikki Haley, paid a ransom for hacked information on 6.4 million state businesses and residents. More.

TALLY SHEET

Search SC legislative bills

Few new bills were offered during the last week of the legislative session.

ENCYCLOPEDIA

ACE Basin

The ACE Basin consists of around 350,000 acres in the watershed of the Ashepoo, Combahee, and Edisto Rivers in the South Carolina Lowcountry, which drains one-fifth of the state. The ACE Basin encompasses a range of ecosystem types from forested uplands to tidal marsh (salt, brackish, and fresh water). The basin is home for more than 260 permanent and seasonal bird species and seventeen rare or endangered species, including the wood stork and the loggerhead turtle.

History, as much as geography, unites the three rivers. By the 1750s the rivers were lined with plantations dedicated to rice production and using African slaves for the arduous labor required. Most plantations controlled tidal flows by a series of floodgates (rice trunks), dikes, and canals to grow vast amounts of rice. The Civil War and emancipation, along with an increase in both foreign and domestic competition, led to the eventual collapse of rice culture. Through the 20th century, the ACE Basin experienced almost no industrial development, which kept the landscape largely intact as forest and estuary.

In 1988 Ducks Unlimited, the Nature Conservancy, the U.S. Fish and Wildlife Service, and the South Carolina Department of Natural Resources joined forces to create the ACE Basin Project to preserve the landscape and wildlife habitat. The combined federal, state and private conservation groups used purchases of public land, conservation easements, and other methods to preserve 135,980 acres of land by 2000.

EDITOR'S NOTE: By 2013, more than 200,000 acres of lands are protected by private organizations or public ownership, according to the Lowcountry Open Land Trust. The Ernest F. Hollings ACE Basin National Wildlife Refuge was established in 1990 to protect 11,815 acres as part of the ACE Basin Project.

-- Excerpted from the entry by James H. Tuten. To read more about this or 2,000 other entries about South Carolina, check out The South Carolina Encyclopedia by USC Press. (Information used by permission.)

PALMETTO PRIORITIES

Palmetto Priorities Statehouse Report encourages state leaders to develop and implement Palmetto Priorities involving several issues to make the state better a better place. Click the link to learn more about our suggestions for bipartisan policy objectives.

Here is a summary of our Palmetto Priorities:

CORRECTIONS: Reduce the prison population by 25 percent by 2020.

EDUCATION: Cut the state's dropout rate in half by 2020.

ELECTIONS: Increase voter registration to 75 percent by 2015.

ENVIRONMENT: Adopt a state energy policy that requires energy producers to generate 20 percent of energy from renewable sources by 2020.

ETHICS: Overhaul state ethics laws.

HEALTH CARE: Ensure affordable and accessible health care.

JOBS: Develop a Cabinet-level post to add, retain 10,000 small business jobs per year.

POLITICS: Have a vigorous two- or multi-party political system of governance.

ROADS: Strengthen all bridges and upgrade state roads by 2015.

SAFETY: Cut the state's violent crime rate by one-third by 2016.

TAX REFORM: Remove outdated special interest sales tax exemptions as part of an overall reform of the state's tax structure to be completed by 2014.

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News

Spinning wheels

Legislative session ends with big issues accelerating

By Bill Davis, senior editor

NOTE:  This story has been updated to correct an error.
JUNE 7, 2013 -- For the umpteenth year in a row, the S.C. General Assembly ended its regular legislative session Thursday with major issues still on the table.

As a result, it will have to return in two weeks to continue debate the one issue it is constitutionally required to deal with – the state budget. As for the rest of the big issues? They’ll just have to wait until policy trumps fluff, as one observer put it.

Over the next two weeks, six members of the House and Senate will meet to craft a compromise budget bill that has to pass muster of both chambers before being presented to Gov. Nikki Haley, who is expected to veto some of whatever emerges. Then the legislature will have to convene again later in the year to deal with any vetoes.

Over the months leading up to the next legislative session, there will be a bevy of simmering political pots on the rhetorical stove of unfinished issues – ethics reform, restructuring state government, Obamacare, Medicare expansion, the state’s burgeoning infrastructure needs and cybersecurity for the state.

None of those issues were handled in the final weeks of this year’s session, creating additional intrigue for next year, which is a gubernatorial and House election.

Failed attempts, mostly in the Senate, to resolve those issues will create brickbats for incumbents and challengers, such as state Sen. Vincent Sheheen of Camden and Rep. Bakari Sellers of Bamberg, Democrats who will run for governor and lieutenant governor, respectively.

Infrastructure, health needs

Infrastructure needs will likely be partially addressed in the budget negotiations, as $50 million has been set aside for a state bank to use for a one-time $500 million bonded loan, which falls terrifically short compared to the nearly $20 billion in unidentified infrastructure needs.

Blocking expansion of state Medicaid programs via federal health care reform was included in House and Senate versions of the budget. But a harder line was avoided when the Senate failed to approve a bill nullifying Obamacare implementation in the state this week.

Ethics reform, cybersecurity

Ethics reform died this week in the Senate, too, as Democrats and “William Wallace Caucus,” libertarian-tinged Republicans banded together to kill debate via procedural move. The key move may have come the week before when Senate Democrats voted to return an Obamacare “nullification” bill to the active calendar, which ate up vital final-week time needed for ethics reform.

One of the biggest issues at the beginning of this session – protecting the state from future computer hacking nightmares like the historic one that hit the state Department of Revenue last year – also died in the Senate this week. But money for an enhanced system may find a home in the budget during budget compromise meetings in the next two weeks.

Restructuring

Perhaps the biggest pre-session issue, restructuring, will make yet another return to the legislative agenda in both chambers next year. Bland efforts like putting constitutional officers like state superintendent of education and adjutant general in the governor’s cabinet, died.   the same death as did the bigger issue: creation of an Administration agency to oversee state government. 

[NEW in italics:] Creation of a Department of Administration, another pre-session hottie, may die a similar death if a conference committee can’t figure out how to appease House desires to place procurement in the governor’s hands, and the Senate’s exact opposite desire – taking it out of the legislature’s oversight.  The argument over holding off on restructuring yet again is that it can be handled next session, in plenty of time for 2014 elections and campaigns.

Symbols over substance

Political scientist Scott Huffmon, who runs Winthrop University’s influential polling center, said that this year’s session seemed to be more concerned with “symbolic” issues than substantive “policies of necessity.”

Despite the seeming lack of accomplishments, there remain influential members of the legislature who believe the session should be shortened.

Sen. Larry Martin (R-Pickens), chair of the Judiciary Committee, argued Friday morning that more is already getting done in the Statehouse with fewer days than in the past.

Martin, a 22-year veteran of the Statehouse, said that unlike other state legislatures, the S.C. General Assembly spreads its meeting days out over a five-month swath, instead of shortened sessions of five and six-day weeks.

While not as low as the number of days the legislature met during the height of the Great Recession, Martin argued that a collective six weeks of furloughs this session between the two chambers were the equivalent of a shorter session.

Huffmon wondered whether the legislature would be able to sharpen its game for a shorter session, and how internal Senate and House rules would have to be changed to accommodate a shorter session. “If there’s even more power concentrated in the hands of the Speaker, there will be a lot of people with problems with that,” Huffmon said.

Crystal ball: Once the issue of procurement is handled in budget negotiations during these next two weeks, the budget process will be completed. Haley is not expected by legislators or observers to find major fault in the budget, so her vetoes will be minimal and overcome. But passing the budget a few weeks late will just amplify the bigger question: What’s it gonna take to get something substantive done around Columbia?

Bill Davis is editor of Statehouse Report.  He can be reached at:  billdavis@statehousereport.com. Recent news stories include:

Legislative Agenda

Looking for Mr. Compromise

Budget conference committee meetings have already begun between senators and representatives and will continue throughout the next two weeks, when the full legislature will return on June 18 for a special one-week session to pass the budget.

Radar Screen

Slipperier than an oiled playground slide

Here’s an ticklish issue that will contribute to budget negotiations the next two weeks in the legislature: funding expansion of the state’s kindergarten programs for 4-year-olds.

The House and the Senate included plans to expand the programs, but how they would do so is starkly different. The Senate set aside $26 million for expansion, but the House would allow private 4K programs to also receive funding.

A similar fight emerged in other states, where, like South Carolina, there are more private offerings for that age group than public offerings. Georgia has allowed the money to also flow to private 4K, but there is concern among some in South Carolina that this will create precedent and a slippery slope to vouchers and tax credits.

Palmetto Politics

Just what did pass?

The chattering classes are criticizing the S.C. General Assembly for passing little this year of major substance. Here’s a list of legislative accomplishments:

Ummmm … well … Maybe next year?

Cyber ransom

State Sen. Brad Hutto (D-Orangeburg) kicked up a whirlwind this week, when he revealed that he had sent a letter to Gov. Nikki Haley demanding to know whether the state had paid a “ransom” to get back the Social Security and bank account numbers of 6.4 million state businesses and residents.

That information was stolen from state Department of Revenue computer databanks last year in what has been called the largest public computer hacking incident in history. No comment has been forthcoming from Haley’s office, or the offices of related state and federal law enforcement and investigative agencies looking into the issue.

Hutto said was prompted to send the letter because of the ongoing debate over how to fix the state’s cybersecurity system, and the ongoing associated costs of protecting the state from massive incidents of identity thefts.

Ford’s replacement

With longtime state Sen. Robert Ford (D-Charleston) stepping down last week in the face of ethics allegations, there are a number of Democratic names being bandied about as a possible replacement in the district that has a 63 percent black voting age population:

  • Clay Middleton, a former assistant to U.S. Rep. Jim Clyburn;
  • State Rep. Seth Whipper (D-North Charleston);
  • State Rep. Wendell Gilliard (D-Charleston);
  • Maurice Washington, a former Charleston mayoral candidate; and
  • Marlon Kimpson, a Charleston attorney.

Ford stepped down last week as the Senate Ethics Committee was looking into eight ethics allegations, which later were forwarded to the attorney general to determine whether there should be a criminal investigation.

Commentary

Legislature shortchanges South Carolina

By Andy Brack, editor and publisher

JUNE 7, 2013 -- The state legislature has been shortchanging us for years. And we’re the culprits who have allowed it by playing along like pawns and feeding a diet of anti-tax complacency to legislators.

Despite the fact that South Carolina has one of the lowest tax burdens in the nation, state lawmakers believe they’ll be thrown out of office if they even think of raising taxes. 

And because they’re deathly afraid of taxes, they’ve actually cut state revenue sources time and time again to the detriment of a lot of needs. As such, South Carolina has been falling behind other states. Just take a look at a few impacts of failing to have enough in tax revenue to fuel investments in the state’s infrastructure and future:

Education: Over the last 10 years, state lawmakers have fleeced public education of mandated formula funding by almost $2.9 billion. Using the Great Recession as a crutch, the last five budgets -- including the one being currently developed -- have provided millions of dollars less in base student costs than required by state law. [Legislators did, though, provide required funding in the previous four cycles.]


Roads: Experts say that South Carolina’s system of bridges and roads -- the fourth largest state-supported system in the country -- is crumbling and needs a lot of work. Over the next 20 years, the system needs $29 billion in maintenance to bring it back up to snuff. Over the previous 20 years, state lawmakers have refused to raise the per gallon tax on gas. If it were brought up to the same level as neighboring states, the state Department of Transportation would have an extra $400 million to $500 million to fix the problems.

Sales taxes: State lawmakers continue to exempt lots of stuff from sales taxes. A few years back, about 55 percent of everything sold had sales taxes tacked on. Now, it’s about 42 percent, economists say. Because the sales tax base has gotten smaller, there’s less money to fix problems. It’s not a coincidence that South Carolina exempts more from sales taxes -- about $3.1 billion in potential revenue -- than it takes in.

Income taxes: Of the 1.1 million income tax returns filed in the Palmetto State, about 40 percent of filers pay no income taxes at all -- either because they have so little income (19 percent of South Carolinians live in poverty) or because of various credits. Result: More burden on the middle class and a less progressive system to offset the inherent unfairness of existing sales taxes.

Armed with this information, you’d think it would be pretty clear that South Carolina has some serious problems with generating enough revenue to do some of the basic things that government does -- educate children, build roads, provide protection, help generate opportunity. 

But while the legislature turns a blind in many ways, you wonder what a group of reasonable people would do if they were armed with similar information. 

Last month, Statehouse Report conducted budget simulations with a cross-section of leaders in Florence and Sumter. While they didn’t have political pressure on them to keep taxes low, just about every group came to the exact same conclusion: Generate more revenues by making a few budget cuts while raising revenues at the same time. 

For the record, these diverse groups mixed with conservatives and liberals weren’t shy. Their suggested revenue hikes averaged about $500 million a year with one group going as high as $1.2 billion.

Here are the kinds of things these groups suggested increasing: Raising the cigarette tax to the national average; cutting sales tax exemptions on phones and electricity; removing the state’s $300 car sales tax cap and adding a new income tax bracket of 8 percent on incomes of $250,000 or more a year.

Bottom line: South Carolina has a lot of work to do. Groups of informed South Carolinians quickly figured that out. Lawmakers should learn the same lesson. Continuing to ignore the problems like they did in the session that ended Thursday will fuel a downward decline of our society.

Andy Brack is publisher of Statehouse ReportYou can reach Brack at: brack@statehousereport.com.

Spotlight

ACLU of South Carolina

The public spiritedness of our underwriters allows us to bring Statehouse Report to you at no cost. This week's spotlighted underwriter is the American Civil Liberties Union.  The ACLU of South Carolina’s National Office in Charleston is dedicated to preserving the civil liberties enshrined in the U.S. Constitution and Bill of Rights. Through communications, lobbying and litigation, the ACLU South Carolina’s National Office works to preserve and enhance the rights of all citizens of South Carolina.  Foremost among these rights are freedom of speech and religion, the right to equal treatment under law, and the right to privacy.  More:  http://www.aclusouthcarolina.org/
My Turn

DUI breathalyzers need independent tests

By TIM KULP
Special to Statehouse Report

EDITOR'S NOTE: Charleston criminal defense lawyer Tim Kulp is a former FBI agent, Charleston prosecutor and assistant solicitor. In private practice since 1986, he is one of four nationally board-certified specialists in criminal trial advocacy in S.C.

JUNE 7, 2013 -- As the nation grapples with a proposal by the National Traffic Highway Safety Administration to lower the "inference level" (not legal limit), of driving under the influence (DUI) alcohol impairment from 0.08 of 1 percent to 0.05 percent, consider the increased need for independent scrutiny of South Carolina's breath testing machine, the National Patent DMT Datamaster.


Kulp

Whether the inference level is 0.05, 0.08, 0.10 as it used to be or 0.15 as it once was, the critical consideration is how that hundredth of a percent measurement is obtained. In support of this position, please consider the following, which you may not know.

  • There is no independent testing of this machine.

  • The software producing a breath alcohol result has never been independently tested.

  • The State Law Enforcement Division (SLED) will not allow the manufacturer to sell a "South Carolina" machine to anyone outside law enforcement for independent testing with results of that testing being subject to peer review.

  • These machines no longer produce "error codes." Rather, SLED opted for the description of "status codes." What sounds better? Anyway, note that there is no analysis to determine how tests proximate to these failures are effected. Want to see a sample of the error codes that SLED asserts "that a machine is working properly?" Click here.

Surely when these machines fail, and need repair, they are sent back to the manufacturer? Nope. All repairs are made either in the field or at SLED headquarters in Columbia.

Surely detailed records of the maintenance and repair of these machines are kept by SLED? Nope. Field notes are destroyed when an "Inspection Report" is prepared. Usually, those reports are one-liners. "This was a routine inspection." Sometimes, the reports are more detailed. With an apparent appreciation of Orwellian "newspeak," a more detailed inspection report reflects, frequently: "Voltages were checked and/or adjusted." Which? I get more detail from a car shop oil change the results of which are not used as evidence in criminal trials as are breath test results. Want to see an inspection report? This is the extent of the records folks. Click here. (Please scroll down to the voltages checked or not message.)

Surely, there is an explanation for these phenomena. Analysis of more than 500,000 South Carolina breath tests since 1991 by Maryland law professor Thomas Workman reveals a mystery. While breath values are reported frequently to three decimal places, from 0.000 to 0.400, no one has ever blown the following numbers over half a million tests: 0.149, 0.129 or 0.109. Why not? Also, how can a man come in and blow a 0.177 and shortly thereafter, another person come in and blow exactly the same reading?

Surely, no one testifies in court that these machines "never fail" and that if they do, shut "themselves down?" Sorry, but it happens. (Of course, we all know that computers never fail.)

"Now and certainly before any inference level is lowered to five-hundredths of 1 percent, it is well past time to shine light on how these numbers are derived-through independent examination and testing somewhere besides Broad River Road in Columbia.

"Why in the world not?"

How about calibration? The breath test machine doesn't know a 0.08 from a pound of sugar. It has to be "told" what an "0.08" is. This is called calibration. Problem is, SLED sets its own "policies." SLED's policy regarding calibration again makes me think of George Orwell. One of the machines at the Charleston County Jail hasn't been calibrated in more than 21 months. Click here to see for yourself.

"A failed calibration check does not necessarily require recalibration, but repeated failed calibration checks may require an inspection, repair, and/or recalibration." Are you beginning to think some oversight is warranted?

Nope. Not in court. The simulator test is the test run just before you blow. The simulator solution is a jar filled with grain alcohol and distilled water, but not all the way. A paddle keeps it stirred up. A heater keeps it at 34 degrees C. +/- 0.2 (The 0.2 is the limit the solution manufacturer sets. SLED "policy" extends this parameter to +/- 0.5). A 0.08 doesn't have to be a 0.08 for the machine. A simulator test result between 0.076 and 0.084 is a 0.08.

But what kind of breath level margin of error is a human allowed? If a person blows a 0.08, is it ok to consider that a 0.076 or a 0.084? Nope. That doesn't apply to a person tested.

What a minute. If the breath machine is a computer, that means it must use software to operate. And if the machine never fails, surely SLED and the manufacturer would let that software be independently tested, so long as no trade secrets were revealed? Nope. Numerous requests have been made for the software source code and documentation that testing software engineers require for testing and analysis.

SLED says ask the manufacturer. Click here. The manufacturer says SLED doesn't want us to release it, even if our trade secrets are protected.

Folks, humans aren't machines. Even NHTSA recognizes the variability of human breath and has openly admitted that humans make "poor test subjects" to use to approve machines to be used on humans.

Now and certainly before any inference level is lowered to five-hundredths of 1 percent, it is well past time to shine light on how these numbers are derived-through independent examination and testing somewhere besides Broad River Road in Columbia.

Why in the world not?

You can reach Kulp at KulpLaw.com.

Feedback

Bill proposes ending nepotism on boards

To the editor:

I read with interest your column of May 24 about your frustration with lawmakers for not passing a package of ethics reforms this legislative year.   You state: "Even more troubling is that (these) reforms don't address lots of other continuing problems...an example: the way elected representatives cozy together to elect family members as trustees to state colleges and universities."

Unfortunately, you overlooked H. 4068, a bill I sponsored along with 40 of my House Republican colleagues and filed on May 1st, the day of our most recent vote to elect representatives to various college boards of trustees.

The bill, if passed, will prohibit member of the General Assembly or an immediate family member from being elected to the governing board of a public college or university while the members serves in the General Assembly and for a period of one year afterwards.

In addition, it prohibits family members from being elected to judicial office while the member serves in the General Assembly or for one year after he or she ceases to serve.

Many of my House colleagues agree that this is a practice that needs to stop. As we have adjourned for the 2013 legislative year, I am hopeful that the bill will receive a favorable report by the House Judiciary Committee in January and a vote by the full House shortly thereafter.

-- S.C. Rep. Phyllis Henderson, Greenville, S.C.

EDITOR’S NOTE: Rep. Henderson is correct about her bill, but the commentary is not incorrect for not mentioning her bill because it is not law. As such, the process for electing people to college and university boards remains stacked in favor of family members of legislators. This legislative year, the General Assembly elected 10 people who were related to state legislators.

Legislators don’t really want ethics reform

To the editor:

75 percent of all elected officials in South Carolina do not want ethics reform.  That includes state and local officials.  If ethics reform were to pass, they would have to change the way they operate and most of them are not smart enough for that.  All they want is power, power, power....

-- Calbert Johnson, Bishopville, S.C.
SEND US A LETTER.  We love hearing from our readers and encourage you to share your opinions.  But you've got to provide us with contact information so we can verify your letters. Letters to the editor are published weekly. We reserve the right to edit for length and clarity.

We generally publish all comments about South Carolina politics or policy issues, unless they are libelous or unnecessarily inflammatory. One submission is allowed per month. Submission of a comment grants permission to us to reprint. Comments are limited to 250 words or less.  Please include your name and contact information.
Scorecard

From guns to tuberculosis

Guns. Concealed weapons will not be allowed to be carried into bars and restaurants that serve alcohol in South Carolina because a bill supporting the move failed in the Senate ... this year. While it may come up next year, we still don’t understand why in the world anyone needs a gun in a bar? More.

Toal. Current S.C. Supreme Court Chief Justice Jean Toal is planning to run for her spot on the court and retire in two years. More.

Sellers. State Rep. Bakari Sellers (D-Denmark) will run for lieutenant governor next year. More.

Economy. State bankruptcy rates are still high, but are continuing to ease. More.

TB. Looks like a Greenwood school employee may have passed along the dread disease to a lot of people. More.

Stegelin

Choices


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Statehouse Report

Editor and Publisher: Andy Brack
Senior Editor: Bill Davis
Contributing Photographer: Michael Kaynard

Phone: 843.670.3996

© 2002 - 2018 , Statehouse Report LLC. Statehouse Report is published every Friday by Statehouse Report LLC, PO Box 22261, Charleston, SC 29413.
Excerpts from The South Carolina Encyclopedia are published with permission and copyrighted 2006 by the Humanities Council SC. Excerpts were edited by Walter Edgar and published by the University of South Carolina Press. Statehouse Report has partnered with USC Press to provide readers with this interesting weekly historical excerpt about the state. Republication is not allowed. For additional information about Statehouse Report, including information on underwriting, go to http://www.statehousereport.com/.