By Lynn Shuler Teague
League of Women Voters of SouthCarolina
SEPT. 12, 2014 — The saga of Bobby Harrell, speaker of the S.C. House of Representatives, has moved forward with the filing of nine indictments for criminal violations of the South Carolina ethics laws. We can all be grateful that Attorney General Alan Wilson and Solicitor David Pascoe have done their jobs responsibly and well, bringing the case to this point despite serious obstacles. As Pascoe has pointed out, it isn’t over yet – Harrell has been indicted, but has not been convicted of any crime. We will all watch closely as the process continues, in hopes that the whole criminal justice system will function as it should.
However, this isn’t all about Bobby Harrell. It also isn’t all about one political party or another. Those who try to define this issue in partisan terms do the state a serious disservice by obscuring the real issues. This is about how our state government works and how well it serves the public interest. This is about the distribution of power and the invitations to abuse of power that exist in our system. It is about a state with serious imbalances in its governmental structure and weak ethics laws, a deadly combination.
Structural reform needed
How do we end our long history of abuse of the public trust? To address the problem at its root, we must have structural reform in our government as well as stronger ethics laws. The disproportionate power of the General Assembly was reduced by changes enacted in the last session, but more work remains to be done. Further, both the strong and the weak within the General Assembly are placed into a framework that encourages abuse.
In 2012, the League of Women Voters of South Carolina submitted recommendations to the S.C. Commission on Ethics Reform. Our final recommendation was that the House and Senate leadership be limited to two terms in their leadership roles.
This recommendation was not directed at any individual incumbent, but at the very obvious history of these offices. Throughout our lifetimes, and before, speakers and presidents pro tempore have sometimes become autocratic, the inherent power of their offices amplified by networks of power and influence cultivated over years and even decades.
Corruption, putting self-interest above public interest, can become easy. Some have resisted the pressures to follow this path, but too many have not. Even the lack of power in the face of this concentrated political authority has its own temptations to corruption. These issues are a source of serious sickness in our state government. This must end.
There are related problems in our judiciary. The General Assembly dominates the Judicial Merit Selection Committee and then makes the decisions about who will become a judge or justice. Then, the General Assembly controls court budgets. This is far too much legislative power over the judicial branch. It is an imbalance that has led to concerns about the impartiality of the judiciary in the Harrell case and in other cases.
"There will be people, some of them very powerful people, who have too much invested in the current system to cooperate in reforming it. They don’t want change. There are others for whom anything short of a perfect bill is too little. Both can be major obstacles to reform."
We do not advocate public election of judges, a wretched option that simply provides another avenue for corruption as judges solicit campaign funds from donors hoping for special treatment in the courts. Instead, we advocate removing legislators from the committee. The redundancy of their control of the judicial branch at every turn makes a mockery of the supposed balance of power among branches of government.
And then there are our weak ethics laws. If you look at the Harrell case and other recent cases, it is reasonable to suppose that most of our ethical problems lie in the area of misuse of campaign funds. This is not necessarily so.
Our existing ethics law requires disclosure of the acquisition and use of campaign finance funds, so problems in these areas can be identified. However, we have no disclosure of sources of private income. Lucrative “consulting fees” can be a great a temptation to abandon the public interest. We know that we have at least two House members who are “consultants” to lobbyist principal organizations. We can be sure that there are many more that we don’t know about. Disclosure of private sources of income is one of the most important elements of sound ethics reform.
The enforcement of our ethics laws is another area of great importance. This past summer, a Supreme Court ruling in the Harrell case overturned a very unfortunate ruling by a lower court and affirmed the constitutional authority of the attorney general to pursue criminal investigations of all persons in the state, including legislators, without seeking permission from committees of the General Assembly.
The ruling affirmed that civil and criminal processes associated with the Ethics Act are separate and discrete. Unfortunately the same ruling contained more questionable elements, preventing open hearings on procedural issues in the case and essentially inviting a lower court judge to remove the Attorney General from the case, although the grounds for doing so were exceedingly weak. The Attorney General must be allowed to do his or her job without unwarranted intervention, or the constitutional authority of the office is seriously diminished.
Statutory change needed, too
We need statutory change to bring ethics law into better conformity with that constitutional authority of the Attorney General, clearly identifying that office as the appropriate authority at all stages of a criminal investigation and prosecution.
We also need an improved system for the investigation of offenses, both civil and criminal. Routine audits of disclosures are an important aspect of this, in both the executive and legislative branches. Investigation by professionally trained personnel is also essential. The executive branch has the Ethics Commission, which has professional investigators on staff, to fulfill this role. The legislative branch has relied on staff members and, on occasion, attorneys and accountants hired for a specific case. This is not sufficient.
Independence of investigation is also very important. In the criminal arena, the attorney general is an independently-elected official who the citizens of South Carolina select to represent them. He should be allowed to do so without inappropriate obstacles.
And so, from the Harrell case, we move quickly into issues that reach into every aspect of ethics law, and from there into the underlying structure of our state government. We need to provide a framework within which officials are encouraged to serve the public interest rather than themselves and their friends. We must have a legal framework that is adequate to handle both the civil and criminal processes when someone decides to place their own interests above those of the people of South Carolina.
There will be people, some of them very powerful people, who have too much invested in the current system to cooperate in reforming it. They don’t want change. There are others for whom anything short of a perfect bill is too little. Both can be major obstacles to reform. Nevertheless, we must do the hard work of making South Carolina’s government accountable, transparent, and responsive to the needs of its citizens.
The 2012 recommendations of the League of Women Voters of South Carolina are here.