With rules change,
the Senate steps forward
By KEITH D.
MUNSON Guest
columnist
Kudos to the S.C. Senate for amending its rules to make it easier
to end filibusters, make it harder for a single senator to stop
consideration of a measure and prevent last-minute amendments on the
third reading of a bill.
The practice of adding last-minute amendments resulted last
session in a Frankensteined bill called the Life Sciences Act, which
at the last minute was amended to cover such diverse topics as
eminent domain for state colleges, a tourism center for Myrtle Beach
and the possibility of a third law school — all in violation of the
state constitutional requirement that each bill address only one
subject.
Although the new rules are a good start, proponents of
legislative accountability should not let down their guard. One
Republican senator was reported in the news as noting that “I’ve
done found ways to get around this; you betcha there’s some tricks,”
and “the rules that we passed can be circumvented.”
Instead, the citizens of South Carolina and the other branches of
government that provide necessary checks and balances need to remain
vigilant against what James Madison described as a legislature’s
tendency for “drawing all power into its impetuous vortex.”
The significant checks and balances on legislative logrolling
include the power (and duty) of the courts to declare such
legislative acts unconstitutional, and the governor’s veto.
Because the governor does not have a line-item veto on most
bills, this constitutional check is often defeated by bobtailing
pork-barrel or unpopular legislation onto popular legislation and
daring the governor to veto the entire measure (as happened with the
Life Sciences Act, when Sen. Phil Leventis convinced the Senate to
add a provision to make USC Sumter a four-year university). Such
dare tactics rely on the fact that, in this situation, most
governors would chose expedience over principle.
However, expedience does not pay dividends. Alexander Hamilton,
in defending the veto power in the federal Constitution, noted that
the “stern virtue” to maintain principles over expedience “is the
growth of few soils.” Fortunately, Gov. Mark Sanford is rooted in
just such soil, and he did veto the unconstitutional, bobtailed bill
last year. Subsequently, the other check (judicial review) came into
play after the Legislature overrode the governor’s veto. At oral
argument, S.C. Chief Justice Jean Toal labeled the Life Sciences
Bill the “granddaddy of all bobtailed bills.”
There is a third check on legislative overreaching such as
bobtailing, which is internal to the Senate — the lieutenant
governor. He presides over the Senate. Lt. Gov. Andre Bauer could
have declared the diverse bobtailed, last-minute amendments “out of
order” for being in violation of the constitutional requirement of a
single subject, and almost certainly prevented their attachment to
the Life Sciences Act. Maybe this session he will be more active in
protecting the governor’s veto power from unconstitutional erosion
by the “impetuous vortex.” (Certainly, he would be more inclined to
do so if the lieutenant governor were elected on a ticket with the
governor, as is proposed in the governor’s restructuring initiative
and supported by the MAP Commission.)
In any event, the Senate’s actions last week are a significant
step forward. But all of us, whether we are citizens, the governor,
the lieutenant governor, the courts or other legislators, must
remain wary of those who have already “done found ways to get around
this.”
Mr. Munson, a Greenville attorney, worked on Mark Sanford’s
campaign and served on his transition team. He filed a brief with
the Supreme Court in support of declaring the Life Sciences Bill
unconstitutional. |