Posted on Sun, Mar. 06, 2005


When our checks and balances work just right


Guest columnist

The journey of the Life Sciences Act through the legislative, executive and judicial branches of our state government is a remarkable example of our system working as our founding fathers intended.

It presents a textbook civics lesson of how the crosscurrents of politics, human industry and constitutional law ultimately can produce great progress.

The life sciences facilities bill was originally a bill dealing with tax incentives for existing businesses engaged in pharmaceutical, medical and related laboratory instrument manufacturing or processing, or research and development. As the bill made its way through the legislative process, several provisions were added. They provided venture capital for investment in start-up companies, “seed capital” for research and development for new products, small grants for technology incubators at the three research universities (USC, Clemson and the Medical University of South Carolina) and $250 million in bond money for the universities to build the necessary infrastructure to attract research projects.

But along its journey, the life sciences bill also picked up many worthy but totally unrelated items, such as a four-year culinary program at Trident Tech in Charleston, four-year degrees at USC Sumter, bonds for an international trade center in Myrtle Beach, changes in the eligibility requirements for LIFE scholarship recipients, a study for a new law school at South Carolina State University and health insurance for graduate students.

We do not know which of these unrelated provisions would have survived the legislative process on their own. But “bobtailed” one on another and tacked on to one massive bill, they all passed together.

Irrespective of the merits of the provisions, the bill failed to comply with the “one subject” requirement of Article III, Section 17 of our South Carolina Constitution. That section mandates in plain language that “every Act or resolution having the force of law shall relate to but one subject and that shall be expressed in the title.”

Gov. Mark Sanford, exercising his executive authority, used this constitutional provision as his basis for vetoing the entire bill. The General Assembly, exercising its legislative authority, promptly overrode his veto, and the life sciences bill became law.

When the governor decided against bringing a lawsuit against the General Assembly, Edward D. Sloan Jr. of Greenville, exercising his rights as a private citizen, stepped in to champion the governor’s cause by suing the General Assembly and the state.

One misconception about this lawsuit is how I came to be involved. When the state of South Carolina is sued, the attorney general defends and represents it in legal matters. This means defending the constitution, too. While statutes and acts come and go, the constitution forms the heart of the state. That is what I am elected and sworn to defend.

Therefore, when Mr. Sloan sued the state, my duty was to determine and argue the correct position on the constitutionality of the Life Sciences Act before the state Supreme Court.

In the Supreme Court, three distinctly different positions were argued on the bill’s constitutionality:

• Mr. Sloan’s attorney argued that the entire act was hopelessly unconstitutional and therefore null and void due to the wide variety of subjects it embraced.

• The General Assembly’s attorney argued that all the provisions related to but one broad subject, economic development, and must all be upheld.

• I argued for the state that the core of the act related to but one subject — the development of the life science and biotech industries around our three research universities — and should be upheld, but that the unrelated sections should be stricken as unconstitutional.

Here’s why:

The core of the bill was momentous legislation. By providing the three proven catalysts for successful life sciences and biotech research and development — tax incentives for existing biotech and life sciences companies to cluster around research universities, seed money for start-up companies and infrastructure for these research universities to facilitate and encourage such innovative efforts — our state has taken an important step into the 21st century.

In years past, we have made great strides with industries such as aircraft fuselages, rolled steel, tires, automobiles, electric power and tire products, but we have not — until now — committed ourselves to the entrepreneurial promise of life sciences and biotech research development.

Like Wisconsin, Kentucky, Arizona, North Carolina and California, we have now signaled our interest in the commercial application of research in fields as diverse as human aging, biochemistry, curing cancer, organ transplantation, tissue regeneration following disease, injury or burns, restoring eyesight, immunology, medical imaging and genetically engineering plants. But unlike our competitor states, we are providing the three catalysts simultaneously, and in permanent law.

The final act in this series of constitutional checks and balances came when the Supreme Court exercised its judicial authority, agreeing with the position my office had argued, and struck down the non-germane provisions but upheld the core of the act.

With the Life Sciences Act, our three branches of government have checked and balanced each other to produce positive results. Our founding fathers would be proud.

Mr. McMaster is the S.C. attorney general.





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