McMaster: Caucus must meet in open

Attorney general says public entity status indicated by use of public funds

By AARON GOULD SHEININ

Staff Writer

The S.C. House Republican Caucus is a public body and must obey the state’s Freedom of Information Act, Attorney General Henry McMaster said in an opinion released Monday.

But the leader of the GOP caucus said “we will continue to vigorously defend our position” that the organization does not have to operate in full view of the public and press.

The question of whether the caucus is a public body is an important one. Representing more than half the House of Representatives, the GOP caucus has the power to decide the fate of many of the policy issues facing the Legislature.

McMaster, a Republican and former chairman of the state party, said state law would appear to define legislative caucuses as committees of the General Assembly, which makes them subject to open-meetings laws.

Also, McMaster said, the caucus receives rent-free office space from the state, which would meet the law’s definition of a public body being an entity that receives anything of value from the state.

“In our view, the majority caucus is supported in whole or in part by public funds and is expending public funds,” McMaster wrote. “Thus, the majority caucus is a ‘public body.’”

McMaster’s opinion came at the request of House Majority Leader Jim Merrill, R-Charleston, and Rep. Todd Rutherford, D-Richland, after pressure from The State newspaper and other news organizations. The attorney general’s office will only provide formal opinions to public officials.

McMaster’s opinion is not necessarily binding. Caucus leaders could ignore the opinion, follow it or work to change the law and grant themselves an explicit exemption from the rules.

But the decision puts a marker in place should lawmakers be sued about closing meetings. And it is a victory for open government, said First Amendment attorney Jay Bender of Columbia.

“The General Assembly has done an excellent job of performing in the public eye,” said Bender, whose clients include The State newspaper and the S.C. Press Association. The State is a member of the press association. “The problem of the caucuses has been where (they) have represented a majority of one house or the other.

“Then they’re not really making political decisions, they’re making governmental decisions, and that should not be done behind closed doors.”

While the GOP caucus has a weekly Tuesday morning meeting that is open to the public, it traditionally has private lunches.

The caucus repeatedly has denied reporters’ entry to the lunches, where legislation before the body often is discussed. The caucus’ membership includes the 74 House Republicans, as well as many former lawmakers.

Merrill thanked McMaster for the opinion but showed no interest in changing how the caucus operates.

“The Republican Caucus has never taken a binding vote behind closed doors on public policy and has no power or desire to do so,” Merrill said in a statement.

He also said the caucus has offered to pay rent to the House for its offices in the Blatt Building at an amount to be determined.

Rutherford said he expects both the Republican and Democratic caucuses will try to change House rules to exempt themselves from the Freedom of Information Act.

“It’s one of those things where we’re both in the same boat on this,” Rutherford said of the two caucuses.

McMaster’s opinion says it could be possible for the House to simply vote to adopt a new rule exempting caucuses from the Freedom of Information Act. House rules are decided only by representatives and would not have to be approved by the Senate or the governor.

McMaster’s opinion also applies to the House Democratic Caucus. House Democrats said this year they believe their caucus is a public body and said they would follow the Freedom of Information Act.

It is not immediately clear whether the opinion would apply to the majority and minority caucuses in the Senate.

Reach Gould Sheinin at (803) 771-8658 or asheinin@thestate.com.