Legislative session shows need to restructure

This year’s legislative session closed on Tuesday as the House and the Senate overrode the ten vetoes that I had cast. These overrides ranged from effectively taking away the Governor’s Office’s control over the Ports Authority and giving it to the Legislative body, to a special tax break for developers who have unsold homes, leaving current homeowners to pick up more of the costs of local government.

As troublesome as these overrides might be, the largest issue of this legislative term was obviously the fight over the stimulus money. Accordingly, it’s worth stopping for a moment and asking the larger questions of what it all means – and where do we go from here? In many ways the stimulus fight and the overrides had much more in common than meets the eye because a large part of that friction surrounding it all is a culmination of years of difference in opinion on where our state ought to go.

At first glance this would indeed just appear to be the end-of-the-year’s fight on the budget, as for years this administration has warned we could not go on spending faster than the economy grew and expect good things to happen. While this difference of opinion has led to clashes each year about the administration wanting to spend less – or with the stimulus money to put it toward debt payment – while the legislature wanted to spend more, at a deeper level this was about will, and the prevailing, or at least balancing of will in our political system.

South Carolina’s governmental system is fundamentally broken from the standpoint of balance of power. In my first year, the late Senator Verne Smith came to me several times and said, “We want to make you the best governor South Carolina has ever known, but you’re making it impossible – because to do it you’ve got to do what we want you to do.” I trust that there was some tongue-and-cheek to what he said, but it strikes me that all too many truths are said in jest.

This is particularly true since until the late 1800s in South Carolina the legislative body actually appointed the governor. In 1895 a new constitution was put in place by “Pitchfork” Ben Tillman based on the fear that a black man would be elected governor in Reconstruction South Carolina. As a consequence, power from the Governor’s Office was diffused into the wind so that even if a black man were elected governor it wouldn’t matter because he wouldn’t have any responsibility anyway.

That is an insane model from which to run your government in the twenty-first century.

It’s equally bizarre that we’re the only state in the country with a Budget and Control Board that handles administrative functions handled by the other 49 governors. Our political structure means we have a judicial system and Supreme Court appointed by the legislative body itself, and it’s that same structure that has a lot to do with why government in our state costs over 130 percent the U.S. average.

But where do we go from here? Law professor John Simpkins wrote a fascinating piece entitled, “Sanford vs. the stimulus. A moment of truth?”, and in it he argued that “If one is driving a horse and buggy, wishing that it were a Ferrari will not make it go 250 miles per hour. Governor Sanford’s attempts to assert twenty-first century powers within the framework of a nineteenth century constitution – our state constitution – are asking the document to do something it was never intended to do.”

He went on to point out that “Yale law professor Bruce Ackerman coined the phrase ‘constitutional moment’ to describe the period when citizens of a country or state are so energized by weakness in their constitutional agreements that they focus their time, talent and treasure on changing those arrangements” – and that it would be hard to argue as a consequence of the larger tug of war on stimulus that we were not at a “constitutional moment.”

Simpkins asserts our General Assembly has “outsized influence” in the governmental structure due to its sweeping constitutional authority, and that when one considers examples like judicial merit selection by the legislative body it means that there is no balance of powers in South Carolina. “The General Assembly reigns supreme because that is the way the constitution intends it to be” argues Simpkins, and that if we don’t like it - then we should change it.

If there is any lasting good that comes out of this legislative session it would to me be in enough people awakening to the fact that our governmental system is indeed fundamentally flawed, and then doing something about it. That’s certainly my hope, but the choice with regard to action is yours.