What Convention of States Proponents Aren't Telling You

“We have to pass the bill so that you can find out what is in it.” No other statement in the last decade quite evokes the deep disgust many South Carolinians feel about the federal government today. Years of out-of-control spending, debt ceiling increases, and judicial activism have stolen the American Dream right out from under our children’s noses, and for the first time since Reagan, many no longer feel that better days are ahead. Yet, the only thing worse than no hope is false hope, for false hope will be dashed against the rocks of reality. Touted as the founder’s solution to reigning in the federal government, a Convention of States is really just a recycled snake oil cure for all that ails America. Recent advocates such as Mark Levin are neither the first nor the only ones to pitch this idea. As much as we wish we could believe it, the Convention of States sales pitch does not line up with reality. Here’s what they aren’t telling you:

A Convention will not be limited in scope. Even if states clearly define the purpose for which they call for a Convention, Article V of the US Constitution neither imposes nor allows any limitations on the subject matter which may be considered. Once called, the Convention may propose any amendments it pleases.

Congress will set the rules. Who the delegates are and what the rules are will have everything to do with the final outcome. Since only Congress has the power to call a Convention per the “necessary and proper” clause of Article I Section 8 of the Constitution, there will at a minimum be a terrific power struggle between Congress and the states over who makes these crucial procedural decisions and ultimately, over the outcome of the Convention itself. Congress will have a Constitutional basis for its claim to this power, so this is not a state’s rights battle we can win.

Nothing will change. The theory seems to be that amending the Constitution will force federal activist judges to stop ignoring original intent. The problem with this view is that there simply is no motive for them to do so. Sufficiently motivated judges, Congressmen, and Presidents have chosen at times to creatively reinterpret the Constitution, or to ignore it altogether, as President Obama has threatened to do with his “phone and pen.” Amendments will not magically change the political philosophy of those who preside over the federal government, and those who would suggest otherwise are delusional and dishonest.

For more problems with the Convention of States proposal, see Fact Checking the Convention of States.

What then should be done to reign in the federal government? If a Convention to propose Constitutional amendments is not the founders’ solution, what is? Simply this: states refusing to comply with illegal Federal actions. A balance of power exists not only between the branches of the federal government, which now seem to operate in unison despite the show made of partisan gridlock, but also between the federal government and the states. It is time for the General Assembly of South Carolina to begin weaning itself off federal funding and to reject as null and void any action taken by the federal government which is not authorized in the Constitution of the United States. After all, we took an oath to “protect and defend” the Constitution, not to sell our constituents snake oil.

H.3022, In Defense of Marriage

I've co-sponsored Rep. Bill Chumley's H.3022, in defense of South Carolina's constitutional and Biblical definition of marriage: a union between one man and one woman. You can hear a snippet from my speech a rally on the State House grounds on Saturday, Feb. 28th at the 15:21 mark.

This bill does the following:

• No state or local taxpayer funds or governmental salaries may be paid for an activity that includes the licensing or support of same-sex marriage
• No state or local governmental employee officially shall recognize, grant, or enforce a same-sex marriage license
• If an employee violates this bill, the employee must not continue to receive a salary, pension, or other employee benefit at the expense of the taxpayers of this State
• If a judicial officer violates this bill, that judicial officer is disqualified from office

H.3716, the SC Constitutional Carry Act of 2015

Below is an excerpt from my speech on the State House steps at the Gun Rights Across America rally on Saturday, Feb. 28th 2015. Thanks to Evan Mulch for recording and posting the video.

America has a double layer of national defense: an official military, and an armed citizenry that is willing to fiercely defend our own lives and property equally against invasion by foreign enemies or by the agents of our own government.

Only a Hitler, Stalin, Mao, or Obama would distort these words:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Today, your own state government infringes on your right to keep and bear arms. You are required to ask your state government for permission before you may carry a concealed weapon in self defense. Getting this plastic permission slip can be a lengthy, six-month process that costs money and hours of your time. This is wrong.

No government licensing program will keep guns out of the hands of the criminal and the deranged in our society. What it will do is make government fatter and discourage responsible, law-abiding citizens from carrying weapons for their own defense.

Enough is enough. Last week, I filed House Bill 3716, the “South Carolina Constitutional Carry Act of 2015.” When this bill is enacted and signed by the Governor, if you want to:

• Concealed carry: CWP not required
• Park in or under the Capitol grounds: CWP not required
• Concealed carry on private property: CWP not required
• Park on school grounds: CWP not required
• Concealed carry at rest stops: CWP not required
• Concealed carry while hunting: CWP not required
• Judicial carry: CWP not required
• Retains CWP for reciprocity

I need your help getting this bill out of committee and onto the House floor for an on-the-record vote. Please contact Chairman Greg Delleney and ask for a hearing and committee vote to be scheduled as soon as possible.

On Leadership PACs

Why I filed H. 3077

Sometimes efforts to fix a problem actually make the problem worse.

Buried in a package of 15 rules changes that were quickly adopted by the House on a voice vote during the organizational session on December 2nd was an amendment to House Rule 4.16 which banned legislators from having a “Leadership PAC.” I do support the notion that House and Senate leadership should not be allowed to wield the power of a large PAC as a carrot or as a stick over the members of the body in which they preside the way former Speaker Bobby Harrell did.

Sadly, this new rule does not accomplish it’s stated purpose.

Notwithstanding Section 8-13-1340, a member of the House shall not, directly or indirectly, establish, finance, maintain, or control any entity including, but not limited to, a noncandidate committee that receives or makes contributions as defined in Section 8-13-1300. This rule does not apply to a candidate committee or a legislative caucus committee.

I filed H. 3077 to strike this new rule for the following reasons:

1. Nothing is said about “leadership.” This doesn’t ban leadership from having PACs, it bans all members from having PACs. Why shouldn’t House members be able to raise money to help their friends out, or to oppose their enemies? After all, that’s exactly what our own former Sen. Jim DeMint did with the Senate Conservatives Fund, which played a significant role in the elections of 2008 elections of Sen. Marco Rubio and Sen. Pat Toomey, and the 2010 elections of Sen. Mike Lee and Sen. Rand Paul. As DeMint famously said, “I would rather have 10 Marco Rubios than 30 Arlen Specters.” Would any conservative argue that replacing Charlie Crist, Arlen Specter, and others was a bad thing for DeMint to have done?

2. Nothing is said about “PACs.” The actual term this rule uses is a noncandidate committee, which could, conceivably, advocate for or against issues as much as for or against candidates. In fact, South Carolina has no legal definition at all for a “PAC.” This blurry line cannot be fixed in a House rule; it will have to be addressed statutorily.

3. This rule specifically exempts legislative caucus committees. Caucus committees are essentially “super” PACs with different rules and higher contribution limits. The current Republican Caucus chairman also happens to be House Majority Leader Bruce Bannister. The Speaker of the House, Jay Lucas, also has outsized influence on Republican Caucus decisions by virtue of his position. If we don’t want leadership getting involved in each others races, then why exempt caucuses? It's worth noting that the House Republican Caucus did contribute to several House incumbents who had challengers in the 2014 primary.

You may dislike the role money plays in politics. I understand that. However, if allowed to stand, this new House rule will not reduce the role money plays in SC politics, rather, it will put more of it into the hands of House leadership. To use a crude analogy, it is like disarming legal gun owners while allowing thugs and criminals to walk the streets with guns.

Sometimes you have to fight fire with fire. That’s what I’m doing with H. 3077.

Resolutions: "Follow The Law!"

You would think that passing resolutions which basically say "follow the law" would be pointless. Unfortunately, the South Carolina Legislature has not been following two specific laws pertaining to the State budget: funding the Local Government Fund, and holding joint, open budget hearings on the Governor's budget. I plan to introduce two resolutions addressing these issues (see below) at the upcoming Delegation meeting. You're welcome to attend:

Anderson County Legislative Delegation Meeting Friday, Dec. 5th at 6pm Ronald P. Townsend Government Building 2404 North Main Street Anderson, SC

The Local Government Fund

Act 171 of 1991 created the Local Government Fund which some counties rely on to provide services. The act requires the fund to consist of 4.5% of the previous year's tax revenues. Since 2007-2008 we've slashed the Local Government Fund by over $343 million, incentivizing local governments to double-tax their citizens to make up the shortfall.

In short, rather than pass on all of the tax dollars to which local governments were entitled by law, the state chose instead to keep part of those dollars.

The message sent to local governments was clear: the State is only willing to tighten its belt so far. Good luck tightening yours.

The Budget Process

Sections 11-11-90 and 11-11-100 of state law requires the House and Senate budget committees to convene jointly in public hearings to receive input on the budget. Not any budget, though: the Governor's budget.

Why does this matter? The South Carolina Policy Council explains:

When the budget becomes entirely a product of the legislature, as it is currently in South Carolina, it’s no longer a coherent spending plan based on the needs of the state as a whole; it’s rather a collection of spending items, many of them duplicative, meant to benefit local and regional constituencies, without regard for what benefits the entire state. The governor is the one public official in the budget process who is elected by the entire state; he or she is accountable to the Upstate, the Midlands, the Lowcountry, the Pee Dee, and everywhere in between. The law’s requirement that the executive budget be used as the first draft, therefore, makes sense.

When you think about it, the current practice of the House and Senate writing their own budgets separately without regard for each other or the Governor's budget may have much to do with why some parts of the state are better cared for than others in areas like road and education funding.

It's also inefficient. Why should state agencies, the media, and the public have to navigate multiple, sometimes simultaneous, subcommittee hearings--not once, but twice--to have input in the budget process, when state law has already outlined a clear and simple budget process which calls for the Governor, House, and Senate to work jointly?

What does the SC Legislature have to lose by adopting this streamlined process?

Don't Play God

Some lawmakers do not like these laws. They describe them as "antiquated," "unnecessary," or even "unconstitutional." Many of these arguments are in my view thinly-veiled arguments for the status quo and hold no weight.

One's personal feelings about the demerits of a state law does not give lawmakers the option to ignore said law. If a law is poorly thought out, inefficient, or no longer appropriate, it should be amended or repealed, but it may not be ignored. Lawmakers cannot play God.

Resolutions

In an effort to raise awareness and support among the SC Legislature for these issues, I plan to introduce two resolutions at the Friday, Dec. 5th meeting of the Anderson County Legislative Delegation. You can read the resolutions below.

This meeting will be held at 6pm at the Ronald P. Townsend Government Building on 2404 North Main Street, Anderson, SC. You are welcome to attend.

• Local Government Fund Resolution
• Budget Process Resolution

After Harrell: The Greatest Corruption of All

A Challenge for the Next Speaker of the House Note: a previous version of this post indicated the Governor plays a role in judicial selection, but this is factually incorrect. This post has been corrected.

Sometimes, I’m a pretty embarrassed South Carolinian. Though we could be described, at least here in the Upstate, as “the buckle on the Bible Belt,” we have a way of frequently making unpleasant political headlines.

It started with a former Governor, now Congressman, who said he “hiked the Appalachian trail” when he was actually visiting his “soul mate” who was not his wife (a saga that is still playing out like a soap opera), to a Lieutenant Governor forced to resign in disgrace after multiple campaign finance violations (in the private sector, this is known as “embezzlement”), to 8 Sheriffs in the last 4 years indicted or investigated for a variety of fraudulent behavior, including racketeering and bribe-taking, finally climaxing in the indictment of Speaker of the House Bobby Harrell just days ago for violations that dwarf those of former Lieutenant Governor Ken Ard.

But what you won’t hear in the media is the greatest corruption of all: our very system of government is compromised.

Oh, we make a show of the three-branch balance of power that our founders bequeathed to us. Yet, as Lawrence Lessig put it, “We inherited an extraordinary estate. On our watch, we have let it fall to ruin.”

Republic, Lost

The truth is that South Carolina more closely resembles an oligarchy than a republic.

As far back as the Civil War, the Palmetto State’s ruling class loathed the idea of a black governor, so they divested the governorship of most executive functions. Who were the recipients of this power? They were, of course--the legislators.

“Are you suggesting that the legislature does the work of two branches of government?” you ask. Of course not! That would be hard work. Instead, the legislature appoints a confusing and sometimes redundant array of hybrid, unelected board and commissions. Some of these are entities unto themselves; others perform executive oversight of entire state agencies, such as the Department of Transportation.

And one of these picks our judges.

The Judicial Merit Selection Commission

You’d think the Governor would appoint our judges. She does not. Instead, the Judicial Merit Selection Commission, which is itself comprised of a majority of legislators, screens candidates and submits a list of "approved" nominees to the joint House and Senate body for election.

By contrast, the President of the United States and many other state Governors appoint judges, who must then be confirmed by the respective Senate bodies. South Carolina is the only one out of fifty states with such an odd system.

As Rep. Kenny Bingham, a candidate running for Speaker of the House, put it to me: “We can’t give the Governor that much power.”

Thus is the mentality of many of our lawmakers. It’s their power, and no one else should have it. No matter that it’s a bastardization of the Republic that our founders gave us so many years ago.

Tracing the ties of power

Five of the ten members of this board are directly appointed by the Speaker of the House. The other five? Appointed by the Senate.

Now, imagine a scenario where the Chief Justice of the SC Supreme Court is up for re-election, and the Speaker of the House appoints House members to the Judicial Merit Selection Committee who are beholden to himself for their coveted House committee assignments, and also appoints his own brother. Let us further imagine that the Speaker is indicted for charges which could easily be appealed to the SC Supreme Court.

Do you think said Speaker will get a fair trial? Maybe a little too fair, if you get my drift?

Perhaps all 5 of Harrell’s appointees are good people. Corrupt systems often employ generally decent people. As Lessig writes in his book, “Republic, Lost:”

“[C]orruption does indeed wreck our democracy. Not a corruption caused by a gaggle of evil souls. On the contrary, a corruption practiced by decent people...people working extremely hard to do what they believe is right, yet...extraordinary bad gets done. This corruption has two elements...the first element is bad governance, which means simply that our government doesn’t track the expressed will of the people...on this account, [democracy] seems to a show or ruse; power rests elsewhere. The second element is lost trust: when democracy seems a charade, we lose faith in its process.”

Lost trust. Funny choice of words. (Look up “Operation Lost Trust” if you don’t know what I’m talking about.)

Oh, and did I mention that many South Carolina lawmakers are also attorneys, who, in their own law practices, will stand before the very judges they elect? Is it not enough that the lawmakers write the law? Must they also choose the judges?

Can we trust such a system?

After Harrell

“There are a thousand hacking at the branches of evil to one who is striking at the root.” Henry David Thoreau

Literally moments after Speaker Harrell’s indictment was announced, Representatives of ambition began scrambling to line up votes for themselves. Amidst the melee, a call to change House procedures went out. Rep. Tommy Stringer wrote:

“At a minimum, the new Speaker should lead the reformation of House Rules to limit the number of terms a member can serve as Speaker, to limit the number of terms a member may serve as a committee chairman, and to expand the number of standing committees so that the State may benefit from the talents of the broadest number of Representatives as possible. I will not vote for any member running for Speaker who does not, at a minimum, strongly support and act to achieve these reforms.”

A few days later, Interim Speaker (and Speaker candidate) Rep. Jay Lucas appointed a “Special House Rules & Procedures Review Ad Hoc Committee” presumably to draft and propose potential rule changes.

This sudden move to reform House procedure was described by Rep. Nathan Ballentine as “a signal of a new day in the House...a breath of fresh air.”

I, for one, agree there is a need for things like term limits on the Speaker. However, I cannot help but be skeptical, and wonder if this could prove a diversion from a much greater problem: judicial dependence.

To the current Speaker candidates, Reps. Jay Lucas, Kenny Bingham, and Jim Merrill, hear me:

If you wish to rise above the previous speaker, to restore faith and trust in the SC House, and do more than whitewash a corrupt system, you MUST amend the SC Constitution to achieve judicial independence, which means, at a minimum, completely abolishing the Judicial Merit Selection Committee, divesting yourself of the inordinate power which you should never have had over this process and allowing the Governor the full power to appoint Judges with the advice and consent of the Senate, as our founding fathers (who were all much smarter than any of us) intended.

Only then will we begin to strike the root of the greatest corruption of all.