If a law requiring roll call voting by members of the General Assembly were up to the people of South Carolina, it probably would be a done deal by now.
Such a statute likely would please a grassroots movement for greater accountability and transparency in legislators’ voting that has spread across the Palmetto State like a brush fire since 2008.
But, in this representative democracy, it’s not up to the people to pass a roll call voting law.
Democratic Sen. Brad Hutto of Orangeburg made that point in defiant if not combative tones during a Senate Judiciary Subcommittee hearing Wednesday.
Two to three dozen people attended the meeting, including several grassroots activists who have long fought for a roll call voting law, which the House already has passed – not once but twice. Now, the reform-minded citizens want the Senate to get on with it and do the same and stop fumbling about in a morass of Senate rules as they apply to roll call voting.
Hutto had a message for those folks, though.
"We don’t pass laws to make people feel good," he said.
That elicited jeers and groans among the audience members, who were seated in front of the subcommittee.
The people had come to do what democracy demands of its citizenry – the hard, unglamorous work of staying engaged, informed and active in sometimes complex issues. They had taken time away from the other business of their lives to do so, some commuting from out of town to be present; some respectfully donning spiffy suits to address the lawmakers.
Hutto? Well, he wasn’t exactly overly reciprocating in his demeanor. Indeed, he snapped at the citizen watchdogs on a few occasions and denigrated roll call voting as "a waste of time" in many instances.
"We’re doing it now," Hutto said of the practice. He twice argued that roll calls are implicit in voice votes. In such cases, Hutto said, if a legislator declines to note in the Journal of his or her respective chamber that he or she opposed something, then that lawmaker is on the record as having supported it.
Translation: If I didn’t say afterward that I voted against it, then I voted for it. "That’s what the [S.C.] Constitution says," Hutto said.
But be that as it may, the will of the people can be a stubborn thing. And listening to the grassroots activists, it was obvious that their patience is wearing thin on codifying roll call voting.
"We want something now," said Steve Isom, a Cayce city councilman.
Said Greenville retiree Don Rogers in a sharp navy blue suit, "It’s something that is foundational to our republic."
Sen. Larry Martin, R-Pickens and chairman of the legislative panel, moved the proceedings along and kept the discourse from getting out of hand. "Let me just say at the outset I think the subcommittee is very committed toward addressing this matter," Martin said in opening the hearing.
The discussion centered on whether the legislators, numbering five, would recommend to the full Senate Judiciary Committee a stand-alone roll call voting law, or advocate that such a statute be linked to a constitutional amendment.
By a 3-2 vote, the subcommittee opted for the latter.
Martin said in a follow-up interview he anticipates that the Judiciary Committee will take up the panel’s recommended law and amendment tomorrow afternoon. The committee is scheduled to meet at 3 p.m. and both items are on the agenda.
Regardless, the grassroots change agents were none too pleased. They don’t want to see a law get encumbered or gummed up in what is a lengthy, formidable procedure to amend the constitution. The process takes a two-thirds vote by the House and Senate, voter approval in a general election and then ratification by a majority of legislators in both chambers.
"That’s a very tall mountain to climb," Rogers said to the panel.
After the hearing he told The Nerve regarding the subcommittee’s decision, "I was really disappointed in this one. I was really hoping we were going to end this thing."
Martin and Sen. Paul Campbell, R-Berkeley, sided against linking a law to an amendment. Hutto and Sens. Chip Campsen, R-Charleston, and Gerald Malloy, D-Darlington, voted for linking the two measures.
Prevailing belief in the Senate, particularly by the president pro tempore of the chamber, Republican Glenn McConnell of Charleston, holds that a law dictating the body’s operating protocols would violate Article 3, Section 12 of the state constitution.
That passage says, in part, that each chamber of the Legislature shall "determine its rules of procedure."
Thus, according to the dominant opinion among senators, the rules of their chamber supersede the law when it comes to the Senate’s procedural dos and don’ts.
That’s why, right out of the gate this legislative session, Martin sponsored and succeeded in getting passed a rules change that requires many more roll call votes in the Senate. Members of the chamber unanimously approved the reform, 44-0, on Jan. 18.
Detailed in resolution S. 9, the rules change mandates a roll call vote on every bill and resolution having the force of law. It also requires on-the-record votes by senators on each section of the state’s annual general fund budget.
"We’re very committed to following that process," Martin said during the hearing.
Said Campbell, "We’ve never waived the Senate rules – never."
The House, which always has been ahead of the Senate in responding to the roll call voting movement, changed its rules similarly in 2010.
In the meeting, Martin underscored his rules change and said it does not differ from the proposed law. "The statute doesn’t do any more than we’re already doing." The senator also noted that roll call vote tabs have been added to the Legislature’s website, making it far easier to see lawmakers’ on-the-record votes.
Rogers and Isom thanked the subcommittee for the rules change and the additions to the website. "But we want that in place now," Isom said of a roll call voting law.
If the grassroots activists sound demanding, it is perhaps because they are leery not only of the constitutional amendment process, but also of legislative rules. When Rogers told the panel that the people feel like the rules are in place to protect members of the General Assembly, the audience broke into applause.
Rep. Nathan Ballentine, R-Richland, sponsored the proposed statute, H. 3004. It mirrors legislation Gov. Nikki Haley backed in her third and final term as a House member before winning the governorship in 2010.
The House unanimously passed the bill last year and quickly approved it again this year with no dissenting votes. The House also this session speedily passed a roll call voting constitutional amendment, H. 3285. Ballentine is sponsoring that proposal, too.
The Senate subcommittee approved Ballentine’s would-be law, but amended it so that it would not take effect until a constitutional amendment is ratified. The earliest that could happen is the 2013 legislative session, after the November 2012 elections.
For his part, Ballentine says he can live with the subcommittee’s change to his bill. "I’ll take that," he says, "and I would call it a victory."
Ballentine says he would prefer that mandatory roll call voting happen sooner rather than later. "We’ve been fighting this battle for over two-plus years." But he says he supports "whatever it’s going to take to get the Senate on board" with it. "Let’s finally get accountability to the General Assembly," Ballentine says.
The lawmaker adds that he thinks the House would swiftly go along with a linked constitutional amendment and law. And of an amendment, Ballentine says, "Obviously the public’s going to vote for it overwhelmingly."
Martin says he agrees.
The amendment the Senate panel approved was not Ballentine’s but one that Campsen introduced, S. 288. It would give the General Assembly the authority to require roll call voting under the law, but it would not compel the Legislature to do so.
During the hearing, Campsen quoted lengthily from Federalist Paper 51 by James Madison, the fourth president and a Founding Father who authored much of the U.S. Constitution.
Federalist 51 explores the separation of powers principle, which Campsen described as the most important legal doctrine in human civilization. "And that is what preserves liberty and keeps government limited more than anything else," he said.
Striking eloquent notes, Campsen, an attorney, argued that the separation of powers requires a constitutional amendment in order to apply a roll call voting law to the Legislature that could withstand a legal challenge.
Perhaps, but could there be a judicial pitfall in binding the two?
"Just off the top of my head I don’t see a constitutional problem with it," says John Simpkins, a professor and constitutional expert who teaches at the Charleston School of Law.
Simpkins says however that encumbering a law in an amendment could pose a political problem, in that implementation of the statute would be up to a future Legislature by way of ratifying the amendment.
But in terms of a voter-approved amendment not being ratified, he says, "I’m not aware of any case in which that’s happened."
Said Martin in the follow-up interview, "I don’t think it’s remotely possible."
Martin has led the charge in the Senate for roll call voting. In addition to pushing for the rules change, he has his own constitutional amendment proposal, S. 8, and repeatedly has said he supports a stand-alone law as well.
But Martin too contends that, absent an amendment, the courts would lack the authority to review such a statute and that it could be weakened or nullified through a future rules change.
As it follows, Martin repeatedly asserted during the subcommittee hearing that making a law contingent upon a constitutional amendment will increase its chances of getting through the Senate.