The South Carolina Governance Project

Center for Governmental Services, Institute for Public Service and Policy Research, The University of South Carolina, Columbia, South Carolina 29208

The South Carolina Legislature

By Charlie B. Tyer and Richard D. Young

 

Introduction

One popular textbook on legislatures and the legislative process begins this way: "The American legislature is the first branch of government" (Keefe & Ogul, 1997, p. xi). This statement is not meant to minimize the importance of chief executives, the judiciary or the bureaucracy in government. Rather it is recognition that the legislative branch of government in the United States is a central actor in the drama of representative democracy.

Perhaps more than the other institutions of government in the United States, state legislatures have undergone significant changes in the last quarter of the twentieth century, and South Carolina is no exception. In the 1960s it was common for the states to be viewed as archaic and out of touch with the problems Americans were confronting. Attention focused upon the national government and its programs to deal with urban problems, poverty, economic development, crime control and even space exploration. Over time, however, the states have regained center stage as key actors in confronting the pressing issues faced by Americans today—be it education, health care, criminal justice and corrections, or growth. It is vitally important that citizens understand their state government and the important role that the state legislature plays in our system of government.

This chapter describes the development and function of the legislature in South Carolina. We begin with an overview of the historical development of the General Assembly and conclude that discussion with remarks on the contemporary legislative body. This is followed by a discussion of the functions of the legislature, its organization, and the legislative process. Finally, the important role the legislature plays in oversight of government in general will be discussed.

Historical Development of the General Assembly

For purposes of overview it is convenient to divide our discussion of the General Assembly’s development into five periods: the proprietary and colonial period, the Revolutionary and antebellum periods, the post-Civil War period, the Constitution of 1895 through World War II, and the modern era or post-World War II.1

The Proprietary and Colonial Periods, 1663-1776

In the 1660s, King Charles II of England gave a group of English investors large tracts of land in what is known today as South Carolina. Thus, South Carolina began as a proprietary colony and these proprietors ruled the colony for the first 55 years of its history. From 1664 to 1719 the affairs of the colony were conducted by a Grand Council, which consisted of 10 members who were elected by the proprietors and landowners in the colony, a governor appointed by the proprietors, and later a Commons House of Assembly. The Commons House consisted of 20 members and was created in 1691. It gradually became more and more powerful after its creation.

The proprietors were overthrown in 1719 in what might be called a bloodless revolution due in large part to the dissatisfaction of the landowners and merchants who made up the Commons House and who reflected the prevailing sentiment in the colony. As a result of their objection to the rule of the proprietors, the English king stepped in and made South Carolina a royal colony in 1719. The Grand Council now became His Majesty’s Council and consisted of 12 men selected by the king. The colonists elected the members of the Commons House, although suffrage was restricted to a relatively small segment of the populace. At that time only free, white, Christian males who held at least 50 acres of land or who could pay a heavy tax were allowed to vote. Membership in the Commons House was even more restrictive being limited to men who owned 500 acres of land or more, at least 10 slaves or other property, and who belonged to the Anglican Church.

The Revolutionary and Antebellum Periods, 1776-1860

A strong legislative tradition had begun in the pre-Revolutionary period with the outspokenness of the Commons House. This continued after the Revolutionary War ended and was strengthened by the antipathy toward a strong executive that many Americans of this era shared due to their experiences with the English monarchy. Thus, the powers of the governor were limited severely. Indeed, the South Carolina Constitution of 1776 called for the governor to be elected by the legislators themselves rather than the people. It was not until 1865 that the populace would select the governor. A second Constitution, drawn up in 1778, deprived the governor of the power to veto legislative acts. It also gave the two-house legislature the names that we use today: the Senate and the House of Representatives.

Yet another Constitution was drawn up in 1790. Under this document the legislature could elect not only the governor but also all other state officials, including judges and many local officials. Thus began a tradition of legislators selecting judicial officials that remains to this day and active involvement in local affairs. The 1790 Constitution fixed the number of representatives in the lower house at 124, the same as used today. The number of representatives in each district was determined by both the value of the property in the district and its population.

Each electoral district chose one senator, except Charleston which elected two. While some religious qualifications for voting were dropped, the right to vote was still restricted to white, male property owners. Wealthy slave owners were therefore able to dominate the legislature and determine the policies of the state.

By the 1840s some dissatisfaction was evident with the domination of the wealthy planters of the legislature, but the white populace was of no mind to succumb to the insistence of the northern states that slavery be ended. On December 20, 1860, South Carolina voted to secede from the Union and the Civil War followed. Five years later, at the end of the war, the state’s economic and political system was in ruins.

The Post-Civil War Period, 1865-1868

At the end of the Civil War, South Carolina, like the other southern states, was occupied by the military. South Carolina, like other southern states, was told to make changes in its constitution regarding the newly freed slaves. The legislature, concerned over blacks being given more freedom, resisted and passed legislation that made interracial marriage illegal and restricted other freedoms of the newly freed slaves. In 1866 the legislature refused to ratify the 14 th Amendment to the United States Constitution. [The 13 th , 14 th and 15 th Amendments are known as the Civil War Amendments because they were passed after the war and dealt with issues affecting the freed slaves and the states.] As a response, the government in Washington disbanded the General Assembly and called for a constitutional convention that included both blacks and whites.

The convention drafted a new constitution, the Constitution of 1868, which gave all males regardless of color the right to vote. Additionally, seats in the lower house were apportioned on the basis of population alone rather than using wealth and property considerations. The governor was also strengthened by receiving the veto power and greater restrictions were placed on the powers of the General Assembly.

The Constitution of 1895 and the General Assembly

Many whites resented the government created by the 1868 Constitution and the changes brought about by allowing the former slaves to vote. Seizing on this resentment, Senator

Benjamin Tillman led a successful movement to turn the tide back and restore the old order, namely, "white supremacy." Out of this movement came yet another state constitution, the Constitution of 1895. This constitution required poll taxes and literacy tests for voting, the effect of which was to prevent the black population from voting in any sizable number due to their lack of education and poor economic status. It also established separate schools for blacks and whites and again prohibited interracial marriage. (The various measures designed to restrict the civil rights of blacks are often referred to as "Jim Crow" laws.) The structure of the General Assembly, however, was left in tact with the lower house consisting of 124 members elected for two-year terms and the upper house or Senate consisting of 46 members elected for four-year terms. Each of the 46 counties had one senator.

While the structure of the General Assembly was not altered significantly, who served in it was dramatically changed. With the virtual exclusion of blacks from voting, only one black person was elected to the legislature over the next 70 years. Women were not given the right to vote until 1920 as a result of the adoption of the 19 th Amendment to the United States Constitution. Even then, however, the legislature remained the preserve of white males. It was not until the 1950s that serious challenges were launched against racial discrimination. The most famous court case of that era was Brown v. Board of Education (1954) which was joined by a case from Clarendon County and resulted in the legal ruling that "separate but equal" educational facilities were unconstitutional.2

With the coming of the 1960s and bolstered by Supreme Court rulings dealing with equal protection of the laws, two additional areas of civil rights came under scrutiny: voting rights and the designation of election districts.

The Modern General Assembly, 1965 - 2000

Although poll taxes were eliminated in 1951, other barriers to voting remained for blacks. Literacy tests, for example, were still used as well as other forms of intimidation designed to restrict black participation in the electoral process. Growing national concern about civil rights, however, led Congress to pass a Voting Rights Act in 1965 that brought federal oversight to areas of the country [typically the South] that had low rates of black voter registration and voting. Thus, federal voter registrars could be brought in if necessary to help register voters, and any changes in election procedures, voting places, or election districts would henceforth require federal approval by the United States Justice Department (a requirement that persists to this day).3

Needless to say, as more blacks registered to vote and actually voted, they began to have a growing influence upon electoral outcomes. But, merely voting was not sufficient to determine the outcome of enough elections to change public policies. This is because elections take place in election districts drawn to elect members of the House and Senate. (Election district boundaries vary depending upon the officer holder being elected.) District lines for members of the South Carolina House and Senate are drawn by the House and Senate. Members of the legislature had, as in most other state legislatures as well, drawn the lines usually to favor the political party in control of the House and Senate, and often the incumbent office holder. This practice is referred to as gerrymandering.

The practice of gerrymandering was challenged in the federal courts in a series of cases in the 1960s. The three most famous cases were Baker v. Carr (1962), Wesberry v. Sanders (1964), and Reynolds v. Sims (1964). Together these cases said that gerrymandering that resulted in the dilution of minority voting influence was illegal. In addition, the concept of "one person, one vote" was established as the guiding principle in drawing election districts at the state and local level.4 The result was that law suits were filed against the method of apportioning seats in the South Carolina House of Representatives and Senate which resulted in both these bodies having to reapportion their election districts to reflect the "one person, one vote" principle.

Today the House and Senate districts are drawn to provide as nearly as possible equal numbers of voters in the districts. Since there are more House districts, the number of voters in House districts obviously is less than in Senate districts. District lines are still drawn to provide advantages to one party or office holder, however. Thus, the practice of gerrymandering continues, although racial gerrymandering is not legal.5

Members of both the South Carolina House and Senate today are elected from single member districts. This means that only one person is elected from that district. (Multi-member districts are legal and are used at the local level in some communities in South Carolina for council positions.) One consequence of moving to single member districts for the election of state senators was that senate district lines were drawn to provide equal numbers of voters thereby ignoring county boundary lines. Previously each county had elected one senator regardless of its population. This practice also facilitated state legislative interest and control over local affairs. As legislative district lines changed, however, so too did the practice of legislative scrutiny of local government affairs. Along with other factors, this encouraged efforts to move toward local government home rule in the 1970s and a reduction, but not elimination, of state legislative involvement in the day-to-day affairs of city and county governments, and particularly county governments.

Legislative Functions

State legislatures, like most legislative bodies, carry out a number of functions. In this section we will introduce the major functions fulfilled by the state legislature and discuss several of these functions more fully. In addition, the section provides an overview of some of the facets of these functions to assist the reader in understanding the multiple functions filled by legislative bodies.

Representation and Roles

One of the ongoing discussions in the American democratic system is: "Whom do elected representatives represent?" There is a fairly widespread view among the public that those elected to fill legislative roles are there to represent those who elected them. While certainly true, the issue of who is represented is not simply answered. Is it an entire constituency? Or, some portion of the constituency (such as a vocal one)? Is it the "state" in the case of the state legislator? The political party one is affiliated with? A particular clientele?

A classic study in legislative behavior in the 1960s identified three roles that most legislators could be grouped in: trustee, politico and delegate (Wahlke, Eulau, Buchanan & Ferguson, 1962) The delegate role is the view that a legislator is to reflect the wishes of his or her constituency, while the trustee role finds the legislator acting as more of a free agent trying to make decisions in the best interest of the public as best discerned by the legislator. The politico role is one that finds the legislator waivering on varying issues depending on circumstances and political winds. Interestingly enough, the study in the 1960s found that most legislators tended to identify themselves as trustees.

Another consideration in the roles legislators adopt is the method of election to the legislature. Most legislatures today, including South Carolina, use single member districts as op-posed to multi-member districts. This is a result of reapportionment court cases and the "one person, one vote" concept. Research, generally speaking, finds that smaller legislative districts result in the legislator being more concerned with district affairs and constituent service. This is due, in part, to a more cohesive constituency existing in many cases which enables those views to be more clearly identified and brought to the attention of the legislator. Thus, today legislative districts may be characterized as suburban, inner city, predominately white or black, blue collar or white collar and so on. One can certainly see that in a small state such as South Carolina, the size of average legislative districts is relatively small and districts, therefore, would lend themselves to exerting influence upon their state legislators.

The Legislature and the Budget

The General Assembly, similar to all other state legislatures, is the only governmental body that can authorize the spending of public monies by the state and raise revenue through taxes, fees, fines and borrowing. Thus, the power to raise revenue and to spend it is one of the most important powers of the legislative branch. The budget process, and the way the legislature deals with it, has undergone some change in the recent past. We’ll begin with some of the differences and then specifically discuss revenues, expenditures and the budget process in South Carolina.

 

Key terms and concepts. Before proceeding, an identification of some key terms and concepts will help us to understand the state budget process. One useful way to discuss budgeting is to think of it as occurring in a budget cycle. Typical phases of a budget cycle include: planning, preparation, submission, approval, execution and audit/evaluation. The cycle is oriented around the fiscal year, which in South Carolina is July 1 through June 30 of the following year. A fiscal year is determined by a legislative body and is usually different from the calendar year.

 

Planning and preparation are usually done at the agency level often in accordance with guidelines from the governor or some other central source. The budget is submitted to the legislature usually by the governor acting as the chief executive. When the chief executive has the authority to prepare and submit a budget, the budget is referred to as an executive budget.6

Alternatively, a budget that is drawn up under the supervision of the legislature or bodies responsible to it is often referred to as a legislative budget.

South Carolina only began using the executive budget concept in the 1990s, however, resorting to a hybrid system for much of the twentieth century that relied upon a body known as the Budget and Control Board to oversee the preparation of the budget and its execution.6 This board is composed of five people: the Governor, Comptroller General, State Treasurer, Chairman of the House Ways and Means Committee, and the Chairman of the Senate Finance Committee. Basically, the board was created by the state legislature to weaken the governor’s authority and maintain a tradition of legislative dominance over state government that extends back to the colonial era. In 1994-95, however, the legislature formally created an executive budget and joined other states in granting the chief executive a strong role in attempting to set state priorities each year through the budget. (Young, 1999, p. 71.)

Budgets at all levels of government are approved by a legislative body. Thus, the legislature has the responsibility of passing an annual appropriations measure which raises the revenues needed to pay for the expenditures authorized. The legislature is not bound to accept the budget submitted by the governor and can, and does, make changes as it desires. These changes are often difficult to make, however, due to political pressures, partisan politics and other considerations.

The execution phase of the budget cycle involves state agencies actually spending the monies they have received in the annual appropriations measure. Should economic conditions or other circumstances intervene to create a projected shortfall during the year, however, the Budget and Control Board can call for reductions in spending in order to avoid a year-end deficit.

Once the fiscal year has ended, an audit is conducted and reports are prepared on spending and revenues so that exactly how much money was raised and expended can be determined. If there is an excess of revenue over expenditures, these "surplus" monies become available for appropriation the following year. Spending, programs and services may also be evaluated in order to assess their efficiency and effectiveness. The resulting information is shared with agencies to assist them in improvement, as well as with the legislature as a part of its oversight function. Then, with the audit completed, the budget process repeats itself thereby meriting the title "budget cycle."

South Carolina, like 43 other states, gives its governor line-item veto power which is particularly useful in dealing with the annual appropriations act. A governor can veto particular portions of an act and not have to face a choice of accepting or rejecting the entire measure. This is a source of significant executive power for governors, particularly as they negotiate with legislators during the budget approval process. (See the chapter on the governor for a more detailed discussion of the line-item veto.)

State Revenues

The state of South Carolina receives revenues from three basic categories of sources: the general fund, federal funds, and "other" funds. The general fund of the state contains state taxes, fees and fines. Most of the taxes come from individual and corporate income taxes, and sales taxes. Income and sales taxes have the advantage of being more elastic than property taxes, meaning they expand as the economy expands without corresponding rate increases. Their disadvantage, however, is that they can do the reverse as well. In times of economic downturn, they contract creating budget-balancing problems for state budgeteers. A downturn puts the legislature in the middle of a critical decision because it must decide whether to cut services, raise taxes, or both in order to balance the state's budget.

Viewing the 50 states collectively, the sales tax is the dominant single revenue source for state governments. In South Carolina, the sales tax produces about as much revenue as the income tax making both taxes roughly equivalent.

Federal funds are also a significant source of state revenue. In South Carolina these amounted to $3.6 billion in 1998-99. Large amounts of federal money go to education, social services, health care, and transportation. Many states, including South Carolina, require that federal funds be appropriated by the legislature and included in the state budget in order to assure that a comprehensive approval exists of agency spending and revenues.

The "other funds" category of state revenues consists of a variety of fees, fines, special levies, and so forth, that go directly to state agencies. Examples would include fishing licenses, drivers licenses, and fines for violating wildlife laws and boating laws. This amount in 2000-2001 equaled $4.6 billion.

The total amount of revenue appropriated by the state legislature in 2000-2001 was $13.9 billion. Thus, the general fund, while quite large, is obviously not the majority of state revenue or spending. (See Young, 1999.)

State Expenditures

The flip side of revenues, of course, is spending. South Carolina state government spending is concentrated in a relatively few areas. About a third of the state’s appropriations go toward public education, 20 percent toward health and social services, 16 percent to higher education, 11 percent toward law enforcement and the judiciary and corrections, and "all other" equates to the remaining 19 percent. This last category comprises the bulk of state agencies and programs not included in the earlier groupings.

Controlling state spending is typically a concern of the state legislature. Slowing the rate of growth of spending is made difficult, for example, by entitlements created by Congress and other programs jointly administered by the federal and state governments. Examples would include Social Security, Medicare, Medicaid and other programs authorized by Congress that confer a legal right in the form of a monetary or other benefit upon qualified recipients.

In addition to entitlements, other requirements may be imposed by federal programs that are characterized as mandates upon the state (and local governments as well). Environmental mandates, for example, have been some of the more costly and controversial in areas such as air and water quality (Dye, 2000, pp. 77-81).

When state revenues are not collected as estimated, or if something unusual happens which causes spending to exceed initial revenue projections, a budgetary shortfall may likely occur. The General Assembly has attempted to deal with short-falls in three ways: (1) setting a constitutional limit on spending growth; (2) constitutionally requiring two reserve funds be established; and, (3) giving authority to the Budget and Control Board to make spending adjustments when the legislature is not in session.

The legislative budget process in South Carolina begins in January when the State’s budget is introduced in the state legislature. Typically this begins in the House where the House Ways and Means Committee divides the budget among its subcommittees for scrutiny and review. Depending upon circumstances, the Senate may take up consideration of the budget before the House has acted. This occurs in the Senate Finance Committee which also has subcommittees. When the House and Senate have finished their consideration, they deal with one massive appropriations bill (excluding bonded indebtedness which is dealt with by a separate bill). The two versions of the bill must be identical and passed as such in each house to adopt the measure. If they differ, as they have in recent years, a conference committee is appointed which attempts to reconcile differences in order to have a budget or appropriations act that both houses of the legislature can agree to. More often than not the final decisions on the state’s budget are made at the end of each legislative session due to disagreements between the two houses on key aspects of the budget. Sharp partisan differences in recent years have aggravated this tendency.

South Carolina, like many states, tends to concentrate the budget function in a few hands in the legislature. Thus, the committees in the House and Senate that deal with the budget are powerful and sought after committee assignments. Because the budget determines state spending, and thereby the policies the state pursues, it is the most important tool legislators have to make state policy, or change it. Thus, much time and attention is focused upon spending and revenues since they affect virtually every citizen and business in the state.

Organization of the Legislature

The General Assembly and the legislators who serve in it carry out a number of functions, the primary one being lawmaking. How the legislature operates to carry out these functions is conditioned by its organization. Hence, we now turn our attention to the organization of the General Assembly and explore how members are selected, the operation of the legislature itself, the role of the leadership and who they are, and finally the staff who assist the members of the legislature.7

The General Assembly, like Congress and all other states in the United States, except one, is a bicameral legislature. This means there are two chambers or "houses." The upper chamber is the Senate and the lower chamber is the House of Representatives. Again, similar to Congress and the other states, the upper house has fewer members who serve longer terms than the lower house. Thus, South Carolina senators serve four-year terms, while House members serve two-year terms. The Senate is composed of 46 members and the House 124 members. All are elected from single-member legislative districts today, with House districts averaging a little over 28,000 residents and Senate districts 75,800.

Qualifications, Elections, Compensation and Member Characteristics

To qualify to serve in either the House or Senate a citizen must meet age and residency requirements and be a registered voter. Residency means the candidate and later office holder must reside in the district they wish to represent. House members must be at least 21 years old to serve, and Senators must be at least 25 years old. The use of a higher age requirement for the upper house is common to other states and the national government as well.

The most common method by which candidates are nominated today to run for a seat in the legislature is the party primary, which is held in the month of June before the November general election date in even number years. Primaries are a legacy of the Progressive Reform era in the United States that sought to diminish the influence of party bosses, and "smoke-filled rooms" closed to the public to make decisions about who would run for office. In South Carolina any eligible citizen can file to run in a primary for a legislative seat. Primary elections are overseen by the political parties while general elections are overseen by the State Election Commission and County Election Commissions acting as agents of the state.

Those elected to serve in the legislature receive a modest salary which is supplemented by travel, subsistence, postage and daily allowances. The base salary for members of both chambers, however, is $10,400. The modest compensation paid to South Carolina legislators reflects a public preference for retaining the concept of the "citizen legislator" which has deep roots in the American political culture. Citizen legislators are not professional year-around legislators but are part-time officials who have other occupations and means of support.

Sessions, Schedules and Calendars

The South Carolina General Assembly meets annually. Each annual session of the General Assembly begins on the second Tuesday in January and continues through the first Thursday in June, unless two-thirds of both houses of the legislature vote to extend the session. This does not typically occur. The legislature does, however, usually agree to reconvene for one or two days in late June to consider specific bills not completed by adjournment and to review vetoes by the governor.

Both the House and the Senate determine their own schedule or "order of business" by publishing calendars. A daily calendar is prepared and is now available to the public over the Internet through the legislature’s web site. [See http://www.lpitr.state.sc.us/ ]

Rules of the House and Senate

Both chambers of the legislature adopt their own rules that govern their organization and operation. These rules establish the parliamentary procedures that will be followed. Included in the rules are times of meetings, definitions of quorums, attendance rules, record keeping requirements, definitions of floor privileges, and many other topics. They are published by the House Clerk in the Legislative Manual each year.

The rules of the Senate and House differ on some significant points, two of which are seniority and the filibuster. The rules of the Senate recognize seniority by political party affiliation, determined by uninterrupted service in the Senate, in the assignment of senators to committees, chairmanships, and other positions, offices, or standing in the Senate. On the other hand, the House gives no preferential treatment to seniority. Rather, the Speaker of the House makes committee appointments and selects committee chairpersons usually on the basis of member qualifications and political affiliation.

The second major distinction between the two houses concerns the filibuster. The South Carolina Senate recognizes the right of a senator or group of senators to carry on lengthy debates or comments that delay or even prohibit the passage of legislation. Defenders of this age-old practice argue that it provides a check on speedy action that may be precipitous or unwise. The South Carolina House does not allow for the use of the filibuster in its rules.

Leadership in the General Assembly

Leadership exists informally and formally in most organizations and the legislature is no exception. Formal leadership does not shift like informal leadership does. It is specific and associated with particular positions. Designated or formal House leadership positions in South Carolina are the Speaker, majority and minority leader, and committee chairpersons. Senate leadership positions are the President of the Senate, the President Pro Tem, majority and minority leaders, and committee chairpersons. In 26 states, including South Carolina, the lieutenant governor also serves as the President of the Senate and presides over that body. In such situations as this, the principal senate leadership position falls to the President Pro Tem of the senate.

Leadership in the South Carolina legislature depends also upon seniority and party affiliation. As noted already, the Senate uses seniority along with party affiliation to determine leadership positions, in most instances, while the House relies on party affiliation. Further, leadership in the South Carolina House of Representatives is subject to more rapid turnover since the party that has a majority there selects the Speaker, who, in turn, selects committee chairpersons. Thus, the House has seen more changes in its leadership in the 1990s than has the Senate since the Republican party gained House control in 1994.

What are legislative leaders expected to do? Consider, for example, the Senate and House leadership positions—the President Pro Tem and the Speaker of the House. Both these positions have considerable power as a result of their leadership role in the legislature. Their duties include making appointments, presiding over their chamber, referring bills, taking criticism and political carping when necessary from the legislative process, maintaining good relationships between the two houses, ministering to members of their respective chamber, handling ethical issues, and even helping members get elected. Due to the presence of the lieutenant governor in the Senate as presiding officer, the Senate President Pro Tem does not refer bills to committees as his counterpart in the House, and due to the seniority rule he does not make as many appointments either. If the lieutenant governor is absent, the President Pro Tem assumes the role of presiding officer and then can, in this case only, refer bills to committees. Nevertheless, the two positions still have a great deal in common in terms of overall responsibility for making the legislative process work smoothly in their chambers.

Legislative Staff

Legislators today rely heavily upon staff of various types to carry out the functions of the legislature. The Legislative Council, a research and bill-drafting agency within the legislature, was created in 1949. The Legislative Audit Council, a source of evaluation information for legislators, was not created until 1974, followed by the Legislative Information Systems in 1982. These are agencies of the General Assembly which report to the legislature and employ staff to provide their agency’s services.

Aside from agencies of the General Assembly, the legislature has elected clerks in both the House and the Senate from the earliest of times. These staff are the chief administrative officers of the two chambers and are responsible for managing and overseeing daily operations of their respective houses. In addition, both the House and Senate have research offices and major committees are staffed to provide research assistance to legislators.

The Legislative Process

As we noted at the beginning of this chapter, a legislature performs a number of functions, but the chief one is lawmaking. Lawmaking usually takes the form of passing "bills" (also referred to as "Acts"), but one or both houses of the legislature may also pass resolutions. These take one of three forms: joint resolutions, concurrent resolutions, or a simple resolution. These are distinguished from one another and from bills in Figure 1.

Since most lawmaking involves the consideration of bills, the following discussion will focus upon them. We will begin with a discussion of the sources of bills, then examine the legislative workload and the role of sponsorship, followed by committees and chairmen, floor action, reconciling differences, and conclude with comments on legislative decision making.

 

Figure 1

Bills and Resolutions

Names and Explanations of Legislative Measures

A resolution affects only the action of the legislative body (Senate or House) and the members of the body in which it is introduced. It requires only one reading and adoption, and is not submitted to the other legislative body.

A concurrent resolution affects the action of the entire General Assembly and the members thereof; does not carry an appropriation; does not have the force of law, as an Act or Joint Resolution does, but records the sense of the Senate and House concurrently. It requires only one reading and one adoption or concurrence by each body.

A joint resolution has the same force of law as an Act, but is a temporary measure, dying when its subject matter is completed. It requires the same treatment as a Bill does in its passage through both Senate and House, but its title after passage is not changed to that of an Act; and when used to propose an amendment to the Constitution it does not require the approval of the Governor.

A bill is the term applied to a measure introduced in either body (Senate or House) and is designed to become a permanent law (or an "Act"). It must be read and adopted three times on three separate days in each body. Once the required readings have occurred, the title is changed to that of an Act.

An act is the term applied to a Bill that has passed both the Senate and House, been ratified by the presiding officer of each body and signed by the Governor or passed over his veto. It is a permanent measure, having the force of law until repealed.

Source: Clerk of the House. South Carolina Legislative Manual.Clerk of the House. The House of Representatives. Columbia: S.C. 1998.

 Sources of Legislation

There are many sources from which legislation springs. The principal ones (although not necessarily in order of magnitude) are: the governor and state agencies, legislative leaders, organized interest groups, citizens, events, and legislators themselves. Governors often have a legislative agenda and work with cooperative legislators to introduce bills to further it. State agencies are also a major source of legislation since they work with the laws of the state and see needs and omissions that need correction. The legislative leadership may also introduce bills, particularly if they are in a string legislative state, such as South Carolina, and differ from the political party of the governor (as is the case for the House leadership in South Carolina at this writing). Interest groups, working with supportive or amiable legislators, are also a major source of legislation. Organized interests cover the whole gamut of concerns from education, health care, tourism, businesses of all types, retirees, environmentalists, and on and on. Obviously with a plethora of interests in existence today, and so many groups representing them, there are always proposals waiting for legislative action. But, legislation does not always originate from an organized group. Sometimes proposals come from individual citizens

Sponsorship

Legislators who sponsor a bill have the primary responsibility for overseeing its passage through the legislature and ultimate passage. A bill can be drafted by the Legislative Council in South Carolina at the request of a legislator, or, on the Senate side of the chamber, by the Senate Research Office staff. Occasionally, an interest group might even draft a bill and give it to a legislator. Once it is drafted, it is given to the clerk of either the House or the Senate as appropriate. Except for prefiled bills, the clerk reads the title and the presiding officer refers it to the proper committee. This constitutes the bill’s first reading. Bills require a total of three readings, both in the House and Senate. Second reading occurs when a bill is reported out of committee to the floor of the chamber considering it, and the third is at final passage.

Sponsors must recruit allies in their own chamber as well in the opposite house of the legislature if their measures are to move ahead and pass. Moving legislation through a legislative chamber involves learning the tactics of gaining legislative approval as well as mastering the in’s and out’s of parliamentary procedure on occasion. Such skills usually come with time and service in the legislature. Most bills are noncontroversial and do not arouse vocal opposition. They can progress in a predictable way through committees and floor action. Controversial bills, however, are a different story. They require negotiation, often including committee assignments for rigorous consideration of the measure, and with attention given to organized interests that would be expected to oppose the bill. Such bills are prime targets for legislative attempts at derailment and amendment at various points in the process. Amendments may, indeed, be skillfully used by opponents to alter the intent of a bill such that the proponent of the measure may see something enacted that is far different from what was introduced.

Committees and Committee Chairmen

Bills are assigned in most instances to a standing committee of the House or Senate. Committees are used in all state legislative bodies and the Congress for many reasons. First, they screen bills and decide which deserve to move forward in the process. The screening process allows focused study and debate to occur in a more workable setting. Committees also allow for specialization to occur among legislators and staff so that they can develop familiarity and expertise in an area. And, public participation can be arranged more easily to allow those who are interested to comment on proposed legislation.

The Senate and House in South Carolina establish their own committees and select the members and chairpersons differently. As noted previously, the Senate gives seniority the key role in selection of chairpersons and assignments, while the House gives the Speaker the authority to make such decisions. There are 15 standing committees in the South Carolina Senate which range in membership from 5 to 18 members each. The House has 11 standing committees which range from 5 to 25 members each. The committees and their size are summarized in Figure 2.

Figure 2

South Carolina House and Senate Standing Committees

House Committees and Size Senate Committees and Size
Agriculture, Natural Resources, and Environmental Affairs (18) Agriculture and Natural Resources (17)
Education and Public Works (18) Banking and Insurance (17)
Legislative Ethics (6) Corrections and Penology (17)
Interstate Cooperation (5) Education (17)
Invitations and Memorial Resolutions (5) Ethics (10)
Judiciary (25) Finance (23)
Labor, Commerce, and Industry (18) Fish, Game, and Forestry (17)
Medical, Military, Public and Municipal Affairs (18) General (17)
Rules (15) Interstate Cooperation (5)
Ways and Means (25) Invitations (11)
Operations and Management (7) Judiciary (23)
Labor, Commerce and Industry (17)
Medical Affairs (17)
Rules (17)
Transportation (17)

After a bill is assigned to a committee, the committee chairperson decides how it will be handled in the committee. The major committees have subcommittees to which a measure may be referred. There it can undergo debate, amendment or no action. If approved, the measure then comes back to the larger committee and undergoes discussion and vote again. Alternatively, a chairman may not refer a measure to a subcommittee at all but let the full committee consider it, or may even refuse to allow the measure to be considered at all, thereby killing the bill.

Thus, committee chairmen are powerful positions. Committees play a vital role in the overall legislative process by determining what will move ahead for further action and what will not receive further consideration.

Floor Action

Bills that are reported out of committee in either the House or Senate go to the floor of the respective house for debate and the final two readings. When reported to the floor, a bill must be placed on the calendar of the House or Senate. This process is not always straightforward since the presiding officer has a role to play in placement. Once placed and announced several things can happen.

1. One or more members may ask that their names be added as "desiring to be present" when the bill is to be discussed for second reading. This means the bill is "contested" and usually results in its being delayed until uncontested bills are dealt with The House requires five members to sign up as contesting a bill before it is placed on the contested calendar while the Senate only requires one member to do so, thus giving considerable power to individual senators.

2. Alternatively, a member may ask for "immediate consideration" for second reading, which is a unanimous consent request and is usually used for bills that are simple and require little or no debate or amendment. If granted, second reading occurs and a request may be made for third reading on the next legislative day.

3. Occasionally if a bill is of special significance, a member may request that it be given "special order" status that places the measure ahead of all other bills for second and third readings.

Once a bill is scheduled for second reading it is time for debate and possible amendment. It is the job of the sponsor usually to defend the measure and explain why it should be passed. Amendments may be proposed at this time. Once second reading has occurred, the bill is scheduled for third and final reading. After approval, the measure then moves to the other house of the legislature and the process repeats itself.

Reconciling Differences

If the Senate and House both pass a bill, but in different form, it cannot be enacted until agreement is reached on the final form. The version passed by the second chamber is returned to the first chamber for consideration and approval. That failing, a conference committee is appointed to resolve differences. Three members of each chambers are appointed by the House Speaker and Senate President Pro-Tem respectively. These conferees select one of the member as chairman and decide when to meet. They cannot add new language to the bill but can remove language from it. If they reach agreement, the measure goes back to each house for final approval. If they cannot, they may request "free conference" powers which means they can add new language to the bill, in essence, rewriting it. Free conference powers can only be granted by each house voting to grant them by a supermajority of two-third’s vote.

Once both chambers pass legislation, it is sent to the governor for signature. The governor has five days to sign the bill and let it become law. If he does not sign the bill within five days, it becomes law anyway. Or, he can veto the measure and return it to the General Assembly where it must receive a two-third’s vote in each house to override his veto. Once a bill is law, it is sent to the Secretary of State’s office for recording and filing.

Legislative Oversight

The legislature’s job does not end when bills are passed. As we noted earlier in this chapter, the legislature serves many functions, one of which is that of watchdog, or as it is more often referred to, legislative oversight. For much of the 20 th century state legislatures were not felt to have engaged in much over-sight. (Keefe & Ogul, 1997, p. 403) This began to change in the and succeeding years, however, as the states modernized their legislatures and introduced various reforms. South Carolina was no exception to this and, along with many other states, has expanded the mechanisms at its disposal in order to monitor agency behavior and the expenditure of public monies. Briefly, the primary ways the South Carolina General Assembly oversees state government include the appropriations process, appointment and confirmations, approval of agency rules and regulations, performance audits, and ad hoc committees of the legislature.

The Appropriations Process

The "power over the purse" is a traditional tool that all legislative bodies have over the executive branch. Hence, the annual budget process is more than simply taxing and spending to support the activities of the government, it is also an opportunity for the legislature to question how agencies spend their money and delve into programs if questions exist about their operation. Funding can be reduced, withheld or given with conditions to seek compliance with legislative intent.

Appointments and Confirmations

Another way that legislative bodies have traditionally exerted some oversight over the executive branch is through requirements that certain high level executive officials be confirmed by the upper chamber of the legislature. With the Restructuring Act of 1993, South Carolina adopted a modified version of a cabinet system of state government and the governor was given the power to appoint certain agency heads, subject to Senate confirmation.

Appointments to state boards and commissions include some of the largest agencies with statewide impact, like the Department of Transportation. In addition, South Carolina retains the distinction of being the last state to elect most of the state’s judges in the legislature in public session. The seats on the Supreme Court, Appeals Court, Circuit and Family Courts are all filled by election in the legislature.

Accountability Reports

Begun by the House Ways and Means Committee, and required by a proviso in the state appropriations act, state agencies are required to submit to the House Ways and Means and Senate Finance Committee, and the Governor, reports on how they are carrying out their purposes or mission. These are available for legislators to use as they go through the budget process each year. They are also available to the public in many instances through their listing on the Internet on the General Assembly’s home page. [For examples see http://www.lpitr.state.sc.us/reports/aar99/aar99.htm ]

Performance Audits

Another area of oversight that many states have enhanced in the last two decades is the use of performance audits. These are studies performed by the Legislative Audit Council to determine agency program effectiveness or efficiency. They can be initiated by the request of the Speaker of the House, the President Pro Tem of the Senate, or five legislators (if approved by three of the five Audit Council members). The Council is composed of five public members, elected by the General Assembly for six-year terms.

In sum, a number of tools are available to the legislature to provide some degree of oversight of state agencies and programs. Whether these are adequate in all cases is a matter of opinion, and it is often remarked that many legislators are more interested in lawmaking than in oversight. Nevertheless, oversight is a critical function of the legislature and continues to evolve as new forms are introduced and traditional ones refined.

Conclusion

The South Carolina General Assembly we observe today at the turn of the century is an institution that has evolved from colonial roots in fits and spurts with a number of external forces and events playing key roles in its development, along with its own changing membership and the political culture of a unique state.

In its functions, the General Assembly resembles most other state legislatures in the United States today. It is first and foremost a lawmaking body, which includes distributing re-sources and levying taxes upon the state’s citizenry and businesses. It is also a watchdog over the large administrative apparatus that comprises the state government of South Carolina. As an elected body of the citizenry, it represents the people of South Carolina.

Organizationally and procedurally the General Assembly is both similar and different from other states’ legislatures. Like so many others today, it is a part-time legislature composed of citizens who tend to serve fewer years than members in the past. From a representational standpoint, it is probably much more representative today, however, than past legislatures in the

Palmetto state. While the Senate still clings to seniority and deference, the House has evolved into a body with less deference for length of service. Partisanship has increased sharply as two-party politics has become the norm in South Carolina.

References

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Footnotes

1 The following discussion relies heavily on the 1986 publication "The South Carolina General Assembly." See also Edgar (1998).

2 The case Briggs v. Elliott originated in Clarendon County, South Carolina. It was filed in federal court in Charleston on May 16, 1950 and was later combined with three similar lawsuits from other parts of the United States. These were eventually heard by the U. S. Supreme Court and resulted in the landmark decision Brown v. Board of Education (of Topeka Kansas) in 1954.

3 Since South Carolina is covered by the Voting Rights Act, any changes that could affect elections must receive Justice Department approval. Examples of such actions needing approval include municipal annexations, municipal incorporations, redrawing election district lines and changes in polling places.

4 For a good discussion of gerrymandering and the Voting Rights Act, see Miller (1992).

5 Racial gerrymandering, when used to reduce minority influence, is illegal. In some cases, however, racial gerrymandering has been used to try to increase the number of minorities in a legislative body. The U. S. Supreme Court is still working on this facet of the problem. See Beyle (1999): 87-92.

6 Governor Carroll Campbell (1988-94) attempted to introduce a variant of the executive budget during his term as governor, but it did not cover the entire state budget and lacked legislative sanction. His successor, Governor David Beasley (1994-1998) did in fact receive legislative sanction for an executive budget. This established the concept in South Carolina.

Charlie Tyer is a faculty member in the University of South Carolina's Department of Government and International Studies and a senior fellow in the University's Center for Governmental Services. His areas of scholarly research and expertise include budgeting and finance, organization theory, and South Carolina government and politics.

Richard D. Young is a research associate in the University of South Carolina's Center for Governmental Services. He has worked with the South Carolina Senate and the State Reorganization Commission in various research positions. He also has taught at the University of Louisville, Hanover College, Indiana University Southeast, and the University of Kentucky in Louisville, KY. He is the author of A Brief Guide to State Government in South Carolina and A Guide to the General Assembly of South Carolina. Both publications are available through USC's Center for Governmental Services.