The General Assembly has long dominated South Carolina politics. Members of the House of Representative and Senate elect judges, perform executive functions such as procurement, and investigate and punish ethics violations in their own bodies.

The pervasive nature of legislative dominance is such that it affects nearly every issue in our state. And nowhere is legislative hegemony clearer than in the debate over road funding.

First, lawmakers in the Senate have revealed a casual disregard for the state constitution. S.523, a bill first introduced by Ray Cleary, R-Georgetown, has since been turned into a vehicle for the Senate Finance Committee roads plan. Both the original bill and the version to emerge from the Finance Committee raise existing taxes and fees, and create other new fees. Both raise revenue, which the constitution explicitly forbids the Senate from doing.

During the subcommittee and committee process, Cleary attempted to pre-empt the constitutional point by saying S.523 only raised or created “user fees,” implying that it therefore didn’t violate the constitution. Of course the relevant section of the constitution makes no distinction between taxes and fees; it merely refers to “revenue.” And even if the constitution did single out taxes and not fees, taxes raised by S.523 (such as the gas tax, and motor vehicle sales tax) fail to meet the definition of a user fee as laid out in state law.

Cleary was unable to diffuse the criticism when S.523 reached the Senate floor. On March 26, Sen. Larry Martin, R-Pickens, stated on the Senate floor that he believed S.523 violated the state constitution. Fearing that the bill might be ruled unconstitutional by the presiding officer of the Senate – Lt. Gov. Henry McMaster – Cleary attempted to create a favorable precedent for his bill the next time the Senate met. During consideration of S.170 (a bill creating an internet sales tax) Cleary raised a point of order that the bill violated the constitution by raising revenue. McMaster overruled the point of order, perhaps creating the precedent Cleary desired.

This appeared to be a victory for proponents of Senate tax hikes, but the very fact that the question of constitutionality had been asked of the lieutenant governor seemed to incense some senators. Sen. Gerald Malloy, D-Darlington, for example, sharply criticized the practice of asking the lieutenant governor to rule on a bill’s constitutionality. Since the lieutenant governor is a member of the executive branch, Malloy contended, allowing him to rule on a bill’s constitutionality would amount to a violation of the separation of powers.

In any case, the irony of Malloy’s complaint was palpable. The Legislature regularly encroaches on executive power with its innumerable appointments to executive bodies, and exerts a heavy influence on the judiciary by South Carolina’s extremely unusual judicial election process. Only when the check goes in the other direction, though, do lawmakers like Malloy and others show any signs of worrying about the separation of powers.

Malloy’s argument that the Legislature should be able to pass unconstitutional legislation without interference is bad enough on its own; it appears even worse in the light of an opinion issued on March 30 by the attorney general. Martin asked the attorney general for a formal opinion on the constitutionality of S.523, and the office agreed that the bill is indeed unconstitutional.

The opinion also clarified that the gas tax raised by the bill is in fact a tax, as stated by the courts in the past, regardless of whether the legislature refers to the levy as a user fee. The opinion stressed, though, and despite these misgivings, that if S.523 were to become law, the Supreme Court would likely decline to rule the bill as unconstitutional if it were challenged.

According to the opinion, the Supreme Court has historically refused to rule against a law on the grounds that its legislative history violated Article 3 Section 15 of the constitution.

Which sounds a lot like saying the Supreme Court has decided that some parts of the constitution aren’t worth upholding.

The Legislature has usurped the powers of the executive, wields unseemly power over the judiciary and now seems to have the power to pass unconstitutional legislation without impediment. It brings to mind Madison’s observation: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” When powers aren’t separated, citizens are deprived of that bedrock of good government: the rule of law. What they are left with is the capricious and arbitrary rule of men. In our case, the rule of 170 men.

Shane McNamee is a policy analyst at the Columbia-based S.C. Policy Council (scpolicycouncil.org).

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