It was 2009, the nation was mired in what would become known as the Great Recession, tax revenues were plummeting, and states were about to start laying off teachers, corrections officers, Highway Patrol troopers and other employees, driving the unemployment rate even higher, when the Congress stepped in.
It spent billions of dollars it didn’t have on a massive stimulus package that, among other things, set aside $700 million to keep thousands of workers on the government payroll in South Carolina.
Gov. Henry McMaster's signature Monday means the Legislature will likely return to Columbia next month to dole out $1.9 billion in federal relief.
Just one problem: The law required governors to request the funding, and South Carolina’s governor was Mark Sanford, who had spent the previous six years castigating the Legislature for misspending and overspending. He would not request the money, he proclaimed, unless he could use it to pay down state debts — which the law clearly prohibited.
After months of bitter back and forth, the Legislature ordered Mr. Sanford to request the money, he refused, education groups sued, he countersued, and the state Supreme Court ruled unanimously that, yes, he had to request the money.
Eleven years later, the Congress has again come calling on South Carolina with money to help the government survive a recession — this time $2 billion. And again there’s tension between the executive and legislative branches. Nothing like last time, and not nearly as much as some news coverage has made it appear, but tension.
Gov. Henry McMaster welcomes the federal funding to help pay for the extraordinary costs state and local governments have had to bear during the COVID-19 pandemic. The exaggerated kerfuffle involves who gets to distribute the money: the governor or the Legislature.
But as Mr. McMaster reminded me on Tuesday, there was never a question that the Legislature had that authority, unless it voluntarily chose to cede it to him. And even then, it would have to be careful about how it did that.
The only time there was ever a question even touching on that power was when Mr. Sanford challenged it in 2009. Just one day after hearing oral arguments, the Supreme Court declared that “Under the constitution and laws of this State, the General Assembly is the sole entity with the power to appropriate funds, including federal funds” — which everybody knew. And, the only part that was even theoretically in question: “Therefore, the General Assembly has the authority to mandate that the Governor apply for federal funds which it has appropriated.”
Mr. McMaster is well-acquainted with that decision, because it was largely his handiwork.
As lawmakers struggled to figure out how to bypass Mr. Sanford, Senate President Pro Tem Glenn McConnell had turned to South Carolina’s attorney general — Henry McMaster — for an opinion on whether the Legislature could request the $700 million itself.
In an opinion whose carefully nuanced point most people missed, Mr. McMaster explained that, no, the Legislature couldn’t take action that the federal law said must be taken by governors. It could, however, pass a law ordering the governor to request the funds, and he would be obliged to do that. Mr. McMaster had thus laid out the legal road map that the Legislature followed, and then had sent his top deputy to court to defend that approach when Mr. Sanford refused to comply.
On Tuesday, with that 2009 Supreme Court order in hand, Gov. McMaster pulled out the state Constitution and read to me the pertinent part, from Article X, Section 8: “Money shall be drawn from the treasury of the State or the treasury of any of its political subdivisions only in pursuance of appropriations made by law.”
The 2020 General Assembly was all set to pass legislation on April 8 that authorized Mr. McMaster to distribute $2 billion in federal coronavirus stimulus funds after consultation with legislative leaders when Santee Cooper got in the way. The measure lawmakers actually did pass on May 12 required the Legislature to appropriate the money, which Mr. McMaster worries will delay what he says is urgently needed funding that the federal government intended to be distributed “quickly but with precision, and carefully.”
But vetoing that part of H.3485, as some suggested, wouldn’t have cleared the way for him to distribute the money. It would have made it impossible for anyone to spend it. So, he said, “that was the end of that question.”
The question now is how quickly the Legislature acts, what decisions it makes and then how the money is actually spent once it trickles down to state and local agencies.
The governor is using his bully pulpit, and good relationships with legislative leaders, to urge quick action. He’ll use his veto pen to stop any inappropriate spending. And as for what happens after the bill passes, “We’re gonna be watching all the expenditures very closely, because there is a statute which is crystal clear, which is that all agencies of the government must submit to the governor upon his request immediately whatever information he asks for like this, so to the extent that there is anything lacking in the information that is given to the Legislature and the public, I’ll be asking about that.”
The importance of that law was made clear in another epic Supreme Court decision, involving yet another governor, David Beasley. But Mr. McMaster wasn’t involved in that drama, so we’ll save that story for another day.