In June of 2007 I cast the lone vote in the General Assembly to sustain Gov. Mark Sanford’s veto of a bill placing the chairman and vice chairman of the Charleston County Legislative Delegation on the Charleston County Aviation Authority. I thought the legislation unconstitutionally violated the separation of powers doctrine and the ban on dual office holding. As often occurs when I stand up for the constitution in the General Assembly, I lost. The bill became law over Sanford’s veto.
Having recently been elected vice chairman of the Charleston Delegation, I am now placed on the Aviation Authority by the very law I opposed. This has not altered my opinion. I still think it’s unconstitutional. Here’s why.
Article I, Section 8 of the South Carolina Constitution sets forth the separation of powers doctrine: In the government of this state, the legislative, executive, and judicial powers of the government shall be forever separate and distinct from each other, and no person or persons exercising the functions of one of said departments shall assume or discharge the duties of any other.
In Spartanburg County vs Miller, the Supreme Court interpreted this provision to mean, “the legislature . . . may not undertake both to pass laws and to execute them,” unless “their performance is reasonably incidental to the full and effective exercise of its legislative powers.”
The constitutional prohibition against dual office holding is found in Article VI, Section 3, “No person may hold two offices of honor or profit at the same time . . .” In Ashmore vs Greater Greenville Sewer District the Supreme Court held an elected official may hold a second office ex officio only if “the functions of the board and commission (the ex officio position) are related to the duties of the office (the elected position).”
My service on the Aviation Authority would fail these tests because such service is not “incidental to” the “full and effective exercise of legislative power.” The relationship between my legislative duties and the functions of a county aviation authority is simply not compelling enough to overcome these important constitutional limits on the power of elected officials.
This places me in a bit of a quandary. I believe the law placing me on the Aviation Authority is unconstitutional. Yet the law is valid until a court rules it unconstitutional. Until that occurs, it is in full force and effect. It is the law of the land. And that law says I or my designee “shall” serve on the Authority. It uses the imperative. I have no choice.
To harmonize my obligation to obey the law requiring me to serve and my belief that actual service would violate the constitution I have decided not to exercise any powers of an Aviation Authority member. I have instead designated Ben Hagood to exercise those powers, which the law permits. I have instructed Ben to use his full discretion and good judgment on the board, without interference from me. This is the only conceivable manner the law can be constitutionally implemented. This approach honors the rule of law while upholding the constitution, which I swore to do when I took the oath of office.
The Aviation Authority is a coveted position, and service upon it would be personally rewarding. Yet I cannot actually exercise the powers of an authority member in good conscience in light of my belief it would violate the prohibition against dual office holding. It would also violate the all important separation of powers doctrine, which in Federalist Paper 51 James Madison heralded as the preeminent constitutional device for the restraint of government power, and the preservation of individual liberty. When distilled down to their essence, these constitutional doctrines are what most effectively prevent the consolidation of political power in the hands of a few. They distinguish our constitutional republic from a dictatorship. We violate these vanguards of liberty at our collective peril.
Chip Campsen, a Republican, is a state senator representing Charleston County.