It’s been a long time since I’ve written on South Carolina politics, and never on this blog (I had some op-eds in The State and the Sun News out of Myrtle Beach). But there is an ongoing dustup in South Carolina politics that pretty much aligns with one line of my work in development – thinking about governance. Development is plagued with people and programs that operate under the assumption there is a simple, straight line between democracy and good governance, or worse conflate the means (democracy) with the ends (responsive, transparent government). This has led to many hilarious (read: sad) cases where development-donor sponsored work on environmental governance has focused on state-level capacity to write legislation and regulations on the use of the environment in places where a) the state has no capacity to actually enforce laws or regulations and b) where actual political legitimacy that might make such regulations work tends to rest at the local level, in the control of those who shape access to agricultural land. And people keep wondering why all that work doesn’t seem to amount to much change on the ground?
Well, here in South Carolina we could learn a bit about our own governance issues from these various failures. The Speaker of the House here in SC, Bobby Harrell, has been under a cloud for some time regarding his use of campaign funds. Jody Barr, an investigative reporter for local NBC affiliate WIS-10, had the temerity to actually start digging through records, asking for interviews, and then…wait for it…actually reported on the story. And a bunch of people are shocked, yes shocked, that…Jody Barr would dare ask such questions. Even if the Speaker’s spending patterns are really, really problematic. Like spending $54,812 of campaign money for memberships, dues, meals and receptions to two Columbia private dinner clubs. Or $54,834 on cell phones between 2008 and 2012.
Why, how dare anyone wonder how the Speaker ran up monthly campaign-related $1000 cell phone bills for four straight years? Or mention that the State Law Enforcement Division is, in fact, investigating this issue? That’s just so…impolite. Or something.
Now, the fact is that neither I nor anyone reading this (unless the speaker is reading) actually knows if any of these expenses are indeed fraudulent, or even pushing the boundaries of the letter/spirit of the law. It sure looks bad, but until SLED comes back with something, we all have to wait and see. Perhaps Mr. Harrell is just tarred by the brush of South Carolina’s painful, ongoing history of politicians who managed to enrich themselves, their families, or their friends via their office. Amazingly, quite often these actions were legal (see Haley, Nikki and nepotism), because for a very long time the state had very weak conflict of interest rules and laws (see Haley, Nikki – what do you mean I had to disclose my consulting work for a hospital, payday lenders, and an engineering firm with interests before the state? Nobody else does it, so why should I?*), and because governance in the State of South Carolina is staggeringly opaque. This, it seems to me, is the point everyone here is missing, and it became clear to me today in a twitter exchange with State Representative Leon Stavrinakis (D-SC119). I don’t know Representative Stavrinakis personally, and I don’t have any personal issue with him. But he popped up in my twitter feed when I noted that South Carolina has a remarkably opaque government at nearly all levels:
My response, in which I was trying to point out that televising the end product of a long, informal process isn’t really transparency:
And Representative Stavrinakis replied:
Which totally misses the point, and worries me greatly. If elected representatives don’t understand the difference between the structures of government and the actual process of governance, who does? Look, governance isn’t only about the formal votes. A lot of stuff happens before those meetings and votes, including the drafting of bills, that are shaped by various informal meetings and conversations. This is the informal structure by which representative democracy really works. Not every representative can know everything about every subject. Here in SC, they don’t have the staff support to become fully informed, either (this is a major problem at the federal level as well). So a lot of their decisions are going to be based on the opinions and ideas pushed through this informal structure.
This is not a problem in and of itself – James Scott (among others) has observed that basically all large formal structures rest on lots of unacknowledged informal structures – but in representative democracy this becomes an issue because not every citizen has access to this informal structure (leaving aside the attempted use of absurd voting fraud laws to exclude part of the citizenry from the formal structure). This means that not everyone can exert the same influence on their representatives, and not everyone who is represented can understand the motivations of their elected representatives and therefore make an informed choice at the ballot box in the next election. So, when you say you are making things transparent by televising votes, you are just televising the end product of a long, opaque process.
That’s not transparency. That’s theater.
Now, there is no easy fix for this. But a very nice first step would be to require full disclosure of all meetings that our elected representatives take during the day: who did they meet with, and about what? This would include “incidental contact” at private, non-governmental events, because this is where a lot of the work of the informal network happens. Yes, that’s right, if Representative X runs into a registered lobbyist at a wedding, and discusses a legislative issue with that lobbyist at the reception, the Representative should disclose that. If the Representative runs into the officers of a company with business before the State, and they discuss that business, the Representative should disclose that. Some might see this as intrusive. I see it as the price of admission to representing constituents in a representative democracy. This disclosure rule needs to have teeth to punish those who “forget” to do this, and it all needs to be posted publicly.
Second, representatives need to publish full lists of their donors IN REAL TIME, again in a public place. And again, give the damn rules some teeth, as a lot of our representatives are skirting this requirement with no real consequences. Third, representatives should have to disclose absolutely all of their business and investment interests. If you don’t like it, don’t run for office. I’d accept blind trusts for investments, actually, but that doesn’t work for businesses. And all three of these public documents should be easily searchable, so constituents can quickly find out to whom their representative is talking, and from whom they are taking money and earning a living. Constituents deserve to know exactly how different votes might affect their representative’s personal interests, and be able to weigh a voting record to see if the representative is acting in self-interest, or the interest of his/her constituents.
Now, these first two steps would serve to push responsibility back to the voter for who they elect. Sure, in theory the responsibility sits with them now, but how responsible can anyone be when it is impossible to actually figure out what motivates the people running for office? Of course, just creating a situation where the voter might finally know what, exactly, he or she is voting for doesn’t guarantee they will pick good people to serve. But at least the electorate could only blame itself.**
There is a third step that is needed here, however: do something about self-policing. Until this gets sorted out, voters will continue to grow cynical and apathetic in the face of problematic behavior in the government. You cannot have each branch of the government responsible for self-policing, as the incentives generally run against actually punishing anyone (because nobody wants to be retaliated against later by having their legislation or projects blocked. See Haley, Nikki – entire legislative career***). Yes, I do understand the concept of separation of powers. But checks and balances are key to the functioning of American-style representative democracy, and self-policing is not a check on much of anything. Court officers do have to answer to the bar, and while that is a fraught process in and of itself, the fact is that South Carolina has a branch of government accountable to someone or something other than itself, and the world has not ended. This suggests that the legislature and executive could probably survive a similar structure. Actually, each branch needs this to rebuild its legitimacy in the eyes of the public. At this point, very few people expect the legislature to do anything about the behavior of its own members (and don’t bother parading one or two high-profile examples out to argue with me, those are sacrificial tokens and everyone knows it). And this is because the government has failed at governance. The citizenry is getting frustrated, because the government neither responsive nor transparent.
A final point: this is not a “size of government” issue. There is no necessary connection between opacity and size of government. You can have a very small, opaque government (I’ve seen this at work in towns back in New Hampshire) and you can certainly have big, transparent, and responsive government (most of Scandinavia, for example, though I’ve recently heard rumors about the Norwegian oil industry working to suppress government environmental impact studies that they don’t like through opaque means). What I am arguing for here is agnostic about the size of government – transparency and responsiveness are the goals of a governmental structure, regardless of its size. Just continuing to shrink the state won’t fix any of this. All that effort does is slowly reduce state capacity, which means that sooner or later we are one of those countries in the Global South with a government that no longer has the capacity to enforce its laws and regulations (or provide water, roads, healthcare, fire departments, or policing). I’ve worked in such places for my entire professional life. Most of the people living in them either wish to see reforms that make the state more capable, transparent, and responsive, or are working, as we speak, to to these ends. Why are we trying so hard to trade places with them?
*No, really, that was the crux of her defense. And it worked.
**This is a depressingly likely outcome. After all, Mark Sanford (R-Appalachian Trail) is back in Congress.
***I bet you thought I had nothing good to say about Haley. See, I’m full of surprises!