COLUMBIA — Back when transportation was unreliable and roads often nonexistent, S.C. senators developed a tradition of informing the Senate clerk of any bills on the calendar about which they were particularly interested. That way, if the creek rose or the good lord for some other reason wasn't willing to help them to make it to Columbia on the next legislative day, their colleagues would pass over those bills, delaying the debate until they could arrive.
It was a gentlemanly way to handle such matters. And all very 19th century. Or 18th.
Over time, horses gave way to cars, and dirt trails were replaced with gravel roads and then highways, which made travel not only predictable but quick. But the tradition continued.
Now, courtesy isn't usually a bad thing, and senators have maintained a lot of other traditions that have outgrown their usefulness. They still refer to each other in debate not by name but by county, for instance: the senator from Richland, even though there are — and have been for decades — four senators from Richland instead of just one.
But the power of a senator's “desire to be present” has not just outlived its purpose. It has morphed from a common courtesy into the most powerful negative power in the Legislature: the single-senator blockade. A way for those who are unable to convince the majority of the rightness of their cause to kill legislation by keeping it from being debated.
By simply whispering in the clerk's ear, a senator can prevent a bill from being debated. Not just a day. Not just a week. But usually forever.
With rare exceptions, the Senate will not take up a bill for whose debate a senator “desires to be present” unless that senator removes his desire from the calendar or the full Senate votes, usually by super-majority, to leapfrog the bill ahead of all other bills. And senators are loathe to do the latter unless they feel passionately about a particular bill because, once leapfrogged, it can become a tool to block consideration of all other contested bills.
It's a tool that has been used to kill countless bad bills. It also has been used to kill countless good bills. Bills that the House had passed and the majority of senators supported and that would have become law if the Senate had ever voted on them.
Often, perhaps even usually, senators place their name on a bill because they really oppose it. But that's not the only time they employ this procedure.
I've been told tales of pre-Lost Trust senators who made a practice of objecting to bills in order to get wined and dined (literally; that used to be legal) by the lobbyists who were pushing those bills.
At some point — I have no idea when; it was before I started watching the Senate, in 1988 — senators realized they could gain some leverage by blocking bills that are particularly important to senators who are blocking their bills.
Then in the late ‘90s (that's the late 1990s), that practice got hyper-charged, when a few senators discovered they could object to every bill on the calendar — those they supported as well as those they opposed — in order to force their colleagues to pass a particular bill. In effect, they threw a hissy fit to get their way. If you prefer a more formal term, try “legislative extortion.”
Year after year, the envelope was pushed and pushed farther and farther, the practice became less and less uncommon, and critics criticized. But the Senate did nothing.
Until this year.
This year, the Senate amended its rules to limit each senator to three desires at a time. That, by the way, marked the first time any hint of the single-senator blockade appeared in the rules, such is the power of tradition in the upper chamber.
It's worth noting that although former Senate President Pro Tempore Glenn McConnell used to complain to me (and no doubt others) about the abuse of this practice, it was only after the guardian of Senate prerogatives traded his position as senator for that of lieutenant governor that his former colleagues overturned this most sacrosanct of traditions.
This change likely will stop the hissy-fit, block-every-bill-on-the-calendar abuse, or at least require a whole lot more senators to work together to make it happen. And that's important, although not often so.
What it won't do is stop individual senators from single-handedly killing bills that the rest of their colleagues would vote for, but don't feel strongly about. It might force them to pick their battles, but even that isn't a sure thing, because another unwritten rule allows any member of the committee that reviews a bill to place a “minority report” on that bill and produce the same effect.
There are simple ways to reduce the power of the blockade. In the House, for instance, it takes five objections to contest a bill. More importantly, the House routinely debates bills on the contested calendar, and ends the year with few if any bills languishing — which the Senate could do if it wanted to.
But let's not get ahead of ourselves. The single-senator blockade was centuries in the making. Perhaps having overcome the institutional disinclination to tinker with tradition, senators will be less disinclined to take the next step, once they realize that their first isn't the cure-all some had hoped it would be.
Scoppe can be reached at cscoppethestate.com or at (803) 771-8571.