Even before the full South Carolina Senate met in its first session Tuesday, a panel quickly met to advance a bill that would address appointments made by the governor while they were out of session.
The bill was crafted after the state Supreme Court ruled the governor has the right to make interim appointments without the Senate’s approval if the legislature is not in session, even if the same person was nominated while senators were still in last year’s session. The Senate sued Governor McMaster to block his appointment of former attorney general Charlie Condon to be chairman of state-owned utility Santee Cooper’s board.
Senators agreed that McMaster had the authority to make a recess appointment, but argued it could not be Condon since senators had already begun considering his nomination last year and had not acted when the session ended. While Condon was vetted by a Senate subcommittee, no vote was taken on his nomination.
“We have no option but to address this issue,” State Sen. Chip Campsen, R-Charleston, said. “The initial holding of the court in this case was that the statute was ambiguous and when the court holds that a statute is ambiguous it’s something that we really need to address.”
The bill, which will likely be the first taken up by the Senate this week, would specifically bar the governor from making a recess appointment unless the vacancy occurs while the legislature is out of session. If senators do not approve the nominee, then the position would remain vacant and the governor could not make another interim appointment.
“You need to have a scenario that allows the governor to make an interim appointment to ensure — when a vacancy arises — that the governor can keep the administration of the government functioning,” State Sen. Shane Massey, R-Edgefield, said. “If the candidate is qualified, even if we may disagree with them, the person ought to be confirmed because elections have consequences and the way our system is set up the governor gets to make those nominations. But I do think it’s the Senate’s role to evaluate qualifications.”
Campsen argued the bill better ensures the separation of powers and prevents a governor from going around the Senate if it fails to approve his nominee.
But State Sen. Gerald Malloy, D-Hartsville, said the issue could have been avoided if the Senate had just voted on Condon’s appointment when it had the chance in March.
“We should have taken the opportunity,” he said. “We should do our jobs. And at the end of the day we had the opportunity to make the appointment. I would say advise and consent is one of the most important functions that we end up having over here.”