COLUMBIA — An $18,000 annual pay increase for legislators will go on pause while the state Supreme Court decides whether its approval was constitutional, the high court ordered Wednesday.
The state budget that takes effect Tuesday includes a $1,500 per-month raise in legislators’ “in-district compensation,” which is ostensibly to help cover expenses for constituent work back home, though it can be used for anything.
Sen. Wes Climer, along with a retired teacher in Rock Hill, challenged the increase June 9, arguing that the raises are unconstitutional because of a provision that bans legislators from raising their own per diems. Declining the raise are Rep. Doug Gilliam, of Buffalo in Union County, who represents Clinton the General Assembly; and Fountain Inn Rep. Mark Willis, according to a list at the end of this article.
Under the schedule the state’s highest court set Wednesday, it could be months before the pay increase — if justices ultimately uphold it — hits legislators’ bank accounts.
Climer’s attorney, former senator and Columbia attorney Dick Harpootlian, must file his arguments next month. The House, Senate and treasurer’s office, the case’s defendants, will have until mid-August to reply. The deadline for the final filing will be Sept. 4.
The raise was set to first hit 126 legislators’ bank accounts July 16, the first pay date of the new fiscal year.
Of the Legislature’s 170 members, 44 Republicans have opted out of the raise, according to clerks of the House and Senate.
In deciding to suspend the raises, the court said Climer, a Rock Hill Republican, had shown that letting them start amid the challenge would cause “immediate, irreparable harm” and that the case is sufficiently likely to succeed, according to the order signed by all five justices.
That doesn’t necessarily mean it will succeed — rather, there’s sufficient merit that it could.
“This is why the constitutional separation of powers is so important,” Harpootlian said in a statement Wednesday. “An independent judiciary stands ready to restrain the excessive impulses of the legislative branch.”
Thousands of taxpayer dollars could have gone to legislators before the court made its final decision, and that money would be difficult to recoup, especially if legislators spent it before a ruling, Harpootlian told reporters earlier this month.
Whether the raise from $1,000 to $2,500 a month qualifies as a per diem is the question at hand.
Harpootlian has argued the “per diem” referenced in the state constitution means any payment legislators receive for their position. The 1890 constitution pre-dated annual salaries and other compensation, Harpootlian told reporters.
But in the decades since, legislators’ pay has come in several main forms: a $10,400 annual salary, unchanged since 1990; the $1,000 for in-district expenses, unchanged since 1995; and a per diem for each day they’re in session, which is meant to cover meals and lodging.
Tied to Columbia hotel rates, the subsistence can change annually. It’s currently $240 daily. It’s the same rate for every legislator, no matter where they live, and can be spent on anything.
Unlike those daily per diems, the in-district compensation should be reported on legislators’ income taxes as personal income, according to the state comptroller’s office.
Attorneys for the Senate argue it qualifies as a reimbursement, even though legislators don’t have to report how they spend the money, so the constitution’s rule that legislators can’t raise their own per diems doesn’t apply.
The Senate’s filing also contends the raises don’t cost taxpayers extra, since the money is set to come from money already designated for the chambers’ operational expenses.
Legislators who proposed the raise said it needed because costs have risen dramatically in the 30 years since the in-district compensation was set at $1,000.
The increase would also mean a boost in many legislators’ pensions, according to the Public Employee Benefit Authority, which oversees the state pension system.
The 43 legislators who were first elected before 2012 won’t see any difference regardless of the case’s outcome, since the budget clause that established the raise didn’t define it as “earnable compensation.” And that’s what would affect the formula for those still in the General Assembly Retirement System, according to PEBA.
Other legislators, however, could see an increase in their pension.
The 2012 law that made changes to the pension system to rein in the state’s escalating liability ended new enrollments in the separate retirement system for legislators. Starting with the November 2012 elections, legislators could either join the state’s main pension system for public employees, join the optional 401K program, or decline to participate entirely.
It’s unclear how many legislators are in the main South Carolina Retirement System. But for those who are, their retirement benefits are based on a formula involving their highest years of compensation as a public employee. And the raise would be considered compensation for pension purposes.
Legislators who declined their raise
These are the 44 legislators who have turned down the raise. All are Republicans.
Representatives:
Senators:
*Garrett declined the raise unless the Supreme Court determines it is constitutional.
Skylar Laird covers the South Carolina Legislature and criminal justice issues. Originally from Missouri, she previously worked for The Post and Courier’s Columbia bureau.
SC Daily Gazette is part of States Newsroom, the nation’s largest state-focused nonprofit news organization.
