By Andy Brack
Contributing Writer

If anybody understands the importance of politicians strategizing in private about what they’re going to do, it’s Attorney General Henry McMaster, former chairman of the state Republican Party.

But McMaster also understands state law, which says meetings of public officials should be open to the public with a few narrow and specific exceptions, generally employment matters, economic development, investment matters and security.

In fact, McMaster offers a handy guideline for all public officials about meetings: “When in doubt, open the meeting to the public,” according to a state primer produced by his office on meetings of public officials.

State law is pretty clear: “Every meeting of all public bodies shall be open to the public” unless specifically exempted. Even so, public officials elected by taxpayers to do the public’s business often try to do it in secret.

The reasoning for keeping meetings open is pretty simple, too: As voters give public officials the power to act on their behalf, residents should know exactly what public officials are doing that might affect them.

Unfortunately, there’s a long state tradition for keeping meetings of legislative caucuses out of public scrutiny. A political caucus is a group of like-minded individuals that meet to talk about common interests.

The case at hand involves the House Republican Caucus.

Earlier this month, McMaster issued a non-binding opinion that said meetings of the House Republican Caucus were subject to the state’s open meetings law and should be open to the public—and reporters.

House Republicans, who asked for the opinion, strongly disagree. They continue to argue that they’re not an official policy-making body, but a political group whose membership is dues-paying and voluntary.

“We can’t hold binding votes and we have members not serving in this body at this time,” says House Majority Leader Jim Merrill, R-Daniel Island.

House Republicans also note while they use public facilities to meet and get free rent in a state office building, the value of state funds they use is negligible.

But McMaster says that logic was faulty because state law doesn’t use levels of value to determine whether a group is covered under the open meetings law. The law, he reiterates, is clear—all meetings should be open if a group is a “public body,” which he argues the caucus is.

“They are violating the law in the opinion of the attorney general’s office—a violation of the Freedom of Information Act as written,” McMaster said in an interview.

“As written” is a key phrase. Why? Because McMaster’s opinion is non-binding. House Republican say they’ll continue to meet in secret because they don’t think the law applies to them.

In other words, a showdown is in the offing. Here’s what can happen:

Nothing: Tradition wins and caucuses—Democratic and Republican—keep meeting in secret.

Lawsuit: Somebody, probably a newspaper, files a lawsuit to force caucuses to open their meetings.

Move: Lawmakers could move where they meet away from Statehouse grounds into a private facility, but they still would be violating the law, according to the opinion, if they continued to meet secretly.

Change: Lawmakers just change the law. In other words, since they wrote the original law, they can change it to exempt caucuses.

While McMaster is clear he believes caucus meetings should be open, his opinion offers state lawmakers two clear strategies they can use to exempt themselves if they want: to simply change the law, as suggested above, or to adopt a House rule that exempts them. There are past court rulings from other states that suggest simply adding a rule will legally allow them to keep the meetings closed.

State lawmakers shouldn’t hide behind a rule and certainly shouldn’t pass a special law to allow them to keep their caucus meetings secret.

State lawmakers are public officials paid by state taxpayers to do the public’s work. When they meet as a large group, as the Republican Caucus does, they talk about issues of public importance and develop strategies.

Keeping caucus meetings private is dangerous because it allows state lawmakers to have a secret place where the can have frank or heated discussions and crystallize their views “to a point just short of ceremonial acceptance,” as one New York court case said.

Just because caucus meetings have always been secret in the past is no reason to keep them that way. When public officials meet, they should err on the side of sunshine, not smoke-filled rooms.

Andy Brack, publisher of S.C. Statehouse Report, has a new book of commentaries called “Bugging the Palmettos.” He can be reached at brack@statehousereport.com.

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