THE ISSUE: The stimulus impasse

OUR OPINION: Threat of legal challenge should not derail decision

The clock is ticking on Gov. Mark Sanford’s opportunity to accept $700 million in federal stimulus dollars. His deadline is April 3. After that, the ball is in the Legislature’s court.

Lawmakers contend the stimulus dollars are vital if state government is to continue providing crucial services. Yet they are operating under the pretense that taking action to override or bypass the governor could produce a court challenge on constitutional grounds.

Their reluctance centers around a provision inserted into the stimulus legislation by U.S. House Majority Whip James Clyburn, who made clear he was looking for a way to get the dollars controlled by the governor into South Carolina no matter Sanford’s stand. The amendment is thus tagged as “the Clyburn workaround provision.”

Sen. Lindsey Graham, R-S.C., asked the Congressional Research Service to analyze the provision.

In Graham’s opinion, the provision raises states’ rights issues with the 10th Amendment, which restates the Constitution’s principle of federalism by providing that powers not granted to the national government nor prohibited to the states are reserved to the states and to the people.

According to Clyburn’s office, the research office concluded Graham’s interpretation of potential unconstitutionality of the Clyburn provision is very broad. CRS called it one that is “disfavored.” The conclusion is restated in another report produced by the research office on March 25.

Graham counters with an assessment he requested from the Office of Management and Budget. It states: “… for a State to access its allocation of the State Fiscal Stabilization Fund, the Governor must submit an application to the Secretary of Education, and there currently is no provision in the Recovery Act for a State legislature to make such an application in lieu of the Governor for a State’s allocation of the State Fiscal Stabilization Fund.”

In support of action to accept the stimulus money over Sanford’s objections, Clyburn says doubts about the workaround provision should not stand in the way of legislative action. A statement released earlier this week concludes: “Finally, it’s irrelevant how CRS, Sen. Graham, Rep. Clyburn or South Carolina Attorney General Henry McMaster interprets the impact of a federal law on the U.S. Constitution. The constitutionality of a law is determined in a court of competent jurisdiction.”

As much as a court battle is not desirable, if lawmakers see the stimulus dollars as so vital, they should act according to the provision authored by Clyburn.

In doing so, they may have Graham and others raising questions, but the S.C. senator himself says the stimulus dollars are needed. In a March 27 statement, Graham said, “I voted against the stimulus package because it was too large and created too much government. However, I do believe it is in South Carolina’s best interests for the governor to accept the funding as it will do some good. If South Carolina does not accept the funding, it will go to another state and future generations of South Carolinians will still be obligated to pay it back.

“Additionally, in light of ... unemployment figures and recent budget projections, it will be very difficult for the General Assembly to meet all our state’s obligations. This is clearly a rainy day for South Carolina and these funds can be helpful in our current budget situation.”

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