The South Carolina Ethics, Government Accountability, and Campaign Reform Act has related provisions prohibiting the use of public funds and other resources to influence elections and ballot measures:
- Elections: “A person may not use or authorize the use of public funds, property, or time to influence the outcome of an election,” according to SC Code Section 8-13-1346(A). For the purposes of this law, an “election” is defined to include all general, special, primary and runoff elections, as well as conventions and caucuses held to nominate a candidate.
- Ballot measures: “[A] governmental entity may not use public funds, property, or time in an attempt to influence the outcome of a ballot measure,” according to SC Code Section 8-13-1346(C). The Act defines “ballot measure” to include any “referendum, proposition, or measure submitted to voters for their approval.”
Prohibitions
The clearest application of the Act is to bar the use of public resources to help reelect incumbent local government elected officials. An incumbent councilmember cannot use official municipal letterhead, merchandise or facilities when campaigning for reelection.
The law, however, extends far beyond this application. For example, a municipality cannot use public funds, property or time to endorse or support referenda on things like capital project sales taxes, bond issues or changes in the form of government.
The SC Ethics Commission has strictly read the prohibition on using public funds, property, or time. In 2005, the Ethics Commission opined that “public employees who place campaign signs on school grounds, in their car windows or on their cars parked on school grounds during school hours are using public property to influence the outcome of an election.”
Then, in 2018, the Ethics Commission opined that “a Council Member’s expression of a personal opinion on a ballot measure during a Council meeting constitutes a use of public resources for purposes of” the Act.
Private actions
On the other hand, elected officials and municipal staff do not lose their First Amendment rights by virtue of their public service. In another 2018 advisory opinion, the Ethics Commission opined that these actions would not violate the law, provided that the official or employee is acting in a private capacity and no public time or resources are used:
“(1) writing letters to the editor of a local newspaper advocating for or against a referendum;
“(2) making public speeches before private groups (such as Rotary Clubs) advocating for or against a referendum;
“(3) organizing a public meeting on his or her own time and own expense to discuss the pros and cons of a referendum without any restrictions on what can be discussed at this meeting; or
“(4) meeting to discuss or promote the referendum in a public building such as a public library, so long as the official's position is not used to access the public building, and the building is available on equal terms and at the same cost to all members of the general public.”
Prohibitions for federal and state election events
A further caution is in order. Ethics Commission staff informed the Municipal Association of SC that these provisions apply to all elections, not just local races. For example, if a municipality were to provide free public safety support or other “funds, property, or time” in connection with a federal or state campaign event, it would likely be found to have violated the Act.
Especially in general election years, municipalities can expect to be asked to host or allow campaign events for federal and state elected offices. In hosting or permitting those events, municipalities should be very careful to avoid using public funds, property, or time to support or oppose any candidate or party in the election.