Representatives give preliminary approval by a vote of 77-42
By NOAH TABORDA and SHERMAN SMITH
Kansas Reflector
TOPEKA — Republican representatives are eager Wednesday to approve a constitutional amendment that could provide legislators with new powers over the executive branch should it receive Senate and public approval.
If passed by two-thirds of the House and Senate and approved by a vote of the people of Kansas, the resolution proposed would amend article 1 of the Kansas state constitution. By adding a new section to the constitution, the measure provides the Legislature a new authority to set and revoke new rules within state agencies housed under the executive branch.
Throughout the debate, House Republicans batted away concerns over the effect of the provisions on the separation of powers and amendment to place other issues like Medicaid expansion and legalizing Marijuana on the ballot.
“We’ve been given broad authority to not only carry out the law but also to create it,” said Rep. Barbra Wasinger, R-Hays. “This amendment approves that legislative oversight and allows us to be responsible for creating laws.”
The measure received preliminary approval 77-42 with five Republicans — Rep. Dave Baker, of Council Grove; Rep. Owen Donohoe, of Shawnee; Rep. Boyd Orr, of Fowler; Rep. Mark Schreiber, of Emporia; and Rep. John Wheeler, of Garden City — voting against it. The measure will need 84 votes tomorrow to pass.
If passed by the House and Senate, the constitutional amendment would be on the general election ballot in 2022.
Republicans are motivated primarily by a recent decision by the Kansas Department of Labor to add or amend six regulations regarding workers’ compensation. The decision drew the frustrations of several business groups and legislators during a November hearing who believed the regulations impeded statute and legislative authority.
Currently, the Legislature can only adopt a concurrent resolution expressing concern or requesting the revocation of a regulation. The rules and regulations committee issues comments and recommendations on proposals from these agencies.
However, Rep. Boog Highberger, a Lawrence Democrat, said the systems in place already function to address any overreach in regulations by executive branch agencies.
“I think it’s clear that if there’s a problem in the system, it’s sent to the attorney general’s office, and the problem needs to be fixed there,” Highberger said. “I’ve been involved in the process during my time in state government over the years. It really works, and there are a lot of checks and balances on it, a lot of guardrails.”
A 1984 Kansas Supreme Court ruling held that a previous measure allowing the Legislature to suspend or revoke administrative rule was unconstitutional because it violated the separation of powers.
Attorney General Derek Schmidt’s office signed off on the legality of this new resolution in July, after the state’s budget office and Department of Administration signed off in January.
House Speaker Ron Ryckman told House Republicans in a meeting before the House session Wednesday that Schmidt came up with the idea that “basically eliminates the fourth branch of government,” a reference to employees at state agencies who determine how to carry out the laws passed by the Legislature. Schmidt, a Republican, is running against Democratic Gov. Laura Kelly in this year’s election.
Ryckman asked House Republicans if they want “these folks” to make decisions like closing churches, shutting down businesses and giving overseas fraudsters money from the unemployment fund, or allow the Legislature to have a final say.
“It doesn’t matter who the governor is,” Ryckman said. “Bureaucrats have been here longer than us. They’ll stay here longer than us.”
The proposed constitutional amendment would not apply to the examples Ryckman provided. The governor closed churches and shut down businesses in April 2020 through executive orders in response to COVID-19. Bogus unemployment claims were filed in every state.
Majority Leader Dan Hawkins told Republican representatives prior to debate that he is “really passionate” about securing the ability to usurp the authority of the executive branch.
He said the committee that oversees rules and regulations can voice complaints, but bureaucrats at state agencies rarely listen. The committee lacks the power to block new rules and regulations from taking effect.
“It doesn’t make any difference what the governor is,” Hawkins said. “Those bureaucrats stay year in and year out, and they literally change the course of any law they want.”
Rep. John Carmichael, D-Wichita, said if the amendment was such a pressing need, the measure ought to be on the August 2022 ballot, alongside the Value Them Both Amendment.
When an amendment to do just that failed, Carmichael asked to push the vote back until after the gubernatorial election.
“In the event Derek Schmidt should be our governor, people can decide whether or not they want to do to Derek Schmidt what this is designed to do to Laura Kelly, because it’s bad legislation,” Carmichael told House Democrats in a meeting before the debate.
Other amendments offered by Democrats during the deliberation also fell short, including a revision to allow the governor the authority to veto a revocation, subject to a supermajority vote from the Legislature to override.
House minority leader Tom Sawyer and Rep. Jason Probst, who earlier this year offered constitutional amendments to expand Medicaid and legalize Marijuana, again proposed to let Kansas voters decide on these hot-button issues.
The House Rules Committee ruled the amendments not germane to the resolution, promptly rejecting them.
“There are some other things I think people care about quite a bit,” Probst, a Hutchinson Democrat, said. “We’ve demonstrated to an excessive degree this year that we enjoy the opportunity to allow Kansans to vote on things.”