Kansas voters are being asked to reduce the authority of the governor and other state officials and give legislators a bigger say in how the state regulates businesses, protects the environment and preserves residents’ health.
A proposed amendment to the Kansas Constitution on the Nov. 8 ballot would make it easier for the Republican-controlled Legislature to overturn regulations written by state agencies and boards — those under the control of the governor but also others in the executive branch of state government. At issue are rules as varied as which shots are required for children attending school and how often hotels must clean guest rooms.
Business groups and advocates of smaller government view the measure as reining in unelected bureaucrats. But in the fall campaign’s final weeks, abortion rights advocates have begun warning that it is another attempted power grab by far-right legislators.
The November vote comes three months after voters overwhelmingly rejected a proposed amendment to eliminate state constitutional protections for abortion and give lawmakers authority to more tightly regulate or ban the procedure. Those who oppose the regulation amendment have repurposed the “vote no” yard signs from the abortion vote for their fall campaign.
“I’m saying it loud and clear: We need you to vote no on that amendment,” Democratic Gov. Laura Kelly said after casting an early ballot Tuesday. “It clearly is a violation of the separation of powers and would create chaos all across the state.”
Republican leaders hold veto-proof majorities in the House and Senate but have not always been able to override Kelly’s vetoes. Republicans pushed for the constitutional change after months of battling her over the coronavirus pandemic.
“When you are in a supermajority in the Legislature, but you do not control the apparatus of administrative regulation, executive orders and administrative actions are going to be one of the most potent ways the executive can carry out their policies,” said David Adkins, CEO of the Council of State Governments and a former Kansas state senator, who along with his group is not taking a position on the measure. “And so this is a pushback by the Legislature.”
The Legislature has a joint committee that reviews regulations, but if lawmakers object to one, their most effective tactic is to raise a stink and push the agency to back off. They also can pass a bill overturning the rule, but the governor can veto it.
“We can tell them that we don’t like what they’re doing,” said state Rep. Barbara Wasinger, a Republican from western Kansas and the joint committee’s vice chair. “And they can just look at you and say, ‘Don’t care.'”
November’s proposed amendment would allow the Legislature to nullify agency rules or parts of rules with a simple majority vote in both chambers, with no option for the governor to veto the move.
Kelly and fellow Democrats have been the most vocal critics. State Treasurer Lynn Rogers said Wednesday that the measure would strip agencies of their independence from lawmakers.
Attorney General Derek Schmidt, a Republican seeking to unseat Kelly in the November election, backs the measure even though it would apply to his office. Secretary of State Scott Schwab’s spokesperson said Thursday that he’s supporting it, because “it makes the most sense” for lawmakers to have that power over policy. Another statewide elected Republican, Insurance Commissioner Vicki Schmidt, hasn’t taken a public position.
While the measure would apply to a host of boards and commissions, it’s not clear how it would effect the elected State Board of Education, whose 10 elected members oversee the K-12 public school system. The Kansas Supreme Court decades ago ruled that the board can set policy on its own, without legislators’ permission, yet lawmakers still enact education policy regularly. The board has not taken a position on the proposed amendment.
Kansas law used to give the Legislature the power to revoke or rewrite agencies’ rules, but in 1984, the Kansas Supreme Court ruled that the practice violated the state constitution’s separation of powers.
In most states, legislators review agencies’ regulations, but their power to block or repeal them varies widely. Arkansas, Connecticut, Idaho, New Jersey and Nevada have provisions in their state constitutions to allow the Legislature to invalidate regulations.
In Colorado, agency rules are temporary unless lawmakers vote to extend them. In Illinois and Wisconsin, joint legislative committees can block rules, though in Wisconsin, enforcing the decisions can require court rulings.
In Kansas, clashes between legislators and agencies sometimes focus on fears that regulators are too eager to extend their reach.
Early in 2020, lawmakers expressed concern about an existing state health rule requiring beauty shops, nail salons and skin-care providers to have separate sinks for hand-washing and services for clients. And a longstanding Kansas law exempting hair braiders from state regulation resulted from anger over a state board telling two women known as the Braiden Maidens that they couldn’t work the Kansas City-area Renaissance Festival without a license.
Supporters of the proposed amendment say lawmakers probably would use the new power sparingly, when agencies clearly do something the Legislature didn’t intend. Business groups backing it say they don’t have particular regulations in mind.
But Democrats and other critics are uneasy, saying GOP lawmakers and business groups could target rules for controlling air and water pollution or worker safety regulations.
And, with support from vaccine opponents, a few Republicans this year sought to strip the state health department of the power to revise its regulations to require new vaccines for children enrolling in school or day care. The proposed constitutional amendment would save them the trouble of passing such a law and getting past a governor’s veto: They could instead work to nullify any additions to the department’s list of shots.
“It’s open season on the administration’s ability to run the government,” said Joan Wagnon, a former state revenue secretary and Kansas Democratic Party chair who helped form a new anti-amendment group, Keep Kansas Free.
