Democratic Gov. Laura Kelly pledges to veto any emergency management law passed by the 2021 Legislature that jeopardizes the state’s response to COVID-19, while the Kansas Senate positions itself for a GOP-inspired veto override. (Sherman Smith/Kansas Reflector)
TOPEKA — Gov. Laura Kelly promised a veto awaited any overhaul of the state’s emergency management law resembling the bill adopted by the Kansas Senate stripping executive authority from a governor and depositing that power in hands of state legislators or municipal government officials.
The existing disaster law altered in mid-2020 to better conform to harrowing contours of the COVID-19 pandemic expires March 31, a deadline in statute foretelling of the showdown in the Capitol between the Republican-led House and Senate and the Democratic governor.
Kelly possesses the veto pen, but the GOP holds two-thirds majorities in both chambers to override her. It’s a point articulated by Senate Republican leadership after the 27-12 vote Monday approving the bill.
“Senate Bill 273 jeopardizes the state’s ability to respond swiftly and effectively to disasters and emergencies,” Kelly said. “The Legislature’s role in an emergency is oversight, not inserting itself into the decision-making process. I won’t hesitate to veto any bill that slows or undermines my ability to respond to a crisis and save lives.”
She proposed the Legislature extend the current disaster declaration beyond March 31 or risk consequences that include preventing the state from supplying food banks, transporting test specimens to laboratories and delivering COVID-19 vaccine or personal protective equipment.
Senate President Ty Masterson, a Republican from Andover, said the bill sent to the House would modernize the Kansas Emergency Management Act and address problems exposed when Kelly and other state officials imposed their will on Kansans. He expected a compromise House-Senate version of the bill to be voted on this week.
“From restrictions on the freedom to worship to an unwieldly set of mandates that imposed unnecessary restrictions on people and even shut down businesses,” Masterson said, “the burdens imposed by various units of government called out the need to establish a new framework to deal with public health disasters.”
‘Nakedly partisan bill’
While Republicans characterized the measure as a reasoned balance between government and the individual, Democrats complained the bill was a top-to-bottom partisan hatchet job designed to corner Kelly in a quagmire of bureaucracy and red tape.
Debate among senators openly touched on Kelly’s impending re-election campaign in 2022 and the keen interest among some GOP lawmakers to define her as unworthy of a second term. One GOP senator went so far as to theorize it didn’t make sense for Republicans to back a bill hobbling Kelly because she would soon be replaced by a Republican.
McPherson Sen. Rick Wilborn, who serves as vice president of the Senate, said the bill wasn’t perfect, but would be applicable to whoever was the state’s governor.
“We’ll probably have a different governor here in 18 months,” Wilborn said. “That governor will have to work with the same piece of legislation.”
Their conversation on the Senate floor put in sharp relief clashing political vantage points, a whirlwind of conflicting medical reasoning, the reality of struggling businesses and job losses, concern about nearly one year of interrupted schooling as well as the infection of 294,000, hospitalization of 9,200 and death of 4,700 people in Kansas during the pandemic.
“I am deeply disappointed that we were presented with what was such a nakedly partisan bill,” said Sen. Ethan Corson, a Prairie Village Democrat. “This bill was drafted with no input from the executive branch, no input from the minority party. We received a bill whose sole purpose is to continue this body’s longstanding grudge toward the governor.”
Senate Minority Leader Dinah Sykes, of Lenexa, added: “Make no mistake. We would not be here today debating this bill if there was a Republican on the second floor” in the governor’s office of the Capitol.
Nuts and bolts
Sen. Kellie Warren, R-Leawood and chairwoman of the Senate Judiciary Committee that developed the bill, said the current emergency management law inadequately addressed tension between the needs of a governor to protect the public’s health in emergencies and the rights of Kansas citizens to self-determination.
“This legislation strikes that balance. It modernizes our statutes, provides the governor the ability to address any public health crisis, establishes a system of checks and balances, protects the rights of the people and ensures the buck always stops with elected officials,” Warren said.
Under the 30-page bill, a governor could declare a public health disaster emergency with a 15-day duration. It would be eligible for extension in 30-day increments by either the full Legislature or, if not in session for three or more days, a new 10-person emergency management committee of House and Senate members. The goal would be to have committee members from all four congressional districts.
Executive orders issued in wake of that overarching disaster declaration would for the first time be submitted to the state attorney general for review. At the moment, that person would be Derek Schmidt, a likely Republican candidate for governor in 2022. The attorney general would scrutinize executive orders proposed by a governor for constitutional or statutory flaws and issue a nonbinding opinion. The special legislative committee would convene to consider the governor’s proposed executive order. During the crisis, legislators could revoke an executive order.
Either the Legislature or the special committee would possess the power to appropriate federal disaster assistance during a public health emergency. Kansas governors would be forbidden from issuing orders to adjust the criminal code, limit religious gatherings, seize ammunition, modify election laws or take action interpreted as preferential to abortion clinics.
The Senate bill would allow county or city commissions to adopt less-stringent mandates than conceived by a governor and legislators. Decisions of local officials would have to be anchored in “accepted scientific” evidence. Recommendations of local health officers would be voted on by the respective governing body. Local school boards would have exclusive authority regarding closure of public schools or the manner in which instruction would be presented to students.
If an individual objected to a mandate taken by local government officials, the person could call for a hearing before that government entity. The person also would have due-process rights to seek district court review of actions taken by local government. Violations of the state law would include a fine up to $2,500.
Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site.