Sen. Richard Hilderbrand pushed back against a resolution for Kansas to apply for a constitutional convention of states, stating doing so would be hypocritical. He also cautioned Senate colleagues against disregarding a requirement in the Kansas constitution that such a measure must garner a two-thirds majority to be declared passed. (Sherman Smith/Kansas Reflector)
TOPEKA — After a long and sometimes circular debate Wednesday in which Kansas Senators called into question their oaths of office and duty to uphold the state constitution, a resolution requesting a constitutional convention was sent back to committee.
Throughout the nearly three-hour debate, Republican legislators, with occasional interjection from a Democrat, debated the best way to rein in what they described as “out-of-control” and “behemoth” federal government. While most agreed with the intent of increasing state authority, they couldn’t agree on the way to do so.
The resolution intended to call a convention of states under Article V of the U.S. Constitution to propose amendments imposing fiscal restraints on federal government and limiting its jurisdiction, as well as limit the terms of office for members of Congress and other officials. Each state could send up to 10 delegates, and each state would have one vote.
The debate quickly segued into a discussion over the authority of the Senate to pass such a resolution without a two-thirds majority — a position held by Senate President Ty Masterson — despite a supermajority requirement in the Kansas Constitution.
Some argued the body was not beholden to this provision, while others were adamant that ignoring this requirement would be a violation of their oath to uphold the state constitution. Opponents also suggested passing the resolution with only a simple majority would invite unsightly litigation costs.
Sen. Richard Hilderbrand, R-Galena, led opposition to the resolution, speaking for more than an hour straight on what would occur if there were not enough support to meet the two-thirds threshold. While Hildebrand agreed with the need to curtail federal authority, he said doing so by violating the state constitution would be an act of hypocrisy.
“We expect our federal government to have fiscal restraints, as a state, and we are going to send delegates to a convention to demand that. Don’t you think that’s a bit hypocritical, and we are the enablers?” Hilderbrand said. “We’re allowing that to happen. What are we going to do when we go and demand that, and they say, ‘OK, we’re going to stop sending you money.’ It’s fiscal restraint. What is the state going to do? We’re going to lose $13 billion.”
The measure was sent back to committee on a 21-19 vote. The debate was largely among the 29 Senate Republicans, 10 of whom voted to send the bill back to committee. All 11 Democrats voted to do so as well.
While the Senate Federal and State Affairs Committee could work diligently to push it back through and require that the resolution meet the threshold in the state constitution, it appears unlikely to generate the necessary support with so few days remaining of the 2021 legislative session.
Convention of States Action, a group backing the idea, says 15 states have applied for a convention, and eight more have passed a resolution in one chamber.
The U.S. Constitution requires that Congress call such a convention if two-thirds of all states, or 34 legislatures, apply. Previous efforts to pass similar resolutions have amassed simple majorities in the Legislature, but a 1974 amendment to the Kansas Constitution requires the approval of two-thirds of both chambers of the Legislature to apply.
However, Sen. Kellie Warren, a Leawood Republican and attorney, argued because the U.S. Constitution is “silent” on the margin required of state legislatures, the Kansas constitution, and thus the 1974 amendment, could not require a supermajority. She pointed to a 2019 legal opinion provided by Republican Attorney General Derek Schmidt, who concurred with that line of thinking.
“The people can’t exercise an authority that they weren’t given by the U.S. Constitution,” Warren said. “The Legislature does have authority from the U.S. Constitution, in Article V, about making an application of the Legislature. I’m thinking then we look at our Senate rules because the Senate rules are made by the Legislature.”
During the debate, Senate vice president Rick Wilborn indicated Masterson, an Andover Republican, would pass the resolution with 21 to 26 votes. While shy of the necessary supermajority, Wilborn said the Senate President intended to declare the measure passed and likely spark a lawsuit to determine the vote tally required for Kansas to join the convention effort.
Sen. Rob Olson, an Olathe Republican, was apprehensive to act in a way he saw as casting aside the state constitution. Instead, he made the later-approved motion to send the resolution back to the committee for further work.
“The Kansas Constitution is too important to just throw it away and say now we’re going to go off the Senate rules,” Olson said. “You want to change the majority to a simple majority? Do it the right way. Pass that (amendment) out — I’ll vote for it just to get it on the ballot — and see what the will of the people is.”
Still, backers of the resolution pushed back against his motion. They said another attempt would likely occur in future years no matter the outcome.
“It does nothing to send it back, except delay the project and maybe kill it,” said acting Senate Majority Leader Larry Alley, a Winfield Republican.
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