Analysis: How the Kansas Legislature avoids public scrutiny by hiding in darkness

By: - May 8, 2022 3:55 am
The Kansas Legislature discourages public involvement by obscuring the policymaking process. (Sherman Smith/Kansas Reflector)

The Kansas Legislature discourages public involvement by obscuring the policymaking process. (Sherman Smith/Kansas Reflector)

TOPEKA — The Kansas Legislature shields itself from public scrutiny through secrecy, confusing shell games and silenced opposition.

Republicans who control the legislative process conduct hearings with selective one-sided testimony and provide no advance notice of a committee’s plans to take action on significant legislation.

They refuse to acknowledge the authors or special interests involved in writing state policy. They may even delay the filing of a bill so that it can’t be reviewed by news reporters or opponents before holding a hearing on it.

They pass big-ticket items through end-of-session deals that materialize late at night, combine masses of bills — including some that haven’t received a hearing — and deny lawmakers the opportunity to amend legislation.

They make it difficult to track a bill’s progress through the end of session with the ubiquitous use of a process known as “gut and go,” in which they replace the entirety of a bill with the contents of a different bill. Even lawmakers get confused by this shell game as they try to figure out which bill number aligns with a particular policy.

By hiding in darkness, the Legislature discourages public involvement in the policymaking process.

“The Legislature’s annual rites of secrecy serve special interests, not ordinary Kansans, and make it harder for voters to learn who is responsible for passing legislation adverse to the public interest,” said Max Kautsch, a 1st Amendment attorney, speaking on behalf of the Kansas Coalition for Open Government.

House Minority Leader Tom Sawyer, a Wichita Democrat, said transparency in the Legislature “has gotten worse and worse” since he was first elected in 1987.

Lawmakers work for the taxpayers, Sawyer said, “and it can often feel like some forget that.”

“Between conference committee bill bundling and not giving public notice, our constituents are cut out of the process,” Sawyer said. “Gut-and-go bills keep the public from tracking issues they care about. None of this is OK. We work for Kansans. We shouldn’t hide our work from them.”

Following are examples of the Legislature’s lack of transparency this session, and recommendations from the Kansas Coalition for Open Government to change the way the Legislature operates.

 

Sen. Richard Hilderbrand, a Baxter Springs Republican and chairman of the Senate Public Health and Welfare Committee, admonished a Democrat for questioning the validity of out-of-state testimony during a hearing on access to food assistance. (Sherman Smith/Kansas Reflector)

The shell game

House Bill 2239 began as a two-page bill, sponsor unlisted, dealing with corporate tax code.

By the time the Legislature adopted the bill as a “conference committee report” on April 1, it had billowed into 94 pages of tax policy, fused from 29 separate pieces of legislation.

Some of that policy had not received a hearing or been considered by one of the two chambers. Most legislators had no time to review the bundle, which added up to a $90 million annual tax cut, and legislative rules prevented lawmakers from trying to amend the legislation. They voted for it anyway, 39-0 in the Senate and 103-10 in the House.

This is frequently how a bill becomes a law in Kansas.

Here’s how it’s supposed to work:

A lawmaker, lobbyist, organization or resident of Kansas introduces a bill, under their name, in either chamber. For this example, the bill starts in the House.

GOP leadership assigns the bill to the relative committee, where the chair gives opponents and proponents the equal opportunity to testify at a hearing. The committee on a later date considers amendments to the bill, debates the issue, and votes to send it to the full House.

The 125-member House meets as a committee of the whole to consider any additional changes, debate the bill and vote to advance it. The next day, the House takes final action on the bill, and votes to approve it with a simple majority.

The bill then goes to the Senate, where it follows the same steps.

Three members of both chambers — four Republicans, two Democrats — get together as a “conference committee” to iron out any differences between the Senate and House versions of the bill. The two chambers then take a final vote on the “conference committee report.”

In reality, GOP leaders short-circuit the process by introducing legislation during the final stage. Virtually all prominent legislation now is a product of a gut and go and packaged in a conference committee report.

Consider the path lawmakers took with legislation that requires adults to work 30 hours a week or enroll in job training in order to receive federal food assistance.

Florida-based Opportunity Solutions Project introduced the model legislation, although the organization’s name didn’t appear as the sponsor when it was entered as Senate Bill 501. The Senate Public Health and Welfare Committee held a hearing on the bill March 10. The committee chairman, Sen. Richard Hilderbrand, a Baxter Springs Republican, admonished a Democrat for questioning the relevancy of out-of-state testimony on the topic.

On March 17, the Senate committee held an impromptu meeting at the railing overlooking the Statehouse rotunda. There, the panel gutted House Bill 2448, which dealt with foster care licensing, and replaced it with the restrictions on food aid. The original contents of House Bill 2448 had already been inserted into House Bill 2158, which previously was a public health bill, and passed into law a year ago.

The Senate on March 23 adopted the food restrictions now contained in House Bill 2448. The policy never received a hearing in the House, where opponents could have pointed to the adverse effects it could have on food banks, foster kids, single mothers, college students, cancer patients and the self-employed. Instead, both chambers passed the law as a conference committee report on March 30. Later, both chambers voted to override Gov. Laura Kelly’s veto of the bill.

Legislation dealing with a parental bill of rights for parents of public school children, a ban on transgender athletes, elimination of the sales tax on food, and the state budget followed similar paths.

 

Sen. Mark Steffen, a Hutchinson Republican, appears after a Jan. 26 committee hearing at the Statehouse in Topeka regarding his proposed legislation allowing doctors like himself to prescribe drugs off-label to treat COVID-19. (Sherman Smith/Kansas Reflector)

Still so secret

Wyandotte County District Judge Bill Klapper noted the secrecy surrounding a new congressional district map while ruling it was unconstitutional because it dilutes minority votes and heavily favors Republicans.

“Republican sponsors of the map never publicly revealed who drew the plan despite being asked for that information on multiple occasions,” Klapper wrote in his ruling.

Attorney Mark Johnson made a similar point in a filing with the Kansas Supreme Court over a new map for legislative districts.

“No one outside of perhaps select Republican insiders even knows who actually drew the map, much less how decisions were made,” Johnson wrote. “There was no transparency about the making of this sausage.”

The redistricting process, which Klapper described as “highly irregular, rushed, nontransparent and unfair,” is just one example of the Legislature’s preference for secrecy.

In 2015, the Topeka Capital-Journal reported 90% of the bills that were introduced didn’t include the names of anyone involved in authoring or introducing them, making the Kansas Legislature the most secretive state government in the nation. The Kansas City Star further explored this topic in a six-part series in 2017.

Sometimes, lawmakers won’t even disclose who they have invited to speak on a particular subject.

The March 14 calendar indicated the Senate Federal and State Affairs Committee would have an informational hearing on election security the next day. Davis Hammet, leader of the voting rights group Loud Light, sent an email to the committee assistant, Michael Welton, asking who was presenting this information.

“Tomorrow is a presentation topic dealing with election security,” Welton replied. “Does that answer your question?”

Davis persisted: “Can you tell me who is presenting & how the presenters were selected?”

Welton: “Your hunting above my pay grade on this one.”

Davis: “Not trying to give you a hard time, but are you saying you are not allowed to tell me who is presenting tomorrow?”

Welton: “Davis, I answered your first half dozen questions. You just have refused to listen.”

The speaker turned out to be Maria Zach, of Nations In Action, who delivered widely discredited conspiracy theories about the legitimacy of 2020 election results.

In another example of secrecy, Sen. Mark Steffen, R-Hutchinson, said during a Jan. 26 hearing of the Senate Public Health and Welfare Committee that he had intentionally withheld publication of Senate Bill 381 until the night before its scheduled hearing in an attempt to prevent news reporters from reading the bill. Unfortunately for Steffen, the hearing had been delayed a day, giving “the media a 24-hour head start.”

Steffen, an anesthesiologist who had written prescriptions for ivermectin to COVID-19 patients, also revealed he was under investigation by the Kansas Board of Healing Arts. His proposed legislation would have given him retroactive protection for prescribing a drug that provided no benefit to patients. His name is not listed as a sponsor of the bill.

On Feb. 8, the health panel combined his ivermectin bill with Senate Bill 398 — legislation that had not received a hearing and would provide an opt-out for vaccine requirements in schools — and inserted them both into House Bill 2280, which originally dealt with pharmacy regulations. The panel’s support for Steffen’s legislation was part of an obvious backroom deal: Later that day, Steffen helped the Senate override the governor’s veto of the congressional redistricting map by flipping his vote.

The secrecy intensifies as the session progresses. In the final weeks of hearings, committees rarely notify the public of planned action on significant legislation. Instead, the calendar is filled with references to “possible action on bills previously heard.”

In the case of Senate Bill 484, which would ban transgender athletes from girls’ sports teams, there was no notice of any kind in the calendar for March 9, when the Senate Education Committee approved the bill. It would later be inserted into Senate Bill 160, which previously dealt with wildlife and parks. The original contents of Senate Bill 160 had been inserted into Senate Bill 142 and passed into law last year.

 

Sen. Kellie Warren, a Leawood Republican and chairwoman of the Senate Judiciary Committee, oversees a one-sided hearing on March 3 to support legislation restricting the authority of public health officials. (Sherman Smith/Kansas Reflector)

One-sided hearings

Sen. Kellie Warren, a Leawood Republican who is seeking the GOP nomination for attorney general, scheduled a March 3 informational hearing to discuss “potential legislation” restricting the authority of public officials to require vaccine passports or issue orders mandating face masks or limiting public gatherings.

During the hearing, Warren acknowledged the speakers were providing support for already-written legislation, Senate Bill 541, which her Judiciary Committee approved the following week.

Public health professionals learned about the informational hearing when it appeared in the March 1 calendar, but the anti-vaccine and anti-mask speakers who spoke before Warren’s committee received advanced notice. Some of the speakers had provided written testimony before the meeting was scheduled.

Anybody who opposed new restrictions on public health officials was not allowed to speak March 3, and their written testimony wasn’t made public at the time of the hearing.

Discussion by legislators — and news coverage of the unbalanced hearing — excluded the voices of people like Jennifer Bacani McKenney, a Fredonia physician who provided written testimony opposing Senate Bill 541 on behalf of the Kansas Academy of Family Physicians.

“Stripping public health officers and county commissioners of their ability to protect their communities with proven strategies based in science — tools that will have a positive impact on community health and reduce community spread of disease — will result in dire consequences for our state and its citizens for decades to come,” McKenney wrote.

As the committee quashed the input of health professionals and the 95% of Kansans who trust vaccines, Sen. Mike Thompson, a Shawnee Republican, complained about the lack of attention given to the cherrypicked speakers who were granted exclusive access to the public stage. Thompson falsely claimed those speakers were being ignored by “the press,” even though journalists were in the room, watching online and published stories about the hearing.

Components of various legislation dealing with pubic health policy and infectious disease resurfaced in a late-night deal in the final hours of the veto session on April 28. A conference committee gutted Senate Bill 34, which originally dealt with legislative rules, and inserted pieces of bills that never received a hearing in the House, as well as brand new policy ideas.

 

‘Don’t be sheep’

Rep. Vic Miller, a Topeka Democrat, urged lawmakers to stand up to leadership during an April 28 speech from the House floor.

His speech was a response to the way the state budget was finalized with limited input or chance for review from representatives.

Miller said the “digression of the process” over the 40 years since he was first elected to the Legislature has been harmful to democracy.

Leadership, he said, was treating members of both parties like children.

“That’s what this is,” Miller said. “They don’t trust you enough to allow for the process to be full, which includes the opportunity to amend. And my goodness, when you’re in such control of the process, you shouldn’t fear the opportunity for someone to offer an amendment and to have it fully debated, even if you do not support it. Your voters do not send you up here to simply take orders. Don’t be sheep.”

It doesn’t have to be this way.

The Kansas Coalition for Open Government, in response to questions raised for this story, recommended legislative reforms “to ensure transparency and facilitate constituent involvement.”

The Kansas Press Association, Kansas Association of Broadcasters and the Kansas Professional Chapter of the Society of Professional Journalists sponsor the coalition.

The coalition’s proposals:

  • Restrictions on the number of bills that can be bundled.
  • A requirement that all bills must have had a public hearing in order to be considered by the committee of the whole.
  • Limiting “gut and gos” to same-subject bills that have had a public hearing.
  • Requiring the public be notified of a bill’s hearing 48 hours in advance of the hearing.
  • Requiring all hearing testimony be posted online before a bill is considered by the committee of the whole, or within 48 hours of the end of a hearing.
  • Requiring that each legislator have access to bill language before voting on a bill.
  • Providing equal time to each person testifying before a committee, not equal time per side.
  • Requiring the name of the legislator sponsoring a bill.

Senate Minority Leader Dinah Sykes, a Lenexa Democrat, said there is no need for Republicans, who dominate the Legislature with supermajorities in both chambers, to take shortcuts. The obfuscation of proceedings and rules, she said, “makes no sense.”

“The legislative process is confusing and makes Kansans feel like they need to have insider information in order to effectively advocate for their communities,” Sykes said.

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Sherman Smith
Sherman Smith

Sherman Smith is the Kansas Press Association’s journalist of the year. He has written award-winning news stories about the instability of the Kansas foster care system, misconduct by government officials, sexual abuse, technology, education, and the Legislature. He previously spent 16 years at the Topeka Capital-Journal. A lifelong Kansan, he graduated from Emporia State University in 2004 as a Shepherd Scholar with a degree in English.

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