Kansas constitutional amendment on rules and regulations: Voters to decide Legislature power

TOPEKA — Kansas Livestock Association lobbyist Aaron Popelka spoke for 5,700 ranchers and farmers by supporting adoption of an amendment to the Kansas Constitution granting legislators new power to thwart rules and regulations developed by the executive branch.

Popelka said industries subject to oversight by 13 state agencies needed an easy path to blocking rules and regulations viewed as onerous. While the Legislature is responsible for writing bills, state agencies often must fill in statutory blanks by crafting rules or regulations.

“A well-intentioned statute can be subverted by the executive, harming the regulated community,” Popelka said. “Often when regulations go awry, it is difficult for the regulated community to fight back.”

He said existing options were to file and win a costly lawsuit or to convince the Legislature to adopt a bill superseding the troublesome rules and regulations and sidestep a governor’s veto. Under the constitutional amendment, the House and Senate by majority vote could simply veto rules or regulations without worrying about a governor blocking the change.

Zack Pistora, a lobbyist for 5,000 members of the Kansas Sierra Club, said the amendment was misguided because it would threaten regulations and rules protecting the air, water and land resources. Passage of the amendment would be an invitation for moneyed interests to politicize and micromanage safeguards needed to protect the welfare of Kansans, he said.

“We are worried that giving the Legislature the power to revoke or suspend the rules and regulations could lead to greater political pressure on legislators by powerful special interests seeking less regulatory scrutiny upon their industry or business,” Pistora said.

The constitutional amendment was placed on statewide ballots by two-thirds votes of the Legislature. It’s fate will be determined Nov. 8 by a simple majority of Kansans participating in the yes-or-no question.

How did we get here?

In 1983, the Legislature passed a law giving the House and Senate rulemaking authority comparable to that envisioned by the pending constitutional amendment. However, the Kansas Supreme Court decided in Stephan v. Kansas House of Representatives the statute violated the “presentment” clause and separation of powers in the state constitution.

The state’s highest court said the Legislature couldn’t decide on its own to skip an obligation to present statutory changes to a governor.

In March 2020, Democratic Gov. Laura Kelly responded to the COVID-19 pandemic with an emergency declaration and a series of executive orders. Kelly administration agencies made use of their authority in the public health crisis to try to limit spread of a virus contributing to the death of nearly 10,000 Kansans. There was pushback by Republican legislators and other Kansans to restrictions and mandates, which intensified as the pandemic wore on.

The Kansas Chamber, Americans for Prosperity, Kansas Bankers Association, Kansas Agribusiness Retailers Association and the KLA seized upon COVID-19 political dissent to secure the necessary two-thirds majorities in the House and Senate to put the regulatory amendment on statewide ballots.

What does the amendment say?

Here it is: “Whenever the Legislature by law has authorized any officer or agency within the executive branch of government to adopt rules and regulations that have the force and effect of law, the Legislature may provide by law for the revocation or suspension of any such rule and regulation, or any portion thereof, upon a vote of a majority of the members then elected or appointed and qualified in each house.”

The proposed Section 17 of Article 1 of the Kansas Constitution wasn’t written by the Republican-led Legislature with an eye for easy absorption by voters.

The Flesch Reading Ease measure of readability, which takes into account words, syllables and sentences, indicated it was written for someone with a doctorate.

The ballot included a summary that more succinctly outlined the amendment. It says the Legislature wants Kansas voters to give them more control of executive branch agencies and officials when it comes to state rules and regulations.

A ‘no’ vote means?

If a majority of Kansans voting on the amendment fill in the “no” square on the ballot, the measure would die and the Kansas Constitution wouldn’t be changed for the 99th time since 1861.

Rep. John Carmichael, an attorney and Wichita Democrat, said he joined dozens of House members in opposition to the amendment because it turned “on its head” the notion of the fundamental balancing of three branches of government.

“We need to have balance in our government so that there is a give-and-take, no matter if there’s a Republican governor or a Democratic governor,” he said.

Abortion rights activists suggested changes to the mechanism of determining rules and regulations could be exploited by anti-abortion forces to weaken legal access to the procedure. In August, an amendment to the Kansas Constitution declaring women didn’t have a state right to abortion was defeated in Kansas by more than 170,000 votes. Adoption of that amendment would have given the Legislature leverage to enact strict abortion restrictions or an outright ban.

What about a ‘yes’ vote?

If approved, the constitution would reflect the Legislature’s desire to establish procedures for revoking or suspending part or all of executive branch rules or regulations.

Ron Seeber, president of the Kansas Grain and Feed Association, said House Concurrent Resolution 5014 would protect industries such as his from unreasonable, unnecessary and expensive rules and regulations written by bureaucrats.

“This resolution seeks to make positive changes to the regulatory system in Kansas by providing oversight of proposed regulations by legislators directly elected by the residents of Kansas,” he said.

Amii Castle, professor of law at the University of Kansas, said passage of the amendment would lower the Legislature’s procedural hurdles when trying to derail regulations and rules formulated by state agencies involved in health, labor, transportation, commerce, agriculture or wildlife and parks as well as people who were elderly or disabled.

“A vote ‘yes’ on this amendment would take the governor completely out of the equation,” she said.

Schmidt, Kelly, Pyle?

Derek Schmidt, the Republican attorney general challenging Kelly’s bid for reelection, endorsed the amendment to the Constitution. He said it was time Kansas maneuvered around a 1983 U.S. Supreme Court decision declaring unconstitutional a federal law on the legislative veto and the 1984 state Supreme Court decision finding state law likewise a violation.

“It is no wonder why regulatory reform proposals caught the attention of many members of the Legislature,” Schmidt said.

He said a George Mason University study showed Kansas in 2019 had 70,969 administrative regulations containing 3.2 million words. It would take the average person five weeks to read the state’s regulatory code, the study said.

“Adoption of the amendment by the voters would return lawmaking authority to the lawmaking branch of government, the branch closest to the people,” Schmidt said.

Kelly, who checked “no” on her ballot, said she was convinced the amendment ought to be rejected by Kansas voters.

“It clearly is a violation of the separation of powers and would create chaos all across the state,” she said.

State Sen. Dennis Pyle, who is running an independent campaign for governor, voted for the amendment when it passed in the Senate.