‘Super-legislature.’ Ballot question asks Kansans to empower Legislature over governor

Evert Nelson/AP
·8 min read

After Kansas voters last week rejected one attempt to give the Republican-controlled Legislature more power, GOP lawmakers will try once more in November.

A constitutional amendment on the Nov. 8 ballot would give the Legislature veto power over rules and regulations issued by Democratic Gov. Laura Kelly’s administration if she’s reelected.

The measure was originally proposed by Kelly’s Republican opponent, Kansas Attorney General Derek Schmidt.

Kansans just voted down an amendment that would have handed the Legislature more power to regulate or ban abortion. The 59% to 41% landslide defeat was a stunning rebuke to Republican legislators who wanted additional authority over the procedure.

But the upcoming amendment on the November ballot would hand the Legislature sweeping final control over rules and regulations issued by state agencies – on everything from fireworks manufacturing to the cleaning of livestock feedlots.

After voters issued an emphatic “no” to the Legislature on Aug. 2, voters in three months will again decide just how far legislative authority should extend.

“It really goes to this theory that we should have just a super-legislature and the Legislature should dictate to the people of Kansas how the executive branch should function,” said state Sen. Ethan Corson, a Fairway Democrat.

Proponents of the amendment say the measure is intended to ensure executive agencies follow legislative intent in establishing regulations and don’t create new laws. But opponents point to it as yet another example of the Legislature seeking to expand its own power.

Under current law, Kansas legislators can undo administrative rules and regulations by passing laws making the regulations illegal. The law requires a majority of the Kansas House and Senate as well as a signature from the governor or a veto proof majority.

But the proposed amendment would allow lawmakers to bypass the governor’s approval and strip away regulations with a simple majority.

“I see it as a tool that is necessary in order for a branch to not overtake others. I think this is a good idea when you have a Democrat as a governor or a Republican as a governor,” said state Rep. Barb Wasinger, a Hays Republican.

Proponents and opponents of the amendment both play down the possibility the abortion vote presages the outcome of the vote on the rules-and-regulations amendment. The two issues are very different, they say, with abortion inspiring strong emotions on both sides in a way that state regulations simply do not.

Still, at a broad level both proposals concern how much power lawmakers should have.

The amendment, if it passes, would allow the Legislature to revoke or suspend rules and regulations by governors of either party but effectively will enhance Republican authority.

The Kansas Legislature has been dominated by Republicans for decades. Democrats have not held a majority in either chamber since 1991. Meanwhile, the governor’s office changes party hands regularly in Kansas. Democrats have held the office for 14 of the last 30 years.

Kelly and Schmidt have taken different positions on the amendment.

“Derek is a strong supporter of the legislative veto amendment because he favors limited government with the most transparency and accountability - and that’s what the amendment will provide, as it does in the states that already have this check and balance for their bureaucracies,” Schmidt’s campaign manager C.J. Grover said in a statement.

Kelly was critical of the measure when it was proposed. In a statement, Wednesday, her campaign spokeswoman reiterated her opposition.

“Governor Kelly knows that the best way to get help to Kansans is by cutting red tape, not adding more. The legislative veto would simply further complicate the regulatory process and keep help from getting to Kansans efficiently,” Madison Andrus, Kelly’s campaign spokeswoman, said in an email.

In 2020, Republicans retained strong conservative supermajorities despite a wave year for Democrats. As a result, the past two years have been marked by legislative attempts to limit the power of the governor, building more for the legislative branch.

In the wake of COVID-19, the Legislature passed sweeping legislation limiting executive power in emergencies. Lawmakers tried and failed earlier this year to get a constitutional amendment on the ballot that would require state Senate confirmation of Kansas Supreme Court nominees. Most recently the Legislature failed in an effort to overturn a court decision that limited their power over abortion law.

Wasinger and other Republicans who pushed for the policy don’t see it that way. In announcing the proposal, retiring Kansas House Speaker Ron Ryckman, an Olathe Republican, described the amendment as a check on bureaucrats who have emerged as a “fourth branch of government.”

State Sen. Molly Baumgardner, a Louisburg Republican, said she expected the power to be used sparingly.

“We have seen harms occur when rules and regulations are misapplied. Because they run absolutely contrary to what was testified in the open public,” Baumgardner said.

Business groups back ballot question

According to the National Conference of State Legislatures, five other states — Idaho, Connecticut, New Jersey, Nevada and Arkansas — have passed similar constitutional amendments since 1982.

Kansas’ measure gained strong support from Kansas’ business groups, including the Kansas Chamber of Commerce and Americans for Prosperity.

In an interview, Eric Stafford, a lobbyist for the chamber, referenced regulations aimed at workers compensation law that the chamber testified against because they felt it would harm business.

“The purpose of that constitutional amendment is to really give stronger oversight by the legislature to ensure the executive branch doesn’t get carried away with implementing rules and regs they don’t have the authority to do,” Stafford said.

Stafford framed it as a bipartisan issue that was important regardless of which party held the governor’s office.

“Democrats should not want to give broad power to the executive branch of a Republican administration to just do whatever they want on, say, abortion through rules and regs,” Stafford said.

Wasinger said regulations in Kansas had become odious.

“I think most Kansans understand that too many regulations strangle our economy and strangle economic growth,” Wasinger said.

But opponents of the measure said the door would be opened to negative or unintended consequences.

“If the proponents of this idea’s dreams were to come true then we might see a lot of basic health and safety regulations we’ve all come to expect go away,” said state Rep. John Carmichael, a Wichita Democrat. “I think the more likely effect if this should pass is nothing. The Legislature has the power now through legislation to repeal any rule or regulation.”

Zack Pistora, a lobbyist for the Kansas Sierra Club, said he expects lawmakers to reduce or eliminate regulations designed to protect the environment.

Lawmakers, he said, don’t have the same expertise as long-standing bureaucrats.

“We’re worried that the process, a lengthy process and thorough review of rules and regulations, could be vetoed because of political talking points,” Pistora said.

“It feels like the Legislature is starting to hover and look over the shoulder of administrative professionals and the executive branch workers who know the subject matter.”

Role of the Legislature

The campaign for more legislative power over rules and regulations is highly unlikely to draw even a fraction of the attention and campaigning the campaign for Legislative power over abortion rights did.

Carmichael and Corson both said they had yet to hear of an organized campaign for or against the amendment.

The Kansas Chamber of Commerce, one of the amendment’s primary proponents, has not yet determined whether it will engage in an organized campaign.

Wasinger said she’s been talking to constituents about the amendment as she knocks doors in her own reelection campaign.

Some opponents of the abortion amendment painted Kansan’s overwhelming rejection of the amendment as a demonstration that they didn’t support more Legislative power.

“I think that clearly there is a huge chasm between what the very extreme Legislature thinks and what the vast majority of Kansans think on what the proper role of government is and what the proper role of the Legislature is more specifically,” Corson said.

“Folks just didn’t trust the Legislature to essentially behave responsibly if the abortion amendment passed.”

However, Corson was hesitant to assume the vote abortion vote signaled anything about the rules and regulations vote. Abortion is a hugely salient issue nationwide that drew immense amounts of fundraising and public awareness. It’s an issue that most Americans have a position on.

Kansans’ rejection of the abortion amendment, proponents argued, had nothing to do with legislative power.

“This is not a controversial subject,” Wasinger said. “They don’t in any way shape or form resemble one another. This is something that we need to educate people and make sure they understand this is not a grab for power. This is to allow for some checks and balances that have not been allowed prior to this.”

Where the abortion amendment saw millions spent on TV ads and door to door campaigns, rules and regulations will be an afterthought for many Kansas voters in November.

“Abortion is such a unique issue, it’s so personal and it’s so emotional. Regulations are boring,” said Alan Cobb, president of the Kansas Chamber of Commerce.