After voters narrowly rejected regulations amendment, top Republicans want to try again

After Kansas voters narrowly rejected a proposed constitutional amendment last month, top Republican lawmakers want to try again on a so-called legislative veto of executive branch regulations.

"It was still close and I think you've got to think we're going to bring it back and we're going to try it again," said House Speaker Dan Hawkins, R-Wichita.

The amendment question was decided by 8,645 votes — a margin of less than 1% — making it the closest statewide race.

More:Legislative veto of regulations amendment fails in closest vote of Kansas 2022 election

"Hopefully the next time we'll do a better job of communicating exactly why it's needed," Hawkins said. "We have many instances why it was needed and how it could be used. I told people, listen, if this passes, we hope that we don't have to use it. We hope that brings the agencies to the table to where we can work with them to get things done right according to statute and not change the intent of statute."

Rep. Barb Wasinger, R-Hays, and Sen. Caryn Tyson, R-Parker, both said legislators need to rewrite the amendment so it is clearer for voters. Both lawmakers sit on a legislative committee that reviews administrative rules and regulations.

"I anticipate trying it again," Wasinger said. "I think it needs to be rewritten. I don't think it was clear enough for people. And I think we needed to be better prepared for the opposition to it."

Regulations are a frequent source of conflict in the Statehouse. Lawmakers typically delegate authority to agency bureaucrats to flesh out the more tedious policy details via regulations, which carry the force and effect of law.

Tyson said the amendment is needed because lawmakers should have greater oversight power when they view an agency action as overreach or not in line with legislative intent.

"We need to simplify the language and make it very straightforward," she said.

More:Kansas legislators threaten to defund regulators as missed deadlines pile up

Legislative veto amendment followed Value Them Both

Washburn University political science professor Bob Beatty said that while there can be multiple reasons the the amendment failed, he believes the Aug. 2 vote on a separate anti-abortion amendment was a bigger factor than the clarity of the wording.

"For a fair number of voters, they made the link between the two amendments," Beatty said, noting that some voters repurposed their "vote no" signs from August for the November election.

Hawkins agreed with that assessment. He said "there was a lot of hangover from that" Aug. 2 vote, and "I think the Value Them Both, there's just a lot of residual effect."

Beatty said the amendment would be "much more likely to pass" if it appears on a future ballot. Hawkins suggested it may be in two years.

Whatever lingering effects Aug. 2 may have had on Nov. 8, they did not extend to a separate amendment on sheriffs — which had arguably more confusing wording — which passed overwhelmingly.

"I don't know why voters didn't support that when they did support the constitutional change for the sheriffs, and it could have been simplified also in the language," Tyson said.

Was the wording too confusing for voters?

"I think it was misinterpreted and a lot of people got to the polls that hadn't heard from anyone and said, 'uh, this doesn't sound right,'" Wasinger said.

She said she does not have a plan for how to reword the amendment, but the substance would stay the same.

"Just being able to tell an agency when they're starting to create laws from their offices, it's wrong," she said. "Agencies should not be writing law. That's the Legislature's responsibility. So I think it's a tool that will keep some of that overregulation, writing statute through regulation, I think it will slow it down, because they'll know that we have the ability to question and then take it to our colleagues and see if they agree."

Hawkins laid the blame for the regulatory amendment's failure on the messaging of the opposition.

"Our opposition on that painted it as something against the governor," he said. "It had nothing to do with the governor. Governors come and go, we had the same problem during the Brownback administration ... we had the same problem during the Colyer administration, we have the same problem now.

"You have bureaucrats that stay — we (lawmakers) come and go — but they stay for long periods of time, and they can have an affect. It was never about the governor, but that's the way it was painted. Unfortunately, the public bought it, although it did come pretty darn close."

Opponents contend the amendment would usurp the governor's authority and upset the separation of power between the executive and legislative branches.

"They made it sound like that that was a legislative veto," Hawkins said. "It's not a veto of the bill, it's just saying the rules and regs weren't correct — go back, go to work and let's get them right."

The move has been widely called a legislative veto, including by the Kansas Supreme Court. The court in a 1984 decision ruled that a law creating such a mechanism was "a significant interference by the legislative branch with the executive branch and constitutes an unconstitutional usurpation of powers."

The court noted that it has consistently been held that regulations are an executive branch function, not legislative. The justices noted that lawmakers still hold the power to modify statutes granting regulatory authority to agencies.

"The apparent objective and result actually accomplished," the court wrote of a legislative veto, "is the control by the legislature over the adoption of rules and regulations by administrative agencies and the exclusion of participation by the executive branch in this area."

Will the amendment pass a second time?

It is unclear how a second try at the regulatory amendment would fair in the Legislature.

It wasn't an easy process the first time. Despite Republicans holding supermajorities in both the House and Senate, they faced difficulty reaching the two-thirds required in both chambers. The resolution, HCR 5014, failed by four votes in an initial House vote as a snowstorm kept some representatives from making it to Topeka.

Leadership brought it back the next week. It passed the House with one vote to spare, needing the support of two Democrats, Rep. Jason Probst, D-Hutchinson, and Rep. Vic Miller, D-Topeka, who is now the minority leader. It later passed the Senate with the minimum number of votes needed.

Beatty said a handful of Republicans may not support it a second time around if their view is the voters have spoken. But Wasinger anticipates finding enough support among her colleagues.

"I worked my tail off," she said. "So I think when if it's a little clearer to everyone, I think I can get them back."

Meanwhile, she praised the work of Americans for Prosperity-Kansas, a top proponent of the amendment, while suggesting there could be room for other groups to help.

"They did the best job that they could," Wasinger said. "I think that the bill itself, the constitutional amendment, needs to be tweaked in how it's worded. The Americans for Prosperity did a lot, and I have no complaints on what they did. I think it just was a matter of people going into the voting booth and not being able to understand it."

This article originally appeared on Topeka Capital-Journal: Kansas Republicans to try again on legislative veto of regulations