TOPEKA
Kansas lawmakers moved closer Monday to a showdown with Gov. Laura Kelly over her handling of the COVID-19 pandemic, as the Senate approved major limitations on her emergency powers.
It is the latest turn in a year-long dispute between the Democratic governor and the Republican legislative supermajority over the extent of her authority in a crisis. The GOP blames Kelly for the weakened state economy, which they contend is the result of sweeping stay-at-home orders and business closures she ordered in the early months of the pandemic.
The governor and lawmakers reached a deal last spring imposing some limits. But as the first anniversary of the virus’s arrival in Kansas approaches, GOP lawmakers want further restrictions on Kelly’s power. On Monday, the Senate, voted 27-12 for a package of new rules.
The bill now goes to the House, where a similar measure is under consideration.
The House and Senate bills both require Kelly to seek approval from a legislative committee and review by the Attorney General for any executive orders issued during a public health emergency. The Senate bill prohibits Kelly from restricting religious activity, from declaring businesses “non-essential,” and from allowing abortion clinics to remain open if other medical procedures are unavailable or businesses are closed.
In the Senate bill, decisions on school closings would be left entirely up to local boards rather than the governor or local health officials. Local health officers would be barred from issuing unilateral orders of any kind.
Both bills also create an appeal process for anyone who feels they’ve been aggrieved by orders made by state or local authorities during the emergency.
“It’s giving the legislature an equal voice and local officials control over their destiny,” said Senate Vice President Rick Wilborn, a McPherson Republican.
“The thing that probably disturbed me the most (about Kelly’s response) was that she would ask the Attorney General his opinion and then ignore it. Some of those things need to be tightened down a little bit.”
The vote was almost completely along party lines. One Republican, Sen. John Doll of Garden City, voted with the Democrats.
In a statement Monday, Kelly said the senate bill would jeopardize the state’s ability to respond to emergencies and pledged to veto such legislation.
“The Legislature’s role in an emergency is oversight, not inserting itself into the decision-making process. I won’t hesitate to veto any bill that slows or undermines my ability to respond to a crisis and save lives,” Kelly said.
The senate could override Kelly’s veto with 27 votes.
Republican lawmakers framed the bill as a necessary revision to emergency management laws that were written without a pandemic in mind.
“It’s meant to be, in its final product, longstanding law so that Kansans can have some certainty,” said Sen. Kellie Warren, a Leawood Republican.
Democrats said the legislation was intended to impede Kelly during the current pandemic and would hinder the state’s ability to respond to future public health emergencies.
“There will inevitably be another public health crisis and it will be our children and our grandchildren who bear the brunt of our inability to move past politics,” said Sen. Ethan Corson, a Prairie Village Democrat.
“The whole purpose of this bill is to just tie up the governor in knots.”
The Senate bill, which was introduced last week, received support from business groups, such as the Kansas Chamber of Commerce.
Ryan Kriegshauser, an attorney who participated in a lawsuit last year to remove capacity limits imposed by Kelly on churches, said in a hearing last week that businesses were taking correct public health measures before they were required to.
“They don’t need government telling them what to do when in these examples they were leading the charge,” Krieghauser said. “If the government provides the right information I believe businesses will make the right decisions.”
In written testimony, however, KDHE Secretary Lee Norman slammed the bill as “a rushed attempt to respond to our recent history with COVID-19.” He urged a more deliberate discussion of possible public health emergencies beyond COVID-19, such as Swine Flu or Ebola.
House revisions
House lawmakers are poised to vote on their own version of the bill this week. It applies more broadly to all emergencies and places fewer explicit limits on executive power.
Democratic leaders said they prefer the House version.
Speaker of the House Ron Ryckman, an Olathe Republican, said he had not reviewed the senate version in detail but believed the pandemic exposed flaws in the emergency management laws and that Kelly had at times overstepped.
“We all agree that we need to update the law,” Ryckman said. “No one anticipated it’d be a year long disaster declaration.”
In a committee hearing, Monday, the House panel drafting the bill rejected several amendments to align with the Senate version by prohibiting the closure of churches, insisting that abortion services be banned if other medical procedures are limited and restricting the government from closing businesses or determining what businesses are considered “essential.”
Rep. Stephen Owens, a Hesston Republican, said such changes were necessary to reign in power given to the governor and the Legislative Coordinating Council, a panel of House and Senate leaders that acted in the spring to roll back some of Kelly’s orders.
“I have not seen caution shown by those two groups,” he said.
Rep. Mark Samsel, a Wellsville Republican, suggested that any changes should be limited solely to COVID-19 while the legislature considers more holistic reforms.
“I’m concerned as we’re making changes to emergencies that are already a difficult situation that we’re altering the balance of power,” Samsel said. “This would be a much easier bill for me to support if these changes were temporary.”
The panel passed its version of the act, but Democrats remained opposed to it. Rep. John Carmichael, D-Wichita, urged lawmakers to consider the repercussions of allowing a 48-hour period for legislators to review emergency declarations.
“Governors have to take action in emergency,” he said. “We don’t always have 48 hours for legal review.”
