TOPEKA
Kansas Attorney General Derek Schmidt, a Republican, has clashed repeatedly with Democratic Gov. Laura Kelly since she took office in 2019.
They’ve fought about a policy extending food assistance. They’ve fought about the governor’s power to set health rules for schools. They’ve fought about COVID-19 gathering limits on religious services.
But a year into the pandemic, Schmidt may soon challenge Kelly even more aggressively as he publicly weighs a run for governor.
Republican lawmakers are advancing a bill that would require Kelly to submit to Schmidt any public health executive orders before they go into effect. Schmidt would have 24 hours to weigh the constitutionality of the order, giving him a powerful platform to critique Kelly’s decisions during a potential campaign.
Schmidt is also proposing an amendment to the state constitution empowering the Legislature to cancel or suspend regulations issued by the agencies controlled by the governor. The measure, if approved by the Legislature, would appear on the same November ballot as the 2022 governor’s election, handing him another possible campaign issue.
Schmidt’s interest in a potential candidacy was already well-known among Republicans, and The Star reported in November that he was closely looking at the race. But he is now publicly acknowledging his consideration of a run.
In an interview published Monday on Townhall, a site popular with conservative voters, he issued his most pointed challenge to date.
“I think that the Kelly administration has really just not performed well under pressure — both before and during the pandemic. And I think many Kansans are frustrated with that and ready for a change.”
Schmidt was more restrained when he spoke with The Star on Tuesday. He said he is “seriously considering” a run, but declined to go into detail.
“I think I’ll have more to say about that later,” he said.
‘No boogeyman’
Statewide officeholders have long used their jobs as springboards to the next opportunity.
Kansas Secretary of State Kris Kobach convinced lawmakers to give his office the power to prosecute voter fraud, turning a mostly ministerial position into a headline-grabbing operation. He won the Republican nomination for governor in 2018, but lost the general election to Kelly.
More than 20 years ago, Kathleen Sebelius as insurance commissioner mobilized her office to block a merger of Blue Cross Blue Shield of Kansas with an out-of-state company. The battle won her acclaim and helped fuel her rise to governor in 2002.
Now, Schmidt stands to become a bigger check on Kelly if the emergency management overhaul becomes law. But he brushed aside suggestions the reforms are connected to a possible candidacy. He noted that he’s been advocating for changes to the state’s emergency management law since at least August.
“I think they see the boogeyman where there isn’t one,” Schmidt said.
Sen. Oletha Faust-Goudeau, a Wichita Democrat, said she doesn’t think the push for more power is directly tied to Schmidt’s potential run for governor. Rather, she said, the change to the emergency management act is a continuation of the power struggle between Democrats and Republicans.
“If the governor were from his own party, would he be doing this?” she said of Schmidt.
Schmidt is one of a handful of potential Republican candidates who could end up competing for the chance to take on Kelly, who has said she will run for re-election. A Kelly spokesman declined to comment.
Former Gov. Jeff Colyer is considered another top potential contender. Businessman Wink Hartman and former Senate President Susan Wagle have also come up in GOP discussions, among others.
Schmidt, 53, earned his law degree from Georgetown University and worked as an assistant to former U.S. Sen. Nancy Kassebaum before ascending the political ladder. He has been attorney general since 2011 and previously spent a decade in the Senate, including a stint as majority leader.
If he ultimately ran and won, Schmidt would be the first Kansas attorney general to become governor since John Anderson in the 1960s.
Past the breaking point?
His post already gives him a megaphone to raise his profile. Attention-grabbing prosecutions, public fights against scammers and advocacy for tough-on-crime measures all build name recognition. And in the weeks after the November election, he supported a baseless lawsuit challenging the presidential election in other states, a move popular among the Trump loyalists who make up a significant portion of the Kansas Republican base.
But the pandemic has drawn even more attention to Schmidt as virus-related rules and restrictions have raised extraordinary constitutional questions.
Operating under an emergency declaration, Kelly exercised extraordinary powers early in the crisis that included closing businesses and severely limiting gatherings. At times, Schmidt questioned whether the governor had stretched her authority past the breaking point and he called for reform.
The statewide restrictions have long since been lifted and Kelly has made clear she has no intentions of again imposing such stringent rules. As Kansas moves ahead with vaccinations, many are hopeful the worst of the pandemic is in the past.
Still, Schmidt and other Republicans are pushing a sweeping rewrite of the state’s emergency management law that would permanently restrict the power of Kelly and future governors in future crises.
Schmidt said some reforms would have been needed regardless of who was governor, but added “it’s possible a different governor might have been more restrained in the use of these extraordinary powers, or perhaps more collaborative in how they are to be used.”
“I suspect, particularly in the Legislature, that’s an animating force,” Schmidt said. “I’m more interested in fixing what I think are the legal shortcomings in the statute.”
On Monday, the Senate in a 27-12 vote passed a bill that would 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.
Will Lawrence, Kelly’s chief of staff, has argued the 24-hour review process could be dangerous. Raising the prospect of an emergency at the Wolf Creek nuclear power plant, he told legislators in written testimony that the bill “will jeopardize life and property at a time when immediate action is needed.”
Schmidt said his office hadn’t specifically recommended the 24-hour review, but acknowledged its proponents view the Legislature as a check on the governor’s use of certain emergency powers.
“In order to exercise that check in an informed manner, they want an independent legal assessment of issues so they can make a decision, at least that’s how it’s been explained to me,” Schmidt said.
Schmidt also said he understands that “very swift” action is sometimes required by the governor. The more fundamental issue, he said, is that the state’s emergency management law works well for familiar disasters, such as tornadoes and floods. But it was never designed for a long-term response that requires judgment calls and the balancing of competing interests.
“It seems to me that there’s a reasonable middle ground here that would allow a governor to use the sorts of very specific authorities that time and again are necessary … while also recognizing that when there’s an unexpected or perhaps unpracticed use of executive authority, there really does need to be more inclusion and deliberation,” Schmidt said.
Last week, Schmidt and other top Republicans also rolled out a constitutional amendment that would restore the Legislature’s ability to block rules and regulations at agencies under the governor’s control, commonly called “legislative veto.” The Kansas Supreme Court ruled the procedure unconstitutional in 1984.
“He’s done a lot of different things over the last year that would indicate he’s positioning with a more conservative group of individuals across the state than he maybe traditionally was a part of,” said Sen. Jeff Pittman, a Leavenworth Democrat.
Pittman said it’s “kind of obvious” the Legislature’s push to give the attorney general the power to review executive orders is related to Schmidt’s possible candidacy for governor.
Republicans counter that the restrictions Schmidt is supporting now would also apply to him if he is elected governor.
“Let’s say he does run for governor or whatever, he would be restricting his ability and might be under criticism of the next Attorney General,” said Senate President Ty Masterson, an Andover Republican.
