Coronavirus skeptics rally at Capitol; Legislature returns to Topeka for uncertain final day of session; lawmakers seek limit Gov. Laura Kelly’s power; Attorney General Derek Schmidt points to flaws in statewide emergency declaration, and Kelly responds
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TOPEKA — Rep. Trevor Jacobs stepped away from political gridlock Thursday on the final day of the legislative session to pump up a crowd of coronavirus skeptics who demanded state government stop impeding the right to life, liberty and pursuit of happiness.
The Fort Scott Republican urged 200 flag-waving folks to get more involved in transforming the political system by electing people with deep respect for the constitution. It’s the only way to thin out Republicans and Democrats, such as Gov. Laura Kelly, who led Kansans astray during the COVID-19 pandemic, he said.
"This isn’t about Republican or Democrat. This is about being an American," Jacobs said. "We have a three-party system in there. You say, ’A three-party system? I thought Kansas was red.’ You’re right. We are turning red. We have the Socialist Party in there. We have the Democrat Party in there. And we have a handful of true constitutionalists. People don’t like to hear that, but we have to call it what it is."
Jacobs drew upon his experience raising cattle to describe the task for political reformers.
"If you step in it, guess what it is?" Jacobs said. "If you don’t like the smell, if you don’t like what’s going on, if you don’t like flies, then you’ve got to stand up. We’ve got to clean house."
His remarks were welcomed by protesters with signs declaring "Liberty Over Fear," "Make 1984 Fiction Again," "Social Distancing is Social Engineering" and "Open Kansas — We’re in God’s country, not Gov. Kelly’s."
Senate President Susan Wagle, a Wichita Republican running for U.S. Senate, told the crowd it was time for the governor to fully and safely reopen the economy. And, Rep. Leo Delperdang, R-Wichita, thanked those assembled for not wearing a mask to the rally.
Inside the Capitol, the House and Senate struggled to lock down consensus on a dozen bills. The roster included a measure restraining the governor during the pandemic. Others delayed income and property tax payments, created a $60 million small-business loan program and mandated local government be more transparent about property tax hikes.
However, there was concern a majority of legislators wouldn’t be able to reach agreement on bulk of the bills.
"It kind of reminds me of ’Gunsmoke’ — everybody wants to load as much s*** on the wagon as they can before it gets out of town," said Rep. Ken Corbet, R-Topeka.
Sen. Dennis Pyle, a Republican from Hiawatha, told GOP peers during a caucus meeting too many complex pieces of legislation were thrown together on the final day of the session and that the governor could easily unravel that product with a quick veto.
"What you’re putting together here is a Cinderella story that’s going to run out at midnight, and there’s no glass slipper here that I can see," Pyle said.
The Kansas House convened at 8 a.m. for final hurrah of a session opening with an abortion and Medicaid focus and closing with an attempt to cripple Kelly’s emergency power in the pandemic and to relieve businesses of financial liability for spreading COVID-19.
Such is influence of a health threat that convinced most legislators to stay out of the Capitol for two months. The virus, so far, has killed 178 of their constituents.
On the other side of the rotunda, the Kansas Senate filed in a few minutes later. They set to work on a dozen bills calculated to straddle the fence in ways that might be acceptable to the House and governor. The main event was a fight over Republicans’ attempt to throttle a Democratic chief executive.
Since March, politicians and residents of Kansas were irritated by an unprecedented stream of 31 emergency orders issued in 10 weeks. Look no further than controversy about the stay-at-home edict that shut down businesses and sent unemployment skyrocketing. The economy may be weeks away from fully reopening, but Kelly said her foremost quest was health and safety of 3 million people.
In a burst of optimism, Wagle said Kelly could be pressured into signing a bill transferring to legislators or county officials key decisions about response and recovery from the pandemic.
"We feel like we don’t want her to have total authority to close businesses anymore," Wagle said. "I feel she’s very likely to sign it."
The reality is this political confrontation could be a slow march with all the fanfare of thumbing through a dictionary. Or, it could breed chaos.
"Our focus, and the main thing we have to do, is make sure we come out with an emergency orders package today," said House Speaker Ron Ryckman, R-Olathe. "Our citizens are counting on it. So we'll keep focusing on what's best for our citizens.
"Folks, it will be very tempting for your emotions to run high. There's confusion. Our whole state and nation has been in a state of confusion the last couple of months. It's no different. We're human beings."
Rep. John Carmichael, D-Wichita, said there was bipartisan consensus among House Republicans and Democrats to do only the work that must be done before adjourning.
"As you know, Senator Wagle is running for the United States Senate, and this is her last opportunity to make a splash," Carmichael said. "She's behind in the polls. The party has asked her to withdraw from the race. And so she is trying to make herself relevant by holding a circus in the Statehouse. As far as most of us are concerned, the less we do, the better. Because haste will make waste. We will make mistakes."
If House members grow wary of political high jinks, long debates or unnecessary legislation, Democrats could join forces with two dozen of the chamber’s Republicans to pass a resolution abruptly ending the 2020 session.
"If there is a motion to adjourn, maybe the first one won't pass, maybe the second one won't pass," Carmichael said. "By the time we get to the third motion to adjourn, I suspect the House may decide to go home and leave Senator Wagle sitting over there to do whatever she wants to do."
Both chambers need to extend a state of emergency declaration for the COVID-19 pandemic to prevent the current state of emergency from expiring on Tuesday. The Senate also sought the opportunity to rewrite state law governing emergency powers as part of the extension, placing its chances of passage in jeopardy.
"We are mindful that we want to preserve some ability for any governor to act swiftly in a disaster," said Rep. Blaine Finch, R-Ottawa, "and others want to make sure that we have the checks and balances so that absolute power and unvetted authority are not in the hands of any one person in our state. We'll be working to try to find the right balance."
The Senate proposal would give a legislative panel authority over Kelly’s emergency powers when the Legislature isn’t in session. Additionally, county officials would be given the authority to overrule an executive order.
If the Legislature fails to extend the emergency declaration, Kelly could proclaim a new state of emergency. Such action would invite legal challenges because it isn’t clear a governor has the authority to do so. In response, Kelly could call a special session of the Legislature.
Shortly before midnight Wednesday, Attorney General Derek Schmidt issued an opinion on constitutionality of criminal prosecution of Kansans accused of violating a governor’s emergency order. The nonbinding analysis was sought by the Reno County district attorney and seven Republican legislators.
Schmidt, a Republican, focused the 31-page opinion on implementation of the Kansas Emergency Management Act. KEMA grants a Kansas governor broad authority for responding to disasters.
Schmidt said validity of Kelly’s statewide disaster proclamation issued April 30 was "doubtful." To minimize risk of legal challenges to executive orders issued since May 1, the attorney general recommended legislators pass a bill affirming the state of disaster emergency.
In addition, he said, three portions of KEMA "are constitutionally suspect on their face." The Legislature ought to examine them and consider severing invalid portions from statute, Schmidt said.
The attorney general said prosecutors had an obligation to analyze the "lawfulness" of a governor’s executive order when considering criminal prosecution of alleged violators. He offered a five-question framework to help prosecutors assess cases.
Kelly reacted to the attorney general’s opinion about the state’s emergency management act, which has been used for 45 years to guide governors during emergencies caused by fires, floods and tornadoes. She said the attorney general wasn’t interested in meaningful conversation with her about modernizing KEMA.
"Unfortunately, this is not an honest conversation about reviewing and modernizing KEMA," the governor said. "If it were, the attorney general would not have released his legal opinion in the middle of the night right before the last day of the legislative session, and the Legislature would not be trying to cram multiple pieces of legislation – many of which have not been thoroughly vetted by the public – into what is traditionally a ceremonial end of the legislative session."
Kelly said the reform legislation should include input from local government officials and emergency managers.
In January, the session began with an attempt by House and Senate Republicans to place on August primary ballots a constitutional amendment on abortion. It cleared the Senate, but not the House. Kelly’s top priority was expansion of Medicaid to 130,000 lower-income people. GOP legislative leaders thwarted that plan, and a last-ditch effort Thursday was derailed in the Senate.
Kelly urged the Legislature to concentrate in final hours of the session on affirming and extending the state’s emergency declaration.
"By being proactive and aggressive in our initial response, we’ve managed to stave off some of the worst aspects of this disease that we have seen take hold in other states," Kelly said. "We still have a long way to go before arriving at anything bordering on normal."