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A week of counting ballots suggests Kansas voters narrowly rejected an amendment to the state constitution that would have shifted regulatory clout from the governor to the Legislature.
It would have given the Legislature more power over defining how state laws should be carried out by agencies, particularly environmental regulations on businesses. That would have weakened the governor’s authority and strengthened the role of lawmakers.
Critics argued it was a move by Republican lawmakers who have long controlled the Legislature to limit the political power of Democratic Gov. Laura Kelly, who just won reelection. The failed effort was fueled partly over anger at the governor shutting down schools during the pandemic.
The ballot measure failed with 50.5% opposed and 49.5% in favor, a difference of about 9,000 votes.
The final tally may change again because each Kansas county still needs to canvass the results and consider approving provisional ballots. But it’s unlikely that provisional ballots will swing the outcome. The Kansas Secretary of State’s Office estimates only about 20,000 provisional ballots statewide remain uncounted.
The amendment may also be subject to a recount. Any voter who cast a ballot can request a recount if they pay for the cost. After the primary election in August, anti-abortion activists initiated a partial recount of a proposed amendment that would have removed the right to abortion, which voters overwhelmingly rejected.
The rules-and-regulations amendment would have created a legislative veto — effectively giving lawmakers the right to cancel regulations imposed by state agencies even when those rules put into practice the laws passed by the Legislature.
Regulatory powers historically have been a key function of the executive branch. But state agencies would have themselves newly accountable to lawmakers.
Kansas Senate Vice President Rick Wilborn, a Republican, said lawmakers should consider proposing the amendment again.
“These regulations, at the end of the day, have the force and effect of law,” Wilborn said. “We just have to work harder in the future to build some trust and try to get this corrected.”
The amendment would have allowed the Legislature to take away policy-making capabilities from one of the few statewide offices Democrats periodically control.
Republican lawmakers in the spring presented the proposal as a way to move decision-making away from what they see as career bureaucrats in state government and put more authority in the hands of elected lawmakers.
They also said it prevents the state’s executive branch — controlled by Gov. Kelly — from setting rules and regulations that may go further than legislators intended in creating new laws.
But critics saw the proposal as a power grab by the state’s dominant political party, spurred on by frustration with Kelly’s leadership of the state amid the COVID-19 pandemic. She was the first governor in the country to send students home for the remainder of a school year and she was blistered by Republicans for shutdown actions they thought hurt businesses in ways that were out of proportion to the public health threat.
Democratic state Sen. Ethan Corson said the proposed amendment was ill-conceived and would have disrupted the way the state is governed. Corson said Kansas voters have told the Legislature that they think the current process works.
“It was a vote of confidence in the process that we have,” Corson said, “which, by and large, has really served the people of Kansas well.”
The Kansas Chamber of Commerce, a powerful conservative political force for the state’s businesses, endorsed the measure. Eric Stafford of the Kansas Chamber said the amendment would have provided checks and balances on the governor’s authority.
The vote may have been influenced by misinformation, Stafford said, like concerns over Republican lawmakers trying to take power away from a Democratic governor. He said the chamber has been pushing for rules and regulations reform long before Kelly was elected governor.
“We’ll move on,” Stafford said, “and see what other ways we can continue to work to strengthen the regulatory climate in Kansas.”
But the change could have chill efforts on the state’s ability to regulate business in Kansas.
While debating the amendment in the Kansas House, Democratic state Rep. John Carmichael said that lawmakers would use the new power to invalidate rules and regulations that protect Kansans — such as environmental rules that business groups oppose.
The change could have threatened state environmental regulations for clean air and water. Carmichael said industry groups like hog farmers have opposed them as unnecessary and burdensome to business.
Wilborn contends the amendment would have made sure the state’s rules and regulations are working as law intended. He said the Legislature’s committee for rules and regulations has voiced concerns to the governor’s administration that were then ignored.
“Accountability is key here,” Wilborn said. “We are held accountable as lawmakers. We want to have some say in the final rules and regulations.”
Dylan Lysen reports on politics for the Kansas News Service. You can follow him on Twitter @DylanLysen or email him at dlysen (at) kcur (dot) org.
The Kansas News Service is a collaboration of KCUR, Kansas Public Radio, KMUW and High Plains Public Radio focused on health, the social determinants of health and their connection to public policy.
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