Gov. Laura Kelly offers first impressions of Legislature’s 24-hour marathon gathering; Lawmakers adopt limits on Kelly’s emergency powers during pandemic; Senate GOP blocks attempt to pass Medicaid expansion; House deflects objections to waiving after-midnight work rule
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TOPEKA — Gov. Laura Kelly said the wild 24-hour meeting of the Legislature ending Friday gave new definition to political indiscretion by featuring unbridled partisanship among Republican leaders, flying of paper airplanes by representatives on the House floor and middle-of-the-night screaming commentary by senators.
The governor said the GOP-led 2020 Legislature adjourned after ramming through a collection of bills put together with powerful lobbyists, brought to the table in unorthodox ways and acted upon under cover of darkness without meaningful public input. The list included bills designed to take from the Democratic governor authority to distribute federal disaster funding to communities hurt by COVID-19 and to issue timely executive orders designed to protect the health of Kansans.
Kelly declined during the news conference at the Capitol to identify whether she would veto any of the measures sent to her by legislators.
"I wish it had been a joke. I wish it had been some sort of metaphor," said Kelly, a former state senator from Topeka. "I also wish that this had not been the most embarrassing, irresponsible display of governing that we have witnessed throughout this ordeal.
"But, unfortunately, what happened in the Kansas Legislature yesterday was simply indefensible from start to finish. There is no way for me to sugarcoat that for the people of Kansas."
She said the process embraced by Senate President Susan Wagle and House Speaker Ron Ryckman, both Republicans, during the sine die conclusion of a session interrupted by the pandemic had violated a fundamental rule of legislating. The bigger the bill, the less it is vetted and the speed under which it is approved add to the likelihood of unintended consequences suffered by Kansans, she said.
"In the weeks leading up to sine die, lobbyists and a small number of Republican legislative leaders crafted a series of self-serving and frankly dangerous pieces of legislation behind closed doors and in offices of special-interest groups," Kelly said.
When these bills ran into scrutiny by Republican and Democratic lawmakers, she said, Senate leadership unilaterally hijacked the process by banning floor amendments and severely restricting debate.
She said the Legislature’s concept of creating a new oversight process for assessing expenditures of federal relief funding to cities and counties would create huge delays in moving money to local government. This is not the time to add layers of red tape, the governor said.
"I will thoroughly review every piece of legislation that comes to my desk," Kelly said. "I will make a determination about each proposal on its merits, not the political motivation that guided it to my desk."
Kansas legislators pulled the curtain on the 2020 session after a tedious and combative workday that ended with passage of restrictions Kelly's authority to manage the COVID-19 pandemic and extension of the state’s emergency declaration through the end of the month.
Republicans from the Senate and House crafted an emergency powers bill preserving the flow of federal aid to Kansas and compelling Kelly to secure approval of executive orders from a oversight panel. The governor is implementing a phased reopening of the Kansas economy, but has been criticized for the pace of that transition.
"It is our job to oversee this governor," said Wagle, the Senate president from Wichita. "Financial security is just as important in our culture as health security. Is this the perfect work product? No."
Senate Minority Leader Anthony Hensley, D-Topeka, said he didn’t believe the governor would sign into law a bill slapped together without due process.
Legislators also voted to send the Democratic governor bills delaying payment of property and income taxes due to instability borne of the pandemic. A bill mandating cities and counties disclose more information on property tax increases tied to valuation adjustments went to Kelly. The package affirmed unemployment benefit adjustments.
In addition, lawmakers endorsed formation of a $60 million emergency loan program for small businesses and adopted sweeping medical and business liability protections against lawsuits by people infected by the coronavirus.
Lawmakers also required a state agency to conduct infection control inspections in all Kansas nursing facilities within 30 days. These long-term care facilities have been a hotbed of COVID-19 infection. About one-third of the facilities in Kansas have been inspected since mid-March.
"You talk about gross negligence," said Sen. Molly Baumgardner, R-Louisburg. "They’re going to have to figure it out and get it done."
The long day
Lawmakers adjourned the annual session shortly before 8 a.m., choosing to ignore speculation that action taken after midnight could be a target of litigation. Members of both chambers initially sought to maintain social distancing when they convened at 8 a.m Thursday, but by end of the marathon at 8 a.m. Friday most had abandoned the idea.
Kelly promptly issued an executive order directing flags throughout the state be flown at half-staff from Friday to sunset Sunday in honor of victims of the coronavirus pandemic. In Kansas, as of Friday, there were 185 deaths and 8,958 positive tests for the virus.
"The death toll due to coronavirus is devastating in Kansas and beyond," she said. "We all have an obligation to honor those lost to the virus, to include courageous frontline workers who literally gave their lives to help and protect others during this pandemic."
Kansas since March 12 has operated under a state of emergency in which Kelly issued more than 30 executive orders in response to a rapidly spreading deadly infection. The emergency declaration was set to expire Tuesday, making an extension the top priority for lawmakers who returned to the Capitol for a one-day close to the legislative session.
Attorney General Derek Schmidt issued a legal opinion Wednesday indicating validity of the governor’s latest statewide disaster declaration was "doubtful." He requested the Legislature affirm Kelly’s emergency declaration to deter costly court challenges.
"We don’t want to move forward and next week someone challenges and we find out that we have no emergency declaration and all the executive orders are no longer valid," said Rep. Fred Patton, a Topeka Republican and chairman of the House Judiciary Committee.
Sen. Vic Miller, also of Topeka, said he was convinced the emergency-power attack on the executive branch was "headed straight to court. I think we’re spinning our wheels and wasting time." He also noted praise of the governor’s work during the pandemic from President Donald Trump and U.S. Sen. Pat Roberts, R-Kan.
Kelly will have to decide whether to sign what her office viewed as a rewrite of the state’s 45-year-old emergency management law. A veto of the legislation would allow the state of emergency to expire, ending statewide orders and placing federal aid in jeopardy.
The new legislation would extend the state of emergency for COVID-19 through May 31. Upon a governor’s request, the State Finance Council could repeatedly extend the declaration by 30 days.
Kelly also would need a supermajority on the State Finance Council to approve any recommendation to keep businesses closed more than 15 days.
Some of the governor’s executive orders were preserved in law. That includes legalizing curbside liquor sales and telemedicine rules until next year. However, the bill granted county commissions the opportunity to adopt less stringent policy than an order issued by the governor.
The Legislative Coordinating Council would gain oversight of $1.25 billion in federal funding related to the pandemic.
The Senate blocked a proposal Thursday endorsed by Kelly to expand Medicaid to 130,000 low-income Kansans. The measure broadening eligibility failed amid the COVID-19 pandemic infecting more than 8,500 Kansans and killing 178 of the state’s residents.
The vote had campaign overtones with Democratic Sen. Barbara Bollier and Wagle, both candidates for U.S. Senate, taking opposite sides.
"We have been bridled and throttled this entire year when the votes exist in this chamber to pass Medicaid expansion. Kansas voters want us to pass this," said Bollier, who is seeking the Democratic nomination to the seat held by U.S. Sen. Pat Roberts.
Sen. Pat Pettey, a Democrat from Kansas City, Kan., which has been a center of COVID-19 fatalities in Kansas, said Medicaid expansion would generate thousands of jobs and deliver affordable care to people in Wyandotte County susceptible to the virus.
"We have many people who have been affected because of underlying health conditions," she said.
Before start of the 2020 session in January, Senate Majority Leader Jim Denning, R-Overland Park, pledged to bring Medicaid expansion to a floor vote in the Senate. To dismay of Republican colleagues, Denning months ago signed onto an expansion bill negotiated with the governor’s office.
That legislation was derailed by lawmakers who vowed to delay a Senate vote on Medicaid until after adoption of a constitutional amendment clarifying that abortion wasn’t a fundamental right in Kansas. The Senate passed that amendment, but it failed in the House. It won’t be on the August primary election ballot.
Sen. Gene Suellentrop, a Wichita Republican, said Democrats expressing concern for people vulnerable to COVID-19 were hypocrites for not demanding constitutional restraint of abortion.
"I listen to comments from the party across the aisle about such concern for constituents," Suellentrop said. "Yet, in the last number of weeks our constituents have not been able to go to church and there are abortion clinics that remained open. It rings pretty hollow to me to express concern about your constituents when you support that kind of activity."
Glacial pace of activity during the final day of the 2020 session left the House little choice but to waive a rule that would have prevented the chamber from launching into debate on legislation after midnight.
Advocates of bills not yet adopted pressed for the extension of time, while others content with going home argued against the move. The motion was narrowly approved by the House.
Rep. J.R. Claeys, R-Salina, begged House members to allow work to continue into Friday morning so a technical mistake in a bill could be addressed. If not, he said, an economic development project in Saline County could be in jeopardy. He declined to identify the project.
"The cost is real. It is real jobs. It is hundreds of millions of dollars," he said. "It’s an economic development issue. When the time is right, you all will hear about it."
Rep. John Carmichael, D-Wichita, said holding legislators in the Capitol put them at risk once the session adjourned in the middle of the night.
He pointed to death of Rep. Bob Bethell, who was killed in an early-morning, single-vehicle traffic crash on Interstate 70 about an hour after the 2012 Legislature adjourned. The resident of Alden left the Statehouse after an all-night session. Later, his death was invoked when the House passed the midnight rule.
"It killed our colleague Bob Bethell," Carmichael said. "It can kill you. But even if you’re not worried about your own life, why don’t you worry about the people that you might kill on your way home at 4 o’clock in the morning?"