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Changes to checks and balances: What these constitutional amendments could mean for Kansas

The Wichita Beacon
The Wichita Beacon
 2022-10-26
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Americans for Prosperity-Kansas has spent thousands on Facebook ads encouraging voters to support HCR 5014, which would amend the Kansas Constitution to allow the state legislature to block regulations written by the executive branch. Illustration by Miranda Moore/The Beacon.

Kansans may have seen postcards in their mailbox, videos in their Facebook feed or commercials on television admonishing voters to support House Concurrent Resolution 5014, a proposed constitutional amendment listed on the November ballot as Constitutional Question 1.

But while the ads are long on platitudes, they’re short on specifics, leaving many Kansas voters to wonder what exactly they are being asked to vote on.

Much of the advertising in support of HCR 5014 is paid for by Americans for Prosperity, a political advocacy organization funded for years by Charles and David H. Koch, which advocates for cutting back regulations, especially for businesses.

The argument pushed by AFP and other like-minded conservative advocates is that fewer regulations means more profit, and more profit means more economic growth. If passed, HCR 5014 would broaden the legislature’s authority to eliminate regulations like the ones that Americans for Prosperity advocates against.

“It allows the legislature essentially to veto rules and regulations set by the executive branch with a simple majority vote,” said Alexandra Middlewood, political science professor at Wichita State University. “It does give the legislature considerably more power over the governor.”

Kansas used to allow for a legislative veto along with other states, until the U.S. Supreme Court ruled in 1983 that laws permitting the process were an unconstitutional violation of separation of powers. This decision created the legal framework that culminated in the Kansas Supreme Court decision the following year overturning the law in Kansas. A constitutional amendment would effectively overturn the state Supreme Court’s decision.

Americans for Prosperity, the Koch organizations and other like-minded business interests have spent years advocating the elimination of business regulations. Why is HCR 5014 on the ballot now?

Blame COVID-19 and the disruptions created by public health measures intended to stem the virus’s spread.

“There was a power struggle between the two branches on the best way to address the pandemic, and that contention has spilled over into some other areas,” Middlewood said. “The foundation of (HCR 5014) has come with the COVID-19 pandemic, but it has a lot of different implications for the future.”

A second constitutional amendment on the November ballot, if passed, would mandate that all Kansas counties with a sheriff must hold elections to fill the position, and it would also restrict local authority to remove a sheriff from office.

Both amendments were written in response to political power struggles, and both amendments would shift power from one part of government to another, changing checks and balances as Kansans know them today. Here’s what voters should know about both amendments ahead of the Nov. 8 election.

HCR 5014: What does my vote mean?

A vote “yes” on Constitutional Question 1 is a vote in favor of altering the Kansas Constitution to allow the legislative branch of the state government to effectively overrule regulations issued by the executive branch with a simple majority vote of lawmakers. It would remove the governor’s opportunity to veto legislative revisions of regulations written by state agencies.

A vote “no” would be a vote to reject the amendment and keep the constitution as it is now. The current system incorporates a separation of powers that experts say would be disrupted if the amendment passes.

“One of the highlights about separation of powers is that the legislature passes laws, but then it’s up to the executive branch to implement them,” Middlewood said.

Counter to what political advertisements supporting the amendment say, it is currently possible for the legislature to act upon the regulations put forward by the state’s executive branch, said Jeffrey Jackson, interim dean and professor at Washburn University School of Law. Lawmakers can do this by changing the law that gave the agency regulatory authority in the first place.

“The legislature passed what is called enabling legislation that allows the agencies to make administrative regulations.” Jackson said. “If the administrative agency in the executive branch makes regulations the legislature doesn’t like, then what the legislature essentially has to do to get rid of those regulations is to go back and change the enabling legislation.”

Lawmakers do this by passing a new law, Jackson said, which would require a simple majority in each chamber and approval from the governor, or a vetoproof two-thirds majority if the governor does not support the change.

If HCR 5014 passes, the legislature would only need a simple majority to reject any executive branch regulation.

“They’re cutting the governor out of a process that exists now,” Jackson said.

Executive branch employees who draft the regulations are not politicians, Middlewood said, but rather career civil servants who are experts in their fields. This amendment “really allows the legislature to cripple the ability of the governor to implement laws,” Middlewood said.

So what would the proposed legislative veto mean for voters? Possibly a lot of confusion, Jackson said. And while the process proposed in the amendment would apply only to new regulations, existing regulations often come up for reenactment, and long-established regulations may face renewed scrutiny.

“There may be a time when it’s unclear what the rules are, or different programs don’t get implemented because of it,” Jackson said.

Who is behind HCR 5014?

Supporters of HCR 5014 generally argue that eliminating regulations encourages economic growth, a position widely promoted by Americans for Prosperity and other business-aligned organizations that promote private industry interests. The organization has supported HCR 5014 since its introduction in 2021 and has lent its considerable influence to the effort to pass the amendment.

Elizabeth Patton, who leads Americans for Prosperity’s Kansas chapter, testified in support of the amendment during legislative hearings, alongside other groups like agribusiness organizations and the Kansas Chamber of Commerce who said they share the same anti-regulation philosophy. Some of the regulations at issue among supporters of HCR 5014 are the environment, labor and food safety, to name a few.

In addition to endorsing the amendment during hearings, Americans for Prosperity also paid for Facebook advertisements last February targeting four of the five Republican representatives who initially voted against the amendment. The ads encouraged voters to call their state representatives to urge them to vote in support of HCR 5014, and ran during the few days between floor votes, when it was likely that Republican leadership would have been negotiating behind the scenes to get the 84 votes necessary to pass the Kansas House of Representatives.

In addition to postcards mailed to the homes of Kansas voters, Americans for Prosperity Kansas has spent as much as $52,000 on Facebook ads since Sept. 19, encouraging Kansans to vote in favor of HCR 5014. The ads got as many as 3.1 million views since they began running last month.

HCR 5022: What does my vote mean?

A vote “yes” on Constitutional Question 2 on the November ballot is a single vote in favor of two changes to the Kansas Constitution relating to county sheriffs. First, HCR 5022 would mandate that all Kansas counties (except Riley County, which abolished their sheriff’s office in 1974) elect their sheriffs. Second, the amendment, if passed, would strip local officials of the authority to initiate a sheriff’s removal from office, short of a recall election.

Nearly all counties in Kansas elect their sheriffs, Jackson said, and if the amendment passes, things won’t look that different for most, at least not at first. In the future, though, the amendment would prohibit any counties that may wish to consolidate their sheriff’s department with another office from doing so, as Riley County did nearly 50 years ago.

Middlewood said that this may impact counties with smaller populations in particular.

“It may be to the benefit of that county and to the citizens there to combine their county sheriff with a local law enforcement agency, let’s say the largest city in their county,” Middlewood said. “If this amendment were to pass, it really takes that choice away from the counties themselves.”

The amendment would also limit who could initiate a writ of quo warranto, which is the process through which a sheriff is involuntarily removed from office. Currently, a sheriff could be removed from office when either the state attorney general or a district or county attorney issues a writ of quo warranto, for reasons like misconduct, neglect, committing crimes or developing an impairment that prevents them from doing their job. If the amendment passes, local offices would be stripped of that authority, leaving only the state attorney general with the authority to issue a writ of quo warranto.

“You can have a situation where a sheriff, for whatever reason, the local government wants to remove them, and they’re actually prohibited from doing so under this amendment, they have to get the attorney general to agree to initiate the proceedings,” Jackson said. “So it is actually taking away, in that instance, local control from the county government.”

A county sheriff may also be removed from office by a recall election; this would remain unchanged if the amendment passes. If HCR 5022 passes, this would remain the only local option to remove a sheriff from office.

Who is behind HCR 5022?

What began as a power struggle in the Johnson County government has become a statewide referendum as voters across Kansas will now decide in November whether any county in the state, including Johnson County, will maintain local authority in selecting or removing county sheriffs from office.

The amendment to change local options in how a sheriff might be appointed to or removed from office was introduced after a commission of Johnson County officials discussed — but ultimately did not recommend — a proposal that would have made the office of sheriff a nonpartisan elected position. Though the provision is not listed in the final report, one commission member — who works for Johnson County Sheriff Calvin Hayden — testified to the legislature that the commission discussed adopting a system where the sheriff would be appointed rather than elected.

The commission discussed the future of the Johnson County sheriff’s position against the backdrop of an ongoing power struggle between Hayden and the county, often driven by Hayden’s vocal support of falsehoods and disinformation.

In 2021, Hayden refused to follow the county’s COVID-19 vaccine and testing protocols. Earlier this year — several weeks before the amendment came up for a final vote in the legislature — Hayden publicly stated he was using taxpayer money to investigate unfounded, false claims of voter fraud during the 2020 general election. Hayden has not backed down from these unsubstantiated claims despite producing no evidence over the course of the investigation after announcing it, and after his claims were publicly refuted by Kansas Secretary of State Scott Schwab.

Assuming the Johnson County sheriff will remain a partisan elected position by the next election, the office will next appear on the ballot in 2024. Hayden ran unopposed in 2020.

The amendment was introduced by Rep. John Barker, Republican from Abilene. Barker lost the Republican primary to Scott Hill, also from Abilene.

Why should voters care if power is transferred from one part of government to another?

Both amendments would shift the balance of power in a way that experts say risks aggravating the partisan power struggles that spawned these amendments in the first place.

“If (HCR 5014) were to pass, it would have the potential to become yet another tool in the partisan and ideological divide in Kansas,” Middlewood said. “Realistically, it means that a very conservative Republican legislature can veto actions by a Democratic governor like Laura Kelly.”

State Attorney General Derek Schmidt testified in favor of the amendment, saying it was “a good public policy proposal whose time has come.” Schmidt has not publicly said whether he will continue to support ceding executive veto power if he wins his bid for the governor’s office next month.

By consolidating power, the amendments, if passed, may also result in a governing system that is less representative of the people it purports to serve.

HCR 5014 “aggregates more power in the legislature and away from the governor,” Jackson said. “Why that matters in the grand scheme is that the governor is the official elected by all Kansans, whereas the legislature is representatives of the different legislative districts. What you end up doing is shifting a significant amount of power from the governor to the legislature which may not be as representative.”

The amendments, if approved by voters, may also risk creating even more distance between voters and their elected officials.

“When we think about citizens who have direct contact with government, a lot of the time that does come in the form of law enforcement, who are members of the government,” Middlewood said. “For a lot of citizens, they may not have a great relationship there. Taking even more choice away from the people in those counties on how a county sheriff can be chosen or removed from office puts even more of a barrier there between the citizens and the county governments.”

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