Sitting in the Senate Republican caucus meeting Wednesday as elected lawmakers openly talked about defying the Kansas Supreme Court if it closes schools next month, it was hard for people of a certain age not to think back about Richard Nixon and Watergate.
At the height of that scandal, a federal judge ordered the White House to hand over hundreds of hours of tapes of conversations in the Oval Office that had been secretly recorded. The White House refused and appealed to the U.S. Supreme Court.
The Nixon White House had never been particularly forthcoming with information, and the people there had little apparent respect for the authority of any other branch of government to tell them what they could or could not do, up to and including the secret bombing of Cambodia.
So there was naturally great concern about how Nixon would respond to a Supreme Court order to hand over the tapes — tapes that everyone knew would lead to the search for the proverbial "smoking gun" that would bring Nixon down.
As the political tension reached its zenith, the question being asked in American living rooms throughout the country was, "If the president of the United States doesn't have to obey a court order, why should anyone else?" It challenged the very fundamental American notion that no person is above the law, not even the president.
Ultimately, the only power any court has is the power that the public agrees it has. Its power is based on the shared public acceptance that its rulings, however much one might disagree with them, must be obeyed. Day in and day out, that sentiment generally goes unquestioned in Kansas and across the country.
It was a constitutional crisis in the truest sense of the term. In the end, though, Nixon did turn over the tapes, which did produce the "smoking gun." Whatever support he had left in Congress by that time suddenly evaporated, and before the week was out Nixon had resigned.
Later, during a series of interviews with British TV host David Frost, Nixon gave this bone-chilling assessment about his view of presidential power: "When the president does it, that means it is not illegal."
"By definition?" Frost asked. "Exactly, exactly," Nixon replied.
Frost was asking about the president's power to order covert intelligence operations, both at home and abroad, in the interests of national security. And Nixon's response reflected the kind of expansive view about presidential power that historian Arthur Schlesinger Jr. had described in the title of his 1973 book, "The Imperial Presidency."
Fast-forward to the present and Wednesday’s Senate GOP caucus meeting.
"Eventually, we're going to have to stand up to this court and let them know that we are the Legislature, they are not the Legislature. Capitulating with them is, I think, a poor strategy and would continue to be unsuccessful," said Sen. Jeff Melcher, of Leawood.
"We are the appropriators. We are the policymakers. End of discussion," said Sen. Julia Lynn, of Olathe.
"We're going to listen to a court that can't even follow the law?" asked Sen. Greg Smith, of Overland Park. "They have one job, and one job only, and that is to reason and listen to the evidence and make an opinion. And that's all it is, an opinion. They can't tell us what to do. They can opine, and that's the end of their authority."
In the Nixon era, the fear was that his expansive sense of presidential power could erode the power of the other branches, along with public confidence in them. The president, after all, is a citizen like everyone else. If Nixon could defy the court, why couldn't anybody?
Likewise, if taken to their logical extreme, the comments of those legislators Wednesday might lead one to ask: If the Legislature doesn't have to obey a court order, why should a divorced parent who has been ordered to pay child support? Why should any debtor who has been ordered to repay his creditor?
It seemed that the only thing missing from Wednesday's debate was for someone to stand up and say, "When the Legislature does it, that means it is not illegal."
Burdett Loomis, a Kansas University political science professor and an active Democrat, said it's not unreasonable to think that Kansas is witnessing the emergence of an "Imperial Legislature."
"It does strike me that the Legislature thinks that whatever it does should not be questioned," he said. "And it’s even broader than that. They think they represent the state, so if they want to not enforce federal laws, or reach down to the local level and tell localities what to do, all wisdom resides in the state and the state Legislature."
Loomis, who worked briefly in Democratic Gov. Kathleen Sebelius' administration, said the trend became noticeable after Brownback and his conservative allies swept the 2010 elections in Kansas, wresting control of the Kansas House from the coalition of Democrats and moderate Republicans who had formed an effective governing majority. And it was sealed two years later when conservatives purged the Kansas Senate of most moderate Republicans in the 2012 GOP primaries.
In some ways, Loomis said, what Kansas is seeing now goes beyond what America saw in the Nixon White House.
"I think in the end, it was the legislative branch that came to Nixon and said, you’ve got to go. It was Nixon defying the court in every way," he said. "Here you’ve got both the governor and the Legislature. The governor could have stepped up and demanded the Legislature confront the issues before it. But he was unwilling and they were unwilling."
Brownback so far has not said whether he will call a special session later this month to deal with the school finance issue. And even if he did, it remains unclear whether the Legislature can muster the votes to pass a bill that would satisfy the court.
There was a lot of hall chatter, and more than a few tweets, during the Kansas Legislature's wrap-up session that the House had voted on more than twice as many bills in those final five days as it had in the whole 68-day regular session.
I don't know if that's exactly true, but I have tried to cobble together some figures on the number of bills actually passed by the Legislature and sent to the governor this year, and the results lend some credence to that claim.
By my rough count, sifting through the journals of House and Senate, lawmakers did pass slightly more bills (66) during the wrap-up session than they did in the regular session (62). That's a total of 127 bills for the entire 73-day session (by Senate President Susan Wagle's count), or an average of about 1.7 bills per day.
But what really catches the eye is the number that went through on that final marathon day that started around 12:30 p.m. Sunday and lasted until 3:30 a.m. Monday: 18 bills in that one day, or more than one per hour.
Now, before getting too indignant about that, we should all probably admit that everybody procrastinates. In the news business, there's a saying that if it weren't for the last minute, nothing would ever get done. But many people have asked me why lawmakers always put everything off until the last minute, and the answer is actually fairly complicated. In the Legislature, procrastination isn't just a matter of work habits. It's also about strategy and leverage.
"That’s when the powers that be feel they have the most leverage," said Sen. Tom Holland, D-Baldwin City, who has raised his voice in protest more than once about the slow and odd pace of the Legislature.
Granted, the first few weeks of a session have to be excused because that's the time when eager lawmakers are trying to introduce new bills and, they hope, get them scheduled for committee hearings. That takes time. And even in even-numbered years like this one, when bills are allowed to carry over from the previous session, the House and Senate don't just dive in to those leftover bills because most of them were abandoned the previous year for a reason.
What really drives the legislative calendar, and what makes the end of the session a whirlwind of activity that's nearly impossible to follow, is the fact that every bill in the system can be, and often is, used as a bargaining chip for something else.
That's why the vast majority of action that occurs in the wrap-up session involves conference committee reports in which several bills are bundled together. The practice known as the "gut-and-go" — whereby one bill is stripped of its contents and repackaged with the contents of two, three or sometimes even four other bills — used to be considered rare, and even a bit shady. Today, it has become standard procedure.
And so, even when bills have been through the committee process and are ready to be voted on, they can still be held back to be used as a bargaining chip later when it's time to run conference committee reports. Even seemingly innocuous bills that are noncontroversial can get held back, under the theory that putting them into a package will make passage of less palatable bills a little easier.
Sometimes, though, even that doesn't work. That was the case with the seemingly easy bill to name a bison herd in southeast Kansas after a recently deceased former legislator from that area. It ended up packaged with two bills that a lot of people had problems with: one let private zoos allow children to get up close and personal with dangerous animals like baby tigers and leopards; and another to authorize research into the production of industrial hemp.
Not surprisingly, a lot of senators had qualms about putting children into a tiger's cage. And anything that smacks of legalizing marijuana, or even tilting in that direction, gives most Kansas lawmakers heartburn. But then when somebody changed the effective date of the bison herd-naming bill, angering even the people who most wanted to honor the late legislator, the entire package collapsed from its own weight.
But there was another dynamic this year that bogged the process down even more that has many lawmakers frustrated, and worried for the future if it continues. That was the utter reluctance for the last two years of House Speaker Ray Merrick, R-Stilwell, to allow any bill dealing with certain subjects to be fully debated and subject to amendments on the floor of the House because doing so would open them up to amendments that neither he nor Gov. Brownback wanted to deal with.
Specifically, Merrick has tried to avoid putting bills on the open floor dealing with health care and Medicaid, for fear of a Medicaid expansion bill. The same is true with taxes, for fear of an amendment to repeal all or part of the 2012 tax cuts.
Although the House did vote on, and eventually rejected, a bill to repeal the most controversial of those tax cuts, the total exemption for certain kinds of business income, it's important to note how that bill came out of a conference committee, even though it had never been considered by either chamber before, and it was put into a Senate bill so that, under rules in the Legislature, the House would have to vote first.
Conference committee bills are not subject to amendment on the floor. They are always straight up or down votes.
In fact, of all the House bills that passed the Legislature this year, many, if not most, were actually Senate bills, the result of a gut-and-go maneuver in which the Senate put its bill into the shell of a House bill so that House members would only have the option of voting yes or no on the package as a whole.
Bills are also held back until the final days, not because anyone has designs about the contents of the bill, but because they need the bill number so it can be used as a vehicle to carry something else.
Perhaps the most glaring example of that was the final budget bill itself, Senate Bill 249, which actually began as a bill about purchasing and competitive bidding when it was introduced in February. After it passed the Senate, the House stripped out its contents and inserted a different bill dealing with the authority of state agencies to issue bonds.
The Senate did not go along with that change to its bill, and so it was sent to a conference committee where it became a vehicle for an entirely new bill, the final state budget, a bill that was never the subject of any committee hearings or public testimony — not even on the provision reallocating cuts to state universities — and could not be amended on the floor of either the House or Senate.
As the old saying goes, there are two things most people never want to watch being made: sausages and laws.
Kansas lawmakers met late into the night both Friday and Saturday last week, then topped it off with a marathon session that began early Sunday afternoon and lasted until 3:30 a.m. Monday.
And while the budget bill was the focus of most of the media attention, the fact of the matter is that lawmakers passed twice as many bills during the five-day wrap-up session as they did in the entire 68-day regular session.
Some of those bills, like the complete update and overhaul of the state’s corporation laws, are probably very important to a lot of people, but most of us can live our lives peacefully without worrying too much about them.
Then there’s the category of bills that often leaves people wondering why any state legislature is even spending time on them and, moreover, why they stirred so much controversy and debate.
Take, for example, House Bill 2059 ... which included, among other things, an act to name a bison herd at the Mined Land Wildlife Area in Crawford County as the Bob Grant Bison Herd.
Bills naming things after people — former lawmakers, governors, military veterans, local dignitaries — are fairly routine, and they generally pass unanimously as a matter of courtesy to the lawmaker or outside group requesting them.
But that wasn’t the case with the Bob Grant Bison Herd, to be named after the late southeast Kansas Democrat who served 20 years in the House before he retired in 2013. He died in December 2015.
What made it controversial is the fact that Grant’s widow, Lynn Grant, is now a Democratic candidate for the state Senate, challenging incumbent Sen. Jake LaTurner, R-Pittsburg.
And so when the bill emerged as part of a conference committee report, and the effective date of the act had been moved back to Jan. 1, 2017 — so that the ceremony couldn’t be conducted until after the election — Senate Minority Leader Anthony Hensley came unhinged.
In a furious speech on the floor of the Senate, Hensley called the change “despicable” and a lot of other adjectives, and he openly accused the conference committee of making the change solely for political purposes in order to protect a freshman senator who is facing a potentially strong challenge.
Of course, it didn’t go unnoticed that passage of the bill in its original form also would have provided a nice political photo op for Lynn Grant when the new “Bob Grant Bison Herd” sign would be dedicated right in the middle of the campaign season. But there was no open discussion of that on the floor.
Hensley tried unsuccessfully to send the bill back to the conference committee to move the effective date to the original language, its publication in the statute book. And in the end, Hensley was called out by 26 Republican senators who made a belated point of order, noting that Roberts Rules of Order forbid members from attacking or questioning “the motives of anther member.”
Oddly, the Bob Grant Bison Herd provision was inserted into a conference report that had previously been rejected and sent back by the Senate because of concerns about the two other bills contained in the package: one allowing commercial zoos, namely the Tanganyika Wildlife Park in Goddard, to offer limited public contact with dangerous animals, like baby panthers and; and another authorizing research into the industrial uses of hemp.
But even on its second trip through the Senate, the bill was rejected on a voice vote, and it was never considered in the House.
And speaking of animals … Rep. John Wilson got in a few good one-liners on a couple of animal bills in the House.
House Bill 2480 makes some amendments to state livestock branding laws, including one provision that would now exempt sheep and goats from the definition of livestock, so they won’t have to be branded, and their brands won’t have to be inspected by the Department of Agriculture.
Noting that the city of Lawrence recently legalized the keeping of goats in the city limits, Wilson, the ranking Democrat on the Agriculture and Natural Resources Committee, rose to ask a question, clarifying that the bill does not outlaw tattooing or body piercing of goats, “because we do a lot of that in Lawrence.”
On another animal-related bill, Wilson also got up to speak on a perennial piece of legislation that has become known as “the antler bill.” This year, it emerged in a conference report on Senate Bill 388. It would have required that when an illegally killed animal, such as a deer, is found on private property, the Department of Wildlife Parks and Tourism must first offer the body parts such as antlers to the landowner before putting them up for public auction, which is current law.
Wilson has argued in the past that the law goes against the prevailing theory behind virtually all wildlife management laws in North America, which is that wildlife is a public asset that belongs to the public, not necessarily to the owner of the land that the wildlife walks on or flies over.
“This should have been included in the Alvarez and Marsal efficiency study, for all the time and energy we spend on it,” Wilson said.
The bill passed the House last year, 83-47, but died in the Senate. This year, it re-emerged as part of a conference report and again passed the House, 81-32, but failed in the Senate, 15-25.
All members of the Lawrence-area delegation in both chambers voted against it.
Air rifles in public schools … will become legal, with certain conditions, under House Bill 2502, which made it through both chambers in the closing days.
As we reported in January, the bill was requested by the sponsors of a BB gun club in Derby that was denied permission to use public school facilities for its practices and tournaments.
The club had been using the school since 1985, under the same policy that makes school facilities available to all manner of other community organizations. But last year, the Derby school district changed its policy, citing the Kansas Weapons Free Schools Act, which not only prohibits firearms in schools but mandates a one-year expulsion of any student who violates the law.
A majority of lawmakers, though, viewed this as not just an overreach by the schools — strictly speaking, air guns are not firearms — but also a Second Amendment issue.
And so, in the closing days, it was bundled together with a number of concealed carry bills, including one that makes it a little easier for city councils, county commissions and other governing boards to ban guns from inside their chambers during meetings, without necessarily banning them from the building entirely.
The bill also includes a provision, though, that protects the right of public employees who work outside a government building — meter readers, building inspectors, etc. — to carry concealed handguns with them on the job.
From Douglas County, Rep. Tom Sloan, R-Lawrence, voted for the bill. Democratic Reps. Barbara Ballard, Boog Highberger and John Wilson, and Democratic Sen. Marci Francisco voted against it. Sen. Tom Holland, D-Baldwin City, was recorded present but not voting.
Acupuncture and midwifery … got a nod of respect from the Legislature this year.
House Bill 2615 would, for the first time, authorize the Kansas Board of Healing Arts to license and regulate acupuncturists and would require anyone who practices acupuncture to be licensed, beginning in 2017.
The bill also sets out standards for someone to become a “certified nurse midwife” and would allow the individual, beginning Jan. 1, to engage in a limited scope of practice independently, without having to have a collaborative agreement with a licensed physician and surgeon.
That bill almost failed when, on Friday, House members objected to a provision that had been inserted but that had never been considered by either chamber and was never discussed in regular committee hearings: a ban on midwives performing abortions.
That language managed to stay in the bill anyway, and on its second trip through the chambers it passed the Senate, 40-0, and the House, 115-7.
All members of the Douglas County delegation voted in favor of the bill.
That, interestingly, was the only bill considered in the 2016 session dealing directly with abortion, an issue that has dominated most sessions since the early 1990s.
The only other one that came close, Senate Bill 248, puts into statute what lawmakers have inserted as a proviso in every budget bill since 2011, a requirement that federal family planning money be distributed first to public health clinics before any can be given to private clinics such as Planned Parenthood.
That bill passed the House, 87-34, and the Senate, 32-8. It was opposed by all six legislators from Douglas County.