Kansas lawmakers pull all-nighter to weaken governor’s emergency powers during pandemic

photo by: Associated Press

Kansas state senators and a staffer confer during talks with House members over the final contents of a bill that would limit Gov. Laura Kelly's power to direct the state's response to the coronavirus pandemic. They are, left to right, Sen. Vic Miller, D-Topeka; Sen. Rick Wilborn, R-McPherson; Sen. Eric Rucker, R-Topeka, and Darren Beckham, executive assistant to Kansas Senate President Susan Wagle, R-Wichita. (AP Photo/John Hanna)

Story updated at 7:41 a.m. Friday

TOPEKA — Republicans pushed a sweeping coronavirus measure through the GOP-controlled Kansas Legislature on Friday, aiming to shield businesses and health care providers from coronavirus-related lawsuits and take control of the state’s pandemic response from Democratic Gov. Laura Kelly.

Some Democrats predicted Kelly would veto the bill, but she said Friday in a media briefing that she was not yet ready to announce plans for specific bill signatures or vetoes.

“Just like the entire Kansas Legislature I also haven’t had time to read or review the complex and consequential legislation they passed in the middle of the night,” she said, describing the wrap-up session as the “most embarrassing, irresponsible display of government that we have witnessed throughout this ordeal.”

Democrats objected to curbing Kelly’s power and predicted that substandard nursing homes and manufacturers of defective personal protective equipment would be shielded from being held accountable in the state’s courts.

The bill reflects Republicans’ view that Kelly is moving too slowly to reopen the state’s economy and has been too aggressive in imposing restrictions. She imposed a statewide stay-at-home order from March 30 until May 4 and plans to lift restrictions on businesses in phases through June 23.

Lawmakers had convened Thursday for one last day in session this year after a coronavirus-mandated break that started March 20, and they extended their last day into Friday morning to get all of their work done. Democrats noted repeatedly that Republicans were passing their bill after President Donald Trump said publicly that Kelly and Arkansas’ Republican governor have “done a fabulous job” in handling the pandemic in their states.

“When you elect someone to be your general in the fight, you fire them in the middle of the fight and replace them with a committee,” said Rep. John Carmichael, a Wichita Democrat. “That’s not the way you win a war.”

The Republican plan would require Kelly to get permission from legislative leaders to keep businesses closed for more than 15 days or to exercise other broad powers granted to governors during emergencies after May 31. Counties that could document a case for lesser restrictions could impose them.

Kelly would not be allowed to order the confiscation of guns or to block their sale — steps she has never contemplated.

Also, legislative leaders also would have the final say over how the state spends $1.25 billion in federal coronavirus relief funds.

The votes for the bill were 27-11 in the Senate and 76-34 in the House and sent the measure to Kelly. Legislators adjourned their session immediately following the House vote, nearly 24 hours after they had convened.

Senate President Susan Wagle, a Wichita Republican, U.S. Senate candidate and vocal Kelly critic, argued that “financial security is just as important in our culture as health security.”

“We are here to protect Kansans’ health and to protect their pocketbooks,” Wagle said, urging colleagues to support the bill.

Kelly has said she’s open to protecting doctors, clinics and hospitals from lawsuits over decisions to delay non-coronavirus care during the pandemic. But shielding businesses from lawsuits is a priority of Republicans and business groups nationally, with Congress and other states considering it.

“There may be good defenses, but with a class-action lawsuit, the goal is not to get all the way to trial with a jury and a judge. It’s to get past the early phases of the litigation and put the pressure on the defendant to settle,” said Harold Kim, president of the Institute for Legal Reform, an arm of the U.S. Chamber of Commerce. “The immediate concern is the uncertainty. How do you remove this cloud of liability as businesses are trying to reopen?”

But the Working Kansas Alliance, a coalition of union groups, argued the bill could grant “total immunity” and labeled it “dangerous.”

Carmichael noted that some but not all businesses, including manufacturers of personal protective equipment and nursing homes, would be protected from lawsuits for negligence over coronavirus infections. Carmichael said a “negligent Chinese manufacturer” might have more protection than a Main Street business.

Because legislators adjourned for the year, they cannot override a Kelly veto. But Republicans hoped passing a bill would box Kelly in because her existing state of emergency, allowing her to tap broad powers for a response, remains in effect only through Memorial Day.

The bill would extend the state of emergency through May 31, then require Kelly to get legislative leaders’ permission to extend it.

If the state of emergency ends, some 30 orders that Kelly issued would expire. They include orders for a phased reopening of the state’s economy, as well as others banning evictions for people who can’t pay their rent during the pandemic and prohibiting utilities from cutting off services for customers who fall behind on their bills.

Many Democrats believe Kelly could declare another state of emergency. However, state Attorney General Derek Schmidt, a Republican, issued a legal opinion late Wednesday saying that Kansas law doesn’t allow multiple declarations during the same emergency. His opinion is non-binding, but could inspire legal challenges to Kelly’s actions.


More notes from the session

By Stephen Koranda, Kansas News Service, ksnewsservice.org

• • •

No adjustments to state spending

Lawmakers didn’t adjust state spending to account for a dramatic drop in tax revenue — yet another effect of the economic shutdown triggered by the pandemic. A special session could bring legislators back to Topeka to balance the books, the governor could make cuts herself or any action may wait until next year.

• • •

High speed, high tensions

The nearly 24-hour session made clear the pandemic hasn’t pushed aside partisan rivalries.

“It is our job to oversee this governor, to oversee her emergency orders,” Wagle said. “It is our job to open up Kansas safely.”

After some extended comments from a Democrat, the Senate’s Republican majority leader said he would use a procedural move to end debate and move bills forward as quickly as possible.

“I’m basically out of patience,” Sen. Jim Denning said.

The top Democrat in the Senate said the high-speed process, which ended in a vote Friday morning, meant lawmakers couldn’t have a full debate and offer amendments.

“We ought to close the blinds and turn out the lights because this is a dark day for democracy,” Sen. Anthony Hensley said.

And House Democratic Leader Tom Sawyer called the day “simply bad governing.”

“This is no time for fulfilling political agendas,” Sawyer said.

Republicans argued they had little choice but to hurry bills through.

“This is the first time we’ve had a pandemic and had mere hours to come up with a solution,” Republican Rep. Fred Patton said.

Protesters rallied outside the Capitol to press Kelly and lawmakers to more quickly and fully open up the state’s economy. Their chants came as conservatives inside the Statehouse continued to criticize Kelly for what they see as a too-sluggish phasing out of her stay-at-home orders. Meanwhile, coronavirus clusters persist in southwest Kansas, where workers at meatpacking plants are in close quarters.

Lawmakers took precautions in the Statehouse, with some in the House and Senate wearing masks. The House allowed members to stay in their offices and return to the chamber for votes.

• • •

Medicaid expansion falters … again

Efforts to expand Medicaid in the state evaporated for another year on Thursday.

The year started with high hopes from Medicaid expansion supporters. A bipartisan compromise forged by the governor and a top Senate Republican would have provided health coverage for more than 100,000 low-income Kansans.

But Republican leaders blocked Medicaid expansion after tying it to a constitutional amendment on abortion. That frustrated expansion supporters, who threatened to block the budget.

Democrats made a last-ditch effort in the Senate on Thursday to offer Medicaid expansion as an amendment. But that was shut down on procedural grounds.

“We have been bridled and throttled this entire year when the votes exist from this chamber to pass Medicaid expansion,” Democratic Sen. Barbara Bollier said. (She, like Wagle, is running for the U.S. Senate.) “We have the votes.”

• • •

Abortion constitutional amendment

A constitutional amendment saying there’s no right to abortion in the Kansas Constitution suffered the same fate as the Medicaid expansion plan it was tied to.

The amendment came in response to a state Supreme Court decision that found a right to abortion in the Kansas Constitution. Conservatives want to undo that with the amendment. They fear the court’s decision could pave the way for knocking down abortion restrictions already in state law.

Critics of the amendment say it could open the door to fully banning abortion in Kansas.

• • •

Property tax provisions

Lawmakers voted to give taxpayers more information about their property tax rates. Cities and counties would have to send notices to residents when property tax collections will go up, starting next year. It also requires local governments to hold public hearings on tax rates.

Republican Sen. Caryn Tyson said it gives property taxpayers a better chance to weigh in on increases.

“The bill is about transparency,” she said. “It’s about local control, and it’s about taxpayers having a voice.”

The bill repeals a 2015 cap on property tax increases by local governments.

In response to the economic challenges caused by coronavirus, the plan also gives people three additional months to pay their May property taxes without penalty.

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