House rebounds to endorse constitutional amendment on administrative regulations

TOPEKA — The Kansas House mustered the votes Monday to pass a proposed amendment to the Kansas Constitution that would strip the executive branch of authority to write fine-print details of administrative rules by shifting that duty to the Legislature.

House Republicans failed a week ago to secure the two-thirds majority required to approve a constitutional amendment, but wrangled an 84-39 margin on the second try. House Concurrent Resolution 5014 moves to the Kansas Senate, which also must achieve the two-thirds majority support for it to be placed on statewide ballots.

Governors don’t have veto power over proposed amendments to the constitution. A simple majority of Kansans voting on the resolution in a November statewide election would decide whether the constitution was altered.

The amendment would depart from longstanding practice in Kansas of granting the executive branch a primary role of developing rules and regulations for operation of state agencies.

Last week, the House didn’t clear the two-thirds hurdle when the vote was 80-33, which was four votes shy of the minimum. Rep. Blaine Finch, an Ottawa Republican supportive of the amendment, voted against it the first time in a procedural maneuver enabling him to call for a revote by the full House.

In addition to the Finch, the final margin was achieved with support of Republican Reps. Owen Donohoe, of Shawnee, Megan Lynn of Olathe, Mark Samsel of Wellsville, and Mark Schrieber of Emporia, who were absent for the first vote. Democratic Reps. Jason Probst of Hutchinson and Vic Miller of Topeka both voted for the amendment to give it a light bipartisan flair.

The motivation

Under a new Section 1 of the state’s constitution, the Legislature would claim “oversight of state executive branch agencies and officials by providing the Legislature authority to establish procedures to revoke or suspend rules and regulations.”

Motivation for the change was concern among some Republicans with the Kansas Department of Labor’s change to regulations on handling of workers’ compensation cases. Rep. Eric Smith, R-Burlington, said the Legislature should have have a grip on state administrative regulations and rules.

Rep. Boog Highberger, D-Lawrence, referred to the amendment as “election year grandstanding” given the anticipated showdown between Democratic Gov. Laura Kelly and Attorney General Derek Schmidt, the presumptive GOP gubernatorial nominee.

During a House Judiciary Committee hearing on the proposed amendment in March 2021, the attorney general said amending the Kansas Constitution would properly give the Legislature an opportunity to craft a robust method of overseeing administrative rules and regulations.

Schmidt said a 2019 review by the Mercatus Center at George Mason University indicated the Kansas administrative structure contained 70,900 regulations consuming 3.2 million words.

It would take the average person more than four weeks to read the state’s entire regulatory code, Schmidt said.

Under the current system in Kansas, due to a series of federal and state court decisions, the attorney general’s office reviews each new proposed rule or regulation for legality. A joint committee of the Legislature reviews proposed regulations, Schmidt said, but “the maximum penalty for an agency head who proposes regulations that the committee dislikes is a strongly worded letter placed in the proposed regulation’s comment file.”

A governor’s philosophy

Meanwhile, the Kansas Livestock Association and the Kansas Bankers Association told the House committee they endorsed the proposed constitutional amendment because it was time to check on executive branch’s influence over making of rules and regulations.

“We appreciate Attorney General Schmidt and this committee’s efforts to look at solutions that would allow the elected officials of the Kansas Legislature to have the final say to repeal or suspend rules and regulations that have the force and effect of law implemented by those officials that are not elected,” said Alex Orel, of the Kansas Bankers Association.

Kansas Livestock Association lobbyist Aaron Popelka said growth in Kansas laws fueled expansion of regulations developed by the executive branch.

“On occasion the executive branch, particularly those executives of a different philosophy than the Legislature, can misinterpret the Legislature’s grant of rulemaking authority,” Popelka said. “In such case, a well-intentioned statute, can be subverted by the executive, harming the regulated community.”

He said livestock producers objecting to a regulation could file a lawsuit or convince the Legislature to amend state law in a way avoiding a governor’s veto.