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Coronavirus, state budget among key issues in Kansas' 2021 legislative session

Titus Wu Andrew Bahl
Topeka Capital-Journal
Senate President Ty Masterson, R-Andover, sits in the Kansas Senate chamber.

The Kansas Legislature will kick off its session Monday afternoon for what is sure to be a session like no other. Following off an unprecedented year and amid a pandemic, there will be many issues lawmakers will have to tackle.

With a supermajority, Kansas Republicans will have a massive say in what will be brought up or not. Here are seven major issues that could be of noteworthy attention.

State budget

Lawmakers work into the night inside the senate chambers of the Kansas Statehouse on May 21, 2020.

The state’s multi-billion-dollar spending document is always tough to wrangle, but that difficulty will be magnified this year thanks to the COVID-19 pandemic and its corresponding effect on state finances.

Lawmakers are optimistic the job won’t be as tough as initially feared. In the early months of the pandemic, when businesses across the state were closed and tax revenues dipped, the state was projected to have a budget shortfall of over $1 billion.

Updated revenue estimates in November saw that shrink to $152 million, a more manageable number but one that could still be in flux as COVID-19 case counts rise again, with an uncertain impact on the state’s economy.

“The key word really for this year is uncertainty,” said J.G. Scott, of the Kansas Legislative Research Department.

Republicans will likely focus on trimming spending in spots, pushing a more fiscally restrained budget that emphasizes linking state dollars to agency performance. 

But there is potential bipartisan agreement on some spending items, including living up to the state’s transportation blueprint, approved last March at the beginning of the pandemic.

While some legislators had concerns about the plan’s price tag, most members from both parties see it as a potential economic stimulus at a time when more Kansans are out of work.

Gov. Laura Kelly has said some items will remain paramount in her budget and her priorities will quickly become apparent when she unveils her spending plan later this week. A top ask will likely include ensuring education funding does not see cuts going forward. 

The state is mandated to fund public schools at levels required by a series of court cases, which aimed to correct years of sliding state investment under Gov. Sam Brownback. Some Republicans have chafed at the requirements, which the Kansas Supreme Court signed off on in 2019, and there could be interest in pushing back against them in the wake of the pandemic.

But Senator-elect Brenda Dietrich, R-Topeka, said she believed her colleagues understood that would be more trouble than it's worth.

“If they want to challenge it, they can,” she said. "But it is not the wisest thing to do at this point in time.”

Emergency powers

Gov. Laura Kelly conducts the state finance committee meeting on June 16, 2020 at the Statehouse.

The state’s emergency management laws were designed to give broad power to the executive branch for cases such as wildfires, floods and immediate disasters. A long-term pandemic was not expected.

State lawmakers this session will be looking at ways to alter those laws to accommodate the current pandemic and future long-term disasters. More importantly, the majority-Republican Legislature will seek to clamp down further on the current Democratic governor’s emergency abilities.

“I don’t believe there was any intent coming from this committee to broaden the authority of the governor,” said Rep. Stephen Owens, R-Hesston, during a special committee meeting back in the fall. “I believe it was the intent of this committee ... to further regulate said authority, not to enhance it.”

Currently, the governor has to meet with legislative leaders in the State Finance Council every month to renew the COVID-19 disaster declaration, allowing her to issue emergency orders. In addition, counties can opt out of any order she issues.

Of big debate will be how legislators can continue keeping oversight of the governor when not in session, as that was the case in much of 2020. While some may be satisfied with just the SFC, others are demanding an expanded council or that all lawmakers be involved. There's the question of what time frame should be in place for legislators to step in.

“I believe that if we have an emergency that lasts longer than 51 days, that a special session of the Legislature shall be called by the governor for that extension,” Owens had said.

Some are recommending instituting a simple-majority instead of a two-thirds requirement to call a special session during an emergency. This would, however, require a constitutional amendment.

Potential legislation could be underway, too, on setting up a group dedicated to reviewing emergency orders and their legalities. The state attorney general and a legislative leader could be involved in that process.

The Legislature might even look at revoking some of the powers delegated to the governor during emergencies. Last spring, lawmakers attempted to do so, said Rep. Fred Patton, R-Topeka, who chairs the Judiciary Committee that will oversee emergency-related legislation.

"It's really not clear in Kansas law, whether that can be done or not," he said. "We just need to clarify, maybe even with a constitutional amendment." 

One more way lawmakers could further undermine the governor's powers is to give cities, and not just counties, the ability to opt out of emergency orders. While Patton in comments to The Topeka Capital-Journal leaned away from that idea, other Republicans have embraced it. 

Ultimately, the governor is likely to oppose any restrictions. Allies of the governor, such as former Senate Minority Leader Anthony Hensley, have said such limits have hindered the pandemic response.

“Republicans can’t help themselves. When they have a Democratic governor, they've got to interfere with the job that she was elected to do,” Hensley had said.

Patton doesn't see all this legislation the same way.

"It really wasn't meant to restrict the governor's authority. It was really to outline which branch of government has the authority," he said. "At the end of the day, we just need to make sure that we have good laws on the books that allow us to best tackle whatever the disaster is, whether it's a pandemic or a tornado or a flood."

COVID-19 and businesses

Temperatures are taken curbside by a nurse outside of the Cotton O'Neil North Clinic at 5405 N.W. Fielding Road on April 1 as the facility deals with a steady stream of people with COVID-19 symptoms.

Republicans, under the same realm of emergency laws, are putting a big emphasis on doing whatever possible to keep businesses open during this pandemic. That's even if the governor herself has indicated she has no interest in implementing another COVID-19 shutdown.

Many legislators will push for a "safe harbor" for businesses, in which as long as certain public health guidelines were followed and met, a business cannot be closed down.

Whether that would interfere with a local government's discretion that a business be shut down is unclear at the moment, said Patton. That comes as others have proposed taking the authority to shut down businesses away from the state and leaving it to local discretion. 

"I can't envision a situation where we would come in and tell local people that we were taking their powers away, but again, you never know," Patton said. 

There likely will also be proposed legislation relating to giving Kansas businesses due process before it can be shut down, adding another safeguard.

One bill already filed would give adult care homes blanket virus-related immunity to civil liability except in cases of gross negligence or reckless conduct. Currently, facilities only have "an affirmative defense to liability," and only if they are acting according to public health guidelines. 

That will face likely opposition from Democrats and the governor's office, who Patton said had requested the current "affirmative defense" language. Nursing homes have been hotspots for the virus. 

"We have concerns about the bill. We want to make sure that everybody stays protected and that safeguards are in place while maintaining accountability," said House Minority Leader Tom Sawyer, D-Wichita. 

One topic matter that has yet to be parsed through is the idea of giving businesses compensation for economic damages suffered from the state's earlier COVID-19 lockdown.

State Attorney General Derek Schmidt has said he will ask lawmakers to look into that idea after his office agreed to put on hold a lawsuit by Omega Bootcamps, Inc. seeking that compensation. 

"I agree with the basic principle, reflected in current law, that at least some of those whose property is significantly damaged by government actions undertaken for the public good during a state of emergency should be compensated for their loss," Schmidt said in a statement. "However, current law was not designed to address these sorts of business shutdown orders, and it is not certain (nor does the state concede) that the law as written applies on the facts of this or similar cases."

Patton said details will have to be looked into on that, such as cost and who would oversee that. But helping hurt businesses out financially has been discussed.

"People were wondering if it was possible to give tax credits to businesses that shut down or businesses that were required to shut down," he said. "Were there any financial resources available from the state? So it's something that we've at least conceptually looked at."

Medicaid expansion

A large banner was dropped in the atrium of the Statehouse on April 10 during protests in support of medicaid expansion.

Democrats have maintained they will again seek to push to expand the state’s KanCare program. 

Feeling a sense of deja vu?

That’s because similar efforts have come and gone in recent sessions, as advocates push to make upwards of 150,000 Kansans eligible for the program under a provision in the Affordable Care Act. 

A promising effort in 2020, owing to a compromise hashed out between Kelly and then-Senate Majority Leader Jim Denning, failed after conservatives aimed to attach an abortion-related amendment.

Since then, several key Republican allies for expansion lost in the primary election in August and were replaced by opponents who oppose the plan for a variety of reasons, including arguments that it would be too costly for the state. Others have said work requirements would need to be attached to any expansion efforts.

The Legislature’s shift to the right will make the expansion fight an uphill one, with Senate President Ty Masterson, R-Andover, already saying it's “tough odds.”

Legislative Democrats acknowledge that reality.

“I still think there is a slim chance, but I want to be realistic that it is slim," said Sen. Tom Hawk, D-Manhattan, although he said the party will aim to use the COVID-19 pandemic to underscore the need for expansion.

Abortion

House members watch as final votes are tallied on Feb. 7, 2020, at the Statehouse during the final action vote to move on a proposal that would be sent to state voters, an amendment declaring the Kansas Constitution didn't guarantee women a fundamental right to abortion.

Abortion has been and will remain a divisive issue in Kansas. Since the Kansas Supreme Court declared in 2019 that abortion is a constitutional right, Republicans have been trying to change that.

A change would require a constitutional amendment be proposed, and if passed, would need to go before the voters.  

In the last session, an effort to do so failed. Passing an amendment to the Kansas Constitution needs a two-thirds majority in both the Kansas House and Senate, but in the House, four Republicans sided with Democrats voting against, citing that they wanted the amendment on the ballot in November, not August.

This year, all four of those Republicans are gone. The Legislature is now much more conservative and the party's majority has increased.

"I think both leaderships in the House and Senate have indicated this is a priority for them," said Rep. John Barker, R-Abilene, who chairs the committee overseeing this legislation. "So yes, I think it will pass."

No Democrat voted in favor of the abortion amendment last time around, and that'll likely remain the same. But Dems will not have much say.

"They'll have their numbers in both chambers. And so that's just something that we have to live with," said Rep. Louis Ruiz, D-Kansas City, on the GOP.

Taxes

The State of Kansas Department of Revenue Taxation office located at 120 SE 10th Street.

A longtime point of contention for legislators, tax policy is set to again take center stage after a number of conservative-driven measures were vetoed by Gov. Laura Kelly in recent years.

Chief among them was a bill Kelly rejected in 2020 that would have required more transparency for local governments considering property tax hikes. She argued it could hurt local governments financially during COVID-19, but conservatives framed it as a needed check on rising tax bills. 

Under the proposed bill, taxpayers would have to be shown how any changes to the property tax structure would affect their payments. City and county lawmakers would also have to hold a public hearing and vote on the matter.

“I can’t imagine someone vetoing a transparency bill,” said Sen. Caryn Tyson, R-Parker. “And this year we will get it done so we have time for a veto override.”

Tyson, chair of the Senate’s taxation committee, said another top priority would be revisiting legislation Kelly vetoed in 2019 that would provide relief to individuals and businesses paying more in income taxes after the 2017 federal tax cuts.

Efforts could include making the state's tax environment more friendly to seniors. And lawmakers may take a closer look at some tax credit programs, particularly those in the Department of Commerce, to see if they are living up to their economic development goals.

The governor’s administration could push to revisit issues they favor, as well, including a tax on subscriptions to Netflix, Spotify and other digital purchases. Kelly’s administration will likely also push to crack down on online retailers like eBay and Etsy, which are currently falling through gaps in the current tax code.

And Kelly is set to propose other revenue-generating items, including a plan to legalize sports betting — though it faces an uncertain future.

Then there is the question of whether Republicans will use their numbers to pursue a more aggressive overhaul of the state’s tax code, harkening back to failed efforts by Gov. Sam Brownback to use tax cuts to jump start the state’s economy.

Those cuts were repealed in 2017, but experts say it is yet to be seen whether the more conservative Legislature will embrace Brownback’s legacy or seek to blaze a trail of their own.

“Is there a post-Brownback agenda for conservatives in Kansas that isn’t just being against Governor Kelly,” said Patrick Miller, professor of political science at the University of Kansas. “I think this is an opportunity to examine that question in practice.”

Criminal justice

Protesters hold signs and chant around the Statehouse on May 30 for a rally in response to the death of George Floyd by Minneapolis police.

Following the deaths of George Floyd and others last year, there will be some increased attention on criminal justice reform.

"We will have a very significant number of criminal justice-related bills introduced fairly early in the session once session gets going," said Rep. J. Russell Jennings, R-Lakin, chair of the House Corrections and Juvenile Justice Committee.

Already, there's been six bills filed, all of which passed out of committee last session and some which even made it to the Senate, Jennings said. A shortened session last year due to COVID-19 cut any chances of passing short.

Much more is to to come from other commissions and groups set up by the Legislature to examine prisons, policing and other aspects of criminal justice.

Most legislation focuses on promoting alternatives to incarceration, such as diversion programs, early discharge mechanisms or specialty courts that treat offenders with drug or behavioral issues. 

Democrats will probably support the reforms, but some Republicans, particularly those who lean into a "law and order" stance, may oppose. Jennings believes, however, the majority will favor them.

"The key to this is hopefully being able to convince people that you're not sacrificing public safety, by doing things that are different, that can address behaviors," he said. "We need to be sure that we're providing effective programming that improves the likelihood that they do not reoffend."

Another barrier will be the costs of funding all of these programs, especially during a time when COVID-19 has strained budgets. 

"What I feel will be the challenge is the current $150 million budget shortfall we are currently facing," Owens said on specialty courts legislation's chances of passing.

Even so, Jennings hopes most of his colleagues will see that the long-term benefits will be taken into account. 

"While there may be a challenge in the short term of having funds to get things started, once things get going, the hope, and I think the promise is, it will actually become less expensive as a system, and we will reduce victimization, which is cost savings to individuals," he said.

This is one of a package of stories previewing the 2021 Kansas Legislative Session. Follow Andrew Bahl, @andrewbahl, and Titus Wu, @tituswu100, on Twitter for coverage of the session.