Kansas lawmakers set special session for response to federal COVID-19 vaccine mandates
The Kansas Legislature will hold a special session intended to combat federal COVID-19 vaccine requirements after every Republican legislator, in an unprecedented move, signed a petition to recall themselves to Topeka.
House and Senate GOP leaders said Thursday they had secured the signatures of every member of their party, achieving the two-thirds majorities needed in both chambers to trigger a special session beginning Nov. 22, the Monday before Thanksgiving.
The apparent success of the petition is itself extraordinary. The Legislature has never before called itself into session in this way; lawmakers have in the past relied on governors to order them back to work.
But many Republicans have been intent on acting swiftly — and being seen to act quickly — in responding to a series of federal vaccination rules issued by Democratic President Joe Biden. They are not content to wait until the regular session begins in January, even though Attorney General Derek Schmidt, the likely Republican nominee for governor, has already filed multiple lawsuits challenging the regulations.
The rules, mandating vaccinations for federal contractors and requiring large employers to ensure their workforces are vaccinated or tested regularly, have been cast as government overreach by conservatives.
“This is a historic moment as the legislature calls itself back into a special session for the first time in the history of our state,” House Speaker Ron Ryckman, House Speaker Pro Tem Blaine Finch and House Majority Leader Dan Hawkins said in a joint statement.
“This unprecedented action is necessitated by equally unprecedented actions from the Biden administration that enacted these mandates unilaterally, without respecting the constitutional law making power reserved for Congress,” they said. “Never before has the federal government forced Kansans to choose between their personal beliefs and their livelihoods.”
‘Republican political stunt’
Biden has said the policies are essential to keeping Americans safe and moving the country out of the pandemic, however. Business leaders have also cautioned legislators, warning them about possible unintended consequences that could come from legislation.
“For our country, the choice is simple: get more people vaccinated, or prolong this pandemic and its impact on our country. The virus will not go away by itself, or because we wish it away: we have to act. Vaccination is the single best pathway out of this pandemic,” Biden said in early November. “And while I would have much preferred that requirements not become necessary, too many people remain unvaccinated for us to get out of this pandemic for good. So I instituted requirements – and they are working.”
Top Republicans intend to keep the session narrowly focused on two proposals released earlier this week by Senate President Ty Masterson, an Andover Republican. One would restrict private and public employers from questioning the religious beliefs of employees seeking exemptions from requirements. The other would ensure those fired for refusing to get a COVID-19 vaccine can receive unemployment benefits.
Still, no boundaries exist on what can be considered during the session. Hard-right Republicans are likely to push for more aggressive measures and Democrats may try to bring up other items.
Rep. Brandon Woodard, a Lenexa Democrat, called the session a “taxpayer funded Republican political stunt” in a Twitter post. No Democrats signed the petition calling for the session, according to spokespeople for House and Senate leadership.
Gov. Laura Kelly’s office declined to comment. Over the past week, the Democratic governor has been critical of the federal rules, saying, “I don’t believe this directive is the correct, or the most effective, solution for Kansas.”
On Wednesday, Kelly’s office said it was reviewing Masterson’s proposals and noted several lawsuits are pending against the mandates, with states still waiting to receive clear guidance about how to implement and enforce them.
“While legislative leadership debates whether or not to call a Special Session, Governor Kelly continues exploring actions her administration can take to find a Kansas-centric solution, not a nationally mandated, one-size-fits-all approach,” Kelly spokesperson Reeves Oyster said.
Committee hearings had impact
Under the Kansas Constitution and state law, Kelly must formally proclaim the special session if the petition has enough signatures and has been properly composed. If she fails to do so, the Legislature can still call itself into session, but would have to take a vote essentially affirming their petition signatures.
The petition is the second time this fall Republicans have attempted to call a special session. When the Biden administration first announced the vaccine requirements in September, some conservative lawmakers began circulating petitions for a special session but were unable to get the required two-thirds of lawmakers on board.
At the time, Ryckman appeared to dissuade his members from signing, according to an email he sent to House Republicans.
“As Republicans we stand against heavy handed mandates and government intrusion. Full stop,” Ryckman, of Olathe, wrote. “As the majority caucus we also understand that action must be taken at the right time and in the right way or else we risk being ineffective or worse causing harm to the very people we are here to serve.”
Ryckman reminded his caucus at the time that Schmidt, the attorney general, would challenge the requirements and that “a state legislature cannot directly nullify a federal law or executive order.” He noted that a special session would cost $65,000 per day.
The Republican leader’s position appeared to warm to a special session following three days of testimony to the Legislature’s Special Committee on Government Overreach and the Impact of COVID-19 Mandates.
In the first days of the committee, dozens of Kansas residents pressed lawmakers to convene a special session on the issue. On Tuesday, Masterson proposed two narrow areas, unemployment insurance and religious exemptions, where he believed the Legislature could act.
Rep. John Barker, an Abilene Republican who didn’t sign the first petition, said he agreed to call for the special session this time because of the testimony he heard on the special committee and because he’d been assured the legislation would be amended before lawmakers voted.
“I thought we should have waited until we had the bill ready but time restraints such as they area I went ahead and (signed the petition),” Barker said.
“I think it was helpful that the Governor came out and said she was not really keen on it.”
Business community concerned
Barker said he was concerned about the current structure of the bill providing unemployment insurance to those denied exemptions from the mandates. He said he supported the legislation barring companies from inquiring into the sincerity of one’s religious beliefs or medical history even though it was likely to invite legal challenges.
“Everything we do is going to be controversial,” Barker said. “It will eventually be decided in the court system what’s constitutional or not.”
The measures under consideration are likely to create tension between the Legislature and the business community while the impact is unclear.
Jeffery Jackson and Richard Levy, constitutional law professors at the University of Kansas and Washburn University, both said the measure on religious and medical exemptions would not impact businesses mandating vaccines in compliance with federal guidelines.
Any federal rules on religious exemptions, they said, would supersede the Kansas law.
“If it’s within OSHA’s authority to do what they did then there’s nothing the state can do that would have any legal effect,” Jackson said.
The Kansas Chamber of Commerce and Kansas National Federation of Independent Businesses each expressed concern Tuesday that allowing those who don’t get vaccinated the ability to receive unemployment benefits would increase unemployment taxes for businesses and drain the state’s unemployment trust fund.
The Chamber estimated the bill would cost the state between $606 million and $5.6 billion.
Donna Ginther, an economist at the University of Kansas, said the state is likely to pay between $63.7 million and $254.9 million from it’s unemployment trust fund if the bill is approved and 5% of unvaccinated workers quit because of mandates.
This story was originally published November 11, 2021 at 5:13 PM with the headline "Kansas lawmakers set special session for response to federal COVID-19 vaccine mandates."
