It’s not like ‘Schoolhouse Rock’: How bills become law in Kansas
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Why so secret, Kansas?
Kansas may be the most secretive state in the country, a Kansas City Star investigation shows. And it’s only gotten worse under Gov. Sam Brownback.
It happened so fast that few inside Room 519-S of the Kansas Statehouse even realized what was going on.
As members of the House Transportation Committee gathered to consider legislation, then-Rep. Artie Lucas made his move. The Highland Republican stripped the language in a bill about vehicle registration fees and replaced it — not with another transportation measure, but with an anti-abortion proposal.
Within seconds, committee members passed the measure on an unrecorded voice vote, sending it to the House floor without a hearing and prompting an outcry from incensed colleagues who were blindsided by the action.
“Those bastards!” then-Rep. Joan Wagnon said after learning what had happened.
That brazen move, known as a “gut-and-go,” took place 27 years ago. Believed to be the first time the maneuver had been used, it changed the way lawmakers conduct business, paving the way for Kansas to become one of the most opaque state legislatures in the country.
Since then, the once-rare scheme has become standard practice in the Sunflower State — a way to resurrect bills left for dead and to circumvent public attention on often controversial measures. Kansas is among a handful of states that allow the procedure.
But it’s not the only legislative tactic that stifles open and transparent government. In Kansas, unlike most other states, nearly all the laws passed stem from bills whose authors are anonymous.
All but six of the 104 bills that became law this year — a whopping 94 percent — were introduced by committees, with no sponsors identified. That means Kansans don’t know who pushed the measures and why. Who stood to gain, who stood to lose.
Many states prohibit the practice and require that every bill contain the name of the lawmaker sponsoring it. And while Kansas legislators on both sides of the aisle acknowledge anonymous bills have been part of the legislative process for decades, they say it’s now used way too often.
“It’s not like we learned in seventh-grade civics. It really isn’t,” said House Majority Leader Don Hineman, a Republican from Dighton. Many of his constituents, he said, are shocked to learn about the rampant use of anonymous bills.
“I tried to explain that to the editor of the Dighton Herald,” he said, “and she was like, ‘What?’ ”
The result of all this secrecy? Proposals on such hot-button issues as gun rights and education sometimes become law with little or no debate. Indeed, half the abortion laws passed in Kansas in the past 10 years were the result of a “gut-and-go” procedure, The Star found.
So was the 2015 law that overhauled the way the state distributes money to school districts — money that accounts for more than half the state’s general fund budget.
The Star talked to political experts, organizations that monitor government transparency and those who track legislative policies to gauge how Kansas compares to other states on issues of openness and accessibility. The responses indicate that Kansas’ legislative process is among the least transparent in the country, often cutting the public out of debates and making it difficult for constituents to track bills, let alone determine who sponsored them.
“There are gut-and-gos that are kind of sleight-of-hand when something is stuck in (the bill) that hasn’t really gone through the process and it’s an issue that we really aren’t up to speed on,” Hineman said. “And that’s kind of playing a little fast and loose with the technique.”
Longtime legislators say the process wasn’t always this secretive.
“I try to explain to new people that this is not the way this place used to operate,” said Rep. Tom Sawyer, a Wichita Democrat who has served a quarter-century in the Kansas House. “They don’t quite understand that we used to actually spend hours debating bills and amending bills.
“The problem is, there’s a culture that’s developed. With the turnover we have in the House, you now have a lot of people in the Legislature, that’s all they know. They think that’s how you do things.”
“Gut-and-go” has become so common that legislative committee chairs now keep a few bills handy each session to use as “vehicles” in the event they decide to use the maneuver to try to advance a proposal.
“My first session, a freshman colleague said, ‘Are we part of a government body, or are we used-car salesmen? Everybody keeps talking about vehicles,’ ” said Rep. Jarrod Ousley, a Merriam Democrat who has served three years in the Kansas House. “So there’s definitely some concern there. But that’s how it’s been since I’ve been there. I don’t know any different.”
Wagnon, a Topeka Democrat who served in the Kansas House from 1983 to 1994, teaches a class on advocacy at the YWCA.
“And when I try to explain to someone how you keep up with a bill, they go, ‘You’re kidding.’
“It’s not like the Schoolhouse Rock lesson,” she said, referring to the popular children’s program that used animation and a catchy tune to show how a bill going through Congress became a law. “Throw your diagram away.”
Here’s how it works:
Let’s say a bill that has been introduced in the Kansas House is languishing in a committee. The bill’s supporters then get a committee member to take another bill that’s already passed the Senate, gut it, replace it with their bill and then send it to the full House for debate. Once it passes the House, the bill goes back to the Senate, but because it’s already passed that chamber — even though it’s now a completely different proposal — all the Senate can do is vote it up or down. There’s no debate or hearing on the new measure.
People who want to be involved in the political process can later discover that the bill they’ve been following has turned into something else. Something totally unrelated, said Mark Desetti, lobbyist for the Kansas National Education Association.
“I follow it all day, every day,” Desetti said. “And I still find myself sometimes going, ‘Where the hell did that come from?’ That’s problematic, and the citizens of Kansas lose.”
Supporters say the procedure helps move the process along and is a way to get proposals passed when partisan politics or a headstrong House or Senate leader prevents some measures from being considered.
Senate Majority Leader Jim Denning said the practice is often used when both chambers have introduced similar pieces of legislation. The duplicate bill then becomes a useful shell for other pieces of legislation late in the session.
“You want that shell so you can get the hell out of town,” the Overland Park Republican said.
Critics, however, call the process a sneaky way to squelch opposition and say it makes a mockery of the legislative process. It also makes it next to impossible for the general public to follow a bill through the Legislature — or to know what their representatives are doing.
Denise Sultz, president of the Kansas PTA, planned to testify against a bill in 2016 that would have repealed the state’s Common Core educational standards. But the hearing that she waited for in the House Education Committee never happened.
Instead, committee members gutted a less-restrictive measure that had been held over from the previous year and inserted tougher new language, then passed it on a voice vote without holding a hearing.
When some on the committee complained, they were told that a hearing wasn’t necessary because the measure had been heard the year before.
“Some members of this committee perpetrated a shell game,” Sultz wrote to PTA members afterward. “These members took away your voice. If you were for the standards that Kansas is currently using, they chose not to listen to you. They not only chose not to listen to you, they chose not to allow you to speak.”
The tactic “is an example of the worst of politics, and it has been used repeatedly by the extremists in the Kansas Legislature to have their way,” the Mainstream Coalition said in a blog post highly critical of the process.
“The gut-and-go allows laws to be passed through a deceitful process of expediency, denying our representatives the opportunity to consider, discuss, and determine how legislation will affect their constituents. It is a subjugation of the democratic process… and it is something every Kansan needs to know.”
Many Kansans, for example, would be surprised to discover that the bill that overhauled the state’s school finance formula in 2015 started out as an innocuous three-page proposal requiring information technology audits of state agencies.
But after that bill passed the Senate, the House stripped the IT language and replaced it with the controversial school funding legislation, a Gov. Sam Brownback proposal to do away with the funding formula and instead give block grants to school districts. The revised bill narrowly passed the House, and because it had already passed the Senate — though in a totally different form — all senators could do was vote whether to concur with the House on the bill. They wasted no time doing that.
The 65-page bill had passed both legislative chambers a little more than a week after the proposal was first made public. Brownback signed it, and it went into effect a few weeks later.
The aftermath has been costly, not only to school districts that said the change forced them to make spending cuts but to taxpayers footing the bill for an ongoing court battle over how the state funds schools — a method the Kansas Supreme Court has since deemed unconstitutional.
A half-dozen districts shortened their school year by several days. The Olathe School District ended its elementary Spanish program, reduced custodial staff and eliminated its teacher mentoring program and middle school library aides.
In Pratt County, a school superintendent resigned, saying the district likely could not make the next month’s payroll if he remained. That was after 18 employees had already been reassigned, had their hours cut or lost their jobs.
When it comes to finding vessels for a “gut-and-go,” bills on most any topic appear to be fair game.
A proposal to deal with the retail sale of propane. Another dealing with retirement plans. And one addressing illegal profits from dog fighting, cockfighting and prostitution.
All ended up as laws restricting abortion.
In May, a Senate committee snagged a bill designed to remove the city of Valley Center from an area cemetery district and converted it into a proposal making it illegal to carry a firearm into a state or municipal-owned medical care facility or community mental health center.
That prompted the NRA, which was used to getting pro-gun legislation passed in Kansas, to cry foul.
“This move was undertaken to completely circumvent the House committee process as well as any official public input or chance to amend,” the NRA Institute for Legislative Action said in a May statement. “This bill is a solution in search of a problem, and it places an arbitrary boundary on your right to self-defense.”
The bill passed, and Brownback allowed it to become law without his signature. Political observers noted that, given the pro-gun climate in the Statehouse, the “gut-and-go” procedure was probably the only way that the legislation could have passed.
Hineman said that the Legislature should set parameters for when the gut-and-go technique is acceptable and that lawmakers should be restricted from using it if it’s “a brand new issue out of thin air that nobody has seen before.”
Ousley said some issues should be totally off-limits.
“Something as controversial as reproductive issues, that should go through committee hearings and the entire process,” he said. “I think doctors and medical providers should have a chance to weigh in on that.”
But even those who say the tactic is overused concede that they’ve benefited from it at times. Ousley said legislators used it this year to pass a law creating a task force to improve Kansas’ child welfare system.
“I didn’t feel like our committee abused a rule but took advantage of a rule to make hay,” he said. “Had we not, there wouldn’t have been time in the session to get the bill through the entire process.”
He said none of the committee members was surprised at the action, and the measure wasn’t controversial.
“It was discussed, and we explained the reason why,” he said. “We talked to our colleagues in the Senate as well. So it was really maybe not public transparency, because there was no press release put out, but within the building it wasn’t a surprise to most folks.”
The procedure is used in a few other states, but not to the extent that it’s employed in Kansas, where it’s become so common that the term “gut-and-go” now appears in the glossary of the Kansas Department of Agriculture’s handbook.
In Oregon, the process is called “gut and stuff.” In Hawaii, “gut and replace.”
Sometimes, the bills are called “Frankenstein” and “zombie” proposals because they’ve been brought back from the dead.
But it’s become such a concern that some states have taken action to curtail it. Last fall, California voters passed a ballot initiative that required all bills to be printed and accessible online for at least 72 hours before the Legislature could pass them — putting a stop to last-minute “gut and amend” measures, as they’re called in that state.
Whose bill is it?
In 2016, a Senate committee emptied the contents of a House bill dealing with abandoned oil wells and replaced it with legislation that made it easier for cellphone companies to build towers in the public right-of-way.
Local government officials from across the state were caught off guard by the proposal, which reduced the amount of control communities had over the towers’ placement.
“It was crafted by the telecommunications industry… and they have lobbied hard to take power away from municipalities,” said Mission Hills Mayor Rick Boeshaar. “The aesthetics of our city is pretty important, and we don’t want them to just start putting boxes in our front yards willy-nilly just to have faster data rates.”
Boeshaar said he thinks telecommunications lobbyists “pulled one over on the legislators.”
The legislation was passed and sent to the governor’s desk without the House ever holding a hearing on the revised bill. Not only that, the name of the person or group sponsoring the measure was never made available. That’s because it was introduced as a committee bill.
For the past decade, more than 90 percent of bills passed in Kansas each year have been committee bills, with no sponsors identified.
“I’m disappointed in the lack of transparency that’s allowed under that form of a legislative process,” said Wichita City Council member Pete Meitzner. “We don’t do it. I don’t think county governments do it. And for some reason, it’s allowed at the state level.”
Missouri, like many states, requires that every piece of legislation have a named sponsor, a lawmaker who takes ownership of the bill.
Incoming Missouri House Speaker Elijah Haahr said that enables Missourians to probe the motivations behind bills.
“It’s important to look at who sponsors bills and why they sponsor them,” said the Springfield Republican. “The what is not always as important as the why.”
Hineman, the Kansas House Majority leader, said of the move: “I don’t think that’s a good way to craft legislation.”
Sawyer said when he arrived in Topeka in the 1980s, lots of bills bore the names of the sponsors.
“That’s a thing that’s slowly changed over time,” he said. “Trying to explain to people that we used to actually work bills with names on them is hard, because now that’s just so rare.”
He said anonymous bills should be prohibited.
“Somebody has to request that bill being introduced, so there is some name attached to every bill,” Sawyer said. “That definitely should be public and everybody should know that.”
Supporters of anonymous bills contend that legislation sponsored by an entire committee carries more weight than measures proposed by a single lawmaker because it indicates wider approval.
Lawmakers also argue that because their bills sometimes get amended or even replaced through the gut-and-go process, they may not want their names associated with the final product. And occasionally, lawmakers introduce proposals at the request of fellow legislators even though they may not support the measure themselves.
The anonymity gives the legislation a better chance of passing, said Senate President Susan Wagle, a Wichita Republican.
“If I want a bill passed, I always want it to be a committee bill,” Wagle said. “I don’t want a name attached to it because there are people here who see a name on the bill and they vote against it if they have a personal vendetta that they want to carry out.”
Wagle dismissed the notion that the practice hampers transparency by preventing voters from knowing whether their representative crafted a piece of legislation.
“In the end, they know who votes for the bill and they know who votes against it,” she said. “That’s the most critical information that’s available to the public. I don’t think introduction of the bill is a big deal.”
Among the few proposals that Kansas legislators are willing to put their names on are those that don’t stir up controversy, such as resolutions congratulating a sports team, honoring a veteran or recognizing a student for scholastic achievements.
Or declaring the historic cage elevator in the State Capitol building the “official cage elevator” of Kansas.
Last year, all 40 senators put their names on a resolution to do just that.
Denning, the Senate Majority leader, said lawmakers can usually discover the source of a bill even if the public cannot.
“But I guess that’s not full transparency to the public,” he said.
Rep. Melissa Rooker, a Republican from Fairway, said the source of legislation should be clear before lawmakers advance it.
“If you don’t know who’s behind it and why it’s being pushed,” she said, “I don’t think it’s prudent to move ahead with action on the bill.”
In January, House Minority Leader Jim Ward led an effort by Democrats to end the practice of introducing anonymous bills, saying it would lead to more openness.
“Anonymous bills are bad for the process and destructive to the whole concept of people trusting what we do,” Ward said. “If you have anonymous bills, it’s hard to find out where ideas come from. Why are we doing it if no one’s willing to stand up and argue for it?”
That attempt failed, but Ward did manage to change the House rules to allow lawmakers whose bills were drastically altered by a gut-and-go to remove their names.
Bills that are not attached to a real person are “a real violation of trust,” said Marge Ahrens, of the League of Women Voters of Kansas.
“If you can’t find out from whence they came, you can’t find out why they came up with that particular piece of legislation,” Ahrens said. “The whole thing creates a loop, not just of distrust, but also ignorance.
“And when you have ignorance, you can’t fix a real problem.”