With COVID deal, Kansas Gov. Kelly looked to save ‘political capital’ for next wave

Three months ago, Laura Kelly was wielding power unlike any governor in modern Kansas history.

When the state’s first coronavirus case was confirmed on March 7, the Democratic chief executive quickly imposed a series of restrictions on gatherings and businesses, each more severe than the last.

And then, on June 8, she completed a stunning about-face. After a spring spent fighting Republican lawmakers to assert her authority, she signed a bill curbing her emergency powers for months. Any future restrictions she deems necessary to combat the pandemic will require additional legislative oversight.

The reversal began when she dropped all remaining mandatory restrictions in late May. The decision turned a gradual reopening of Kansas that still had weeks to go into non-binding guidance to counties that some have ignored.

Kelly hasn’t shied from confrontation with the Republican-controlled Legislature. During the special session this month, she delivered a fiery denunciation of Senate Republicans for rejecting her appeals court nominee. So why back away from another fight now?

Interviews with analysts, lawmakers from both parties and comments by her own staff suggest that Kelly viewed the prospect of a protracted battle as a drain on precious political capital — power and influence she may need if Kansas experiences a large second wave of infections later this year and a new response is necessary.

“A governor has to think at that point, ‘How much do I want to fight this? And if fighting means I could have the worst-case scenario, how can I bargain to get a better scenario?” said Patrick Miller, political scientist at the University of Kansas.

But the deal, which Kelly negotiated with Republicans, also forced Democratic lawmakers to take a tough vote in an election year. While Kelly won’t face voters this fall, her legislative allies will have to explain why they voted to largely shield businesses from COVID-19 lawsuits and make it easier for nursing homes — centers of some of the state’s deadliest outbreaks -- to defeat legal challenges.

“Amongst our caucus, there was a lot of angst about the liability part,” said Rep. Nancy Lusk, an Overland Park Democrat, who supported the compromise. Lusk, who authored an op-ed column defending Kelly’s decision to strike the deal, isn’t running for re-election.

The accord preserves the non-controversial nuts and bolts of the governor’s pandemic response, which Kelly has described as absolute necessities. She can continue deployment of the National Guard and cut red tape to deliver resources to virus hot spots. And the compromise puts in place a framework of legislative oversight that will allow Kansas to distribute $1.2 billion in federal relief aid by an end-of-the-year deadline.

Kelly spokeswoman Lauren Fitzgerald said that without a bill, Kansas could have lost the ability to distribute personal protective gear, provide safe housing for workers in critical businesses, and quickly address virus hot spots.

The governor has prioritized a “transparent and thorough response” to the pandemic that includes “providing the resources and guidance to local partners to prepare for the potential resurgence of COVID-19 in the fall.,” Fitzgerald said.

“In times of crisis, Kansans need their leaders to act in the best interest of Kansans.,” Fitzgerald said in a statement. “Governor Kelly will continue to put the health and economic security of the state first.”

Tim Graham, Kelly’s director of governmental affairs, put it more bluntly when he spoke to Senate Democrats during the special session. Describing the deal, he said “it could have been a lot worse, it could have been a lot better.”

“At the end of the day,” he said, “I guess the question is: How many times are we expected to hold out and veto bills and call special sessions and burn up all of our political capital while we’re leading in a time of unprecedented challenges?”

A tough vote

Soon after the early COVID-19 cases surfaced, Kelly banned gatherings of more than 10 and shuttered schools for the rest of the academic year. After Republicans tried to overturn her order limiting in-person church services, she went to court to fight for her power to do so.

As the pandemic wore on, questions grew over the legality of her orders. Attorney General Derek Schmidt, a Republican, said her directives were on “shaky” legal ground. House Speaker Ron Ryckman, an Olathe Republican, openly questioned whether they were valid after she issued a new disaster declaration at the end of April.

The Legislature in May passed a bill that would have made clear that Kelly’s past orders were valid but granted her limited emergency powers going forward. It also handed top lawmakers veto power over how Kansas spends $1.2 billion in federal coronavirus relief.

Kelly vetoed the bill and unexpectedly dropped all statewide restrictions halfway through her reopening plan. She also recalled lawmakers to Topeka for a do-over.

The agreement she reached with GOP leaders largely kept in place the restrictions on her powers and still extended legal immunity to a vast range of businesses. But it also gave the governor a greater voice in how federal aid is spent and stopped short of handing nursing homes immunity.

Many rank-and-file lawmakers in both parties were initially apprehensive about the deal, which Kelly’s staff forged in private discussions with Republican leaders. A rough draft of the compromise was only released publicly the afternoon before lawmakers returned to Topeka for the special session.

Even as Kelly met with a bipartisan delegation of lawmakers to kick off the session, some lawmakers still weren’t fully aware of the details.

“My comment was we hadn’t even seen the bill yet,” Lusk said of the meeting. “We didn’t even know what the compromise was, so we certainly weren’t signing off to it yet.”

Ultimately, a vast majority of the Legislature – including Democrats – voted for the compromise even though some vocally objected to liability provisions. Just seven of the Legislature’s 52 Democrats voted against it.

The most prominent Democratic ‘no’ vote came from Sen. Barbara Bollier, the party’s likely nominee for U.S. Senate. Kansas hasn’t elected a Democrat to the U.S. Senate since the 1930s, but polling indicates Bollier will be a competitive candidate.

In a written explanation of her vote, Bollier faulted the bill as “hastily crafted” and alluded to the Senate’s decision, at the urging of Republican leaders, to cut off debate before anyone had the chance to offer amendments.

“The Covid-19 virus should not serve as an excuse to allow injury or harm without legal recourse,” Bollier said.

Sen. David Haley, a Kansas City Democrat who voted for the compromise, said it remains to be seen whether Kelly gave up too much. The bill provides a “relatively anemic ability for a leader to step up and take what some would consider drastic action in order to reduce this public health pandemic,” he said.

“I still believe that lives are at stake,” Haley said.

In selling the bill to the public, Kelly and the state Democratic party have emphasized the bipartisan support it received. How the bill, arguably the most consequential legislation Kelly signed in 2020, is perceived could have political ramifications for Democratic candidates in November.

While Kelly is midway through a four-year term, all 165 legislative seats will appear on the ballot. If Democrats gain just one House seat, they will deny Republicans a supermajority in the Legislature – ensuring they can block GOP attempts to overturn Kelly’s vetoes.

“Since day one of this crisis, Governor Kelly has shown the nation what strong, bipartisan leadership looks like,” the Kansas Democratic Party said Tuesday in a fundraising message.

For their part, Republicans have touted the deal, arguing they successfully imposed checks and balances on the governor. Outgoing Senate President Susan Wagle, a Wichita Republican, said the bill was “nearly identical” to the earlier bill Kelly vetoed.

Rep. Steve Huebert, a Valley Center Republican, who participated in the ceremonial meeting with the governor at the start of the special session, said he thanked her for working with Republican leaders to find a compromise.

Still, Huebert -- echoing the position of other Republicans -- contends Kelly potentially overplayed her hand during the pandemic.

“She did things that maybe used some of her capital with the people of the state of Kansas,” he said.

This story was originally published June 14, 2020 at 5:00 AM with the headline "With COVID deal, Kansas Gov. Kelly looked to save ‘political capital’ for next wave."