Max Kautsch: Getting logrolled? Legislator survey exposes weakness in Kansas constitutional limit on bundling (Column)

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Note: The Lawrence Times runs opinion columns written by community members with varying perspectives on local issues. Occasionally, we’ll also pick up columns from other nearby news outlets. These pieces do not necessarily reflect the opinions of the Times staff.

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The Kansas Reflector welcomes opinion pieces from writers who share our goal of widening the conversation about how public policies affect the day-to-day lives of people throughout our state. Max Kautsch is an attorney whose practice focuses on First Amendment rights and open government law.

Of the 40 senators and 125 representatives serving in the Kansas Legislature, 17 responded within four weeks to the Kansas Coalition for Open Government’s legislative reform survey, announced in a June 8 Kansas Reflector article.

Although any survey with just over a 10% response rate certainly doesn’t reflect the views of the entire body, 15 of the 17 respondents, both Republicans and Democrats, agreed with one or more of eight proposed reforms of the legislative process.

Each of the proposed reforms merits further analysis, but only one, which concerned the legislators’ practice of bundling bills, directly relates to a constitutional provision designed to help Kansans follow how bills become laws. That provision is known as the “one-subject rule,” which the Kansas Supreme Court has defined as a “constitutional limitation on the Legislature … to prevent a legislative practice known as logrolling in which unrelated matters that might not have enough support on their own are combined into a single bill to entice the necessary votes to secure passage of the whole.”

The inclusion of the “one-subject rule” in the Kansas Constitution purports to guarantee at least a modicum of legislative transparency. If every bill has only one subject, it should be easy for the public to track. However, the Legislature bundled numerous bills this session, including a tax bill, House Bill 2239, cobbled together from 29 different pieces of legislation.

Legislators’ responses to KCOG’s survey made clear that bundling is a problem.

“All too often bills that have no association with each other are bundled to enhance the probability of passage of lesser probability bills,” wrote Rep. Mike Amyx, D-Lawrence.

“There should be a limit on bundled bills,” wrote Rep. Kent Thompson, R-Iola.

Rep. Linda Featherston, D-Overland Park, reported that she voted against at least one bill other than HB 2239 this past session “because it bundled too many bills together.”

How did bundling become so prevalent in Kansas, particularly when it is one of a majority of states with a one-subject rule? Our state’s version of the rule appears in Article 2, Section 16 of our constitution: “No bill shall contain more than one subject, except appropriation bills and bills for revision or codification of statutes.” The other components of the “one-subject rule,” which also appear in Article 2, Section 16, are that “the subject of each bill shall be expressed in its title” and “the provisions of this section shall be liberally construed to effectuate the acts of the Legislature.”

HB 2239’s title is 438 words long (more than half the length of this entire article) and contains no fewer than 25 separate clauses separated by commas. The topics included in those clauses range in scope from things squarely related to taxes, such as “providing for an additional personal income tax exemption for 100% disabled veterans” to purely procedural matters like “establishing a deadline for budgets to be filed with the director of accounts and reports.”

Are these disparate topics all within the same “subject,” as required by the constitution? Or is one or more of the topics within the bill an example of “unrelated matters that might not have enough support on their own” to pass?

In other words, are we getting logrolled?

A 2017 Kansas Supreme Court decision, rendered in the aftermath of ha years-long battle between the court and the Legislature over public school funding, liberally construes the “one-subject rule” to avoid logrolling. In that case, the court defined “subject” as “the matter to which it pertains” and rejected the plaintiff’s claim that a portion of a bill related to teacher employment violated the “one-subject rule.” In the court’s view, “all of its provisions relate to the same subject — education.”

Perhaps it’s not too much of a stretch to believe that paying teachers involves the same subject as funding public schools. But does the relationship between taxation and establishing budget deadlines, for example, meet that same standard?

Even if the Legislature feels HB 2239 complies with the “one-subject rule” as it has been interpreted by our state’s highest court, bundling bills, as pointed out by an editorial published by the Holton Recorder in 2015, is surely counter to the spirit of the state constitution.

The Legislature should commit to recognizing and understanding Kansans would be better off without stretching the concept of the “one-subject rule” to its breaking point.

About the writer

Max Kautsch, licensed to practice law in both Kansas and Nebraska, focuses his practice on First Amendment rights and open government law. He helps news media and members of the public assert rights of access to court proceedings, court records, and government agency documents. He serves as the legal hotline attorney for the Kansas Press Association and the Kansas Association of Broadcasters, is president of the Kansas Coalition for Open Government, and is an adjunct professor at the University Kansas School of Law. Kautsch is also hotline counsel to both the Nebraska Press Association and the Nebraska Broadcasters Association.

Through its opinion section, the Kansas Reflector works to amplify the voices of people who are affected by public policies or excluded from public debate. Find information, including how to submit your own commentary, here. Find how to submit your own commentary to The Lawrence Times here.

Kansas Reflector is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Kansas Reflector maintains editorial independence. Contact Editor Sherman Smith for questions: Follow Kansas Reflector on Facebook and Twitter.

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