A very, most special legislative session
At $65,000 per day, Kansans didn't get much for their money
A corporation, a liberal, and a “no-government is good government” conservative all walk into a bar.
The liberal, speaking through three layers of masks, says “I hope you all are going to mask up and that you’ve had all your vaccinations. I’ve had three of each - Moderna, Pfizer, and J&J. I think if you care about anyone beside yourself, you’ll do the same.”
The corporation replies “Thanks to those federal mandates I lobbied for, all my employees have to get vaccinated. I don’t have to be the bad guy - and I won’t lose employees to some other company, because we’re all in the same boat. Thanks Biden!”
The “no-government is good government” conservative looks at both the corporation and the liberal, and says “The government doesn’t have the right to tell me to do one single thing I don’t want to do. What about my freedom? I’m going to put an end to this once and for all - I’ll pass legislation that grows government - by making taxpayers pay for the Kansas Department of Labor to investigate complaints about vaccine mandates and exemptions. Then I’ll force the Attorney General to prosecute violations of anyone’s liberties by filing litigation in the state courts (again at taxpayer expense), and we’ll charge business a $10,000 to $50,000 penalty for each violation and put that money into the state coffers.”
You might be asking where the punch line is - and that’s fair. Because the joke isn’t funny. It’s stupid. Just like the much ballyhooed special session that was supposed to protect Kansans from the long reach of the federal government, but fell flat.
First a little background
The way we came to the special session was a curvy road. Some time back, a handful of animated lawmakers saw an opportunity to force the Kansas Legislature into a special session - and undo the oppressive hand of the federal government, after the Biden Administration issued a handful of orders that compelled vaccinations across the country. The orders applied to three areas 1) Any business licensed and that receives funds from Medicare had to follow CMS rules on vaccinations, 2) Any company that enjoyed federal contracts as part of its business had to ensure its employees were vaccinated, and 3) Any company with more than 100 employees had to conform to new OSHA rules requiring vaccinations.
Initially, it was about 19 legislators who tried to force a special session. At that time, House and Senate leadership openly opposed a special session and discouraged members from signing onto the petition. In an apparent effort to appease the vocal minority in its ranks, leadership found a compromise by creating the interim committee on “Government Overreach and the Impact of Covid-19 mandates.”
This committee brought us more horrifying scenes than your favorite Horror flick. We had people screaming obscenities at reporters, comparisons to Nazi Germany, and people, including lawmakers, arguing that being asked to get a vaccine was akin to being a “modern day Jew” destined for a new Holocaust. A few people even pinned a Star of David to their shirts to illustrate their point.
From that committee emerged a recommendation that the legislature hold a special session and take up several pieces of legislation to restrict the ability of the federal government in the state of Kansas.
A very, extra special session
This time, leadership got on board with the call for a special session - though there’s been no real good explanation of this sudden and profound change of heart after initially opposing it. After some apparent arm twisting, every Republican and one Democrat (Rep. Aaron Coleman) signed on to the petition. That brought the legislature into session three days before Thanksgiving.
There were two bills - one in the House and one in the Senate - that were slightly different. When we see this, legislators know what’s about the happen: Debate will be limited, and the competing versions will be sent to conference committee to work out the differences. The House bill expanded the definitions of a religious or medical exemption from vaccines, required KDOL to investigate complaints of refusals to accept an exemption, required the attorney general to prosecute, and set civil penalties that would go to the state general fund. The Senate version was nearly the same, but allowed aggrieved parties to collect unemployment benefits.
Here, in conference committee, leadership has more control over what happens - and when the final product comes back to us, the rest of the legislature can only vote yes or no, with no chance to amend or change the bill.
Which is too bad, because I had a handful of amendments (nine to be exact) that I wanted to run - including one to make giving birth to a child a qualifying event for unemployment compensation. Which I thought was a pretty nice idea, considering that we were about to give unemployment benefits to people who didn’t want to get vaccinated.
The final version was a hybrid of sorts. And a compromise that apparently had at least the tacit blessing of the business community - who had to come to terms with the fact that they had just been run over by the very people they so vigorously helped win election.
Basically, the bill expands the definition of a vaccine exemption, and requires employers to accept it. If they don’t, citing conflict with federal law - that triggers the new and expanded investigative power of KDOL, as well as subsequent litigation by the attorney general in district court. And it carries a $10,000 fine for business under 100 employees and $50,000 for larger businesses for each violation - with the money routed to the unemployment fund - which will now be used to pay benefits to people whose employment is affected by vaccine mandates.
The prevailing thought is that the bill will be challenged, and likely won’t hold up in court. The OSHA rules have already been suspended, and a federal judge just ruled that the CMS rules were misapplied. So this, as was always going to happen, will play out in court. The only real reason for the legislature to get involved was for political theater. Nothing substantive will change through this legislation, and I’ll tell you at least one reason why….
Kansas is a right to work state
If you don’t like vaccine mandates, you really shouldn’t like our right to work laws - which would be more accurately called right to fire laws.
In Kansas, an employer can fire an employee for any reason, or without reason, so long as that employee isn’t a member of a protected group and the firing isn’t found to be based on that discrimination.
But I could literally walk up to an employee on a Tuesday morning, say I’m grumpy and today I don’t like the way your hair looks - and that would be good enough for Kansas law. Sure, I might get dinged on my unemployment rating - but I can still do that.
So, while you might bring an employer a vaccine exemption, it’s very possible your boss could accept that, and then find a completely different reason to fire you.
Also, and again, the courts will play this out, but if a company is taking federal money, it’s pretty well established that they have to play by federal rules. I expect the courts will support that notion. The OSHA rules were always suspect, and likely unenforceable. But when all is said and done, I think most people expect that the state law won’t hold up in court, or have much bite to it. And to further support that idea - some of the legislators who originally called for a special session were not happy with this product - and felt it didn’t do nearly enough. And they warned us throughout the special session that they will be bringing more bills in 2022 session.
In the end, I voted for the measure - despite my misgivings about the bill, the unnecessary theatrics of the special session, and the horrible rhetoric in this discussion (pro-tip - if you want people to take you and your position seriously, maybe don’t cough obnoxiously and intentionally from the gallery while debate is happening on a bill you helped bring to fruition. That actually happened during the special session - and it weakens the idea that you are at all genuine in your beliefs or interested in working with other people).
I’ve talked to a lot of people in my district who were unhappy that they were told they had to get vaccinated - even people who had already, on their own, been vaccinated. Most people don’t like being told what they have to do. So I felt this was on balance fairly in line with my district. Also, if I peeled away the rhetoric, and took the idea of public health out of the mix - I saw this as a conflict between workers and employers. In every other area, I side with workers over corporations, and I applied that logic here as well. Knowing full well that makes me an outlier in my party and rightly opens me up to some criticism.
I generally don’t like mandates from the top, nor do most of the people I talk to; but unlike some of my colleagues, I never felt the need to make a big show or production to inflame division and stoke fear - all for the sake of political grandstanding.
One last thing…
I hope over time we’ll come to have a healthier respect for what the Constitution does and doesn’t do, and that we’ll have better conversations about it’s application in our lives.
In this whole conversation about mandates, we have oversimplified the message. And, in effect, the special session didn’t do a thing to stop a federal mandate - it just created an opposing mandate on a different group of people - businesses owners, who also have Constitutional rights.
If Constitutional law was as clear as we like to make it, there would be no need for a judicial system - because there’d be no conflict of rights. But there are always conflicts of rights in a civil society. We ask judges to study and apply the law to settle those differences, and to determine how to navigate a world of competing protections under the Constitution.
In this debate each group has rights. Business owners have the right to set policy for the people who work for them. We see this all the time - down to policies that forbid facial hair, or address social policy guidelines. People who don’t want to be vaccinated have a right to object - which is in direct conflict with employer rights. And people who want to work in a safe and disease free environment have rights - which run counter to the rights of vaccine resistant individuals.
We are in a unique time, and what we are trying to navigate is the path that protects the most rights for the most people, while still providing protection for the minority view (in this case, people who don’t want to be vaccinated).
From criminal laws, to traffic rules, none of us exists in a vacuum of absolute, unencumbered freedom to do as we please. The burden of liberty is responsibility. To ourselves, to our families, to our neighbors, to our state, and to our country. If we call for liberty but forget our duty to be responsible for our community, we are failing to live up to the essence of American idealism.