TOPEKA — A Kansas Senate committee conducted a hearing Thursday on a presumptively unconstitutional proposal to transfer to political parties the authority held by the state’s governor to appoint temporary replacements when vacancies occurred in the U.S. Senate.
A representative of Attorney General Kris Kobach said the bill introduced at behest of Sen. Caryn Tyson, a Parker Republican, would run afoul of the 17th Amendment to the U.S. Constitution. If contents of Senate Bill 254 were to become law, the attorney general’s office said it would be difficult to defend the shift appointment power from the executive branch to a political party not part of government.
“Political parties are private organizations,” said Matt Bingesser, administrative counsel in the attorney general’s office. “We are concerned that Senate Bill 254 delegates the appointment power outside the state’s executive, which contradicts the 17th Amendment’s language.”
Of 46 states that allow temporary executive appointments of U.S. senators, Bingesser said, none would limit the governor’s discretion as severely as envisioned in Tyson’s bill. Bingesser said the bill as introduced would be a significant litigation risk.
In June 1996, U.S. Sen. Robert Dole of Kansas resigned to concentrate on his Republican presidential campaign. GOP Gov. Bill Graves appointed Lt. Gov. Sheila Frahm to the U.S. Senate on a temporary basis. She lost a special primary to fellow Republican U.S. Rep. Sam Brownback, who went on to win the November general election. Frahm stepped aside in November 1996 to allow Brownback to take a seat in the U.S. Senate.
Hypothetically, if former President Donald Trump were to win the 2024 campaign for president and appointed U.S. Sen. Roger Marshall, R-Kansas, to a post in the Trump administration it would fall to Democratic Gov. Laura Kelly to select a temporary replacement pending a special election. Marshall, who took office in 2021, otherwise wouldn’t face reelection until 2026.
Tyson, who was an unsuccessful Republican candidate for U.S. House in 2018, said the presumption her bill would be found unconstitutional wasn’t definitive because the question hadn’t been answered in court. She said the assessment by Bingesser and others was an “opinion,” but she didn’t recommend Kansas lawmakers take steps to initiate a court fight.
She said the bill was intended to start a conversation about changing the method relied upon by Kansas to fill vacancies in the U.S. Senate. She recommended the Senate Federal and State Affairs Committee examine the approach in Oregon, which filled vacancies exclusively through special elections. She said Kansas’ political parties could be responsible for nominating candidates to enter those special campaigns.
“These positions are so critical and so important to our state and obviously to the nation,” Tyson said. “I just think we are founded on a government of elected representatives and so, therefore, we should improve this process to have those election cycles and allow the people to be the voice.”
‘Voices to be heard’
Tyson’s companion bill would change state law to require vacancies for state insurance commissioner or state treasurer to be controlled by the same political party of the departing commissioner or treasurer. She said other people had recommended ending a governor’s power to appoint replacements in these two state government jobs, but no progress was made on that initiative in Kansas.
“This is about the opportunity for voices to be heard in elections. We know that elections bring transparency and accountability. That’s all I’m asking for. Instead of one person having control. I don’t care which party the person is in. I really don’t. This should have been done years ago,” Tyson said.
The same adjustment couldn’t be applied to vacancies for attorney general and secretary of state without amending the Kansas Constitution.
Under Senate Bill 249, the political party of the individual serving as treasurer or insurance commissioner would call a state convention with delegates voting by secret ballot on a replacement to complete the unexpired term. Current law in Kansas provided the state’s governor with the responsibility of selecting a suitable person to serve the remainder of a term for those two offices.
“This is just to fill a vacancy until the next election,” said Sen. Mike Thompson, a Shawnee Republican and chairman of the Federal and State Affairs Committee. “If it were a Democrat state treasurer, they would be replaced temporarily with a Democrat state treasurer. Or, a Republican insurance commissioner with a Republican so the will of the people is considered.”
