The historical special session of the Kansas legislature taking place this week will, I predict, thoroughly fulfill its true purpose, though not its official one. Being clear on the differences between the two is important if one wants to understand the political motivations at work.
Officially, the Republicans in Topeka have pushed Governor Kelly to call back the legislature in order to work out rules which will defend the religious liberty and unemployment benefits of Kansans who refuse to get vaccinated against COVID-19, in opposition to President Biden’s vaccine mandate. But truthfully, the session is taking place in order to produce declarations and speeches that will help keep Kansas Republican voters united and focused on the culture war surrounding the pandemic, thus benefiting their agenda in both the August vote over an anti-abortion-rights amendment, and the November vote for our next governor.
That such words and images are the true aim of the special session is not to deny that Biden’s requirement that all large employers require their workers to be vaccinated can be legitimately challenged. There are real constitutional controversies built into his order, and that’s why multiple lawsuits have been filed against the mandate (including those which Attorney General Derek Schmidt, who will be the Republican nominee challenging Kelly, has already joined).
Those constitutional controversies, however, simply cannot be effectively responded to by a state legislature. The question of whether employers can challenge the sincerity or legitimacy of any religious exemptions which anti-vaxxers might claim in order to avoid the mandate is tied up with a long line of Supreme Court cases regarding generally applicable laws, as Biden’s mandate arguably is. If the Kansas legislature makes it a crime for employers to pose such challenges, then current federal precedents would necessitate an immediate stay on that legislation, meaning that, once again, their work would have to wait until the aforementioned lawsuits are resolved.
As for employment protections for those who might be fired for refusing to submit to mandates implemented by their employers, business interests in Kansas — most of which regularly support the Republicans in Topeka — have already made it clear that providing financial support for those reluctant to get vaccinated is something they’d rather not see added to the state’s unemployment fund. Republican leaders say that they can write the rules for who should qualify for unemployment benefits when let go for being unvaccinated carefully, but with some estimates of the costs of such guarantees ranging as high at $250 million, this legislation is likely to be kept minimal.
But the likely pointlessness of state action on religious liberty rules, and the likely small potatoes of any benefits for fired vaccination opponents, won’t interfere with the session’s true purpose.
GOING INTO 2022, Governor Kelly wants to make her re-election campaign about eliminating the food tax and fiscal responsibility generally; the Republicans, by contrast, want to tie her as closely as possible to Biden’s unpopularity. With the Schmidt campaign lacking the base-riling fervor of a Kobach or Brownback, drawing sharp distinctions between the governor and the Kansas GOP, digging deep into the cultural conflicts which the pandemic has provided, is a smart strategy for building momentum for both August and November.
Will it be a successful strategy as well? That remains to be seen, but I wouldn’t bet against it.
About the writer: Russell Arben Fox teaches politics at Friends University in Wichita.
