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SPOTLIGHT
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Why the rules of government matter

Published on -9/1/2013, 4:42 PM

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The most overblown political brouhaha of the year? That's easy. It's the appointment of Caleb Stegall to the Kansas Court of Appeals, with Gov. Sam Brownback refusing to release the names of those under consideration.

What did anyone possibly expect? Seriously.

The governor didn't get his pervious choice (presumably Stegall) from the traditional nomination process. What did he do? He proposed changing the process to make it, or so he said, more transparent and open to a broader range of applicants, and not so much dominated by the community of Kansas lawyers. This latter point was a fair one, although it could have been easily rectified by broadening the membership of the nominating group.

But Sam Brownback knew that the Kansas Legislature would, in the blink of an eye, pass his sweeping proposal for gubernatorial appointment and senatorial confirmation of Court of Appeals judges.

In short, the highly conservative governing coalition changed the rules to obtain a preferred outcome.

While I might well disagree with this change and Stegall's appointment (at least on policy grounds), I can scarcely get too worked up about it.

For one thing, Kansas now mirrors the process that is used at the national level.

Still, the attack on Kansas's judicial system is troubling. After all, the state's courts, according to a national chamber of commerce study, ranked fifth in the nation on fairness to business in 2012. That's scarcely a judicial system gone wild.

This didn't matter to the governor and the legislature. They wanted Stegall and, more importantly, they wanted to permanently alter the rules to their benefit.

As the legendary (if felonious) Illinois Congressman Dan Rostenkowski once declared, "If you let me write procedure and I let you write substance, I'll screw you every time."

In other words, structuring the rules determines the outcome.

Thus, Kris Kobach looks at the already overwhelmingly Republican electorate and decides it's not red enough. So he uses alleged voter fraud to propose registration rules to restrict ballot access for the poor, the young, the elderly, and those, such as Hispanics, who are disproportionately unlikely to vote Republican.

What we end up with is the potential for voter suppression and the reality of 15,000-plus voters who may be able to vote in federal elections, but not in state contests. That's creating a problem, not solving one.

Likewise with redistricting in 2012, when Republican lawmakers pushed the rules to formalize such unreasonable legislative districts that the entire process collapsed, allowing a three-judge panel to draw coherent boundaries.

The reaction among tea party Republicans was simple -- purge the Senate GOP moderates. And they did, allowing them to write the rules they desired in the future.

All governors and legislatures sometimes change the rules of the game, often to their own advantage. Still, the past three years witnessed many such changes, and we're not even a year into the era of highly conservative dominance of Kansas government.

What's next? Probably a proposed constitutional amendment to change the Kansas Supreme Court's nomination process to mirror that of the Court of Appeals. Or the enactment of House Bill 2415, which calls for justices from the Supreme Court and Court of Appeals to retire at age 65, thus opening the way for the governor to appoint a host of new judges, using the new rules.

For all the serious concerns with transparency over Caleb Stegall's appointment as an Appeals Court judge, the real challenge for Kansas comes in the blanket, politically motivated manipulation to the rules that govern us all.

Rostenkowski got it right.

Burdett Loomis is a political science professor at the University of Kansas.

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