Wisconsin Justices Hear Arguments Over Partial Veto Power

Taxpayers represented by a conservative advocacy group say the Democratic governor effectively created new laws that were never voted on by striking parts of the GOP-controlled Legislature’s budget.

The Wisconsin State Capitol building in Madison. (Photo via Vijay Kumar Koulampet/Wikipedia Commons)

MADISON, Wis. (CN) — The Wisconsin Supreme Court needled over the constraints of the governor’s executive authority to veto legislation Monday, in arguments stemming from state conservatives’ challenge to partial vetoes the Democratic governor made during budget negotiations.

In a 90-minute hearing via videoconference, the high court dove into nearly a century of Wisconsin case law and the minutiae of vocabulary down to a single word in revisiting where the limits on the governor’s veto powers lie and what kinds of provisions can be struck or created with that veto power, which is one of the strongest nationally.

The underlying lawsuit came last summer from three taxpayers represented by conservative advocacy group Wisconsin Institute for Law & Liberty, or WILL. The action targeted four partial vetoes of almost 80 carried out by Democratic Governor Tony Evers during negotiations over the 2019 biennial budget.

WILL and the taxpayers directly petitioned the Wisconsin Supreme Court, which for now has a 5-2 conservative majority, taking issue with how Evers struck portions of the GOP-controlled Legislature’s budget to effectively create new laws never voted on by lawmakers — which has been common practice for Badger State governors for decades.

The vetoes at issue created a grant program awarding taxpayer money for electric vehicle charging stations, eliminated conditions on how $75 million in transportation funds appropriated by the Legislature can be divvied up, increased registration fees for drivers of heavy trucks, and set new regulations and imposed new taxes on vaping products.

Rick Esenberg, WILL’s president and general counsel, argued the governor maneuvered around the Legislature’s intent by using his veto pen to rewrite bills “in what approximates a game of Scrabble,” asking the high court to “restore our budget-making process to its proper constitutional status.”

Justice Rebecca Dallet — who represents the court’s current liberal wing, along with Justice Ann Walsh Bradley — pressed Esenberg on Monday on the petitioners’ intentions in challenging Evers’ vetoes, saying a 1930 amendment to the Wisconsin Constitution allows for partial vetoes to change the law.

Esenberg insisted he was only asking the high court to apply the law as written, but Dallet shot back that the court has already done that.

“What you’re asking this court to do is impose a new reading that has never been there over history, and to really go above and beyond the will of the people,” Dallet said.

Referenced throughout Monday’s arguments were two recent amendments to the Wisconsin Constitution regarding veto powers.

The first occurred in 1990 when Republican Governor Tommy Thompson was chided for using his veto power to delete individual words and digits to change legislation, which was dubbed the “Vanna White veto,” referencing the actress and hostess of the game show “Wheel of Fortune.”

The second amendment came in 2008 during the tenure of Democratic Governor Jim Doyle. It prohibited what it termed the “Frankenstein veto,” whereby a governor would strike whole sentences, paragraphs or pages of a law but combine remaining elements into new legislative language.

Misha Tseytlin, counsel with the Chicago office of nationwide firm Troutman Sanders, appeared briefly as a friend of the court for the GOP-controlled Legislature, warning the justices to be wary of allowing the governor to become “a one-man legislature” and create brand new laws via veto.

Assistant Attorney General Colin Roth argued on behalf of Evers, asking all involved to “take a step back and recognize that the Wisconsin people have already spoken on the governor’s veto powers three times,” referencing the 1930, 1990 and 2008 amendments to the state constitution.

Roth argued that Wisconsin’s current veto system ensures checks and balances between government branches by allowing the governor some legislative power in a budget context by enacting vetoes, which lawmakers can overrule with a two-thirds supermajority in both houses.

Conservative Justice Daniel Kelly, who recently lost a reelection bid to liberal Dane County Circuit Court Judge Jill Karofsky, argued that the context of Evers’ vetoes presents “a significant transformation of legislative authority” in reliance on the interpretation of the word “part,” in terms of the governor being able to approve appropriations bills “in whole or in part.” Kelly questioned whether the people and the Legislature intended to grant the governor the kind of power he exercised hinging statutorily on the interpretation of one word.

Roth offered instead that “what the petitioners are asking the court to do is to privilege the 1930 amendment over the 1990 and 2008 amendments,” essentially asking the court to pick and choose what precedent it follows, a move Roth predicted would create mass uncertainty and result in litigation over the budget every two years.

The court offered no timetable for its decision at the close of arguments Monday.

Michael Ford, an associate professor of public administration at the University of Wisconsin-Oshkosh, said in an email Monday that, historically, vetoes like Evers’ have been considered as a partial approval of a budget item, rather than the creation of an entirely new spending item.

“What Evers did is really not different from what previous governors have done without challenge,” he said.

Ford implied partisan politics could have influenced the conservatives’ litigation, something exceedingly common in Wisconsin.

“Since the election of Tony Evers there has been a concerted partisan effort to reduce executive power,” the professor said. “This lawsuit fits this pattern.”

The Wisconsin Legislature passed a broad array of lame-duck laws immediately after Evers was elected in 2018 reining in a number of his executive powers. The laws, which also limited the powers of then newly-elected Democratic Attorney General Josh Kaul, were ultimately upheld by the state’s high court after months of sprawling litigation.

Monday’s arguments over budget vetoes echoed contemporary disputes regarding gubernatorial executive powers in several states, including Wisconsin, in light of the extension of many statewide safer-at-home orders designed to combat the spread of Covid-19.

Last Wednesday, Evers extended Wisconsin’s safer-at-home order until Memorial Day weekend, sparking statewide protests from people angry over what they see as further infringement of their personal liberty and catastrophic damage to the state economy by keeping most businesses closed and requiring people to stay home as much as possible.

The Wisconsin Legislature promised to petition the high court to block Evers’ extension of the order, but had not yet done so as of midday Monday.

Evers directed the Wisconsin Department of Health Services to issue an emergency order Monday afternoon establishing what he called Wisconsin’s “Badger Bounce Back” plan, which outlines criteria for reopening the state economy in phases.

The order boosts goals for testing and contact tracing in the state, seeks to bolster the health care system’s capacity to treat Covid-19 patients and provide it with more personal protective equipment, and promises to start reopening the state after it sees a 14-day period of downward trajectories for reported coronavirus symptoms and positive tests.

“While being safe at home continues to be important,” Evers said in a statement Monday, “this plan is an all-out attack on the virus and it begins the process of preparing our businesses and our workforce for the important planning that will result in the safe and logical reopening of our economy.”

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