The biennial state budget process for 2023-25 has concluded, with Governor Evers signing the budget, but not without issuing 51 partial vetoes. These vetoes included several significant actions that left a lasting impact. Notably, the Governor vetoed a historic $3.5 billion income tax reduction, and employed a creative, yet arguably undemocratic approach to increase school funding for an unprecedented span of 400 years. The repercussions of this specific veto were emphasized in a recent analysis conducted by WILL, which revealed that school tax levies could potentially accumulate a staggering $57 billion statewide by the year 2043—just twenty years into the proposed 400-year term.
This unprecedented veto has generated both national and international attention, while also facing strong criticism from legislative leaders, who view it as an overreach of executive authority. However, with the upcoming changes in the composition of the Wisconsin Supreme Court in August, the any potential challenge remains unclear. An existing case, Bartlett v. Evers, provides that the Governor cannot enact new laws through his veto power. There exists an opportunity to provide further clarification on the Governor’s veto powers through a constitutional amendment.
In a recent analysis, our friends at The Badger Institute highlighted that the state constitution has been amended several times in recent decades to recalibrate the Governor’s veto powers. All these efforts received overwhelming public support. To preserve the separation of powers and eliminate any ambiguity in the law, the legislature should strongly consider adopting a constitutional amendment. But what might an amendment look like? We explore that further below.
Background
The Governor’s partial veto authority is set forth in Article V, § 10(1)(b) of the Wisconsin Constitution, which provides that “[a]ppropriation bills may be approved . . . in part by the Governor, and the part approved shall become law.” Governors of Wisconsin have stretched the limits of this power since it was created. The people of Wisconsin have responded by amending this power several times in order to curtail the Governor’s partial veto power–eliminating the so-called “Frankenstein” veto (stitching together words from multiple sentences) and the “Vanna White” veto (striking individual letters from words to create new words).
Nonetheless, Wisconsin’s Governor is still widely regarded as possessing “one of the most powerful veto pens in the country.” This should not be a point of pride. The Governor’s ability to veto individual words, phrases, and digits to create entirely new laws never passed by the legislature1 has made the Governor a one-person legislature—in conflict with the Wisconsin Constitution’s command that “[t]he legislative power shall be vested in a senate and assembly.” i
There are certainly legitimate reasons to provide the Governor with the ability to partially veto appropriations bills, such as in order to prevent the legislature from denying to the Governor “the right to pass independently on every separable piece of legislation in an appropriation bill.” ii But there are ways to accomplish such goals short of granting the Governor the authority to effectively write his own laws. These proposed amendments point the way.
Model Text
Below we examine two alternatives to rebalance the Governor’s partial veto authority.
Alternative 1
Article V, Section 10, sub. (1) of the Wisconsin Constitution is amended to read:
(1) (a) Every bill which shall have passed the legislature shall, before it becomes a law, be presented to the governor. (b) If the governor approves and signs the bill, the bill shall become law. Appropriation bills may be approved in whole or in part by the governor, and the part approved shall become law. (c) In approving an appropriation bill in part, the governor may reject only distinct items capable of separate enactment as complete, entire, and workable laws, or reduce the amount of an appropriation. not create a new word by rejecting individual letters in the words of the enrolled bill, and may not create a new sentence by combining parts of 2 or more sentences of the enrolled bill.
Alternative 2
Article V, Section 10, sub. (1) of the Wisconsin Constitution is amended to read:
(1) (a) Every bill which shall have passed the legislature shall, before it becomes a law, be presented to the governor. (b) If the governor approves and signs the bill, the bill shall become law. Appropriation bills may be approved in whole or in part by the governor, and the part approved shall become law. (c) In approving an appropriation bill in part, the governor may not create a new word by rejecting individual letters in the words of the enrolled bill, may not create new numbers by rejecting individual digits or punctuation of an enrolled bill except to reduce an appropriation, and may not create a new sentence by combining parts of 2 or more sentences of the enrolled bill.
Explanation
The amendment outlined in Alternative 1 reflects two critical changes. First, it adopts the term “item” to refer to those parts of an appropriation bill which may be vetoed by the Governor. Use of the word “part” rather than “item” in the Wisconsin Constitution, as compared to the constitutions of many other states, led the Wisconsin Supreme Court to construe the Governor’s partial veto authority broadly in an early, seminal case on the subject. iii This amendment would help rectify that problem.
Second, Alternative 1 largely adopts the approach outlined by Wisconsin Supreme Court Justice Connor T. Hansen in his separate writing in State ex rel. Kleczka v. Conta; Justice Hansen argued that the Governor’s partial veto authority is “not a power to reduce a bill to its single phrases, words, letters, digits and punctuation marks” but instead “should be exercised only as to the individual components, capable of separate enactment, which have been joined together by the legislature in an appropriation bill.” iv Thus, this amendment in some ways inverts the current partial veto paradigm: whereas under current law the part of a bill remaining after a partial veto is exercised must “constitute[] a ‘complete, entire, and workable law,” v this amendment applies that requirement to the portion rejected as well. In sum, the amendment continues to allow the Governor to veto distinct sections of an omnibus bill but would prevent him from redrafting it.
This approach also comports with the Wisconsin Supreme Court’s recent holding in Bartlett v. Evers. In that plurality decision, Justices Rebecca Bradley and Daniel Kelly made clear that a partial veto is proper only to separate the several proposed laws within one appropriations bill, while Justice Hagedorn and Justice Ziegler found that it could not be used to “unilaterally create new policies never passed by the legislature.” This proposed amendment comports with both approaches.
The amendment approach outlined in Alternative 1 would provide a long-term fix that broadly addresses many of the ongoing issues with the Governor’s partial veto power. Alternative 2 represents a narrower amendment, which would simply tweak current language to make clear that the Governor may not strike single digits from numbers to create new numbers (and in so doing, simply make vetoes like the 400-year veto unconstitutional). This approach would make it unconstitutional for a Governor to strike individual digits or punctuation to create a new number, while still retaining the Governor’s ability to reduce an appropriation. Both approaches would prohibit the Governor in the future from making vetoes such as Governor Evers’ 400-year veto.
Conclusion
Preserving the separation of powers is crucial for maintaining a system of checks and balances that safeguards against the “tyrannical” concentration of power. vi Passing a constitutional amendment would further clarify our state constitution to ensure no individual Governor from either party has the authority to single-handedly create a new law. Wisconsin’s constitutional amendment process requires two consecutive legislatures to pass a resolution with the amendment language before it is presented to voters. If the legislature passes a resolution before the end of this session and follows suit at the beginning of the next legislative session, a proposed amendment could be posed to voters by the April 2025 election cycle. The legislature should take swift action this fall to do just that.
Citations
i Wis. Const. art. IV, § 1.
ii State ex rel. Wisconsin Tel. Co. v. Henry, 218 Wis. 302, 260 N.W. 486, 492 (1935).
iii See id. at 490-91.
iv State ex rel. Kleczka v. Conta, 82 Wis. 2d 679, 726, 264 N.W.2d 539 (1978) (Hansen, J., concurring in part, dissenting in part).
v Risser v. Klauser, 207 Wis. 2d 176, 183, 558 N.W.2d 108 (1997) (quoting Henry, 218 Wis. at 314).
vi James Madison, Federalist 47
