Gov. Evers lacks authority to create grant programs, Planned Parenthood barred by state law from receiving federal funds through the state
The News: Attorneys at the Wisconsin Institute for Law & Liberty (WILL) issued a letter to Governor Tony Evers demanding to know the legal authority for a series of grant programs. Using two of these new programs, Governor Evers’ Department of Administration sent $2.4 million of federal COVID-19 relief funds to Planned Parenthood of Wisconsin. WILL sent the letter on behalf of Wisconsin Family Acton, Wisconsin Right to Life, and Pro-Life Wisconsin.
The Quote: WILL Deputy Counsel, Lucas Vebber, said, “We want to know exactly what legal authority Governor Evers thinks he has to create grant programs and ignore the rulemaking process. Additionally, we want to know why he thinks he can ignore clear and explicit state law prohibitions on funding entities, like Planned Parenthood of Wisconsin, that provide abortions and related services.”
Unlawful Grant Programs: The State of Wisconsin received nearly $4.5 billion in federal funds in 2020 and 2021 as a result of COVID-relief passed by Congress. When Wisconsin receives federal funds, state law permits the governor to accept the funds and “designate” the appropriate agency to “administer any such funds.” But this is not a license to establish new grant programs—that is an act of lawmaking reserved for the Legislature. And even if the executive branch could establish new grant programs, Chapter 227 requires state agencies to follow the rulemaking process established in state law.
In November 2020, Governor Evers announced the creation of a $10 million “COVID-19 Pandemic Response Nonprofit Grant Program” to distribute federal COVID relief dollars. This grant program was not established by the Legislature and, further, the Wisconsin Department of Administration failed to follow the legal rulemaking process when establishing standards for grant applications. This is unlawful.
In the years prior to Governor Evers taking office, state agencies routinely followed the rulemaking process for grant programs established by the Legislature.
Planned Parenthood of Wisconsin: Planned Parenthood of Wisconsin received $1.4 million from the “COVID-19 Pandemic Response Nonprofit Grant Program” and $1 million in February 2022 from the “Equitable Recovery Grant Program.” The grants to Planned Parenthood in 2020 and 2022 reveal more legal problems than those outlined by the failure to follow state law on rulemaking.
Criteria established by the Wisconsin Department of Administration for applicants to the Nonprofit Grant Program bar entities that “have received funding from another CARES Act program.” Planned Parenthood of Wisconsin received CARES Act funds from the Paycheck Protection Program – violating the terms of the Wisconsin DOA grant.
The February 2022 “Equitable Recovery Grant” of $1 million to Planned Parenthood of Wisconsin does not have the CARES Act funding restrictions. But this grant, like others, runs up against a state law that prohibits “federal funds passing through the state treasury as a grant” awarded “wholly or partially or directly or indirectly” to a pregnancy program that (1) “provides abortion services,” (2) “promotes, encourages or counsels in favor of abortion services,” or (2) “makes abortion referrals.” Planned Parenthood of Wisconsin meets all of the above criteria, making each of these grants unlawful.
WILL is requesting more information from Governor Evers to determine what legal authority the administration is relying on to make grants that appear to be unlawfully created, unlawfully administered, and allocating federal funds through to an entity that state law has established explicit and clear prohibitions.
WILL’s Letter to Governor Tony Evers, February 28, 2022