Wisconsin Supreme Court hears cases that could limit gubernatorial powers

— Photo: Steve Apps, State Journal

Misha Tseytlin, a lawyer representing the Republican-controlled Legislature, makes his case during oral arguments in 2019.

The powers of Wisconsin governors could be significantly pared back if the state Supreme Court rules in favor of plaintiffs in two major cases challenging the extent of the governor's powerful veto authority.

The Supreme Court heard oral arguments by video teleconference in both cases Monday, with attorneys and justices appearing remotely.

The first case, brought by taxpayers represented by the conservative Wisconsin Institute for Law and Liberty, challenges four of Democratic Gov. Tony Evers' vetoes to the 2019 budget. Those include one that transformed a grant program to replace school buses into funding for electric vehicle charging stations and another that altered funding to improve local roads so the money may be used for other transportation-related purposes, such as public transit.

The second case objects to two vetoes former Republican Gov. Scott Walker issued that extended the effective date of one legislative program from 2018 to 2078, and another from 2018 to 3018 by deleting two digits and a comma.

If the court sides with the plaintiffs in each case, it would revoke Evers' spending diversions and Walker's effective suspension of two budget provisions and would likely prevent similar moves by future governors, clipping the wings of one of the most powerful gubernatorial offices in the nation.

A favorable ruling for both plaintiffs would also curtail some of the political gamesmanship that occurs every two years between the governor and Legislature, when the Legislature passes a budget, attempts to protect its language against changes in the gubernatorial veto process and the governor, through the partial veto authority, uses creative means to amend the document. 

Wisconsin governors still have among the strongest powers over appropriation bills in the country, with the ability to strike words, numbers and punctuation in both appropriation and non-appropriation text in bills that determine how money is spent.

Governors may also strike appropriation amounts and write down an entirely new, lower amount. Most other states allow governors only to strike or reduce appropriations in bills spending money.

It's unclear how the 5-2 conservative majority court will rule in their final decisions expected before the term ends in midsummer. Still, some justices in Monday's arguments underscored the big impact a ruling in favor of the plaintiffs in the first case would have. 

"So you're asking us basically to either distinguish or overrule a considerable number of cases," said Chief Justice Patience Roggensack, who is supported by conservatives.

Justice Rebecca Dallet, backed by liberals, questioned whether WILL is asking for the court to overreach, noting that the Legislature hasn't passed any bill over the past 85 years prohibiting the types of vetoes Evers used.

"Isn't it true that you're really asking this court to make a new policy decision?" Dallet said. 

Wisconsin has passed constitutional amendments limiting gubernatorial power: one in 1990 banning the so-called “Vanna White” veto to delete phrases, digits, letters and word fragments to create new words and phrases; and another in 2008 prohibiting using the veto to create new sentences by combining parts of two or more sentences in an appropriation bill, known as the "Frankenstein veto."

The first case argues Evers violated the state constitution by fundamentally altering the Legislature’s policies in the state budget, usurping a power not given to the governor in the state constitution. WILL contends Evers, in approving the state budget passed by the Republican-controlled Legislature with several partial vetoes, stripped the appropriation bill of integral language and therefore violated the principle in the state constitution that "legislative power shall be vested in the Senate and Assembly."

WILL is targeting four of the 78 partial vetoes Evers made to the state budget when he signed it in early July. The vetoes:

  • Directed $10 million originally meant for replacing school buses toward providing electric vehicle charging stations;
  • Altered funds for local governments meant to improve local roads so the money may be used for other transportation-related purposes, such as public transit;
  • Changed vehicle registration fees for trucks;
  • Altered the state’s tax and regulatory authority for vapor products, such as e-cigarettes.

The Legislature has the power to override those vetoes with a two-thirds majority in the Senate and Assembly, a difficult task given Republicans don’t control such majorities.

The case does not target a 2019 Evers budget veto that increased spending on K-12 aid to districts by $87 million because it didn’t change the purpose of the appropriation, which is the central argument of the lawsuit.

The Wisconsin Department of Justice, defending Evers, said he had the authority to issue the challenged budget vetoes and that ruling with the plaintiffs would overturn years of precedent establishing the governor's partial veto power.

The second case challenges two of Walker's partial vetoes in the 2017-19 budget. The first was one that effectively suspended a law until one thousand years later, in 3018, that would have allowed school districts to raise the legally imposed ceiling on how much revenue they can collect for spending on projects to increase energy efficiency. The budget bill the Legislature signed placed a one-year moratorium on the project until December 31, 2018. Walker struck the "1" in December 31 and the comma and "2" following it and connected the remaining language together to arrive at "December 3018." 

In a second similar move, Walker pushed back a legislatively imposed moratorium from 2018 to 2078 on a provision allowing retailers to take a tax deduction on bad debts to its financial partners, such as Visa. 

The plaintiffs in the case, Wisconsin Small Businesses United, a small business advocacy group, and others, say Walker's vetoes were unconstitutional because while courts have found the governor may strike digits in dollar amounts appropriating money to reduce expenditures, such authority does not extend to dates. Attorneys say that if a governor reduces spending from $500 to $50 through a partial veto by striking the "0," the remaining $50 is still "part" of the $500, comporting with the governor's ability to veto items in full or in part.

But they say changing a date by similar means would be unconstitutional because striking the "1" from March 21, for example, would lead to March 2, not a part of the original date. The Wisconsin Department of Justice, defending Walker's vetoes, disagrees with that argument, saying instead that Walker simply deleted a few digits and so he approved "part" of the two provisions.


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