Wisconsin justices consider scaling back Evers' veto powers

MADISON — An attorney for a conservative law firm urged the Wisconsin Supreme Court on Monday, April 20 to rein in the governor's expansive partial veto powers, arguing the chief executive's ability to rewrite state law tramples on the separation of powers with the Legislature.

The Wisconsin Institute for Law and Liberty filed a lawsuit last year seeking to overturn four of Democratic Gov. Tony Evers' vetoes in the 2019-21 state budget. The vetoes shifted $10 million for replacing school buses to electric vehicle charging stations; allowed $75 million meant for local road construction to be used for any transportation program; eliminated a standard $100 truck registration fee; and expanded the types of vaping products subject to tax. The institute argues the high court should invalidate the vetoes because they create new laws the Legislature never intended.

The Wisconsin Constitution grants the governor some of the most extensive partial veto powers in the country by allowing him to strike out words and digits to create new law. A ruling in the institute's favor would dramatically weaken the ability of Evers and future governors to unilaterally alter state budgets and give legislators more freedom to draft the spending documents without worrying about the governor's edits.

Rick Esenberg, the institute's president and general counsel, complained to the justices during oral arguments that the governor's partial veto powers have reduced the state budget to “a game of Scrabble.”

He said the powers were intended to simply allow the governor approve or disapprove of the Legislature's proposals, not twist them into new statutes.

Evers' attorney, Assistant Attorney General Colin Roth, countered that Wisconsin residents decided on appropriate limits on partial veto powers when they adopted constitutional amendments in 1990 and 2008 that prohibited the governor from crossing out individual letters to form new words and combining parts of sentences to create a new sentence. The court shouldn't venture beyond those limits, he said.

“I don’t see any source of authority to ignore those expressions of the people’s will,” he said. “(There are) two limitations on the power that people chose and that’s it.”

The court's conservative majority seemed skeptical of Roth's arguments. Justice Daniel Kelly called the governor's partial veto powers “a significant transformation of legislative authority.”

“Where is ‘veto’ defined as the power to create?” asked Justice Rebecca Bradley.

Ann Walsh Bradley, one of the court's two liberal-leaning justices, pointed out that a ruling in the institute's favor would overturn precedent in a string of cases upholding the governor's partial veto powers dating back to the 1930s.

“We absolutely are asking the court to change the way it's interpreted (the state constitution),” Esenberg replied.

The justices also heard arguments Monday in a second case that presents a much narrower challenge to the governor's partial veto powers.

Wisconsin Small Business United, an advocacy group for small businesses, filed a lawsuit last year challenging two vetos former Republican Gov. Scott Walker made in the 2017-19 state budget.

Walker crossed out individual digits in dates to extend a one-year moratorium on a program that allows schools to raise revenue limits to offset spending on energy efficiency to a thousand years. He also crossed out individual digits in dates to delay the start date for retailers’ tax deductions for customers' unpaid store credit card debt from mid-2018 to mid-2078.

The group's attorney, Kendall Harrison, argued that the governor can delete individual digits in monetary amounts but can't eliminate digits in dates. Roth countered that nothing prohibits such a move.

The justices seemed stunned that Walker would delay a program by a thousand years.

The constitution requires that any language that survives a partial veto must amount to a complete and workable law; Walsh Bradley asked how a thousand-year delay amounts to a workable law. She called the moratorium “beyond reasonable.”

Roth said the length of the moratorium isn't the issue. If people had wanted to prohibit the governor from deleting digits in dates they could have, he said.

It was unclear when the court would rule in either case.