Partial veto is a deliberate check on legislative power

Wisconsin Constitution

Constitution of Wisconsin state, by Basharat Alam Shah, is licensed under CC BY 2.0

Since 1930, the Wisconsin Constitution has authorized our governors to veto portions of bills that appropriate funds. This broad authority has given all of our modern governors greater power within the legislative process than the President of the United States or other governors have. (Several states allow vetoes of individual line-item appropriations, but few grant partial-veto authority as broad as Wisconsin’s.) Every Wisconsin governor in the past nine decades—Republican and Democrat alike—has benefited from that power.

Now, however, a new lawsuit challenges Governor Tony Evers’s use of his partial-veto authority. The suit argues that, notwithstanding its clear text, Wisconsin’s Constitution is just like that of other states. As a legal proposition, this is untenable. As history, it is laughably false. As a political argument, it sounds like pathetic whining. 

But the lawsuit is actually much more: it is the latest salvo in a lengthy, radical campaign to abandon Wisconsin’s success as a laboratory of democracy over the past century, to distort Wisconsin’s traditions of good and open government, and to consolidate power in the Republican-controlled Legislature, which has entrenched itself through one of the most severe partisan gerrymanders anywhere in the United States in the past 50 years. This startling campaign to push Wisconsin law and government back to the 19th century has already achieved several of its aims without much notice or outcry. 

The current lawsuit is a cynical ploy that urges the Wisconsin Supreme Court to ignore clear constitutional text and to overturn settled constitutional precedent, all for the purpose of disempowering the Democratic governor and further empowering the Republican-controlled Legislature. Even worse, it aims to nullify a constitutional power that governors have consistently exercised and courts have consistently upheld for almost a century. In so doing, it seeks to amend the constitution without legislative deliberation or public participation, both of which the amendment process requires.

Part of a larger campaign

The Wisconsin Constitution contains a variety of checks and balances that make it difficult for any single branch of our state government to expand its power unilaterally. This is a feature, not a bug. The governor’s partial-veto authority is a structural obstacle that prevents the Legislature from extending its own power through otherwise near-total control over the state’s budget. 

It is both ironic and short-sighted that Republicans seek to limit Evers’ partial-veto authority—particularly after the Republican-controlled Legislature repeatedly expanded Scott Walker’s executive authority while he was governor. But this effort fits into their larger campaign to entrench immediate partisan power without regard for the long-term consequences for their Party, public policy, or the majority of Wisconsin voters who preferred Evers and Democratic candidates for the Legislature less than one year ago.

Recent political science research documents how successful this larger campaign has been: Professors Devin Caughey (of MIT) and Christopher Warshaw (of the George Washington University), and drawing on their work, Kenneth Mayer (of the University of Wisconsin), have shown that Wisconsin public policy lurched rightward from 2010 to 2014 more than at any other time going back to the 1930s. Put another way, no Wisconsin governor—from Republican Philip La Follette in 1930 through Democrat Jim Doyle in 2010—presided over such an abrupt and severe change in Wisconsin policy as Scott Walker did in his first four years. 

It is within this context of a radical rightward shift away from longstanding norms that the new lawsuit challenging Governor Evers’ partial-veto authority must be understood. When Evers issued 78 partial vetoes before signing the biennial budget earlier this summer, partisans on both sides jeered. Some Democrats wanted Evers to veto the whole budget and send the Legislature back to the drawing board. Some Republicans expressed outrage that Evers had the temerity to alter the Legislature’s work (never mind that the Legislature had deliberately ignored the Governor’s budget proposal and most of his priorities). But Evers chose a middle course, eschewing what he called “more of the same divisiveness and petty, political theatrics that the people of Wisconsin have had to put up with for far too long.”

Though Republicans lack a sufficient majority to override Evers’ vetoes without support from at least a few Democrats, their allies are pursuing more theatrics, this time by seeking to enlist the Wisconsin Supreme Court in their efforts. Three conservative taxpayers have filed suit, working through a right-wing legal organization at the forefront of foisting radical change upon Wisconsin over the past decade. They argue that Evers’ partial vetoes violate the Wisconsin Constitution. Their suit is alarming both procedurally and substantively.

Avoiding the lower courts

Procedurally, the plaintiffs ran straight to the Supreme Court, petitioning for that body to exercise original jurisdiction over their case. This is legal, but exceptionally rare—for good reason. It goes against the fundamental design of our judicial system, in which courts are guided by precedent (prior judicial decisions) and the law accretes through application of that precedent to new facts. The accretive process benefits from multiple voices and views; circuit court judges decide cases in the first instance, explaining their reasoning, which is reviewed by three judges on the court of appeals and then, in a small number of cases, by the seven justices of our Supreme Court. 

Asking the Supreme Court to exercise original jurisdiction is cutting in line, seeking to have the case begin and end all at once. This might seem efficient, but the cost is significant: it ignores the process for developing the relevant facts and distilling the essential legal questions through the considered views and insights of the lower-court judges. Hundreds of years of legal tradition led to judicial branch structure in which supreme court decisions depend on lower courts’ factual determinations and provides a second (or third) level of review for their legal conclusions. 

The justices are no more infallible than anyone else; that is why we generally do not have them act as both the first and the last word in any dispute. So, why did the plaintiffs proceed in this highly unusual fashion? They say it is necessary to prevent “the illegal expenditure of funds set to take place in short order.” But Wisconsin law expressly grants all judges the power to enjoin illegal or unconstitutional actions; if the plaintiffs convinced a circuit court judge of their argument, they could obtain the relief they seek. 

A more plausible explanation is that they (and their lawyers) recognize just how radical their effort is and believe they have a better chance by starting at the Supreme Court. Why? First, their argument is clearly foreclosed by settled Wisconsin case law, and they know no judge outside the Supreme Court has the power to ignore binding precedent. Second, they might prefer the ideological composition of the Supreme Court to the more heterogeneous composition of the lower courts; they held their case for weeks, waiting to file suit until the day before newly elected Justice Brian Hagedorn replaced long-serving Justice Shirley Abrahamson on the bench. 

Ignoring the Constitution’s text

Substantively, the suit asks the Supreme Court to rewrite the Wisconsin Constitution’s clear text. The Wisconsin Constitution originally granted governors no partial-veto authority. A 1930 amendment changed that, however, allowing that “appropriation bills may be approved in whole or in part by the governor, and the part approved shall become law.” Wis. Const. art. V, § 10(1)(b). When governors got too creative with this power, further amendments constrained their power: in 1990, voters abolished the “Vanna White veto,” which had allowed governors to veto individual letters or numbers in a bill to create new provisions; and in 2008, voters prohibited the “Frankenstein veto,” which governors used to save individual words from multiple sentences to create a new sentence. Wis. Const. art. V, § 10(1)(c). The remaining constitutional authority is still quite broad. As Republican former-Attorney General J.B. Van Hollen explained to voters, it applies to “any part of a bill passed by the Legislature that contains an appropriation of money, including, but not limited to, the state budget bill.”

The current suit rejects this long-accepted interpretation of the constitution’s plain meaning. The plaintiffs argue that Wisconsinites “enacted a constitution that contemplated each branch acting as a check on the other; they did not intend to make legislation a game show.” This makes for good rhetoric, but it doesn’t withstand logical or historical scrutiny. For nearly 50 years, Wisconsin governors have extensively used, and arguably pushed the envelope with, their partial-veto authority, and the Supreme Court has approved their actions. As the non-partisan Legislative Reference Bureau has noted, “Both state and federal courts have upheld these creative practices.” When governors have gone too far, the people have reined them in by amending the Constitution. These amendments were necessary because the constitutional language is expansive, as both former-Attorney General Van Hollen and the courts have recognized. 

So what’s different now? Three things: (1) the advent of open partisan conflict between the gerrymandered Republican Legislature and the Democratic governor; (2) the realization that Evers’ partial vetoes outfoxed the Legislature; and (3) recent Supreme Court rulings demonstrating that a majority of the Justices is prepared to jettison constitutional fidelity and legal precedent to affirm the Republican-controlled Legislature’s ever-broader claims to power. 

None of these factors changes the constitution’s clear meaning or substantiates the plaintiffs’ arguments. But all three explain why the plaintiffs are trying this tactic at this moment. They anticipate a favorable reception by the same Supreme Court that approved the Legislature’s lame-duck extraordinary session—in which the Legislature arrogated to itself powers traditionally held by the governor and the attorney general, immediately after voters chose to return those offices to Democratic control—and (in another original action brought by the same lawyers pressing the partial-veto suit) reversed precedent that had affirmed the state superintendent of public instruction’s authority as an independent constitutional officer not subject to micromanagement by the Governor

Our constitution deserves better

At its core, the partial-veto lawsuit reflects a belief that the Wisconsin governor’s authority is lawfully expanded and exercised only when the office is held by a Republican seeking to limit or hamstring government, not by anyone else who might labor to make government work better. That may echo contemporary conservative catechism, but it is not consistent with constitutional law. 

The Wisconsin Constitution has granted our governors broad power to partially veto appropriations bills for nine decades. There’s room to debate whether we, the people, should further restrict this authority. But that debate should happen in public and be decided by referendums on proposed amendments to our state constitution, not by short-circuiting established judicial processes and asking the Supreme Court to ignore clear constitutional text. (The procedure for amending the constitution to eliminate the governor’s partial-veto authority is well-established: it requires two successive Legislatures approving the proposed amendment and then approval of the proposed amendment by the people of Wisconsin in a referendum. This procedure is also well-practiced, including in relation to the governor’s veto authority, as evidenced by previous amendments both increasing and decreasing this power.)

The Supreme Court should decline to exercise original jurisdiction over this case, and whatever courts hear this case should reject the plaintiffs’ efforts to rewrite our constitution just because they lost at the ballot box. Our constitution, and the people of Wisconsin, deserve no less.

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Jeffrey Mandell
Jeffrey Mandell

Jeff Mandell is a partner at Stafford Rosenbaum LLP, and co-chair of the firm's Election and Political Law group, as well as its Appellate groups. Jeff is also the President and Lead Counsel of Law Forward, a nonprofit, nonpartisan impact-litigation organization focused on protecting and advancing democracy in Wisconsin. The views expressed here are his own and don't represent those of his firm or its clients.

Douglas Poland
Douglas Poland

Douglas Poland is a partner at Stafford Rosenbaum LLP in Madison, where he co-chairs the firm’s Election and Political Law practice group. He is on the Board of Directorst of the Madison Lawyer Chapter of the American Constitution Society. He represented plaintiffs in Baldus v. Brennan and Whitford v. Gill, lawsuits challenging Wisconsin’s current legislative redistricting law. The views expressed here are his own and do not represent those of his firm or clients.