A conservative law firm on Wednesday asked the Wisconsin Supreme Court to dramatically scale back the ability of governors to change the intent of lawmakers through partial budget vetoes — a move that would reverse more than four decades of precedent.
The lawsuit, filed on behalf of three taxpayers by the Wisconsin Institute for Law and Liberty, is the most aggressive challenge yet to partial vetoes that Democratic Gov. Tony Evers made to the state budget approved by the Republican-controlled Legislature in June.
A favorable ruling would have an impact far beyond the current budget and governor, limiting partial vetoes into the future.
“The governor’s veto power has been used creatively, and sometimes absurdly, by governors of both parties,” said Rick Esenberg, the president of WILL. “But the partial veto cannot act as a magic wand, creating new laws out of whole cloth.”
Esenberg said that while Republican governors have done the same thing with partial vetoes, this lawsuit does not target Evers.
“The case is not about politics, it’s not about personalities,” Esenberg said. “It’s about an important principle.”
Evers, and Democratic Attorney General Josh Kaul who would likely defend him in the case, did not immediately return messages seeking comment.
The lawsuit seeks to overturn four of Evers’ 78 partial vetoes, arguing that he improperly and unlawfully used his broad constitutional powers to create new laws never approved by the Legislature. The lawsuit asks the Supreme Court, controlled 5-2 by conservatives, to overturn a 1978 ruling in a similar case that determined the governor could enact new policy through his partial veto.
It is asking the state’s highest court to immediately take the case, speeding up a decision by skipping the lower courts. Republicans who control the Legislature could vote to override Evers’ vetoes, but they have not announced any plans to do so. Any override would require Democratic support.
The governor’s veto powers are spelled out in the Wisconsin Constitution. The lawsuit does not challenge those powers, but instead how Evers used them, arguing that he violated the separation of powers between the legislative and executive branches by creating new laws never intended by the Legislature.
The lawsuit seeks to overturn four of Evers’ vetoes.
In one, Evers altered a grant program for replacing aging school buses to instead fund up to $10 million for electric vehicle charging stations. In another, Evers allowed $75 million to be used for any type of transportation program, rather than just local roads as the Legislature wanted.
In a third, Evers eliminated provisions that would have created a standard $100 truck registration fee. In the fourth, Evers used his veto in an attempt to ensure a tax on vaping products would apply to any device containing fluid and to vapor fluid sold separately.
In every instance, the lawsuit alleges, Evers illegally expanded the scope of what the Legislature intended.
Wisconsin governors, both Republican and Democratic, have long used the broad partial veto power to reshape the state budget. Former Republican Gov. Scott Walker issued 98 partial vetoes in his last budget in 2017 and 104 in the one before that. Former Republican Gov. Tommy Thompson holds the record with 457 partial vetoes in 1991.
Lawmakers and voters have been attempting to scale back the governor’s veto power almost since it was created in 1930. Since 1935, there have been 25 constitutional amendments proposed to limit the governor’s power.
In 1990, voters approved an amendment to disallow creating new words in a budget bill by striking out individual letters. In 2008, voters ended what was known as the Frankenstein veto by prohibiting the governor from creating a new sentence by combining parts of two or more sentences.
An amendment proposed this year by Republicans following Evers’ vetoes would prohibit governors from increasing funding through a partial veto.
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