Wisconsin’s Legislative Committees Uniquely Powerful?

It appears that Wisconsin is unique among states—and the federal government—in giving legislative committees the right to veto actions of the executive without going through the process of amending state statutes. As a previous Data Wonk column reported, the governor recently brought a lawsuit challenging several of these legislative vetoes:

• The Legislature’s Joint Committee on Finance has used its veto power dozens of times in recent years to block conservation projects selected by the Department of Natural Resources (DNR) under the Knowles Nelson Stewardship Program.
• The Legislature’s Joint Committee on Employment Relations used its veto power to hold hostage statutory pay raises for Universities of Wisconsin employees, demanding that UW first make policy concessions not found in any law.
• The Legislature’s Joint Committee for Review of Administrative Rules has vetoed rules developed by the Department of Safety and Professional Services that would update the state’s commercial building standards.
• The same committee has blocked efforts by the Marriage and Family Therapy, Professional Counseling, and Social Work Examining Board to update ethics standards for social workers, marriage and family therapists, and professional counselors.

The Wisconsin Supreme Court accepted Gov. Tony Evers’ petition but only for the first of these issues, the joint finance committee blocking conservation grants under the Knowles Nelson program. Wisconsin Statute § 23.0917(6m) authorizes the Joint Committee on Finance, a 16-member legislative committee, to veto the DNR’s choices. The court accepted the governor’s petition for “original action,” meaning that the petition did not need to first go to district court.

As the governor’s complaint suggests, Wisconsin statutes are full of provisions that allow legislative committees to veto actions by executive agencies. Both the briefs from the parties and the April 17th oral arguments suggest that Wisconsin is unique in this matter. Where did this come from?

The framers of both the US Constitution and the Wisconsin Constitution were very cognizant of the need to keep one part of the government from becoming too powerful. Most famously, James Madison wrote in Federalist No. 47 that:

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.

It appears that two court decisions were particularly influential in expanding the number of legislative vetoes of executive decision-making: JF Ahern Co. v. Building Commission decided by the Court of Appeals in 1983 and Martinez v. DILHR (Department of Industry, Labor and Human Relations) decided by the state Supreme Court in 1991.

In the oldest of these, the Ahern construction company challenged the decision of the state Building Commission to let building contracts without using competitive bidding. The Building Commission has eight members, three from the Senate, three from the Assembly, the governor, and a citizen appointed by the governor. In the case of the Senate and the Assembly, the leadership of the majority in each house appoints two members and the minority leadership one.

In its decision, the court listed ten issues, the eighth of which asked, “Is the commission, a legislative committee, unconstitutionally vested with executive branch powers?” It answered in the negative, citing several considerations, noting that “the separation of powers doctrine is implied from the Wisconsin Constitution rather than expressly mandated.”

The judges went on to claim that the “doctrine of separation of powers does not demand a strict, complete, absolute, scientific division of functions between the three branches of government.” In their opinion, the separation of powers doctrine states the principle of shared, rather than completely separated powers.

Eight years later, in Martinez v. DILHR (1991), the Supreme Court considered whether section 227.26 of the Wisconsin statutes is unconstitutional. This section authorizes the legislature’s Joint Committee for Review of Administrative Rules to temporarily suspend administrative rules.

The court ruled that this section was not unconstitutional, quoting Ahern, particularly its argument that Wisconsin courts give little weight to other states’ precedents on separation of powers. “Unlike the constitutions in those states, Wisconsin’s constitution contains no express separation of powers provision.”

Underlying the Martinez decision is the theory that executive agencies are creations of the Legislature and that therefore, the Legislature can continue to control them long after laws are adopted and passed on to the executive branch for implementation. “We have long recognized that administrative agencies are creations of the legislature and that they can exercise only those powers granted by the legislature.” In essence this view is that, having given the executive branch these powers, the legislature could take them away.

Why have Wisconsin courts been so dismissive of the separation of powers principle? It is worth remembering that in the years Ahern and Martinez were decided, Wisconsin was a much less polarized state than today. Perhaps this environment made the notion of “shared powers” more plausible. After all, the program to preserve parts of the natural environment was named for governors of both major political parties.

But today we have a Legislature that is not into sharing powers, leading to the very threat that Madison worried about. In many of the bills it has passed, the Legislature has included provisions that give legislative committees veto power over how the executive branch implements these laws.

And it is not just the powers of the executive branch that are at risk. An amicus brief submitted by a group of former Wisconsin judges makes the argument that theory of legislative prerogative also permits trespasses into the judicial role:

By appropriating post hoc review of agency actions and the ability to block enforcement of previously passed enactments by legislative veto, the Legislature usurps the judicial power to ensure compliance with the law. Instead of performing its actual function—enacting statutes through the constitutional process that authorizes, defines, and limits agency action—the Legislature has taken onto itself the authority to review agency action after the fact.

The hold that the Legislature’s Joint Committee on Finance placed on a grant to the Ozaukee Washington Land Trust illustrates the downside of allowing legislators to second guess executive decisions. The grant by the DNR was made under the Knowles Nelson Stewardship Program to help purchase the Clay Bluffs – Cedar Gorge site on Lake Michigan south of Port Washington and adjacent to the very popular Lion’s Den Gorge Nature Preserve. The committee continues to refuse to say which legislator was behind the hold or why it was made. Apparently, the hold was made at the request of a developer who hoped to build luxury housing overlooking the lake. In the end, Gov. Evers was able to tap into federal grant money that was not under the control of the committee to purchase the land.

One can’t help wonder if supporters of the legislative veto would be as enthusiastic if redistricting led to a less Republican dominated Legislature after the November elections.