How Evers Can Change Budget With Partial Vetoes

Gov. Tony Evers. File photo by Emily Hamer/Wisconsin Watch.

Wisconsin’s two-year, $99 billion dollar spending plan — which would cut income taxes by $3.5 billion, cut the University of Wisconsin System budget and increase K-12 education and local government funding and increase state employee pay — was presented to Gov. Tony Evers by the Republican-led Legislature on Friday.

Evers has six days from the day he received the bill, excluding Sunday, to act with a couple options at his fingertips: sign the bill as is, use his partial veto power to shape the bill before signing or veto the entire budget.

‘As many partial vetoes as we can muster’

Evers told WQOW last week that if he does sign the budget, “there will be as many partial vetoes as we can muster.” He said his office was still in the process of looking at the bill.

The Wisconsin executive’s partial veto power, created in 1930, is one of the most powerful in the country.

The power allows the governor to veto appropriation bills “in whole or in part” before signing. Some uses include reducing appropriations and writing in smaller amounts, striking lines of text to restore current law and striking individual digits within a bill.

In the last budget cycles, Evers used the power instead of vetoing the entire budget bill.

In his 2019 veto message, Evers said he seriously contemplated vetoing the budget in its entirety, but said that decision would have the “same divisiveness and petty, political theatrics that the people of Wisconsin have had to put up with for far too long.”

Evers used the partial veto power 78 times that year to secure nearly $100 million more in per pupil aid for Wisconsin public schools compared to the bill passed by the Republican-led Legislature, reduced funding for work requirements and drug screening for people who participate in welfare programs and deleted a provision related to allowing Tesla to sell its electric vehicles directly to consumers, which was meant to get a Republican legislator to support the budget.

“I am exercising my broad constitutional authority to reshape this budget, to address areas where the Legislature failed to do the right thing or padded the budget with earmarks to buy votes, and to align it more closely with the budget we put together with the people of Wisconsin,” Evers said in the message.

Evers applied 50 partial vetoes to the budget during the 2021-23 cycle, however, the changes were mostly minor compared with those issued in his first budget. At the time he acknowledged that his ability to make broad changes — including securing additional aid for schools — had been curbed.

“Republicans and their allies have worked since [2019] to prevent me from being able to use that same authority this time around,” Evers said in his 2021 veto message. That year, Evers said he ultimately decided not to veto the entire budget because it would have jeopardized investments and likely caused the state to lose $2.3 billion in federal pandemic relief.

Evers’ partial veto power has been limited by two factors: rulings by the state Supreme Court and the careful actions of Republican lawmakers who have sought to limit Evers’ power.

The full parameters of the governor’s partial veto power aren’t completely clear.

In past Supreme Court rulings, justices haven’t been able to come to a single legal rationale for when a governor has overstepped his power. Liberal Justice Ann Walsh Bradley acknowledged the lack of clarity in the law in a 2020 ruling that invalidated three of Evers’ partial vetoes.

“How can governors be assured that the partial veto they are crafting is constitutional?” Bradley wrote. “They can’t.”

Despite the uncertainty of the boundaries, a report by the Legislative Reference Bureau (LRB) lays out a set of parameters meant to guide governors in using the power.

Those parameters say that a veto of stricken text restores current law, the governor can reduce the amount of an appropriation by writing in a smaller number and can veto individual numbers.

A partial veto must result in “a complete and workable law.” In addition, the law that remains after partial vetoes must be related to — or “germane” to — the topic of the vetoed provisions; this requirement was strengthened by the 2020 state Supreme Court rulings.

While the governor can veto individual digits, the governor cannot create new words by rejecting individual letters. This type of veto was broadly used by former Gov. Tommy Thompson and Gov. Tony Earl before the Legislature passed an amendment in 1990 banning the practice. A 2008 amendment banned the use of the “Frankenstein veto,” in which a governor would create a new sentence by combining parts of two or more sentences.

Apart from limitations that resulted from Supreme Court rulings and changes to state law, Republican lawmakers have been cautious in constructing the budget bill to limit Evers’ powers by passing policy in separate bills and being careful in how the text is written.

Republican lawmakers passed the budget bill with just one amendment — despite many proposed by Democrats. That amendment, introduced by Sen. Howard Marklein (R-Spring Green), included several technical changes that he said were meant to make legislative intent clear.

As pointed out by Rep. Evan Goyke (D-Milwaukee) during floor debate on the bill, the amendment made some changes to the language of certain provisions, specifically for the purpose of limiting Evers’ ability to use his veto pen.

For the income tax cuts included in the bill, Republicans wrote out with letters how much each tax rate should be reduced, rather than just using numbers. Goyke said the purpose was to make those elements veto-proof.

Republicans did not make that change for the top tax bracket decrease, a sign, Goyke said, that Republicans may have wanted to allow Evers to veto the change as a way of avoiding a total veto. Evers has previously threatened to veto the entire budget if it made changes to the state’s top tax rate.

No Republicans denied the claim during the floor debate.

Republican lawmakers have also passed the budget with minimal policy language, instead opting to pass separate bills including one related to the state’s mechanism for funding local governments, one for increasing funding for the state’s school choice program and another for changing the way children are taught to read in Wisconsin.

By putting budget related policy language in separate bills, legislators ensured that Evers cannot use his partial veto power.

Some call for vetoing entire budget

While Evers has opted not to veto the budget in previous years, some of his allies are calling for him to make a different decision this year.

A broad coalition of advocacy organizations — including the Wisconsin Public Education Network, Citizen Action of Wisconsin, Fair Wisconsin, the League of Women Voters of Wisconsin and the Wisconsin Democracy Campaign — have called on Evers to veto the budget in its entirety.

“If you do not veto this budget, we fear that its shortcomings and inadequacies will be detrimental to the democratic values, education opportunities, and public resources that our state sorely needs,” a statement from the coalition said. “We implore you, please: don’t give in. Fight like hell for our collective future.”

The groups said the budget — which would eliminate diversity, equity and inclusion efforts on University of Wisconsin campuses — fails to adequately address racial disparities in the state. Evers had also threatened to veto the budget due to the cuts to the UW system. The money was cut, but the system could recoup it by going back to the Joint Finance Committee with a new plan for how to spend it.

The groups also cited zero funding for the Child Care Counts program, which helped keep child care providers in business throughout the state, and tax cuts as other reasons to issue a complete veto.

While every Senate and Assembly Democrat voted against the budget, only a handful of legislators have joined the groups in calling for a complete veto.

Rep. Ryan Clancy (D-Milwaukee) called on Evers in statements to veto the budget in its entirety, saying the budget passed by Republicans “isn’t a compromise.”

“It’s not a smaller victory that we would have liked. It’s class warfare,” Clancy continued. “I hope the Governor’s response to this attack on the working class is a veto in its entirety.”

Sen. Chris Larson (D-Milwaukee) also called for a complete veto, saying the budget neglects to properly use the state’s $7 billion surplus to invest in Wisconsinites and the services necessary to make the state the best possible place to live, work and raise a family.

“To whatever extent Governor Evers is able to undo any of the damage of this Republican budget with his veto pen, including vetoing the entire budget, he should do so,” Larson said.

While a few lawmakers call on Evers to veto the entire budget, Democratic legislative leadership has been reluctant to say they support a full veto, instead focusing on his partial veto power.

According to the LRB, if Evers vetoed the entire budget, it would be the first time a Wisconsin governor has done so since 1930.

A veto of the entire budget would freeze spending at levels passed in the 2021-23 budget. The state would operate under the old budget until the Legislature comes back in the fall to work on another bill.

Similar to previous years, a complete veto by Evers could jeopardize the funding included in the current version of the budget bill including an additional $274.9 million for local governments — spending that Evers has tweeted about since receiving the bill — and over $1 billion for public schools. There is no guarantee these would be included in a new version of the budget.

How Gov. Evers could shape the budget using his veto power was originally published by the Wisconsin Examiner.