Is Legislature Illegally Grabbing Executive Power?

Modrzejewski Playfield. Photo by Jeramey Jannene.

On October 31 of this year, Wisconsin Governor Tony Evers sued the Republican-controlled Wisconsin Legislature, accusing it of appropriating powers that should belong to the executive. The authors of Wisconsin’s Constitution, like those of the U.S. Constitution, recognized the great danger of placing in the same hands the power both to create law and to execute it. (Everts’ brief is here, and the case history is here.)

This sentiment was reflected in James Madison’s Federalist No. 47:

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.

The main culprit, in Evers view, is Act 369 which was passed in the “Lame Duck” session following Evers’ win over Scott Walker in November of 2018, but before Evers’ inauguration in January of the following year. Act 369 gave various legislative committees the power to veto executive branch decision-making.

Evers lists several cases where Act 369 allows legislative committees to veto actions by executive branch agencies or put them on hold for long periods of time.

Evers reports that the Legislature’s Joint Committee on Finance (JCF) has vetoed dozens of conservation projects selected by the Department of Natural Resources (DNR) under the Knowles-Nelson Stewardship Program. In an appendix, he lists 27 projects proposed by the DNR, but vetoed by the finance committee.

These include a grant to the Ozaukee Washington Land Trust to purchase and preserve the Cedar Gorge Clay Bluffs site on Lake Michigan a bit south of Port Washington and north of the very popular Lion’s Den preserve. According to a May 2022 article on the Clay Bluffs saga by Laura Schulte, an anonymous member of the committee placed a hold on the grant at the request of a developer–also anonymous–who hoped to build luxury housing on the site. According to the article, all four Democrats said they weren’t the ones placing the hold and Republicans did not respond.

The article reported that legislative committee clerk Joe Malkasian “said because the committee reviewed the land trust’s application for the stewardship fund last summer, emailed records were already deleted. He also noted that conversations surrounding the anonymous objection were likely had in person, so records wouldn’t have existed.” After the article was published, the Land Trust did purchase the Cedar Gorge Clay Bluffs property for $5 million after receiving $2.3 million in American Rescue Plan Act funding awarded by Gov. Evers.

The joint finance committee took over a year (430 days) to reject the grant after receiving it from the DNR.

However, the Cedar Gorge did not win the prize for the longest time between proposal submission and rejection. That honor fell to a proposed grant to revitalize Modrzejewski Playfield on Milwaukee’s south side. It took almost three years—903 days for the committee to reject this proposal. In the end, the playground revitalization was funded by a grant from the federal Land and Water Conservation Fund.

In a second example, the Legislature’s Joint Committee on Employment Relations (JCOER) vetoed pay raises for about 35,500 University of Wisconsin System employees, demanding that the university get rid all diversity, equity and inclusion programs.

In addition, the Legislature’s Joint Committee for Review of Administrative Rules (JCRAR) has vetoed rules developed by the Department of Safety and Professional Services (DSPS) to update the state’s commercial building standards. The same committee, according to Evers’ brief, has vetoed updates from the Marriage and Family Therapy, Professional Counseling, and Social Work Examining Board to ethics standards for social workers, marriage and family therapists, and professional counselors.

An earlier challenge to Act 369, Kaul v. Legislature, raises many of the same issues. The Lame Duck law also gave the Joint Committee on Finance power to veto settlements of lawsuits. (Here are the case’s history, Josh Kaul’s brief, and the reply brief from the legislature.) Kaul argued that it is hard to negotiate settlements of cases if the result may be overturned by the committee.

The circuit court held that this section of Act 369 is unconstitutional. The Legislature appealed this decision to the Court of Appeals, which granted a stay of the district court’s ruling. Oral arguments were heard on June 5th of this year, but the Court of Appeals has not yet issued its decision.

This attempt by Republicans in the Legislature to take power away from the other branches of government seems to be part of a larger story. It does not end with targeting the executive branch. It also extends to the judicial branch, notably in the attempt to blackmail newly elected Janet Protasiewicz if she should have the temerity to consider challenges to the Wisconsin gerrymander.