MADISON, Wis. — When Republican Gov. Tommy Thompson signed off on 457 partial vetoes in 1991 for the biennial Wisconsin state budget, he hit a still-unmatched record high.
“It did not do anything to improve the quality of life in our state,” he said of the budget in its original form, as he signed off on the radically-revised document.
Three decades later, as the state Senate approaches its final vote Wednesday night on the next two-year budget with billions in income tax cuts but almost no new funding for education–a 2020 Wisconsin Supreme Court decision about the partial veto clause is about to be put to its first test.
Traditionally, Wisconsin’s partial veto has been the most powerful in the country compared to the more standard line-item veto. Only allowed on appropriation (budget) bills, it was implemented as a function designed to encourage shared government and put a check on the legislature. Originally intended as a simple tool to strike out sections or policies the governor didn’t want, later governors famously re-interpreted it to retool and at times write entirely new policies.
The 2020 state supreme court ruling represents the most dramatic step towards reversing that and leaves a question mark over how much power really remains. It overthrew 3 out of 4 fairly standard partial vetoes Gov. Evers had made the previous year, and in doing so represented both a departure from past precedent as well as a continuation of a gradual trend towards restricting the unique power.
A colorful, decades-long history
The partial veto power dates back to 1930 in Wisconsin, following a five-year process begun with the intention of checking the power of massive “omnibus” bills full of policies attached to appropriation (budget) bills that governors might otherwise be reluctant to veto in their entirety.
For several decades after the 1930 amendment was ratified, governors used their partial veto power to simply strike out sections of larger budget bills to avoid vetoing the whole thing–in much the way that later legal experts say the law was intended to function.
But starting with Democratic Gov. Patrick Lucey in the 1970s, a handful of governors from both parties have found fresh ways to interpret the singular language of the state’s partial veto clause to expand their power. In nearly every instance, they established a precedent that would be used by every governor after them–at least until the courts, or another amendment, put a stop to it.
In 1990, voters first approved an amendment to the partial veto clause that eliminated the “Vanna White” veto, an early favorite of Republican Gov. Tommy Thompson who would become well-known for his heavy use of the partial veto. The “Vanna White”, first conceived by Gov. Tony Earl in the 1980s, struck out letters to create new words.
“It could radically change the meaning of the text,” Prof. Howard Schweber from UW-Madison’s political science department said. Unless the legislature could overturn the partial veto with an unlikely two-thirds majority vote, that would be the law.
Another favorite of Gov. Thompson’s (and later governors like Democratic Gov. Jim Doyle), was the “Frankenstein” veto–a tremendous expansion of gubernatorial power that reimagined the veto to create entirely new policies by striking out parts of sentences to create entirely new sentences.
“It’s hard to overstate how powerful at one time…the partial veto power was, and how often it was used,” Jason Stein said, a former longtime state politics reporter for the Milwaukee Journal Sentinel and now the research director for the Wisconsin Policy Forum.
Gov. Doyle picked up on the broad power and used it extensively in the 2005 budget process, at one point using it to transfer millions from transportation into public schools. His wielding of the ‘Frankenstein Veto’ largely spurred the most recent amendment in 2008, approved by 71% of Wisconsin’s voters, that changed the veto clause’s wording to prevent a governor from creating a new sentence by striking out parts of other sentences.
Still, after the 2008 amendment, the power remained broad and likely the most powerful in the country–used even by governors who were working with legislatures led by their own parties, like Gov. Scott Walker who used the partial veto scores of times in the budgets he approved.
A shift in precedent and an uncertain future
The Wisconsin Institute for Law and Liberty filed a lawsuit in 2020 with the Wisconsin Supreme Court, challenging four of Gov. Evers’ partial vetoes in 2019. Up till then, the vetoes were broadly seen as standard and represented the type of veto used for decades and, to a point, upheld by the courts.
But this time, in a court then controlled 5-2 by conservatives, justices struck down 3 of the 4 partial vetoes, ones that previously the non-partisan Legislative Reference Bureau said were previously constitutional.
The decision, however, was anything but conclusive. While a majority of justices agreed to strike down a majority of the vetoes, they were not able to agree on why the use of the partial veto was unconstitutional.
“There was absolutely no agreement on the theory,” Prof. Howard Schweber in the UW-Madison political science department explained. Four different opinions all only garnered one or two votes each, with the conservative justices backing three much more conservative approaches to the use of the veto than had been customary in the past. Effectively, Prof. Schweber says, that opens the possibility for a variety of alternative legal pathways for interpreting the partial veto in the future.
“If you’re Gov. Evers’ lawyers, you’re sort of doing what we’re doing here–except of course in much more detail,” Schweber said. “Trying to guess what the theory is that the supreme court will adopt–if they adopt a clear one.”
The chances that the issue will once again end up in court is all but a certainty, where the current 4-3 makeup is without Justice Daniel Kelly, who espoused by far the most strict interpretation of the power. So while the partial veto is certainly less broad under the 2020 ruling, how and to what extent remains unclear.
“There’s not a lot of clarity about what is and isn’t possible,” Stein explained.
Current Powers
While the power is restricted, how it might be used to change things like the rates of income tax cuts in the current budget bill remain a question mark. The governor maintains the power to strike out digits from numbers, but the power to change values in that fashion also hasn’t yet been tested in court.
In a 2020 memo outlaying the history and current status of the issue, the LRB laid out the following rules that still apply–absent another court decision.
Those include, but are not limited to (taken from the LRB with some editing for brevity and clarity):
- The governor may not veto current law
- The governor may veto individual digits but may not create new words by rejecting individual letters
- The governor may not create a new sentence by combining parts of two or more sentences
- The governor may reduce the amount of an appropriation by writing in a smaller amount, but may not reduce other numbers
- A partial veto must leave a “complete, entire, and workable law”
- The law that remains after partial vetoes must be germane to the topic of the original text
“The partial veto enables the governor to pick and choose, as it were, the proper level of funding for state government operations and programs, as well as alter the operations and programs themselves,” a 2020 memo from the nonpartisan Legislative Reference Bureau read. “This shared role in the lawmaking process is an invitation for conflict.”
Click here: A complete guide on the current state of the partial veto power, from the Legislative Reference Bureau
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