By Jack Kelly

Wisconsin Watch

The Wisconsin Supreme Court will hear oral arguments Wednesday in a lawsuit that could further alter the balance of power in Wisconsin state government.

The case, brought by Gov. Tony Evers against the GOP chairs of three legislative committees, seeks to limit the Legislature’s ability to throw out certain policy decisions made by state executive branch agencies. Evers filed the lawsuit directly with the state Supreme Court. 

At issue is whether the Republican-controlled Joint Finance Committee can use so-called “committee vetoes” to block conservation projects approved by the Wisconsin Department of Natural Resources under the Knowles-Nelson Stewardship Program.

In his lawsuit, Evers also challenged the Joint Committee on Employment Relations’ authority to hold up pay raises for state employees and the Joint Committee for Review of Administrative Rules’ authority to strike down rules created by state agencies and professional boards. The court declined to weigh in on those two issues during Wednesday’s hearing.

The legal challenge comes after “the Legislature has been slowly but steadily accumulating more power for itself over the last few decades,” Marquette University Law School Professor Chad Oldfather said.

“It is really quite striking how much power the Legislature has accumulated in some of its committees,” he added.

JFC’s ability to reject conservation projects “unconstitutionally intrude(s) on the executive branch’s power to administer the Knowles-Nelson Program,” the governor argues in his suit.

“Once the Legislature enacted statutes creating the program, the baton passed to the executive branch to administer the program within statutory spending limits and criteria,” the lawsuit continues. “But these legislative vetoes empower (JFC) to delay, approve, or reject a proposed Knowles-Nelson Program project for any reason. That intrusion on executive branch authority violates the separation of powers.”

The committee vetoes also “improperly empower (JFC) to control executive action without passing new law,” Evers argues.

A legislative committee shouldn’t be able to restrict another branch of government’s authority without the Legislature passing legislation and getting the governor’s approval, Evers contended.

Attorneys for the Legislature rejected those claims in their own legal filings.

“DNR, like all agencies, was created by statute,” they wrote. “Therefore, ‘the legislative branch and the executive branch share inherent interests in the legislative creation and oversight of administrative agencies.’”

Even if the committee’s “review authority could possibly invade an executive-branch power in some instances, it is necessarily a shared power in numerous others, given the Legislature’s constitutional power of the purse,” the Legislature’s attorneys argued.

They also pushed back on the idea that JFC’s review authority violates the mandate that laws pass both chambers of the Legislature and be signed by the governor.

Legal arguments aside, Wisconsin’s committee vetoes make the state a national outlier, said Miriam Seifter, a University of Wisconsin Law School professor. Seifter and seven other legal scholars from across the country submitted an amicus brief in the lawsuit arguing committee vetoes are unconstitutional.

“When other state Legislatures want to change binding law, they pass legislation,” Seifter said in an interview. “In Wisconsin, a committee alone can undo executive branch decisions. And that’s become true sort of throughout the state’s code, not just in the provisions that are at issue in this case, and it is a feature of real consequence for how the state is governed.”

Committee vetoes have also not been a partisan or ideological issue before other state courts, Seifter noted.

“Almost all state courts have rejected legislative vetoes as unconstitutional,” she said. “And those courts are from all over the country, of all different ideological or political alignments. So, I think that it’s significant that this is something that states have almost overwhelmingly rejected, as opposed to thinking of this as just another Wisconsin battle.”