By Jack Kelly
Wisconsin Watch
The Wisconsin Supreme Court will hear oral arguments Wednesday in a lawsuit challenging Gov. Tony Evers’ last-minute budget maneuver increasing funding for Wisconsin school districts for the next 400 years.
Yes, you read that correctly.
The state’s most recent budget included a provision increasing the revenue limit for school districts by $325 per pupil for “the 2023-24 school year and the 2024-25 school year.” Using his partial veto authority, Evers changed the line to read, “for 2023-2425.”
He did so by striking a handful of characters: “121.905 (3) (c) 9. For the limit for the 2023-24 school year and the 2024 25 school year, add $325 to the result under par. (b).”
The revenue limit controls the amount of funding school districts can raise through a combination of state aid and local property taxes. Evers’ veto allows school districts in the state to collectively increase revenue by almost $270 million each year, allowing an already record increase to be duplicated every year for four centuries.
Evers’ veto-authored provision, by the time it expired in 2425, would add $130,650 per pupil to a district’s revenue limit, according to a Cap Times analysis. The revenue limit for Madison schools in 2022-23, for example, was $14,254 per pupil.
Evers’ move, which garnered national attention, was condemned by GOP leaders. Assembly Speaker Robin Vos, R-Rochester, said a week after the change that Wisconsin Republicans were preparing to sue over the increase. In April, their allies at the WMC Litigation Center, a 501(c)(3) affiliate of Wisconsin Manufacturers & Commerce, the state’s powerful business lobby, filed an original action with the state Supreme Court.
The court agreed to hear the case in June, teeing up Wednesday’s hearing.
Filed on behalf of two Wisconsin residents, the lawsuit argues Evers’ partial veto was unconstitutional for two reasons.
“First, Wisconsin’s governor may approve an appropriation bill ‘in part,’ but Gov. Evers’s 402-year increase of the school-district revenue limit is not ‘part’ of the legislatively approved two-year increase,” attorneys wrote in a brief with the court.
Rather, attorneys for WMC argued that since the 400-year increase was not included in the budget, but instead created by the governor, it runs afoul of the state constitution’s provision allowing governors to approve, but not create, budget bills “in whole or in part.”
“Second, in 1990, Wisconsin voters amended our state constitution to prohibit the so-called ‘Vanna White’ or ‘pick-a-letter’ veto,” the plaintiffs’ attorneys said in their brief. “(Evers’ veto) is a Vanna White veto.”
A Vanna White veto — named for the “Wheel of Fortune” star — is when a governor uses partial veto authority to strike “phrases, digits, letters, and word fragments” in order to “create new words, sentences, and dollar amounts,” according to a report from the nonpartisan Legislative Reference Bureau (LRB).
The constitutionality of Vanna White vetoes was tested in the 1980s after then-Gov. Tommy Thompson employed them to make changes to the budget bill in 1987. Miffed by Thompson’s actions, the Democratic leaders of the Legislature filed a lawsuit with the state Supreme Court. The high court upheld the vetoes, finding “the governor may, in the exercise of his partial veto authority over appropriation bills, veto individual words, letters and digits, and also may reduce appropriations by striking digits, as long as what remains after veto is a complete, entire, and workable law.”
A few weeks after the ruling, the Democratic-controlled Legislature held an extraordinary session to pass a constitutional amendment outlawing Vanna White vetoes, which was eventually approved by a wide margin in a 1990 referendum, according to LRB. The amendment included the following language in the state constitution: “In approving an appropriation bill in part, the governor may not create a new word by rejecting individual letters in the words of the enrolled bill.”
Attorneys for Evers, meanwhile, argued in legal briefs that he did nothing wrong.
Precedent established in the Thompson case “merely requires the governor’s vetoes to leave behind a complete and workable law,” they wrote.
“The partial vetoes at issue undeniably yield such a law, and so they are valid,” attorneys for Evers continued.
The governor also said he did not violate the amendment banning Vanna White vetoes.
“The vetoes at issue comply with this provision because they deleted digits, not letters,” his attorneys wrote. They noted the amendment bars a governor from “rejecting individual letters in the words” but doesn’t say anything about digits.
“Because this Court’s precedent and the amendment’s history confirms the common-sense understanding that ‘digits’ are not ‘letters,’ Petitioners’ challenge … also fails,” attorneys for the governor argued.
Some independent legal experts, though, are skeptical of Evers’ position. In an amicus brief filed with the court, Richard Briffault, a Columbia Law School professor and expert on state and local government, said Evers’ veto flies in the face of the constitutional requirement of bicameralism and presentment.
“The partial veto power was designed to restore balance in (the legislative) process — not to subvert it by giving the governor capacious unilateral lawmaking authority,” he wrote.
We’re watching to see if the court’s liberal majority, which has so far been friendly to Evers, will once again rule in his favor, or instead rein in one of his key budget victories.
— Forward is a look ahead at the week in Wisconsin government and politics from the Wisconsin Watch statehouse team.