Conservatives ask court to block vetoes
MADISON — Conservatives asked Wisconsin’s high court Wednesday to overturn at least one of its precedents and undo budget vetoes Gov. Tony Evers issued four weeks ago.
The lawsuit was brought by three taxpayers with the help of the conservative Wisconsin Institute for Law & Liberty. It argues the Democratic governor exceeded his authority by doing what his predecessors from both parties have done — carving up a state budget to enact new policies.
Wisconsin governors for decades have removed words and phrases from budgets to dramatically rewrite them. The practice — upheld decades ago by the state Supreme Court — has allowed governors to put in place laws that are unlike anything legislators intended.
The lawsuit contends Evers went beyond what the state constitution allows. In the court filing, WILL president and general counsel Rick Esenberg compared the governor’s vetoes to Scrabble and television game shows.
“What becomes law should not be reduced to an acrostic puzzle,” Esenberg wrote.
At stops in Milwaukee and Watertown, Evers said he was not surprised by the lawsuit from WILL, which has tangled with Evers going back to his time as the state schools superintendent.
“I know (former Republican Gov.) Scott Walker had several vetoes over his career, and I don’t remember WILL’s going to a court to take him on,” Evers said in Milwaukee. “So I’m guessing that this might have something to do with the fact that I was elected last November and Scott Walker wasn’t.”
He said the public wanted the state officials to address the opioid crisis and help schools instead of “spending our time in front of the Supreme Court arguing over the stuff that the
Republicans keep bringing up.”
The lawsuit asks the court to block vetoes that set new taxes and regulations on vaping products; put taxpayer money toward electric vehicle charging stations; lifted restrictions on how $75 million in transportation funding could be spent; and required owners of heavier trucks to pay higher vehicle fees than owners of lighter trucks.
Those vetoes fundamentally changed what Republicans who control the Legislature put into the budget, Esenberg said at a Capitol news conference.
“Here we have what I might call a magician’s veto, in which appropriation items that have been passed by the Legislature have been transformed magically into something else through the clever use of a veto pen,” he said.
Esenberg filed the suit directly with the state Supreme Court rather than a lower court that would be bound by Supreme Court precedents that grant governors expansive veto powers.
One of the justices’ first decisions will be whether to take the case.
The lawsuit was filed a day before conservative Brian Hagedorn will be sworn in to replace liberal Justice Shirley Abrahamson, who did not seek reelection in April. Once Hagedorn is seated, conservatives will control the court 5-2.
Evers in July issued 78 vetoes, including ones that sent an extra $65 million toward schools, canceled plans for a new prison and took away funding to enforce drug testing and work requirements in the state’s food stamp program.
Esenberg said his group’s lawsuit was not trying to overturn the veto that allowed more money to flow to the state’s schools.
Instead, the lawsuit is focused on vetoes that reshaped budget provisions approved by lawmakers.
In their version of the budget, Republican legislators directed $25 million from a court settlement toward purchasing fuel-efficient buses. Evers used vetoes to create a new program to have the state help pay for electric vehicle charging stations using $10 million that would have gone to buy buses.
Democratic Attorney General Josh Kaul did not immediately say if he would defend Evers in court. If he doesn’t, Evers could hire private attorneys at taxpayer expense.
Lester Pines, a Madison attorney who has represented Evers in other cases, said he saw the lawsuit as a partisan attempt to help Republicans get their way.
“They believe they have the Supreme Court in their back pocket, just like the leaders of the Communist Party knew that the courts were in their back pocket in the Soviet Union,” Pines said.
With the lawsuit, Esenberg asked the Supreme Court to overturn a 1978 decision by the high court that determined governors could use budget vetoes to put in place new policies.
In a footnote, Esenberg said he may also pursue having the court reverse a 1935 Supreme Court decision to further curtail the veto powers of the governor.
Those who have challenged past vetoes have typically lost.
“Wisconsin courts have generally favored an expansive view of the governor’s partial veto power,” notes a June report on the governor’s veto powers written by the nonpartisan Legislative Reference Bureau.
In 1988, for instance, the high court ruled the governor held a “quasi-legislative” role and was allowed to strike out words, digits and even individual letters from budgets to string together new sentences.
The state constitution was later amended to prevent governors from eliminating letters from words. The practice was dubbed the “Vanna White veto” in a nod to the hostess who turns letters on the game show “Wheel of Fortune.”
Evers’ vetoes were not as creative as some of those issued by previous officeholders, including Republican Gov. Tommy Thompson and Democratic Gov. Jim Doyle.
Thompson’s use of the “Vanna White veto” led to the constitutional amendment that ended that practice.
Doyle, like Thompson and other governors, used “Frankenstein vetoes” to string together parts of two or more sentences to create new sentences. That prompted an amendment to the state constitution putting further constraints on the veto power of governors.
Alison Dirr and Lee Bergquist of the Journal Sentinel staff contributed to this report from Milwaukee.