Rick Esenberg WILL lawsuit

WILL President and General Counsel Rick Esenberg announces his group's lawsuit over veto powers at a press conference at the Capitol on Wednesday morning.

In the latest attempt to limit the governor’s veto power, the Wisconsin Institute for Law and Liberty, a conservative advocacy group, filed a lawsuit on Wednesday asking the Wisconsin Supreme Court to reconsider the state’s veto rules and nullify four recent veto actions taken by Gov. Tony Evers. 

“Over the years, various governors have taken it upon themselves to transform the law,” said WILL president and general counsel Rick Esenberg at a Capitol press conference Wednesday morning. 

“This case is not about politics. It’s not about personalities. It’s about an important principle ... the principle of separation of powers,” Esenberg said. He called that separation of powers — that the Legislature creates laws and the executive branch carries them out — “an important guarantor of liberty.”

Wisconsin governors hold the country's most powerful partial veto authority on spending measures, but aren't able to use the veto pen to create new words by striking out individual letters, and they can’t craft new sentences by combining parts of two or more lines in legislation. Both limitations were imposed after voters approved previous constitutional amendments to limit governors’ authority in that arena.  

But Esenberg argued Wednesday that current interpretations of the partial veto rules have allowed governors to change budget bills inappropriately with what Esenberg calls “the magician’s veto.” The suit seeks to reverse, for example, Evers’ decision to change a fund to aid local governments into what WILL calls “a virtually unrestricted fund.” 

The suit, filed by WILL on behalf of three Wisconsin taxpayers, calls on the court to determine whether the governor may veto portions of a budget bill that are “essential, integral, and interdependent parts of those which were approved.”

The new lawsuit comes after Sen. Dave Craig, R-Big Bend, and Rep. Mike Kuglitsch, R-New Berlin, earlier this month floated a proposed constitutional amendment to bar governors from using the partial veto to increase expenditures over what was proposed in the budget passed by the Legislature. 

In order to be adopted, the amendment would have to be passed by two consecutive sessions of the Legislature before winning approval from the voters in a referendum.

While the amendment would address spending increases, the lawsuit addresses changes that “transform an appropriation into something else” by changing its purpose or eliminating “substantive conditions” on that spending.

The suit asks the court to reverse four such changes, including one that broadened what was proposed as a $3 million grant program to replace school buses with energy-efficient models. Evers removed the condition that the funding be used only for buses and instructed the Department of Administration to allocate up to $10 million for electric vehicle charging stations. 

Evers’ decision to use his veto power to increase per-pupil spending over the next two years is not part of the lawsuit.

“That is not the issue that we’ve raised here and we’re not challenging that particular action by the governor,” Esenberg said.

Responding to the lawsuit, Evers said Wednesday that WILL had not accepted the outcome of the November election.

“It’s time for our state to move on,” Evers said. “We had an election, we had a budget, the budget was signed and deliberated by Republicans and Democrats so I’m ready to move on, apparently they’re not.” 

When Craig and Kuglitsch began circulating their veto bill for co-sponsors, Evers spokeswoman Melissa Baldauff slammed the authors as "sore losers (who) want to change the rules every time they don’t get their way."

Esenberg said WILL would have filed the suit even if the governor were Republican and Democrats held a majority in the Legislature.

“There are no permanent victories in politics,” Esenberg said, noting that Wisconsin would surely one day have a Republican governor who would be subject to any limitations the suit prompts. “The point is not who holds office. The point is what the authority of that office ought to be.”

As to why the group had not filed the suit under a Republican governor, Esenberg said the group, which was founded in 2011, has not always had the capacity it has now. 

“But as we have grown as an organization, we’ve come to realize that structural limitations in the power of government and support for our separation of powers are a very important part of preserving our democracy, preserving our freedom and making our government work,” Esenberg said.

Esenberg said the lawsuit was necessary even though a constitutional amendment has been proposed and the veto decisions can be overridden with a supermajority vote in the Legislature.

He noted that amendments require two statewide referenda and overrides require a supermajority, which he said was an unduly high bar given that lawmaking is delegated to the Legislature, because the suit could prompt a new interpretation of the law.

“It’s important to get the Constitution right,” Esenberg said. 

Briana Reilly contributed to this story.