With liberals poised to take control of the Wisconsin Supreme Court and Democratic Gov. Tony Evers standing in the way of most Republican policies, some conservatives are calling on state lawmakers to ramp up their use of constitutional amendments to enact or preserve legislation.
Constitutional amendments offer Republicans an advantage in promoting GOP policies because they only require approval from the Legislature — the one branch of government conservatives will control after August — before going before voters.
Anthony LoCoco, chief legal counsel and director of oversight for the conservative Institute for Reforming Government, said constitutional amendments could be used to protect conservative policies like right to work, school choice and elements of Act 10, former Republican former Gov. Scott Walker’s signature 2011 legislation that effectively eliminated collective bargaining rights for most public-sector employees.
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Some of those policies could soon be at risk of being overturned when liberals assume a majority on the state Supreme Court later this summer following the election of Milwaukee County Circuit Court Judge Janet Protasiewicz earlier this month.
“Obviously there’s a lot of discussion in the wake of the Wisconsin Supreme Court race about possible challenges to Scott Walker-era reforms, and with respect to the executive branch, it’s going to be difficult to accomplish things legislatively with divided government,” LoCoco said. “But what conservatives do have is massive majorities in the Legislature, and that’s half of the equation for enacting a constitutional amendment to the Wisconsin Constitution.
Constitutional amendments must pass two successive legislative sessions before going before voters. They cannot be vetoed by the governor.
Although most recent constitutional amendments have passed overwhelmingly and largely flew under the radar, it’s likely that referendums on hot-button issues would be more divisive, attracting the hefty sums that have become ubiquitous in Wisconsin elections. It would also be possible for liberal groups to challenge GOP-written constitutional amendments in court, a strategy that would no longer favor conservatives.
Given the potential policy instability and possibility that divisive proposals might fail, some conservatives are backing only the narrow use of constitutional amendments.
“We believe that the Wisconsin Constitution is a foundational document ... it’s not a mere policymaking tool,” said Dan Lennington, deputy counsel for the conservative group Wisconsin Institute for Law and Liberty. “When legislators propose constitutional amendments, they should be very careful and think long term.
“It certainly is the right of the people to amend the Constitution, and it’s a good and proper use of the amendment process,” Lennington said. “But it’s been the most successful and it’s made the most sense when the amendments have been on ... issues that are supported broadly by the public.”
LoCoco said the possibility of defeat shouldn’t deter Republicans.
“I encourage people to not be too concerned about the possibility of a failed vote, although certainly it needs to be given consideration,” LoCoco added. “Legislators should be careful when selecting which proposals they think should be added to the Constitution.”
There are some conservative proposals that the public appears to overwhelmingly support, like expanding the private school voucher program. Just under 60% of registered voters supported expanding vouchers, while 34% were against it and the rest didn’t know or refused to say, according to an April 2022 Marquette Law School Poll.
Declining to speak about specific policies, Lennington said he didn’t want Wisconsin’s Constitution, which has been amended 148 times, to look like California’s, which has been amended over 500 times.
“I don’t think anybody has looked at California’s example, of having the voters vote on every single contentious policy issue, as a good example,” Lennington said.
While the vast majority of Wisconsin’s constitutional amendments didn’t involve costly campaigns, it’s likely that more divisive efforts would attract a lot more money — and attention.
Last year, months after the U.S. Supreme Court overturned Roe v. Wade, Kansas voters were asked to strip abortion protections from the state constitution. Kansans rejected the measure after groups on both sides of the debate spent $11 million to boost their stance on the issue, attracting national attention.
While they can’t be vetoed, constitutional amendments can be challenged in court, which would put the proposals before the same liberal Wisconsin Supreme Court majority that conservatives are trying to avoid.
A case currently before the Wisconsin Supreme Court challenges the validity of “Marsy’s Law,” a constitutional amendment approved by about 75% of voters that purported to increase victims’ rights.
Marsy’s Law added 16 new rights for victims while eliminating a reference in the Constitution to a fair trial for the defendant.
The case made its way to the state’s highest court after a Dane County judge said the statewide ballot question inadequately spelled out the effect the amendment would have on the rights of people accused of crimes. Attorneys defending the proposal argue the question communicated the amendment’s essential purpose.
The Wisconsin Supreme Court is slated to rule on the case this summer.
“On any of these proposals, the devil is certainly going to be in the details in terms of how the amendments are worded,” LoCoco said.
Lawsuits challenging constitutional amendments could take different forms.
Just before voters were asked to decide the parameters of judges’ use of cash bail this April, a group challenged the measure in court, saying the measures weren’t submitted to election clerks on time. The group unsuccessfully sought to remove the questions from the ballot before the election but the case is ongoing.
No new constitutional amendment has been introduced since the Wisconsin Supreme Court race.
“If and when there are, we’ll continue to study each one carefully,” said Jeff Mandell, a Stafford Rosenbaum attorney who co-founded the liberal group Law Forward. “And make sure that when the people are asked to change the founding charter of our state, that they’re asked to do so in a way that complies with the rules and complies with the basic principles of democracy that the Constitution exists to uphold.”
“I generally think that it is inappropriate and unwise to be putting the solutions to whatever the policy debate of the day happens to be into the Constitution,” Mandell said. “The Constitution is really supposed to be a much more long-term document.”
Spokespeople for Evers, Assembly Speaker Robin Vos, R-Rochester, and Senate Majority Leader Devin LeMahieu, R-Oostburg, didn’t respond to requests for comment.
Since the adoption of the state Constitution in 1848, voters have weighed in on 200 proposed constitutional amendments. Of those, 148 have been approved, according to the nonpartisan Legislative Reference Bureau.
Most recently, two-thirds of Wisconsin voters in the April 4 election approved a pair of constitutional amendments giving judges more options for keeping people arrested for violent crimes in custody pending trial.
Conservatives wrote those amendments and celebrated their passage, though both Protasiewicz and her conservative opponent, Dan Kelly, said they supported the measures.
But voters embracing any proposed amendment is not a foregone conclusion. In 2018, only 38% of voters supported a proposal to eliminate the office of the state treasurer.
Evers last September called on the Legislature to advance a proposal that, if passed by a statewide vote, would create a binding referendum process whereby voters could collect signatures and file petitions to force votes on state laws or constitutional amendments.
The Democratic governor’s proposal, which was broached as a means to let voters decide whether to repeal state laws like the current near-complete ban on abortions in Wisconsin, was swiftly dismissed by legislative Republicans.
More on the way
Other proposed constitutional amendments that were approved by the Legislature for the first time last session could be coming before lawmakers in the months ahead. If approved a second time, the proposals would appear before voters on the next statewide ballot.
Republicans in January introduced for second consideration a resolution that would give the Legislature final say over how the governor spends federal funds allocated to the state. Republicans sought to secure more control over the money last session after Evers oversaw the distribution of billions in federal COVID relief funds pumped into the state.
Another proposal would bar the state from receiving private funds to help administer elections. Republicans proposed it in response to private election grants provided to cities in 2020 by the Chicago-based Center for Tech and Civic Life that they said were used to unfairly increase turnout in the Democratic strongholds of Milwaukee, Madison, Green Bay, Kenosha and Racine.
A staffer for Sen. Eric Wimberger said in January the Green Bay Republican plans to introduce the joint resolution for second consideration this legislative session.
Another proposal would amend the constitutional provision declaring that, “Every United States citizen age 18 or older who is a resident of an election district in this state is a qualified elector of that district.” The amendment would clarify that “only a United States citizen” could vote in any district. That measure is meant to head off initiatives in other states to allow noncitizens to vote in some local elections.
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