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Critics question partial veto after Tony Evers used it to boost K-12 spending by $87 million
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Critics question partial veto after Tony Evers used it to boost K-12 spending by $87 million

Wisconsin Budget

Gov. Tony Evers displays the state budget he signed last week. Evers made 78 partial vetoes to the spending plan that was passed by the Republican-controlled Legislature.

Democratic Gov. Tony Evers didn’t have to veto the entire state budget to prove yet again the sweeping powers afforded to Wisconsin governors to bend biennial spending bills to their liking.

Evers instead found sometimes creative ways to wield his powerful veto pen 78 times, including in one case spending $87 million more on K-12 school district aid than the Republican-controlled Legislature intended.

The move was reminiscent of former Gov. Jim Doyle stitching together numbers and words to create a new sentence in the 2005 budget that spent $330 million more than the Legislature intended on K-12 education. In 2008, voters abolished what became known as the “Frankenstein veto” via constitutional amendment.

The governor’s ability to raise $87 million with a few strokes of a pen has both critics and good-government advocates again questioning whether such authority is appropriate.

“It’s one thing to allow the governor to write down or block spending through the use of the line-item vetoes,” said Rick Esenberg, president of the conservative Wisconsin Institute for Law and Liberty. “It’s quite another thing to allow the governor to appropriate money. I don’t think that’s what our state Constitution was intended to do.”

Esenberg said the issue is one state courts should reconsider, although it’s unlikely. If they don’t, he said lawmakers should consider bringing a constitutional amendment before the voters limiting governors from increasing appropriations in spending bills. Wisconsin courts have typically allowed the governor broad powers under partial veto authority, according to a nonpartisan Legislative Reference Bureau memo.

Jay Heck, executive director of the liberal group Common Cause in Wisconsin, said the Evers veto is a reminder that power in Wisconsin state government is concentrated in the hands of too few.

“He still has the greatest veto authority in the nation,” Heck said. “It would be wise to take a look at that, see if it could be brought down to scale.”

Evers defended the way he used the veto talking to reporters Wednesday.

“I think we used every possible creative way to veto this budget so that it reflects the people’s budget,” Evers said.

Constitutional limits

Even with constitutional limits imposed by voters over the past several decades, Wisconsin governors still have among the strongest powers over appropriation bills in the country, with the ability to strike words, numbers and punctuation in both appropriation and non-appropriation text in bills that determine how money is spent.

Governors may also strike appropriation amounts and write down an entirely new, lower amount. Most other states allow governors only to strike or reduce appropriations in bills spending money.

According to the Legislative Reference Bureau, governors have never vetoed current law included within a budget document. In addition, the words that remain in a bill after partial vetoes must relate to the part that was vetoed. The veto must also result in a “complete and workable law.”

Still, the use of partial veto authority over the budget has declined over the past two decades. Evers’ 78 partial vetoes were fewer than former Republican Gov. Scott Walker’s high of 104 partial vetoes in the 2015-17 budget, and an all-time high of 457 in 1991 under former Republican Gov. Tommy Thompson.

Thompson, who had used the so-called “Vanna White” veto to delete phrases, digits, letters and word fragments to create new words and phrases before it was prohibited by constitutional amendment in 1990, defended the Wisconsin governor’s broad use of veto authority. But he agreed with Esenberg that Evers increasing appropriations is a concern.

Thompson said he used vetoes to reduce expenditures, not increase them, and the increase in spending under Democratic governors represents a divide with Republicans.

“I used the veto more than any governor,” Thompson said. “I’m the last one that should be talking about limiting the governor’s veto. (But) I think that there should be limitations on increases in spending.”

All in the numbers

The way Evers was able to spend an extra $87 million on a type of K-12 aid given to districts for each student was another creative use of the veto. He was able to resurrect part of a number the Legislature had deleted, or what you might call a “zombie veto.”

Evers used his partial veto authority to provide $742 per pupil each year, instead of $679 in the first year and $704 in each subsequent year under the GOP-authored budget. The Legislature had tried to delete the previously identified continuing aid amount of $630, but Evers “un-deleted” the figure “$63.” The final language thus provided $679 and $63 to result in $742, a larger amount, costing the state an additional $87 million.

Combined with other vetoes that reduced spending, Evers’ net spending increase on K-12 education was about $65 million.

Dan Rossmiller, director of government relations for the Wisconsin Association of School Boards, said he was generally pleased with the spending increase for schools, giving Evers “high marks for creativity.”

His organization lobbied the Evers administration to spend $17 million more by simply striking the $679 in the first year, which would have delivered $704 in aid per student in both years, so the $87 million increase came as a surprise.

“It didn’t even occur to me that you could un-delete language that had previously been deleted,” he said. “He went far beyond what I had envisioned. I was just looking for a modest increase.”

Altering intent

Evers also used his partial veto authority to substantially change legislative intent in other ways.

In another K-12 aid section, the Legislature tried to provide up to $1,000 per student to districts with high property value per student. Such districts are typically in rural areas with expensive lakefront retirement homes and a small number of students, many living in poverty. Evers vetoed most of the language so that instead, every district will receive a few dollars of aid per student.

The section now reads: “A school district is eligible for aid under this section” and “beginning in the 2019-20 school year, the department shall pay to each eligible school district an amount.”

Supplemental student aid veto

Gov. Tony Evers used his powerful veto 78 times, sometimes to create new spending not intended by the Legislature. In one example, shown here, the Legislature tried to create a new type of K-12 aid for a small number of school districts with high property values that lose out on other types of aid through the state's funding formula. Each would have received up to $1,000 per student. Instead, under the language created by Evers' veto, a few dollars per student will be distributed to every district.

In another example, the Legislature tried to use $3 million in Volkswagen settlement funds to help school districts buy energy-efficient buses. The money comes from a federal lawsuit alleging the automaker cheated on emissions testing.

Evers deleted much of the language, but kept in place the word “for” and “alternative fuels” to direct up to $10 million of the funds to a program for electric vehicle charging stations and an additional $15 million for the transit capital assistance grant program. Esenberg called it a “startling use of veto power.”

Esenberg noted Republican lawmakers could have put the appropriations in separate sentences, potentially thwarting the governor’s alterations. That’s because the constitutional amendment voters approved in 2008 prohibited using the veto to create new sentences by combining parts of two or more sentences in an appropriation bill.

Lawmakers in the 2005 Legislature initiated the constitutional amendment after former Democratic Gov. Jim Doyle strung 20 words together within 752 words to form a new sentence allowing a $427 million transfer from the transportation fund to the general fund to be used for public schools. Still, the governor can remove entire sentences or words within sentences, or, apparently, bring deleted words and sentences back to life.

Republican leaders tried to “line-item-veto-proof” their budget as much as possible, replacing wording such as “shall not” or “may not” with “cannot,” which would prevent Evers from deleting “not” to significantly change the intention of the language.

Rossmiller said that could have unintended consequences down the road if people believe phrases such as “cannot” or “may not” are not synonymous.

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