Executive powers run rampant in Wisconsin. Iowa could be next

Dec 04, 2023

HOLD THIS THOUGHT

Jul. 11, 2023 10:43 am

MADISON, Wis. — With a few precise pen strokes last week, Democratic Wisconsin Gov. Tony Evers dunked on Republican opponents in the legislature by partially vetoing a few key parts of an appropriations bill:

Let’s get one thing straight: this is pretty funny.

A governor using their authority to lock in a policy for the next four centuries — 155 years longer than the United States has existed as a country — is a cartoonish example of executive overreach. It’s the kind of thing you wouldn’t see in a work of fiction, because it’s just too outlandish to suspend your disbelief, and too on the nose for tasteful symbolism. Real life doesn’t care about these things, however, so here we are.

The kicker is that Evers is probably allowed to do what he did. Wisconsin allows the line-item veto for budget bills with a surprising amount of supporting precedent. The authority is written into the state constitution as well, which reads, “Appropriation bills may be approved in whole or in part by the governor, and the part approved shall become law.”

On its own state website, Wisconsin’s legislative service agency acknowledges the questionable nature of its line-item veto norms.

“Armed with the partial veto, the governor can alter text and numbers to create laws that not only may have been unintended by the legislature, but also that the legislature deliberately rejected,” said a 2019 report from the Wisconsin Legislative Reference Bureau.

There are some limits. An amendment to the state constitution passed in 1990 says that governors "may not create a new word by rejecting individual letters in the words of the enrolled bill.“ Prior to that, the practice was common enough that it got its own nickname: ”the Vanna White Veto,“ after the Wheel of Fortune co-host.

It’s not a partisan thing, either. Vox reports that, “In 1991, Republican Gov. Tommy Thompson set the record for the number of line-item vetoes used at 457.”

PBS affiliate WisContext reports one such case of off-brand monarchy with the following anecdote:

“The Legislature had approved an appropriation that would authorize the state to reimburse municipalities for tax credits claimed by local property owners on up to $35,000 of the value of their properties. Thompson struck most of the provision, including individual digits in years and monetary values, to arrive at a brand-new appropriation of $319,305,000 for a school tax credit fund.”

Looking at that bill’s veto markup, it reads a lot like blackout poetry, as do several similar partial vetoes in Wisconsin’s history from governors on both sides of the aisle.

Even if you agree with public education as a funding priority, you have to admit: the legal ability to unilaterally declare four centuries of unconditional taxpayer expenses reflects not only an overreach of executive authority, but a state’s absolute failure to uphold a reasonable balance of power.

I digress, while Wisconsin employs the most outlandish version of this executive power, it’s surprisingly common across the country. Despite being declared unconstitutional for the U.S. president in landmark 1998 Supreme Court Case Clinton v. City of New York, 44 states still allow their governors some variation of partial veto power in 44 states, according to Vox.

Iowa is one of them.

A 2018 brief on the budget process from the Iowa Legislative Services Agency confirms that Iowa’s governor gets line-item veto powers on any appropriations bill. A line-item veto can be overridden about the same way a normal veto is, which is to say, almost never.

The exact text of Iowa’s state constitutional clause is this: “The governor may approve appropriation bills in whole or in part, and may disapprove any item of an appropriation bill; and the part approved shall become a law.”

If that wording sounds familiar, it’s because it’s pretty darn close to Wisconsin’s, cited in paragraph four of this article. The language was added to Iowa’s constitution by an amendment in 1968.

Reynolds used the power this year, it turns out, to remove a section from Senate File 563, the judicial branch spending bill, according to Iowa Capital Dispatch which reported that the vetoed section would have required courts to “not appoint a noncontract attorney … without the noncontract attorney’s consent.”

This is a bill that passed on a 60-33 vote in the house, and 32-16 in the senate. It’s hard to know if it was veto-proof, since some legislators were absent from the vote, but the numbers look just short of the required two-thirds majority in the house.

In her veto statement, Reynolds wrote that “All attorneys owe a duty to the legal profession to accept such an appointment if needed,” and that, “This change creates the possibility that if no attorneys consent, indigent individuals will be left without legal representation.”

It’s a compelling enough argument. So is the argument that Wisconsin schools need and deserve more funding than they’ve been historically granted. But the policy outcome is not the point.

The point is that almost any governor is apparently allowed to single-handedly transform any appropriation bill to suit their vision for the state, effectively unchecked by the legislature unless it can conjure a coalition between two thirds of its members. If a given partial veto is especially egregious, it could theoretically do that, or it could go to the courts. But since the authority is baked into state constitutions, it’d be tedious and time-consuming to prove a given line-item veto violated the law.

Even if Evers’ move was isolated to Wisconsin’s weird little bubble of pro-line-item veto precedent, it still accomplished something on a national scale: It took the gloves off.

The headline-grabbing “governor locks in four centuries of education funding increases” angle has brought attention to a power that heretofore saw only limited use on the middle pages of easy-to-miss, unexciting items of law like Iowa Senate File 563.

State and national politics are already a polarized bloodbath, that’s news to nobody. Rather than allow an inch of compromise, both political parties have demonstrated a preference for “nuclear options,” creative reliance on reconciliation bills, performative outrage, outright antagonism, 5 a.m. votes on controversial bills, openly politicized nominations, and plenty of other bad-faith practices at the state and federal level.

Line-item vetoes, now in the limelight, could easily serve as the next powerful tool for the leaders of this unfortunate new normal. Maybe, under different circumstances, they’d serve as a functional check against omnibus funding packages, or a way to cut out wasteful pork barrel spending and riders attached to must-pass legislation.

But there are other ways to fight such problems. Iowa’s balanced budget requirement is an excellent guard rail. Any and all measures of increased transparency will help prevent the smoky room vote-trading that defines pork barreling. Gubernatorial public statements can call attention to problematic parts of legislation before they’re voted on, allowing amendments to correct them before a vote, rather than after.

All of these options are preferable to the admittedly more effective line-item veto because in an uncompromising and polarized America, it’s far more likely to see partial vetoes used as just another way to fight dirty.

There are only two ways to check the power of a line-item veto. The first is to abide by good-faith norms on its use, but it seems that ship has finally sailed. Bummer.

Now that it’s out in the open, the only alternative is to amend the state constitution. It won’t be easy — requiring approval from two successive General Assemblies, and ratification from a majority of delegates in an election also set by the General Assembly — but it will be important.

Even if their power can be used for good, an unrestrained executive office is bad for everybody. This country, its governing documents, and all of its institutions are built on an assumption of checks and balances, a fundamental value that, apparently, everyone just forgot to apply to the appropriations process in 40-something states.

That’s bananas. If not unconstitutional, it’s at least unreasonable. And it’s up to state legislators to fix it.

The commotion in Wisconsin is a canary in the coal mine. All we have to do is get out.

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