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    The Origin & Evolution of the Partial Veto Power

    In the April general election, a referendum will give Wisconsin citizens an opportunity to limit the governor’s partial veto power. Here’s a look at the proposed amendment and how it compares to the origin and evolution of partial veto power.

    Frederick B. Wade

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    Wisconsin LawyerWisconsin Lawyer
    Vol. 81, No. 3, March 2008

    The Origin and Evolution of Partial Veto Power

    In the April general election, a referendum will give Wisconsin citizens an opportunity to limit the governor's partial veto power. Here's a look at the proposed amendment and how it compares to the origin and evolution of partial veto power.
    Man with Pen

    by Frederick B. Wade

    The Wisconsin Constitution provides that "appropriation bills may be approved in whole or in part by the governor, and the part approved shall become law." This provision was created by a constitutional amendment in 1930 and is now considered "the most extensive" veto power that has been "given to any state executive."1

    Former Gov. Tommy G. Thompson has called it "a pair of scissors" that "allows the governor to strike out individual words and digits as well as sentences and paragraphs from budget bills passed by the legislature."2 However, this understanding of the partial veto is not what was intended, either by the framers of the partial veto or by the voters who ratified it.

    The result of the current understanding is a profound contradiction. On one hand, the Wisconsin Constitution makes clear that legislation must be authorized and enacted by the legislature in order to be a legitimate exercise of governmental power. It provides that "the legislative power shall be vested in a senate and assembly." It prescribes an enacting clause for "all laws of the state," which clause declares that "the people of the state of Wisconsin, represented in senate and assembly, do enact as follows." And it limits the role of the executive to the "approval" or "rejection" of legislation that has passed each house of the legislature in identical form.3

    On the other hand, the partial veto has evolved into a unilateral executive power to create "law[s] that the legislature did not consider, let alone enact …."4 The legislature has effectively been reduced from a coequal branch of state government, with the power to authorize "all laws of the state," to a body that is merely advisory, at least in circumstances in which a governor finds it possible to stitch together a law that the legislature did not approve from the remnants of a vetoed appropriation bill.

    The Legislature Adopts an Item Veto Amendment

    A constitutional amendment must be passed by two successive legislatures, and then ratified by voters in a referendum, before it may become part of the Wisconsin Constitution.5 State senator William Titus began the process that created the partial veto power on Feb. 25, 1927, by introducing his proposal for a constitutional amendment as Senate Joint Resolution 35.

    Titus said the proposed amendment would allow "future governors to veto separate items of an appropriation bill."6 Thirty-seven other states had already adopted the item veto concept.7

    Frederick B. Wade

    Frederick B. Wade, U.W. 1972, maintains a law practice in Madison, with an emphasis on corporate governance issues.

    It was understood, in 1927, that an "item" consists of "any part of a bill [making appropriations] which is sufficiently distinct that it may be separated without serious damage to the essential force of the residue."8 The Virginia Constitution specified, for example, that the governor's veto of a "particular item or items … shall not affect the item or items to which he does not object."9

    It appears that the proposed amendment was drafted by Edwin Witte, the chief of the Legislative Reference Library. Witte sent the draft amendment to Titus on Feb. 18, 1927, and called it a proposal to "allow the Governor to veto items in appropriation bills." He did not comment on the fact that the text did not use the word "item," and instead, permitted appropriation bills to "be approved in whole or in part."10

    The proposed amendment passed the senate on March 17, and was adopted by the assembly on May 5, 1927. It was not controversial.

    In February 1929, after Titus retired from the legislature, state senator Thomas Duncan asked Witte to prepare the "amendment passed in 1927 to allow the governor to veto items," so that he could introduce it for consideration during the 1929 session.11 Duncan introduced the measure as Senate Joint Resolution 40 on Feb. 14, 1929. The measure won senate approval on March 7 and was adopted by the assembly on April 19, 1929.

    Edwin Witte Advocates Adoption of an Item Veto

    In September 1930, before the November ratification vote, Witte wrote a "Brief in Support of the Proposed Amendment to the Constitution to Allow the Governor to Veto Items in Appropriation Bills."12 The brief notes that during the 1929 session, the legislature had adopted "an executive budget plan," which required governors to incorporate all "budget estimates" into "a single appropriation bill." It adds that "the item veto is absolutely indispensable to … operation of the [new] Wisconsin budget plan," because without it, "the legislature can increase the items" in the executive budget "and add new ones."

    Although governors could veto a budget bill in its entirety, the brief indicates that they would hesitate to do so, even if they had strong objections to one or more items, because "the state government must go on." Witte predicted that, without an item veto, governors would be more likely "to sign the [budget] bill and then blame the legislature for the large appropriations."

    The Witte brief states that the proposed amendment would permit governors "to veto items in appropriation bills … entirely, and then send them back to the legislature which may pass the same [entire items] over the veto" (emphasis added). It would give a governor the "power to block any appropriation which he deems unwise and which two-thirds of the members of both houses do not think ought to pass over his objections" (emphasis added).

    The brief uses the words item and items a total of 19 times. It makes no mention of the word part. Under these circumstances, it appears that Witte viewed the terms part and item as interchangeable synonyms for expressing the item veto concept.13

    The Voters Ratify the Item Veto

    Sen. Duncan opened the campaign for ratification of the amendment in Madison on Oct. 13, 1930. He told his audience that the proposed amendment would give governors the power "to kill separate items" of an appropriation bill.14 The intent, he said, "is merely giving back to the governor the power we took away from him when we passed the [executive] budget system at the 1929 session."15

    Duncan distributed a press release as part of his campaign. In it, he declared that the amendment would permit the governor to veto "single items in an appropriations bill without vetoing the entire bill."16

    Among the state newspapers that endorsed the change, the Sheboygan Press echoed Duncan's prediction that the amendment "would enable the governor to veto single items in an appropriations bill without vetoing the entire bill."17 The Milwaukee Leader endorsed the amendment on the ground that "the veto of an entire appropriation bill in order to get at one or two items is an … impractical way of going about legislative business."18 And the Racine Times-Call, published by state senator (and future governor) Walter Goodland, supported ratification because it would "give the governor the power to veto that portion of the appropriation [bill] he believes to be bad and yet allow the balance to stand."19

    According to the 1931-1932 Blue Book, the amendment to permit the governors "to veto single items in appropriation bills" was ratified on Nov. 4, 1930, with 252,655 state residents voting in favor and 153,703 voting against.20 There is no evidence that anyone anticipated that the partial veto might someday be understood as an executive power to create laws that the legislature had not approved.21

    Judicial Evolution of the Partial Veto

    In 1935, the Wisconsin Supreme Court adopted a two-part test of severability as the test for determining the validity of a partial veto. The court declared that it would give effect to the unvetoed part of a law as long as: 1) "the part upheld constitutes … a complete law in some reasonable aspect"; and 2) "it appears from the act itself that the legislature intended it to be effective," so that the "part upheld" would be carried into effect consistent with the intention of the legislature which enacted it.22

    The veto power did not become "the most extensive" in the nation until 1978, when the court declared that the test of severability is "simply that what remains be a complete and workable law" and thereby changed the content of the test it had adopted in 1935.23 Although the court did not acknowledge that it was changing the test, and did not explain any reasons for making the change, the one-prong restatement of the test eliminated the need to consider whether the part upheld could stand consistent with the intention of the legislature that had enacted the bill. The court held, on the basis of the revised test, that governors may remove provisos, conditions, and other parts of an appropriation bill "so long as the net result of the partial veto is a complete, entire and workable bill which the legislature itself could have passed in the first instance."24

    Another important step in the evolution of the veto power was taken in 1988, when the court held that governors may veto individual "sections, subsections, paragraphs, sentences, words, parts of words, letters, and digits … in an appropriation bill as long as what remains is a complete and workable law."25 The court based this conclusion "on the language of our constitution giving the governor of this state the authority to veto parts of an appropriation bill, as distinguished from … the authority to veto items …."26

    In support of its decision, the court cited the dictionary definition of the word part as "one of the portions, equal or unequal, into which anything is divided, or regarded as divided."27 However, the majority opinion did not explain why the court had determined that an appropriation bill ought to be "regarded as divided" into parts as small as individual "words, parts of words, letters, and digits," instead of entire "items" in accord with the intent of the framers of the 1930 amendment and the unanimous understanding of other states that have adopted part or item vetoes.

    Executive Lawmaking Since 1988

    The judicial transformation of the partial veto power has permitted governors to spend or transfer more than $2.7 billion of public funds since 1988 without the approval of the legislature. For example, in 1991, Gov. Tommy Thompson deleted parts of a single sentence to create an annual appropriation of $319,305,000 for a school tax credit that led to the spending of more than $1.2 billion that the legislature did not authorize over a period of four years.28 In 2003, Gov. Jim Doyle deleted selected parts of two sentences to create an annual appropriation of $703,102,200 for distribution to municipalities and used additional vetoes of a single sentence to increase the state's bonding authority for major highway projects from $140 million to $1 billion.29 In 2005, Gov. Doyle stitched together two mandates, which the legislature did not approve, that called for the transfer of $427,000,000 from the transportation fund to the general fund and for the "transfer [of] … $330,000,000" from general fund accounts "to any appropriation [for the Department of Public Instruction] under section 20.255 of the statutes."30

    Governors also have used the partial veto to impose tax increases that the legislature did not approve. In 1999, for example, Gov. Thompson vetoed parts of a single sentence to effect a repeal of the property tax rent credit and thereby required taxpayers to pay an additional $234 million in income taxes that the legislature did not authorize the state to collect.31 In 1991, he used partial vetoes to increase the amount of sales taxes that retailers were required to pay by up to $200 per year by unilaterally reducing the amount they could deduct for administration expenses.32 He also used a 1991 veto to put higher parimutuel tax rates into effect in 1993, despite the fact that the legislature did not authorize those rates to take effect until 1995.33

    The foregoing examples are just the tip of an enormous iceberg. Wisconsin governors have used partial vetoes to create hundreds of laws that the legislature did not approve.

    Legislative Acquiescence and Constitutional Amendments

    As noted above, the Wisconsin Constitution provides that "appropriation bills may be approved in whole or in part." But to approve means to "judge and find … acceptable," and that is not what governors do when they delete words, digits, and other parts for the express purpose of creating a law that the legislature did not approve.34

    The legislature has acquiesced in this massive transfer of power to the executive, in part because a governor's creation of legislation may be sustained with the acquiescence of just "one third plus one member of one house of the legislature."35 There has not been a successful override of a partial veto since 1985.36

    The legislature did pass a constitutional amendment to prevent governors from creating "new word[s]," which was ratified in 1990,37 and has passed a second constitutional amendment that will be submitted for ratification in April 2008, which would prohibit governors from creating "a new sentence by combining parts of 2 or more sentences…."38 However, neither amendment has addressed the fundamental contradiction that exists between the Wisconsin Constitution's command that "the legislative power shall be vested in a senate and assembly," and the current understanding that governors may use partial vetoes to create laws that the legislature did not approve.

    If the pending amendment is ratified, as appears likely, governors still will have the power to make laws that the legislature did not approve, either by vetoing parts of a single sentence or by vetoing one or more sentences in their entirety. And, to the extent governors make such vetoes, the enacting clause of each bill involved will be rendered false, because what follows the enacting clause will not be what the legislature enacted.

    Accordingly, assuming that the pending amendment is ratified, governors still will be allowed to treat the provisions of an appropriation bill as merely advisory. The constitution's allocation of the legislative power will effectively provide that "the legislative power shall be vested in a senate and assembly," except that governors may exercise the legislative power in order to make laws that the legislature did not approve by stitching together remnants of a vetoed appropriation bill, as long as they do "not create a new word by rejecting individual letters in … words" and do "not create a new sentence by combining parts of 2 or more sentences."

    What Should be Done

    Neither the framers of the 1930 amendment, nor the voters who ratified it, had any intention of creating a unilateral executive power to create laws that the legislature did not approve. Instead, they sought to ensure that each separate item that might become law as part of an appropriation bill would have the approval of the governor, in addition to that of the senate and the assembly.

    That intent still could be realized. If governors were required to veto separate items and appropriations in their entirety, each item or appropriation that remains would have the concurrent approval of the senate, the assembly, and the governor. Such an amendment could be substituted for the 1990 and 2008 amendments and provide that, "In approving an appropriation bill in part, the governor shall approve separate items or appropriations in their entirety."

    Governors would retain the power to veto separate items and appropriations that the legislature may include in an appropriation bill. But they would no longer have the power to create any law that the legislature did not approve.

    Endnotes

    1Wis. Const., art. V, § 10. The "extensive" scope of the veto power is noted in Robert L. Maddex, State Constitutions of the United States 435 (2006), and Tommy G. Thompson,Power to the People 4 (1996).

    2Thompson, supra note 1, at 48, 129. Thompson notes that, "Unless the legislature overrides [such] a veto by a two-thirds vote of each house, the governor's changes become law."

    3See Wis. Const., art. IV, §§ 1, 17, art. V, § 10. The concept is one of authorization by the legislature. For example, an appropriation is defined as "the setting aside from the public revenue of a certain sum of money for a specified object, in such manner that the executive officers of the government are authorized to use that money, and no more, for that object, and no other" (emphasis added). Flynn v. Department of Administration, 216 Wis. 2d 520, 556, 576 N.W. 2d 245 (1998).

    4See Risser v. Thompson, 930 F. 2d 549, 554 (1991).

    5Wis. Const., art. XII, § 1.

    6Fond du Lac Commonwealth Reporter (Feb. 11, 1927) (emphasis added). Biographical information about Titus is on p. 681 of the1927-1928 Wisconsin Blue Book.

    7Wis. St. J. (Oct. 13, 1930); for the development of the "item" veto in other states, see Chester James Antieau,The Executive Veto 55 (1988);Item Veto: State Experience and Its Application to the Federal Situation, House Committee on Rules, 99th Cong., 2d Sess. 3-4, 200 (1986)

    8See, e.g., John Mabry Mathews,American State Government 223 (1926).

    9Virginia Const., §76.

    10Legislative Reference Bureau (LRB) drafting file for 1927 SJR 35. Biographical information about Witte is in "Ask the LRB,"Legislative Reference Bureau Information Bulletin 98-5 (Nov. 1998) and Theron F. Schlabach,Edwin E. Witte, Cautious Reformer ix, 31, 39-50 (1969).

    11LRB drafting file for 1929 SJR 40. Biographical information about Duncan is on p. 201 of the 1931-1932 Wisconsin Blue Book, and in John Goadby Gregory, History of Milwaukee 566-70 (1930).

    12The brief is printed in Briefs and Appendices for state ex rel.Wisconsin Telephone Co. v. Henry, 218 Wis. 302, 260 N.W. 486 (1935) (appendix A, pp. 123-27) (emphasis added).

    13There is no evidence that Witte attached any significance to the difference in terminology. In 1937, he wrote that Wisconsin governors had a "power of `item veto'" that permits them to draw "a line through items" that consist of "clearly distinguishable parts of the [appropriation] bill" (emphasis added). "Statute Lawmaking in Wisconsin,"1937-1938 State of Wisconsin Blue Book 151.

    14Wis. St. J. (Oct. 13, 1930).

    15Cap. Times (Oct. 14, 1930) (emphasis added). For a description of Duncan's campaign for ratification, see Winter Everett, Around the Statehouse, Wis. St. J. (Nov. 14, 1930).

    16Forward: The Bulletin of the Wisconsin League of Women Voters (Oct. 1930) (emphasis added).

    17Sheboygan Press (Oct. 27, 1930).

    18Milw. Leader (Oct. 23, 1930) (emphasis added).

    19Racine Times-Call (Nov. 3, 1930) (emphasis added).

    201931-1932 State of Wisconsin Blue Book 583.

    21For additional legislative history,see Frederick B. Wade, Cap. Times (guest columns) (Nov. 3, Nov. 5-6, Nov. 7, 2005).

    22Henry, 218 at Wis. 302, 316, 260 N.W. 486 (1935). The prior history of the test is stated in Broughton v. Zimmerman, 261 Wis. 398, 408-10, 52 N.W.2d 903 (1952). Although the Henry court adopted a test that called for deference to the intent of the legislature, it upheld vetoes of parts of a work relief bill on the questionable premise that the deleted parts were "merely incidental" to an overriding intent to provide "immediate relief."

    23Kleczca v. Conta, 82 Wis. 2d 679, 707, 264 N.W. 2d 539 (1978).

    24Id. at 715 (emphasis added).

    25Wisconsin Senate v. Thompson, 144 Wis. 2d 429, 462, 424 N.W. 2d 385 (1988).

    26Id. at 453.

    27Id. at 440 (emphasis added).

    281991 Wis. Act 39, § 2135t.

    292003 Wis. Act 33, §§ 1669d, 683d.

    302005 Wis. Act 25, §§ 9148, 9155.

    311999 Wis. Act 10, § 2m. The $234 million figure was reported in State Income Tax Collection Up, Partly Due to Removal of Rent Credit, Milw. J. Sent. (June 12, 2000).

    321991 Wis. Act 269, § 510.

    331991 Wis. Act 39, § 3466.

    34Webster's Third New International Dictionary (2002 ed.)

    35Wisconsin Senate, 144 Wis. 2d at 466 (Bablitch, J., dissenting in part, concurring in part).

    36The legislature overrode two partial vetoes of Gov. Tony Earl with respect to "Items" 2-G and 4-U of 1985 Wis. Act 29. It is an established practice of governors to classify partial vetoes according to "items" that may include one or more provisions dealing with a single subject.

    37Wis. Const., art. V, § 10(1)(c).

    382007 Senate Joint Resolution 5.




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