Tony Evers and the Vanna White veto
The Wisconsin Constitution gives its Governor a ridiculous amount of power to partially veto appropriations bills—which has historically meant lots of gubernatorial arts and crafts
Every once in a while, governors in Wisconsin do an arts-and-crafts show for the public. Their final products display both intellectual creativity and powerful cutting-and-pasting skills. And, like the best art, their masterpieces actually have real-world consequences.
On July 5, Governor Tony Evers showed off his latest arts-and-crafts project. He took a sentence that read:
For the limit for the 2023-34 school year and the 2024-25 school year, add $325 to the result under par. (b).
And, by eliminating “the,” “24 school year and the 20,” a dash, and “school year,” turned it into:
For the limit for 2023-2425, add $325 to the result under par. (b).
The effect was to guarantee school funding for literally the next few centuries. Reception to this art show has been mixed so far, but all of it raises an important question—how does the Governor of Wisconsin have this power?
It all comes down to a 1930 constitutional amendment and almost a full century of enabling behavior by the Wisconsin Supreme Court.
In 1930, Wisconsin voters amended their state constitution to give their governor a line-item veto over appropriations bills. All states grant their governors a veto, and forty-four states allow the governor the ability to sign some parts of appropriations bills while vetoing other parts. In most states, this required a constitutional amendment for the exact same reason that the U.S. Supreme Court struck down the president’s line-item veto—it violates constitutional provisions that govern how legislation is presented to the executive.
While Wisconsin’s grant of a line-item veto isn’t unique, its execution is. While most line-item veto amendments allow the governor to veto individual “items” from an appropriations bill, Wisconsin’s constitutional provision allows the governor to approve an appropriations bill “in part.” Since the 1930s, the Wisconsin Supreme Court has interpreted the use of “part” to signify something different than “item”—and it has allowed expansive vetoes.
Over time, what developed was alternatively called the Frankenstein veto or the Vanna White veto—because it effectively allowed the Governor to transmogrify existing language by striking out letters, numbers, clauses, sentences, paragraphs, and pages to create entirely new sentences that the legislature had never written.
One of the most egregious examples occurred in 1983, when Governor Tony Earl was dissatisfied with part of an appropriations bill that gave the state Public Service Commission jurisdiction to hear appeals over municipal recycling issues. Earl favored the previous method, which gave courts the authority to hear appeals.
The language of the bill read:
Any person adversely affected by the municipality’s determination concerning best public interest under sub. (8) may appeal the determination to the commission. The commission shall investigate the matter and if there appears grounds for the appeal, the commission shall conduct a review hearing after at least 10 days’ notice to the person and the municipality. After the review hearing, the commission shall issue a decision on the validity of the municipal determination concerning best public interest. In issuing this decision, the commissions hall decide if there is sufficient evidence on the record to support the municipal determination under sub. (8). The commission shall bill any expense attributable to investigations and proceedings under this paragraph to the municipality under s. 196.85(1).
But after Earl’s veto, the provision read:
Any person adversely affected by the municipality’s determination concerning best public interest under sub. (8) may appeal the determination under ch. 68.
How did he do it? It’s hard to do a compare-and-contrast between those two passages—the words and numbers are totally different. Here’s a screenshot of the bill itself, which illustrates the linguistic gerrymandering at play:
In this case, Earl’s veto was overridden by the legislature. But the idea behind the veto helped inspire some similarly creative actions by the governors that followed him.
One of Jim Doyle’s 2005 vetoes attracted nationwide attention. Doyle converted about a page and a half of text into a single sentence, which, when cleaned up, read: “The Department of Transportation shall transfer to the general fund from the transportation fund in the 2005–07 fiscal biennium, $427,000,000.”
There’s no point in showing the text itself, because, without spending hours reading and rereading, it’s impossible to see how he did it. Instead, you can see where those words, letters, and numbers came from in screenshots of the bill with red boxes.
You can note, for example, that the capitalization and punctuation look strange! If you pull out those words individually, the section reads:
(4f) the department of transportation shall transfer to the general fund from the transportation fund In the 2005-07 fiscal biennium, $427000,000.
But the Wisconsin Supreme Court has upheld virtually every partial veto attempted by a governor. In 1988, the court explained that the relevant requirement here is “that the result remaining after the partial veto is a ‘complete and workable law.’” To that end:
Awkward phrasing, twisted syntax, alleged incomprehensibility and vagueness are matters to be resolved only on a case-by-case basis in which specific challenges to discrete applications of the new provisions are raised in a complete factual setting.
The governor’s partial-veto power was intended to be curtailed in 1990, with the passage of a constitutional amendment that added a new sentence that read:
In approving an appropriation bill in part, the governor may not create a new word by rejecting individual letters in the words of the enrolled bill.
This amendment would have stopped Earl’s 1983 veto but likely not Doyle’s 2005 veto—note that Earl formed new words (the abbreviation for chapter, “ch.”) but Doyle only formed new numbers.
A 2008 amendment mostly did away with the full Vanna White veto, however. It added a new clause to the sentence added by the 1990 amendment:
In approving an appropriation bill in part, the governor may not create a new word by rejecting individual letters in the words of the enrolled bill, and may not create a new sentence by combining parts of 2 or more sentences of the enrolled bill.
How will Evers’s veto be viewed by the courts? It’s unclear. In 2020, the 5-2 conservative majority on the Wisconsin Supreme Court attempted to pull back from the court’s longstanding deference to past governors’ partial vetoes. It struck down several of Evers’s partial vetoes—but the justices couldn’t agree on an explanation as to why, so no opinion commanded a majority. With the court now set to flip to a 4-3 liberal majority later this summer, whether the liberals on the court will be interested in clipping the wings of the partial veto is unclear.
The best argument that could be made that Evers’s veto is unconstitutional is the language from the 1990 amendment, which clarified that the governor “may not create a new word by rejecting individual letters in the words of the enrolled bill” (emphasis mine). If you don’t read “letters” and “words” literally, and instead view those words as referring to textual changes broadly that fuse new combinations of characters, then Evers’s veto is unconstitutional.
On the other hand, Doyle’s 2005 veto did stitch numbers together to form a very large number—$427,000,000—and that wasn’t overruled by the court. The 2008 amendment didn’t change anything that would be material to Evers’s veto. And in 2020, the two liberals on the court were opposed to the idea of totally revisiting the supreme court’s jurisprudence on this question—and they may not be persuaded to strike down Evers’s veto with their newfound power.
But, regardless of what happens, no governor should have this power.