The Year Without a Budget?

Wisconsin's Cost-to-Continue Budget

The Wisconsin Legislature has since 2019 rejected every single one of Governor Tony Evers’ budget proposals and instead written its own, but 2025 may be dramatically different. Multiple sources indicate that while the Legislature will again rip up Evers’ proposal, it will instead refuse to craft a new state budget and instead allow the 2023-25 budget to remain in place for the next two years.

This would be a wise decision, as a trio of cases either before or likely to reach the Wisconsin Supreme Court could result in dramatically expanded gubernatorial veto power that Evers could use to radically change a new budget in ways the Legislature never intended or even contemplated.

This isn’t a hypothetical threat: It happened to the Legislature’s last budget. Governor Evers used his line-item veto power to change the years “2024-2025” to “2425” and dump millions of dollars into Wisconsin’s public school system for the next 400 years. This amounts to an unconstitutional “Vanna White veto,” but Evers has claimed that while eliminating individual letters to form new words is barred by a 1990 amendment to the Wisconsin Constitution, eliminating individual numbers to form new numbers is perfectly fine.

A case before the State Supreme Court, LeMieux v. Evers, will determine whether this apparent constitutional loophole is closed and, more significantly, whether the Governor may use his partial veto authority to extend funding beyond what the Legislature has approved. The Court’s four liberal justices are widely expected to side with Evers on both questions, meaning that he would be able to extend whatever funding he wishes for as many centuries as his veto pen can create.

If the justices hold that numbers can be changed and funding can be extended by “Vanna White vetoes,” then any new budget the Legislature crafts would be susceptible to even more centuries-long boondoggles.

The Supreme Court could also hand Evers the ability to use this power on bills that aren’t explicitly budgetary in nature. Wisconsin’s Constitution allows the use of partial vetoes only on acts of the Legislature that apportion state funds. In Legislature v. DPI, however, the Court’s liberal majority could expand this power to nearly any other law.

A Dane County Circuit Court judge ruled last year that Governor Evers was allowed to partially veto a bill creating a new DPI literacy program because a separate bill funding said program included an appropriation. In essence, the judge held that the package of three bills can be considered one legislative action and thus subject to a potential partial veto.

Should the Supreme Court uphold this, it would mark the most significant expansion of the partial veto since it was enacted in 1930 and render the Legislature largely powerless to stop nearly any change Evers (or any governor) wishes to make to any bill he wishes.

A third case before the Court, Evers v. Marklein, would strip even more power from the Legislature by removing it from the administrative rulemaking process. Currently, the Legislature’s Joint Committee on Rules and Regulations (JCRAR) can object to and even temporarily suspend rules that agencies within the Executive Branch promulgate.

The Supreme Court ruled in 1992 that this was permissible under the State Constitution’s shared powers doctrine, but it is now being asked to reverse this and hold that the rulemaking process is entirely an executive function with no legislative oversight at all. The only way the Legislature could stop or alter an administrative rule, then, would be to pass a new law…that the Governor would need to sign.

Taken together, these cases represent a fundamental and seismic shift in the relationship between the executive and legislative branches of state government. Should the Court, as expected, rule in Evers’ favor in any or all of them, the Legislature would cease to be coequal and subject to the whims of an imperial executive branch.

As a result, the Legislature is being urged to consider abandoning the budget-writing process and simply allow the current budget to roll over to the new biennium on July 1. Until the Court rules in these cases, the Legislature won’t know precisely how Evers could potentially change any budget it writes or bill it creates.

The Legislative Reference Bureau (LRB) cautioned in a memo circulated to legislators this month that “as the Court decides these cases, the contours of executive-legislative relations will become clearer.

“While no one can predict the outcome of these cases,” the LRB continued, “few doubt that legislative operations, processes, and procedures will be different in the future.”

With a liberal majority on the Court that has already ruled in Evers’ favor on legislative redistricting in a decision so shoddily reasoned that it can only be seen as a means of gerrymandering Republicans out of their majority, one can safely assume that Evers’ partial veto power will be greatly expanded, and the Legislature will be removed from the administrative rulemaking process.

This isn’t just a radical departure from constitutional governance in Wisconsin, it is a significant step toward tyranny as it would concentrate a phenomenal amount of power in one person.

The Legislature would be foolish to allow that person to run roughshod over a new budget without at least some further clarity on what limits (if any) the Court will place on him. Since he has already made a mockery of existing limits on executive power with his 400-year school funding veto, there is no telling what Evers might do with a new budget.

The Legislature should not give him that chance and refuse to write a new budget or, at the very least, hold off on presenting it until the Court at least provides further guidance.