Line-item veto power. What can Evers do, and what will GOPs allow him to do?

As the debates over Wisconsin's budget bill wrap up in the coming weeks, one item that Republicans are going to keep in mind is how to craft the bill in such a way that will try to prevent Tony Evers' veto pen from being more effective. So let's look into what the Legislative Reference Bureau has to say in regards to the line-item veto power.

First, the governor may partially veto only a bill that appropriates moneys. The Finnegan test, as affirmed by Risser v. Klauser, holds that an appropriation involves the expenditure or setting aside of public moneys for a particular purpose and an appropriation must specifically determine “the amount, manner, and purpose of the various items of expenditure.” A bill that raises revenue, even if it increases expenditures, is not an appropriation bill if the revenues are deposited into an existing continuing appropriation. Similarly, a provision in a bill setting bonding limits is not an appropriation, even if the bonding levels affect expenditures from current law appropriations. The courts are consistent in this regard. A bill is not an appropriation bill if it has an “indirect bearing upon the appropriation of public moneys” or tangentially “affects an appropriation.” An appropriation bill must “within its four corners contain an appropriation.” This is a clear rule. The best way to determine if a bill is an appropriation bill is if the bill creates or authorizes the expenditure of moneys from a chapter 20 appropriation provision.

Second, if the bill is an appropriation bill, the governor may veto any word in the bill, including action phrases and bill section titles; may veto any digit in the bill, including striking a “0” from a number to reduce, say, $1,000,000 to $100,000; and may reduce any appropriation amount by writing in a lower amount. But there are limits. No governor has ever partially vetoed current law text or numbers in an appropriation bill. (Current law appears in a bill if the bill deletes or adds language to current law to show how current law is affected.) Instead, the governor may partially veto only newly created or amended text or numbers that appear in a bill. The 1990 amendment prohibited the governor from striking letters to form new words. In addition, the 2008 amendment curtailed significantly the governor’s partial veto power by prohibiting the governor from creating “a new sentence by combining parts of 2 or more sentences of the enrolled bill.” As a result, the governor may veto only new words or numbers within a sentence or may veto new sentences in a bill but may not link the words or numbers across sentences to form a new sentence.

Finally, even if the governor has followed the above-mentioned procedures, there are two other requirements for determining whether a partial veto is valid. One is that the part of the bill that remains after a partial veto must be germane to the part that was vetoed. For example, a partial veto of a bill section that applies only to the Department of Revenue will most likely not be valid if the veto would make the section apply only, say, to the Department of Corrections. This limits the ability of a governor to strike just any word in a sentence. This germaneness requirement has “the force of law.” Another requirement is that the partial veto must result in “a complete and workable law.” There is no court test for what constitutes a complete and workable law. This issue will therefore have to be determined on a case-by-case basis. But the court has advised that what language remains after a valid partial veto does not have to be grammatically correct or even have proper syntax, nor that it be perfectly clear. In fact, under Wisconsin Senate, a vague law resulting from a partial veto can still be complete and workable.

My guess is that because the budget bill has some version of appropriations within it, then any part of it can be vetoed. After all, what's available to be paid for these programs is dependent on how much revenue there is. But here's where the rumored trick of having the budget possibly be split between "policy" and "numbers" plays in.

The policy part has to be "all or nothing", which makes me wonder what can be "policy", and what can be "appropriation"? Is it a part of a program that is unrelated to the money that's shelled out (like who gets served, or what kind of information should be tracked)? Or is it other items that give orders to unrelated department operations, like this one.

Tucked into the GOP transportation budget: A provision ensuring security costs for Lt. Gov. @TheOtherMandela are no higher than they were for his GOP predecessor, @RebeccaforReal.

— Patrick Marley (@patrickdmarley) June 7, 2019

Also, if all of these things are thrown into a separate "policy" document, does that then open the door for Evers to veto the whole policy bill, and pass the policy side in individual bills one-by-one? And then how many policy/interpretation changes would get through over the coming months, and how messed up might state operations become in the meantime? Lots of ponder there.

I also caught GOP Finance member Amy Loudenbeck on "Capitol City Sunday" today, and she noted that Evers can only reduce spending with his veto pen, unless spending is already reduced in the budget, and even then, a veto would only bring the totals back to the base year. The governor is generally not allowed to move money around within a department for different priorities (although that depends on how you write the budget bill), so that could be another way to reduce Evers' options and creativity with vetoes.

So let's see not only what policy choices that the gerrymandered GOP Legislature chooses as the budget wraps up this week, but also to see how they write in those policy changes, and what Evers might or might not be able to do as a result. These may be annoying semantic games, but they also might be as important as many of the "dollars and cents" parts of this state budget.