In Wisconsin, it's not just if Evers vetoes tax cuts - it's HOW he vetoes them

Now that the GOP-controlled State Legislature has passed the state budget, the question now goes to what parts Governor Evers will veto, and what lengths he will go to in order to modify the budget more to his liking. And in particular, I want to look at the billions in income tax cuts that WisGOP put in during June.

Let’s go to the budget bill as it stands after the Legislature's changes to it, and I’ll especially note that Republicans put in changes to the wording of the tax cuts last week in an attempt to try to insulate them more from potential Evers vetoes. An example of how the GOP changed the wording was that instead of listing the tax rate as a %, they described the tax cut in terms of how much the rate would go down.

…“for taxable years beginning after December 31, 2013, 4.0 percent, less fifty hundredths for taxable years beginning after December 2022.”

Are the WisGOPs trying to protect against Evers giving a larger tax cut for the lower incomes, by knocking off a digit and/or writing in a new rate (like 3.0% instead of 3.50)? Or likewise, does this prevent Evers from lowering the amount of WisGOP’s tax cut by striking out digits and writing in another number (4.4% becomes 4.9%, for example?), and make it an “all or nothing” scenario?

According to the Legislative Reference Bureau, here are the guidelines for the line-item veto for a Wisconsin governor.

1. A veto of stricken text restores current law.
2. A veto of plain text or scored text [that the Legislature wanted to add to current law] wipes out the text.
3. The governor may not veto current law.
4. The governor may veto individual digits but may not create new words by rejecting individual letters.
5. The governor may not create a new sentence by combining parts of two or more sentences.
6. The governor may reduce the amount of an appropriation by writing in a smaller amount, but may not reduce other numbers, such as bonding authorizations, by a write-down veto.
7. A partial veto must leave a “complete, entire, and workable law.”
8. The law that remains after vetoed provisions are removed must be germane to the topic of the vetoed provisions. After Bartlett this germaneness rule is stronger and more likely to restrict the governor’s partial veto power. A partial veto may not alter the topic or subject of the enrolled bill.

As State Rep Evan Goyke pointed out as the budget bill was being voted on last week, the wording for the tax cut on the richest Wisconsinites was noy amended, and only says “…the rate is 6.50 percent for taxable years beginning after December 2022.” Which makes it easy for Evers to veto in full, and restore the current 7.65% top tax rate.

You’ll notice few mentions of tax changes in that list, just spending questions. But a 2020 Wisconsin Supreme Court decision on vetoes Governor Evers made in his first budget gives a clue on what might be OK for that question. In Bartlett v. Evers, 3 of Evers’ vetoes were shot down overall - two were decided on a 5-2 vote, and another was overridden on a 4-3 vote. Then-“Justice” Dan KeLLy and current nutjob Rebecca Bradley said Evers couldn’t do any of these vetoes, but their opinions are irrelevant to what might happen in 2023 and the near future.

Retiring Chief Justice Patience Roggensack, and current GOP Justices Brian Hagedorn and Annette Ziegler said that Evers was allowed to veto the WisGOP Legislature's attempts to cut vehicle registration fees for heavy trucks (which restored the current fees), and Roggensack was also OK with Evers deleting words that expanded the definition of “vapor product” beyond what the Legislature approved. Current liberal Justices Rebecca Dallet and Ann Walsh Bradley said all four of Evers’ vetoes were acceptable.

With liberal Justices Jill Karofsky and Janet Protasiewicz replacing KeLLy and Roggensack since Bartlett v. Evers, could Evers roll the dice by doing some type of line-item veto that has yet to be decided on? Like writing in a word to replace a word that the WisGOPs put in, especially if the word is a number? Or try to change the income thresholds where a tax rate is in effect (giving more or less people access to the reduced tax rate), because the WisGOPs are changing that tax rate’s statute as it is?

It could be worth trying, if Evers wants to have a more progressive tax code put in with this budget. Removing the giveaway to the rich seems like an easy veto, won’t be litigated, and won’t be too controversial. But perhaps making “adjustments” to the other tax cuts could limit the cost and make for a more sustainable budget in the future, and/or give a larger tax cut to lower-income Wisconsinites vs the peanuts that the WisGOPs are giving out.

The vetoes Evers makes will be revealed by the end of this week, and we will see just how much Tony wants to push on this.