History of the partial veto
The governor of Wisconsin has always had package veto power, which, until the early 1900s, proved sufficient as a check on legislative power. At the time, the Wisconsin Legislature customarily made appropriations one at a time. However, in the 1911 session, they introduced a “budget system.” Under this new framework, state appropriations would be made in bundles—for example, all appropriations for highways and bridges would be made within one bill. This change significantly eroded the gubernatorial role in the appropriations process, as governors could no longer make individual decisions to approve or veto spending proposals. Sensing the new imbalance, then-Governor Francis E. McGovern made a special address to the Legislature in 1913, saying,
“It is clear that under the budget plan of appropriating money, the executive department no longer exercises the influence of power it once had or was intended by the constitution to possess. It seems to me, therefore, something should be done to restore matters to the equilibrium of power and responsibility that has always existed between the executive and legislative branches of government.” – Governor Francis E. McGovern 1913
Governor McGovern also pointed out that state governors are often scapegoats for high spending, saying,
“Nothing more deeply concerns the people of the state than the appropriation of public money and the imposition of taxes; and to no state officer do they more quickly and properly turn for explanation when expenditures and taxes are high than to the governor.”
17 years later, in 1930, Wisconsin voters ratified a constitutional amendment that gave the governor power to veto appropriations bills “in whole or in part.” When a governor vetoed only part of a bill, that part or parts would be returned to the legislature and would require a supermajority (2/3 of present members) to become law. These veto overrides are extremely rare and the last successful override occurred in 1985.
Central to the subsequent controversy surrounding partial vetoes was the language “in part.” No other state uses this particular language in its veto law, and while there is no evidence that Wisconsin policymakers sought to give the governor broader power than other governors wielded, the result had exactly that effect.
Types of Veto Power
Veto power is an important tool used by governors of all 50 states as a “check” on the powers of the legislature. However, state laws vary in their approach to the veto itself.
Some states, such as Indiana, Nevada, and New Hampshire, only grant their governors “package” veto power. This is considered the least powerful form of veto; governors cannot pick and choose provisions to veto or sign into law, but rather must approve or deny the entire package of legislation.
More commonly, states grant governors “line item” veto power, often only in appropriations bills. This power allows a governor to sign a budget bill into law while denying certain appropriations he or she does not want. To overcome the veto, state legislatures usually must pass the vetoed portions with a supermajority of votes.
Wisconsin, however, grants governors a uniquely powerful veto tool—the “partial” veto. This power, born from a 1930 constitutional amendment, was likely intended to mimic normal “line item” veto power. However, the language of the law, which empowered governors to approve appropriations bills “in whole or in part,” has subsequently been interpreted to provide the Wisconsin governor more power than any other state’s chief executive.
Use of the partial veto
Early partial vetoes resembled typical “line item” vetoes observed in other states. In 1931, Governor Philip La Follette (originally a campaign-trail detractor of the partial veto idea, which he claimed “smacked of dictatorship”) vetoed statutory paragraphs—a relatively normal use of veto power. The frequency of the partial veto was also conservative; before 1969, no governor used the power more than 12 times within any single bill. In the 1970s, the use of the veto quickly ballooned as governors found more creative ways to use the power and Wisconsin courts produced rulings that protected these creative applications.
Expansion of partial veto power
The first controversial use of the partial veto came from Governor Patrick J. Lucey in the 1973-75 budget bill. When the Legislature passed a budget bill that made a $25 million highway bonding authorization, Governor Lucey vetoed the digit “2,” reducing the authorization to $5 million. Although this “digit veto” raised objections from the attorney general, it would not be the only questionable use of the veto power.
In 1975, Governor Lucey introduced another controversial use of the partial veto: the “editing veto.” When the Legislature sought to set a floor on funds for tourism promotion, ordering the Department of Business Development to pay for “not less than 50%” of cooperative advertising ventures, Governor Lucey struck the word “not.” This change reversed the intent of the Legislature, a phenomenon that cannot occur in other states.
The editing veto had many subsequent uses, perhaps the most controversial of which was by Governor Martin Schreiber in 1977. In an appropriations bill, the Legislature had authorized taxpayers to add a dollar to their tax liability if they wished to contribute to the public campaign finance fund. Using selective deletion, Governor Schreiber effectively re-wrote the law to allow taxpayers to indicate whether they would like to see a dollar deducted from the state’s general fund and deposited into the campaign fund.
In 1983, Governor Anthony S. Earl introduced perhaps the most creative use of the partial veto power—the “pick-a-letter” veto. When the Legislature gave him a five-sentence, 121-word statutory paragraph, he struck individual letters and punctuation marks and assembled the remaining letters into a 22-word, one-sentence paragraph with an entirely different meaning. This practice was immediately condemned by the Legislature, which overturned the veto with only a single dissenting vote.
The final use of the partial veto power, the “reduction veto,” was introduced by Governor Tommy G. Thompson in 1993. In that year’s budget bill, Governor Thompson crossed out dollar figures in nine places and wrote in new, smaller numbers. Although the effect was similar to that of the “digit veto,” Governor Thompson did not veto digits but rather indicated new number with new digits.
Although the veto power had previously only manifested itself through selective deletion, the Wisconsin Supreme Court upheld this use of the veto power, holding that since the subtracted amount was “part” of the original amount, such a write-in still amounted to a veto of “part” of the legislation. Even as the “reduction veto” received judicial approval, it was Governor Thompson’s creative use of other veto forms, as well as their frequency (he issued a record 457 partial vetoes in the 1991-93 budget bill), that led to reforms to limit the partial veto power.
Judicial limitations on partial veto power
Limits to the partial veto power could come from two sources—the state courts and the people of Wisconsin through constitutional amendments. Although challenges have been made in federal courts, federal judges have taken a hands-off approach to the balance of power in state governments, writing in Fred A. Risser and David M. Travis v. Tommy G. Thompson,
“Wisconsin’s partial veto provision as interpreted by the state’s highest court is a rational measure for altering the balance of power between the branches. That it is unusual, even quirky, does not make it unconstitutional. It violates no federal constitutional provision because the federal Constitution does not fix the balance of power between branches of state government.”
The state courts have granted the governor broad deference in their rulings. In fact, only three limitations have been imposed by the judiciary: the requirement that the bill in question must be an “appropriations bill,” the requirement that the “reduction veto” could only apply to spending amounts, and the requirement that the remaining sentences after the veto must constitute a “complete and workable law.”
In State ex rel. Finnegan v. Dammann, the court ruled that any bill containing an appropriation of public money (not just an executive budget bill) was considered subject to the partial veto power. The court did rule that the bill itself needed to make an appropriation and could not simply be indirectly related to appropriations by, for example, increasing revenues. However, once it could be determined that a bill contained any appropriation measure, any part of the bill could be partially vetoed—even non-appropriation parts.
Although the “reduction veto” was upheld in Citizens Utility Board v. Klauser in 1995, the court did rule in Risser v. Klauser two years later that the only numbers a governor could reduce without a “digit veto” were spending amounts, and that the power did not extend to bond sales and other non-appropriation figures in bills.
The final requirement, that the remaining language must constitute a “complete and workable law,” was the first requirement imposed by the court in State ex rel. Wisconsin Telephone Co. v. Henry in 1935. This precedent was used, for example, to stifle a veto attempt by Governor Thompson which caused a sentence to read, “…the property fund shall make $10,000,000 to the general fund.”
The courts left intact the governor’s abilities to reverse the meaning of legislation, delete individual letters to make new words, write in new appropriation amounts, and use the veto in such a way that the end result was entirely unrelated to the original language. However, struck by the audacity of some of the more creative uses of the power, and disappointed in the supreme court’s inaction, the people of Wisconsin curtailed the governor’s power through constitutional amendments.
Constitutional limits to the partial veto power
Despite nearly two dozen attempts, only two constitutional amendments have been passed to limit the veto power. These amendments, however, ensured that some of the most controversial functions of the veto power from the 1970s and 1980s would be taken away.
The first, which passed in 1990, put an end to the “pick-a-letter” veto. The amendment prevented the governor from creating “a new word by rejecting individual letters in the words of the enrolled bill.”
The second, which passed in 2008, prevented the governor from creating a new sentence using the words of two or more sentences. This significantly limited the governor’s ability to create new language unrelated to the original, as that practice usually required joining the words of separate sentences. In supporting the amendment, WISN-TV satirically explained the potentially ridiculous effects of the so-called “Frankenstein veto” by selectively deleting language from Governor Jim Doyle’s three-paragraph statement thanking retiring Packers quarterback Brett Favre. The end result: “Governor Jim Doyle will be suiting up in the green and gold next season as quarterback of the Packers.”
Despite these limitations, the governor still enjoys one of the most powerful veto pens in the country, as the “reduction veto,” “digit veto,” and selective deletion within sentences (such as removing the word “not”) remain intact.