by Erik Gunn, Wisconsin Examiner
October 31, 2023
This story has been updated.
Responding to a series of roadblocks thrown by three powerful committees in the state Legislature, Gov. Tony Evers sued a half-dozen Republican lawmakers Tuesday, charging that the “legislative vetoes” amount to a violation of the Wisconsin Constitution’s separation of powers.
“Through statutes that allow legislative committees to veto executive branch decision-making, small groups of legislators exercise executive authority over large swaths of government activity,” the lawsuit charges. “The powers to create and to execute the law need to be separated again.”
The lawmakers are the chairs and co-chairs of three Legislature joint committees: Sen. Howard Marklein (R-Spring Green) and Rep. Mark Born (R-Beaver Dam), the Joint Finance Committee; Senate President Chris Kapenga (R-Delafield) and Assembly Speaker Robin Vos (R-Rochester), the Joint Committee on Employment Relations; and Sen. Steve Nass (R-Whitewater) and Rep. Adam Neylon (R-Pewaukee), the Joint Committee for the Review of Administrative Rules.
The lawsuit cites examples of actions by each committee in which Republican lawmakers have thwarted executive branch actions: withholding already approved pay raises for University of Wisconsin employees; blocking conservation projects approved under the state’s Knowles-Nelson Stewardship Program; and blocking updates to the state’s commercial building code and blocking a ban on conversion therapy under the ethics codes of social workers, therapists and counselors.
“In each of these areas, the legislative branch is using legislative committee vetoes to reach far beyond its proper zone of constitutional lawmaking authority,” the lawsuit charges. In doing so, “these vetoes empower legislative committees to interfere with executive branch authority and exercise executive power themselves.”
Precedents in other states
Appellate courts have struck down similar attempts by legislatures in Alaska, Kentucky, Michigan, Missouri, New Jersey and West Virginia, according to the governor’s office.
“Legislatures across the country have similarly tried to empower themselves to execute the laws they enact,” the lawsuit states. “But courts nationwide have rejected such efforts with virtual unanimity.”
The lawsuit was filed with the Wisconsin Supreme Court in a petition for original action by Attorney General Josh Kaul at the direction of the governor.
“To protect our liberty, the Wisconsin Constitution, like the U.S. Constitution, provides for the separation of powers,” Kaul said in a statement. “Despite the importance of this constitutional safeguard, however, the state Legislature has given legislative committees a veto over a wide range of executive branch activity, concentrating executive power in small subsets of the Legislature.”
The lawsuit, Kaul stated, argues that, “as courts in other jurisdictions have, the Wisconsin Supreme Court should hold that legislative vetoes of executive branch acts are unconstitutional.”
Citing case law, the suit states that the Legislature’s rule is supposed to end when a law is passed. “By then using legislative committee vetoes to control how the executive branch implements those laws, the legislative branch wrongly transfers executive authority to itself,” it states.
In petitioning the Supreme Court directly, the lawsuit argues that the questions it raises make it “an exceptional case” appropriate for the state’s highest tribunal. It also argues that the case itself demands early attention and resolution.
“These unconstitutional legislative committee vetoes have led to exigent harms including indefinite program delays, unpaid wages, and failures to achieve modern building standards,” the lawsuit states. “These ongoing and tangible constitutional harms underscore the need for ‘speedy and authoritative’ resolution through an original action.”
The suit also contends that it focuses solely on legal questions, not disputes about facts. State laws have expanded the power of the three joint committees over executive branch actions, the lawsuit states, and it asks the state Supreme Court to review whether those laws violate the Wisconsin Constitution.
Blocking land stewardship, UW pay, administrative rules
The 16-member Joint Finance Committee, currently consisting of 12 Republicans and four Democrats, has veto power over the Department of Natural Resources’ implementation of the Knowles-Nelson Stewardship Program.
Under the program, created in 1989, the state budget sets aside land for public recreation and conservation. The DNR is budgeted funds every two years to acquire and develop land and make grants to local governments and nonprofits as well.
The department must get the finance committee’s approval for certain projects, however. In some instances, approval requires a vote by 75% of the finance committees. In others, the committee has the power to block a project by a majority vote if a single anonymous lawmaker raises an objection.
Over the last 16 years lawmakers have “repeatedly expanded the universe” of projects in the Knowles-Nelson Program that are subject to the finance committee’s approval, the lawsuit notes. And since 2019, the suit adds, the committee has objected to 27 Knowles-Nelson Program projects — nearly one-third of those the DNR has submitted.
Wisconsin state employee pay raises are part of the state’s two-year budget, but even after the budget is enacted, the eight-member Joint Committee on Employment Relations (JCOER) must act separately to implement the new pay scales and has the power to make further changes on its own.
In July Evers signed a budget drafted largely by the Republican majority of the Joint Finance Committee with raises for state employees, including the University of Wisconsin, of 4% in the first year and 2% in the second year. The Joint Committee on Employment Relations (JCOER) released the raises on Oct. 17, except for UW employees — about 35,000 people.
Citing news reports, the lawsuit states that the employment relations committee co-chair (Vos) “explained that the committee will continue to block the budgeted pay adjustments for UW employees until UW cuts employee positions dedicated to diversity, equity, and inclusion or else gives up its authority to create employee positions.”
The suit quotes two of Vos’ statements: “I don’t think that they [i.e. UW] deserve to have any more resources until they accomplish the goal,” and “Not a nickel. When I say a nickel, that’s what I mean.”
The lawsuit notes that Evers had earlier used his partial veto power to delete budget language that would have cut diversity, equity and inclusion provisions at the UW. “Although that provision is thus not part of the law, the co-chair is seeking to implement that same policy through JCOER’s veto power,” the lawsuit states.
The lawsuit does not include any proposal to cancel raises that have already been approved. Nevertheless, in a two-sentence statement Tuesday, Vos offered no response to assertions that the lawsuit made, but dismissed the action as an attempt to block state pay raises “and take away lawfully approved money for hardworking state employees.”
The 10-member Joint Committee for Review of Administrative Rules (JCRAR) has veto power over administrative rules that the executive branch enacts. It can vote to block a rule, either when it is proposed or after it is promulgated, then introduce legislation that continues blocking the rule whether or not the legislation itself is enacted.
The committee can also “indefinitely object” to a rule, blocking an agency from promulgating the rule or any part of it until the Legislature introduces a bill that permits the regulation.
The lawsuit cites two JCRAR actions in 2023 that blocked proposed rules. On Sept. 29, the committee voted to indefinitely object to the adoption of a new commercial building code at the Department of Safety and Professional Services.
The committee acted twice — once in 2021 and again in 2023 — to block a change in the ethics code for social workers, marriage and family therapists and professional counselors. The committee’s action eliminated a provision that would have made therapy attempting to change a person’s sexual orientation or gender identity an ethical violation.
“Over three years have elapsed since JCRAR first blocked the proposed rule on June 25, 2020,” the lawsuit states. “During this time, the Legislature has never voted to pass a bill blocking the rule or presented such a bill to the Governor for his signature or veto.”
‘Intrudes on on the executive branch’s power’
The lawsuit argues that the finance and employment relations committees have each exercised a veto power that “unconstitutionally intrudes on the executive branch’s power” — to administer the Knowles-Nelson Program within the limits and criteria already set forth under state law and to implement pay adjustments for UW employees.
The veto power also “improperly empowers [the two committees] to control executive action without passing new law,” the lawsuit declares.
“When the Legislature acts through a few of its members in this manner, this violates the procedural lawmaking requirements,” the suit states, under which both houses of the Legislature must pass a bill and present it to the governor to be signed or vetoed.
The rules committee’s veto powers “improperly empower JCRAR to make new law by blocking or suspending the rules that administrative agencies have developed, without following constitutionally prescribed lawmaking procedures,” the suit states.
In the process, the veto power amends the agency’s rulemaking authority, the suit argues. The vetoes also “improperly intrude on the executive branch’s authority to promulgate administrative rules.”
It calls rulemaking part of the executive branch’s “core power,” comparable to the power the executive has to implement any other law within the boundaries the Legislature has set.
“And even if rulemaking is viewed as a power shared by the executive and legislative branches, the constitution still does not authorize the Legislature to absolutely block executive branch rulemaking through a legislative committee and without enacting laws,” the suit argues.
Noting its reference to the Knowles-Nelson Stewardship Program, the Nature Conservancy praised the lawsuit Tuesday.
The Knowles-Nelson program “has been broken for several years by a lack of transparency and unnecessary legislative roadblocks during the funding allocation process,” said the conservation group’s Wisconsin director, Elizabeth Koehler. The largest such project in state history, the Pelican River Forest, “has been indefinitely held up by a single, anonymous objection by a member of the Joint Finance Committee,” Koehler said. “Healthy government function shouldn’t hinge on the votes of anonymous individuals, and transparency should remain at the heart of legislation in Wisconsin.”
She said the lawsuit’s effort to bring transparency to the process for approving or denying Knowles-Nelson grants “and allowing the Department of Natural Resources and other state agencies to do their jobs, are common-sense actions that benefit people across the state.”
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