Attorneys for Wisconsin’s Republican-controlled Legislature argue in a new lawsuit that partial vetoes issued by Democratic Gov. Tony Evers to a recent bill aimed at improving K-12 literacy performance in the state were unconstitutional.
The bill in question, Senate Bill 971, passed the Legislature earlier this year and clarified how the Legislature’s powerful budget committee would direct $50 million in funds set aside in the state’s current two-year spending plan for early literacy programs.
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When signing the legislation — now called 2023 Act 100 — in late February, Evers made several changes to the bill through his partial veto, including striking language that the governor said would have provided ongoing per-pupil increases to private choice and independent charter schools.
In their lawsuit filed Tuesday in Dane County Circuit Court, attorneys for the Legislature argue Evers’ partial vetoes are improper because the measure is not an appropriations bill, but rather creates an “appropriations structure” for a different bill. The governor can only issue partial vetoes of appropriations bills (i.e., bills that spend money); other legislation must be either signed or vetoed in their entirety. Evers contends in a partial veto message for the legislation that the measure is a spending bill.
That legislation, which Evers signed as Act 20 last summer, creates a new literacy office within the state Department of Public Instruction and requires the use of state funds to hire reading coaches and help cover the cost of new phonics-based reading curricula.
The Legislature argues Act 20 is the mechanism that empowers the state’s GOP-controlled budget committee to directly fund the literacy programs with dollars already approved in the state’s biennial budget, which Evers signed last summer. The committee has not yet allocated the $50 million in state funds.
“Act 100, as passed by the Legislature, does not set aside, authorize, or require the expenditure of any funds,” the lawsuit states. “Instead, it allows (the budget committee) to move the $50 million appropriated and earmarked in the budget bill to DPI.”
Because the bill was improperly vetoed, the budget committee cannot allocate the funds set aside in the budget for DPI’s new literacy programs, attorneys continue.
A memo from legislative attorneys notes the legislation “creates appropriations” for DPI’s new literacy office created under Act 20.
Evers’ spokesperson Britt Cudaback said in an email the lawsuit represents “yet another Republican effort to prevent Gov. Evers from doing what’s best for our kids and our schools — this time about improving literacy and reading outcomes across our state.”
“When the Legislature passes an appropriations bill, the governor can exercise line-item veto authority under the Wisconsin Constitution, and Republicans didn’t seem to have concerns about this concept until Wisconsinites elected and re-elected a Democratic governor,” Cudaback added.
Evers’ stance
In a partial veto message to SB 971 on Feb. 29, Evers wrote that he struck portions of the bill because he objected to “overly complicating the allocation of funding related to literacy programs in Wisconsin by creating multiple appropriations for what could be accomplished with one.”
The governor also noted that he removed from the bill a “proposed appropriation structure” that would have repealed spending in 2028. Evers said the change creates additional flexibility “to invest in literacy programs for as long as the state has funding available and as long as decisionmakers invest in improving reading instruction in Wisconsin.”
Evers also wrote that he objected to signing a bill “with an apparent error” that specifically benefits private choice and independent charter schools by allowing those entities to be eligible for both grant funding and an ongoing increase in per pupil aid.
“As drafted, either intentionally or inadvertently, these entities could also receive an increase in per pupil funding because the bill does not contain standard provisions to exclude the newly created categorical appropriation from the indexing formula used to increase per pupil payments for private choice, independent charter, Special Needs Scholarship, and open enrollment students,” Evers wrote.
“Consequently, a private choice or independent charter school could receive both a grant for curriculum and an ongoing increase in per pupil funding,” the governor continued. “Contrastingly, no such funding increase would be provided to public school districts under the bill.”
The lawsuit is the second this week challenging the governor’s partial veto power.
‘Vanna White’ veto
Attorneys with Wisconsin Manufacturers and Commerce, the state’s largest business organization, on Monday sued Evers over a partial veto he issued in July before signing the state budget.
Under the budget Evers signed, schools would be allowed to raise revenue by $325 per student per year until 2425 — an improbable extension but one that can only be overridden by future legislation or a court ruling. Given current public school enrollment levels, that’s more than a $260 million increase per year.
To make the change, Evers used his partial veto to strike words and a hyphen in a section of the budget that referred to when the change in the revenue limit Republicans approved would apply. As a result, the phrase “for the 2023-24 school year and the 2024-25 school year” became “for 2023-2425.”
Attorneys for WMC claim the veto violates a constitutional amendment approved by voters in 1990 that banned the use of the so-called “Vanna White” or “pick-a-letter” veto to delete phrases, digits, letters and word fragments to create new words and phrases, except for when reducing appropriations.
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