Can Wisconsin’s Governor Use a Line-Item Veto to Extend School Funding by 400 Years?

Attorney Lionel Hutz demanded a retainer from Bart Simpson after using a red marker to rewrite his newspaper advertisement, famously changing it from “Works on contingency, no money down,” to “Works on contingency? No, money down!”

A case testing whether a governor similarly can alter the text of a bill is now pending before the Wisconsin Supreme Court.

Forty-four states grant their governors some form of a line-item veto, allowing them to reduce or eliminate specific appropriations. Long sought by presidents, Congress gave President Bill Clinton a line-item veto in 1996, only to have it promptly stricken by the U.S. Supreme Court as unconstitutional.

There are legitimate arguments for and against line-item vetoes. On the one hand, supporters argue, they permit executives to eliminate wasteful spending while preserving beneficial legislation. On the other, they may impede the horse-trading needed build consensus. A bill with a teetering fate may be bolstered by including a tidbit for the district of a critical lawmaker. But what incentive does she have to support a bill knowing that a critical enticement may be eliminated once it hits the governor’s desk? These are interesting questions worthy of empirical study.

But Wisconsin takes a unique approach to vetoes. Since 1930, the Wisconsin Constitution has permitted the governor to approve appropriations bills “in whole or in part” — a significant deviation from the traditional line-item veto. In 2023, Wisconsin Gov. Tony Evers used his partial veto to rewrite a bill that increased school funding limits “for the 2023–24 school year and the 2024–25 school year” to increase the limits “for 2023–2425” (emphasis added).

That is, by crossing out words, digits, and punctuation, Evers transformed a two-year increase into one that lasts for four centuries. Two taxpayers, with the assistance of a conservative manufacturing and commerce group, have filed an original action in the Wisconsin Supreme Court challenging the veto under the state constitution. The petitioners argue Evers’ veto exceeds his powers to approve appropriation bills “in whole or in part” and violates the constitutional prohibition on “creat[ing] a new word by rejecting individual letters.”

Evers’s veto is part of a dubious Wisconsin tradition. In 1975, Gov. Patrick Lucey struck the word “not” from the phrase “not less than,” reversing its meaning. In the 1980s, Govs. Tony Earl and Tommy Thompson crossed out individual letters to create entirely new words. And in 2005, Gov. Jim Doyle reappropriated over $400 million from its intended use by striking all but 20 words from a 752-word passage, creating a new sentence bearing no resemblance to the language approved by the legislature.

Wisconsin has twice amended its constitution to rein in these practices. In 1990, it added language commanding that “the governor may not create a new word by rejecting individual letters." In 2008, it extended this prohibition to “creat[ing] a new sentence by combining parts of 2 or more sentences.”

It is worth acknowledging that all of this is objectively funny. Striking individual letters has become known as the “Vanna White veto,” so much so that the famed Wheel of Fortune letter flipper sent a signed photo to the sponsor of the 1990 amendment eliminating the practice.

But as amusing as Wisconsin’s partial veto may be, it also mocks the notion of separation of powers. It is difficult to argue that the executive, acting alone, should have the power to alter a bill in a manner not envisioned by the legislature or even directly contrary to the legislative intent.

It has been well documented that since 2011, Wisconsin has been subject to an extreme gerrymander, permitting Republicans to maintain legislative supermajorities even while statewide races are typically tossups and Democratic legislative candidates have sometimes garnered more total votes than Republicans. Evers is a Democrat. It may be tempting to view his use of a veto to permanently fund schools as a balance to the GOP’s success in nullifying Democratic voters. But democracy is not advanced by countering one undemocratic measure with another. And it is only a matter of time before the shoe is on the other foot. Indeed, Democrats howled in 2017 when Republican Gov. Scott Walker changed “December 31, 2018” to “December 3018,” essentially the same trick Evers played. (A lawsuit challenging the move never reached the merits; the court ruled that it was filed too late.) When it comes to undemocratic vetoes, the parties are, as they say in Wisconsin, a horse apiece — Upper Midwestern for “six of one, half dozen of the other.”

The Wisconsin Supreme Court must now decide whether the 1990 constitutional amendment bars not only the deletion of individual letters but also individual digits. The petitioners also argue Evers’ veto did not approve the bill “in whole or in part” because rather than limiting the appropriation — approving it “in part” — the veto expands the appropriation for 400 years.

However the court decides these issues, the amusement provided by fervently creative vetoes is not worth the toll they exact on representative democracy and the separation of powers. Lionel Hutz was a cartoon laughingstock. Our governors can do better than to take his approach.

Joseph R. Richie is a shareholder at the Minneapolis-based law firm Anthony Ostlund Louwagie Dressen & Boylan P.A. He was born and raised in Eau Claire, Wisconsin.