A foundational change

Voters have amended the state constitution 146 times. Will they do it again?

By JIM BENDER | April 7, 2022

Sometime during the 2023 session, the Wisconsin Legislature is expected to approve a resolution proposing that voters consider amending the state constitution to restore long-lost legislative oversight of major federal spending initiatives in the state.

Frustrated legislative leaders in the Assembly and Senate led a move to pass identical joint resolutions, a pointed response to the control given to Gov. Tony Evers and the other 49 governors over how to spend more than $5 trillion in three spending bills approved by Congress since the COVID-19 outbreak in March 2020.

Evers has had nearly total discretion over the spending of $2 billion from the CARES Act, $2.5 billion from the American Rescue Plan Act (ARPA) and, if he remains in office after the November election, over the next five years a minimum of $7.2 billion from the Infrastructure Investment and Jobs Act.

The Legislature passed several bills to add legislative oversight and accountability to the federal appropriations of these funds, only to have Evers veto them. Amending the constitution would provide an oversight guarantee the governor cannot override.

Assuming the Republicans supporting the amendment retain control after the next election, the Assembly and Senate in the next session will be required to pass the measure again before the question of a constitutional amendment can be put on the ballot.

The Badger Institute in February submitted testimony in favor of the resolution before the Assembly Committee on Constitution and Ethics:

“In April of 2021, the Badger Institute made the first of several requests of 20 local governments in Wisconsin for detailed information about how it spent its shares of the more than $2 billion the state received in CARES Act funding.

“We were concerned that while the bill required every government entity to keep and share records of its spending with the state Department of Administration, there would be little oversight of the spending by the agency and little interest in accountability on the part of the state’s major media outlets.

“Our concerns were well-founded. Of the 20 county and local governments the Badger Institute originally contacted, half did not fulfill their legal obligation to provide detailed spending records. Officials for the other half who provided the records were either unwilling or unable to discuss how or why their communities spent the federal money the way they did.”

Amendment history

The friction between the Democrat governor and Republican-led Legislature in Wisconsin reflects the polarized society we live in today. Often, the state Supreme Court is asked to settle balance of power disputes. When there is legislative and executive imbalance, changing the state’s founding document is the only recourse.

But how and why does our constitution get modified?

The Wisconsin Constitution was ratified in 1848, marking the state’s acceptance into the Union by approval of a second constitutional convention. Although an option for changing the document exists, there has never been a third.

Amendments can be added by passage in both legislative bodies in consecutive legislatures and then ratified by voters. Those general elections can be held in either the spring or the fall. The governor plays no role in the process.

Because the Legislature meets for two-year sessions, the process of passing consecutive legislatures not only takes time but must survive an election cycle.

In the two-year legislative session that concluded in March, there were 13 constitutional amendment resolutions introduced for first consideration. Of those, four were passed in identical form by both the Assembly and Senate. There were no resolutions brought forward for second consideration.

Wisconsin voters have successfully amended the constitution in 146 of 198 attempts that survived the legislative process. Two amendments were later declared invalid by the courts.

Vanna White, Frankenstein

Over the past 20 years, several high-profile amendments drew media attention and high voter turnout.

In the fall of 2014, the people of Wisconsin turned out in record numbers for a constitutional amendment. For eight years, Democratic Gov. Jim Doyle used his veto authority to transfer money from the transportation fund — $1.2 billion in all — for various favored budget items such as schools and local government aid.

By a vote of 1,733,101 to 434,806, voters amended the constitution to prohibit any governor from raiding and reassigning from the transportation fund.

In the fall of 2006, voters approved an amendment defining marriage as the union of one man and one woman, 1,264,310 votes in favor and 862,924 opposed. Eleven years earlier, with the lower voter turnout of a spring election, voters rejected an amendment to approve a sports lottery in Wisconsin.

Twice in the last 35 years, voters put a halt to a bizarre kind of gubernatorial “Wheel of Fortune.” In 1990, in what came to be known as the Vanna White Proposal, a constitutional amendment blocked governors from abusing veto authority to strike through sentences and even words and string together parts of a budget bill that in some cases became the opposite of what had been passed by the Legislature. In 2008, voters put a stop to the Frankenstein Veto, used by the governor to graft together passages of the budget bill to invent new spending.

And in April 2018, state voters voted to retain the elected post of state treasurer.

Wisconsin legislators during the Great Depression abdicated their authority over distribution of federal funds to the governor. Today’s legislators want to reclaim that power.

“SJR 84 would return ultimate decision-making responsibility to the legislature by requiring all initial appropriations of federal monies be approved by a joint committee of the legislature,” the resolution says. “By opening up billions of dollars in spending to the legislative process, lawmakers and the general public will have significantly more opportunity to have their voices heard and encourage a more accountable and efficient distribution of those funds.”

With billions more in federal funds left to spend, the Legislative Audit Bureau, at the direction of the Joint Legislative Audit Committee, has begun an audit of federal pandemic emergency spending to this point.

The Badger Institute, which began its own investigation into CARES Act spending in April 2021, has also voiced support for a statewide audit.

A constitutional amendment would ensure that the state Legislature has a say in federal allocations before a dollar is spent.

Jim Bender, the former president of School Choice Wisconsin, is the Badger Institute’s education consultant.

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