Understanding the August constitutional amendment ballot questions (part 2)—and why you should vote "no"

By Margo Kirchner

In part 1 of this series, Wisconsin Justice Initiative described some general guidelines when considering constitutional amendment ballot questions. Now, on to the two specific ballot questions Wisconsin voters statewide will see in the August 2024 election.

Wisconsin Justice Initiative urges “no” votes on the two referendum questions on the Aug. 13 ballot seeking amendments to the Wisconsin Constitution.

The two proposed amendments relate to the governor’s spending of state and federal funds. One amendment would prohibit the Legislature from delegating its authority to control spending. The other would prohibit the governor from spending money received by the federal government without the Legislature’s approval or direction.

Although the Wisconsin Legislature controls the spending of tax dollars through the budget process and has retained its right to approve funds received under block grants, Wisconsin Statute § 16.54 authorizes the governor to accept and allocate federal funds provided to the state “for the education, the promotion of health, the relief of indigency, the promotion of agriculture or for any other purpose.”
 
With some exceptions, the statute authorizes the governor to designate the state board, commission or department to administer such funds, and the designated board, commission or department to then spend them. The statute permits the governor in his discretion to stipulate to conditions placed on the funds so long as he considers them to be in the public interest.
 
Examples of such funds include the disbursement of federal aid after weather disasters, or, as occurred during the pandemic, federal pandemic-related money under the American Rescue Plan Act of 2021 (ARPA).
 
The statute allows for the acceptance and use of money relatively quickly, as the governor should be able to act more swiftly than the Legislature in a crisis. Generally, the Legislature meets for about 14 or 15 months then takes several months’ break until after the next election. Further, agreement in the Legislature on use of funds would be subject to the political process.
 
Also, the governor is responsible for and accountable to all people in the state, not just constituents in a certain district. He may have a broader perspective on a spending decision for the good of the state than those elected to look out for the interests of a smaller constituency.
 
In the joint resolution calling for the two questions, the Legislature identified the problem it was addressing as follows (emphasis added): “Under current law under the statutes, the governor has authority to accept federal moneys on behalf of the state and to allocate federal moneys without the specific approval or participation of the legislature.”
 
As noted in the resolution itself, the asserted problem arises from current statutes, not from constitutional necessity. Statutes can be changed through statutory amendments; constitutional provisions are not necessary.
 
Rep. Robert Wittke (R-Racine) wrote in support of the amendments that “(b)illions of federal dollars poured into our state in the last couple of years. These supplemental federal funds were important to our state’s economic wellbeing, but only Governor Evers made the determination for allocation of all that money without legislative consideration.” The amendments will “restore a balance to how Wisconsin manages supplemental federal money we receive,” Wittke said.
 
Sen. Howard Marklein (R-Spring Green) wrote in support that the amendments will “increase() accountability, efficiency, and transparency in the expenditure of funds received from the federal government by restoring the legislature’s role in approving those expenditures.”
 
Marklein noted that prior to the 1930s and 1940s the Legislature had “final say over the spending of all funds in the state treasury, no matter their source.” However, as federal money became a greater share of state funds, “legislators abandoned that important responsibility” and gave authority to the governor to allocate federal funds.
 
“I believe the only permanent solution is to have the voters in Wisconsin approve an amendment to the state constitution that will restore the legislature’s role in the allocation of federal funds,” Marklein wrote.
 
During the 2021-2022 legislative session, Gov. Tony Evers vetoed numerous bills in which the Legislature sought to direct ARPA funding. In his veto messages, Evers stated versions of the following:

I object to the bill and am vetoing it because it limits the ability to use federal funds with the flexibility necessary to confront the variety of challenges posed by recovery from the COVID−19 global pandemic and respond to Wisconsin’s changing needs over the course of the pandemic and our recovery. In Wisconsin, the role of the Governor to oversee use of federal funds under Section 16.54 of the Wisconsin Statutes is clearly established and has been in place for decades, a fact that was confirmed by legislative leadership in a letter they sent to me in April 2020.

In lieu of this bill, I will continue to utilize the authority provided to the Governor under Section 16.54 of the Wisconsin Statutes to oversee use of federal funds and will allocate these funds in a manner that is transparent and consistent with both Wisconsin’s needs and federal law.
 
Wittke’s comments and Evers’ veto statements point to the “problem” these amendments are purported to solve: the governor’s rejection of the Legislature’s attempt to control federal pandemic-related funds.
 
When the most recent Legislature approved sending these ballot questions to voters, only Republicans voted for it. (In the Assembly, 63 Republicans voted in favor and 35 Democrats voted against; in the Senate, 22 Republicans voted in favor and 10 Democrats against.) Wouldn’t a truly good policy benefiting all Wisconsinites for decades to come have had bipartisan support?
 
Question 1 on the August ballot reads: “Delegation of appropriation power. Shall section 35(1) of article IV of the constitution be created to provide that the legislature may not delegate its sole power to determine how moneys shall be appropriated?”
 
Ask yourself why this is necessary.
 
Through the state budget process, the Legislature continues to control the spending of vast amounts of state money.
 
Regarding the delegation of power to appropriate federal money, the Legislature has not been forced to delegate its power. Prior Legislatures chose to do so. The Legislature could change the delegation of power to the governor over federal funds by changing the statute.
 
Why does the Legislature need to prohibit in the constitution its own power of delegation? This appears to be the Legislature attempting to get around the governor’s veto of such a statutory change.
 
Importantly, what if a future Legislature believes that it again should delegate authority to the governor or another official to spend certain money? If the ballot question passes, that future Legislature would be barred by the state constitution from doing so. Thus, this amendment can be seen as an attempt to bar future legislatures from giving power back to the governor in the event the legislature ever has a Democratic majority.
 
Also ask how far this provision, if passed, will reach and whether its effects are known. This amendment appears to go beyond just the statute permitting the governor to direct federal funds, extending to any type of delegation. How much will the Legislature extend its reach into the other branches of government to control how executive agencies or courts spend their budgeted funds?
 
Question 2 reads: “Allocation of federal moneys. Shall section 35(2) of article IV of the constitution be created to prohibit the governor from allocating any federal moneys the governor accepts on behalf of the state without the approval of the legislature by joint resolution or as provided by legislative rule?"
 
This change is aimed specifically at § 16.54. Again, the change could be achieved by changing a statute rather than the state constitution.
 
What is the Legislature’s plan for approving or making rules regarding acceptance and distribution of federal emergency aid, especially when the Legislature is not in session? Will Wisconsinites impacted while the Legislature is on break during the last 10 months of a legislative term need to just make do until the Legislature is back in session? The Legislature met just once in 2020 to address needs during the pandemic. This Legislature broke in March 2024 and is not expected to return in full until January 2025. 
 
When the Legislature returns to session, how long will Wisconsinites wait if the Legislature disagrees with the governor’s proposals and the use of funds devolves into politics? Money meant to help Wisconsinites could sit unused while people suffer.
And will Wisconsin miss out entirely on federal money that has a deadline for acceptance? If the Legislature is out of session or disagrees with the governor and the deadline passes, what then?
 
Jennifer Giegerich of the Wisconsin Conservation Voters wrote in written testimony to the Legislature before it passed these amendment proposals:

The current system allows for a governor to act quickly when it is required. Voters are not asking the legislature to formally change the constitution to create a new level of oversight in these limited circumstances. While there may be a theoretical argument to be made, the reality is it will create unnecessary burden and hoops to jump through for those waiting for funds to rebuild or communities dealing with significant public health issues.
 
On the state government website noting lobbyists’ positions on these amendments, organizations urging a “yes” vote included only the Badger Institute and Wisconsin Manufacturers & Commerce.
 
Numerous organizations lobbied for a “no” vote, including, among others, the League of Women Voters of Wisconsin, Wisconsin Education Association Council, Wisconsin Association of Local Health Departments & Boards, Wisconsin Conservation Voters, Wisconsin Public Health Association, Wisconsin Democracy Campaign, The Nature Conservancy, Clean Wisconsin, and Wisconsin Farmers Union. 

For all of these reasons, WJI believes the answer to both ballot questions is "no."