Wisconsin constitutional amendments seek more power for Legislature

In less than two years, Republicans have put seven constitutional amendment questions on Wisconsin election ballots — including three that voters will see in the coming months.

That’s more than Illinois, Indiana, Iowa, Michigan, Minnesota and Ohio in 2023 and 2024 — combined.

There has not been this much constitutional amendment activity in Wisconsin in more than 40 years since nine amendment questions were put on the November 1982 ballot. There are five total slated for this year, including two that passed in April, two on the August primary ballot and one in November.

Wake Forest University politics professor John Dinan, author of “State Constitutional Politics: Governing by Amendment in the American States,” said constitutional amendments are commonly used in divided-government states such as Wisconsin, where Democratic Gov. Tony Evers clashes with the Republican-controlled Legislature.

Dinan said Republicans can use the amendments to avoid a veto from Evers or an unwanted ruling from the liberal-majority state Supreme Court.

“It may seem unusual to see amendments being advanced for the purpose of bypassing gubernatorial opposition or insulating policies from state court reversal because we don’t see similar amendments advanced at the federal level,” he said. “But state constitutions and state constitutional amendments have their own distinctive purposes and dynamics.”

Three ballot questions upcoming

To amend the Wisconsin constitution, lawmakers must approve identical ​​changes in consecutive two-year legislative sessions; the amendments do not require the governor’s approval.

From there, Wisconsin voters must approve the change by majority vote in a referendum.

Two constitutional amendment questions that would remove the governor from spending decisions on federal funds are on the Aug. 13 ballot. The questions, which received the first approval from the Legislature in 2022 and the second earlier this year, ask:

1) “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?”

2) “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?”

Under current law, the governor has authority in certain instances to accept federal funds without participation of the Legislature. Under the amendments, the governor could not allocate federal funds without approval by the Legislature. The Legislature would approve such allocations through joint resolutions or legislative rules that, unlike state statutes, do not require the governor’s approval.

Opponents of the amendments include the League of Women Voters of Wisconsin, Wisconsin Conservation Voters, the Wisconsin Democratic Party and the Wisconsin Democracy Campaign.

They say the amendments risk delaying the expenditure of federal funds issued in an emergency because the governor would have to get legislative approval to spend the money.

The ballot questions are “power grabs” and will “confuse the hell out of voters,” said Nicholas Ramos, the Democracy Campaign’s executive director and a former Democratic campaign staffer.

“It’s an arms race now where they’re doing everything to put into cement and concrete very bad public policies that they were afraid the governor would veto,” he said.

Supporters include Wisconsin Manufacturers and Commerce and the Badger Institute, a conservative think tank. 

The Badger Institute says the state expenditure of federal funds needs legislative oversight. “Decisions about how and why billions in federal dollars were spent remain largely a mystery,” the institute said about federal COVID-19 relief money.

Republican sponsors of the amendments, Sen. Howard Marklein of Spring Green and Rep. Robert Wittke of Racine, did not reply to interview requests.

COVID money spending led to amendment ballot questions

The amendment ballot questions were spurred by Republican backlash to how Evers spent federal funds allocated during the pandemic. 

A total of $5.7 billion was allocated, including $4.5 billion that could be spent at the state’s discretion. In particular, Evers has the authority to spend $2.5 billion from the federal American Rescue Plan Act.

In 2021, the Legislature approved a bill, later vetoed by Evers, that would have required the governor to submit a plan for spending the money to the Legislature’s Republican-controlled budget committee for approval. 

That process is similar to the state’s general budget process, in which the governor proposes a budget and the Legislature approves it.

In 2022, an audit from the nonpartisan Legislative Audit Bureau criticized Evers’ administration for not providing documentation requested by auditors on what information was used to make spending decisions on the COVID money. 

Voters tend to approve amendment questions

Wisconsin voters have approved 150 of the 202 constitutional amendments in the state’s history, including 11 of 12 since 2000 and all five since 2020:

• April 2020: More rights for crime victims, including the right to be heard at plea and parole hearings (known as Marsy’s Law). At least one police department has cited the amendment to block the release of information about a police officer who shot a suicidal suspect.

• April 2023: Allowing judges to consider past convictions for violent crimes when setting bail for someone accused of a violent crime; and to set conditions meant to protect public safety when releasing someone before trial. The amendments were spurred by the November 2021 attack at the Waukesha Christmas parade committed by Darrell Brooks, whose bond in a separate felony case in Milwaukee County was reduced from $10,000 to $500.

• April 2024: Banning private money to fund elections; and reaffirming a state law that says only election officials can administer elections. The impetus was Republican concerns about private election administration grants during the 2020 presidential election.

Another Republican-sponsored constitutional amendment is set for the Nov. 5 general election ballot. It would reaffirm that only U.S. citizens age 18 and older may vote in Wisconsin elections:

1. Eligibility to vote. Shall section 1 of article III of the constitution, which deals with suffrage, be amended to provide that only a United States citizen age 18 or older who resides in an election district may vote in an election for national, state, or local office or at a statewide or local referendum?

Since 2020, 10 states have put more constitutional amendments up for a vote than Wisconsin, according to Ballotpedia. The most were in Louisiana (36), Texas (24) and Alabama (21).

Constitutional amendment ballot questions presented to voters

State	2020	2021	2022	2023	2024	Total
Wisconsin	1	0	0	2	5	8
Illinois	1	0	1	0	0	2
Indiana	0	0	0	0	1	1
Iowa	0	0	1	0	2	3
Michigan	2	0	3	0	0	5
Minnesota	0	0	0	0	1	1
Ohio	0	0	2	2	0	4

This article first appeared on Wisconsin Watch and is republished here under a Creative Commons license.