Wisconsin’s primary election this year falls on August 13. On the ballot, besides candidates for office, there will be two state constitutional amendments. It is very important that Wisconsinites vote NO to reject them both.

Constitutional amendments would disrupt co-equal branches of government

Like the federal government, the Wisconsin state government is divided into three branches: legislative, executive and judicial. Also like the federal government, our three branches are supposed to be co-equal. One branch is not more important than the others. This is because they perform different functions which require different expertise. Perhaps more importantly, they are co-equal so they can provide meaningful checks on the other branches. History is rife with terrible examples of what happens when this balance does not exist.

Since 2011, our Republican-led state legislature has been passing laws, and many of its members have espoused the view that the legislature is and should be the dominant branch of government – taking power away from the Executive and Judicial branches. The two questions on the ballot in August are perhaps the boldest move in that direction and hence would be very bad for Wisconsin.

Here are the two AJR6 questions as they will appear on the ballot.

QUESTION 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?”

QUESTION 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?”

What the legislature wants these provisions to mean

The first question asserts that the legislature has the sole power to determine how money will be appropriated (the executive branch in particular has always had a role), but that has never been the case so this would be a big power grab by the legislature.

The second question, in a way, validates our position on the first by giving an example of where the legislature does not have the power to direct funds and that is dollars that come to Wisconsin from the federal government. The legislature wants to give itself this power over federal funds because it doesn’t like when the governor acts to help people when the legislature does not. Also make note that under this provision, if passed, the legislature would act using either a resolution or legislative rule neither of which are subject to a veto.

Two real world examples of how these constitutional amendments would be harmful

In practical terms, here are two examples from the environmental arena, but these provisions affect all state agencies and functions.

First, for years Wisconsin has had a well-compensation program in the Wisconsin Department of Natural Resources. This program provides resources to people who can’t use their water because of contamination. This is a big problem in Wisconsin.

There are thousands of residents with private wells who need help. Historically, this was mostly about nutrient contamination but more recently it is also because of PFAS contamination. Unfortunately, this program initially had certain restrictions that severely limited the number of people this program could help. Indeed, the DNR struggles to spend the state money allocated to the program because of these restrictions. The environmental movement (River Alliance included) has advocated for years for these restrictions to be eased or removed but only with limited success. So when Wisconsin received federal American Rescue Plan Act funds, Governor Evers set aside $10 million dollars for a well-compensation program but without the restrictions. 

As we knew would happen, this program had so many applications that it quickly allocated all the funds. That means there are hundreds of families that will now have safe water who would not have but for the governor’s use of these dollars because the legislature has repeatedly refused to help them. What makes this particularly bad is the US EPA recently announced that states could use some of their “emerging contaminate” funding for this kind of program which hopefully means the governor could create a similar program for people with PFAS contamination. He could not take this action if these constitutional amendments are passed.

Second, due to climate change Wisconsin is seeing more and more severe weather events from  tornados to torrential rains that cause flooding. The governor can apply for federal disaster relief and direct it quickly to the places that need it. Under these constitutional changes, this could not happen until and unless the legislature granted permission. At best, this causes unnecessary delay at the worst of times, and it could mean no help at all if the legislature does not act. Either outcome is unconscionable.

How these will be interpreted by the State Supreme Court

As a lawyer, there is much about these two questions that is vague. When does federal funding “arrive” in the state? What does it mean for those funds to be accepted by the governor? Can the legislature put its own restrictions or conditions on federal funding or must it accept or reject what the governor proposes? Does this process override the state budget? 

The fast answer to these questions is that no one knows. It will be the state supreme court that will determine exactly what the scope of these provisions are. At best, this will cause delay as these questions are litigated which under the examples above means people will suffer needlessly. At worst, they will be interpreted to mean what the legislators have said they want them to mean which, as mentioned above, will be a huge power grab by the legislature.

River Alliance will continue to provide information on these amendments through the summer as we get it. But we know enough already to know these are bad for Wisconsin and we urge you not only to vote NO yourself but also to talk to your friends and neighbors about these as well.

– Bill Davis, Senior Legal Analyst

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