cc  >> Paul Rogovitch:  Good afternoon, and welcome  to History Sandwiched In.  I'm happy to introduce our  speaker today, who will be Fred  Wade.  Mr. Wade is an expert on  constitutional law, both in  United States and in Wisconsin's  constitution.  He is in private practice as an  attorney since 1987.  He got his law degree here at  the university in 1972.  And in addition to working in  Wisconsin, he's also worked in  Washington, DC, for the  Securities and Exchange  Commission.  And today, he's going to talk  about the evolution of the  partial veto.  His real interest now is in the  relationship of power between  the legislature and the  executive branch of our state  government.  And I guess, sometimes when you  grind sausage twice, it comes  out coarser rather than finer.  So please welcome to History  Sandwiched In, Fred Wade. 

 (applause)  >> Fred Wade: Thank you very  much.  Wisconsin has the sixth oldest  constitution in the United  States, among the states.  And like all state  constitutions, and the  constitution of the United  States, it reflects the values  of the society at the time that  those documents were written.  And like the five New England  states that have older state  constitutions than us,  the state constitutions reflect  the founding values that the  people have the inherent right  to make their own laws.  What does this have to do with  the Frankenstein veto in  Wisconsin?  Well, the Frankenstein veto is  defined as the power of the  governor to use his partial veto  power, which is intended to be  no different from an item veto  power that most of the other  states have, in a way that  allows the governor to make laws  that the legislature did not  approve.  So there's a contradiction here  that's generally not been  recognized between the boundless  concept that the people have an  inherent right to make their own  laws through their  representatives in the  legislature.  And this concept that our  governor, in a way that's unique  among the states, may make laws  that the legislature did not  approve.  So let's begin with the initial  concept that I want to contrast  with the partial veto power, and  how it has evolved.  This is a passage from the  Wisconsin Declaration of Rights,  which introduces the Wisconsin  Constitution.  And it tracks the language of  the Declaration of Independence. 

 It begins with the premise that  all people are born equally free  and independent, and have  certain inherent rights; among  these are life, liberty and the  pursuit of happiness; and to  secure these rights, governments  are instituted, deriving their  just powers from the consent of  the governed.  Well, I think part of the reason  we got into this situation, to  preview where we will be going.  That's getting ahead  of ourselves--  Is this concept of liberty.  As time has gone on, I think the  concept of liberty, as it was  understood by the founders,  has changed.  We tend to think, in the 21st  century, of the Bill of Rights,  freedom of speech, freedom of  religion, the rights to counsel  in a criminal proceeding,  or due process of law.  The rights guaranteed in the  Bill of Rights.  When we think of liberty.  For the founders of our country,  liberty meant something very  specific.  It was the right of the  legislative representatives and  people to make their own laws,  and consent to them.  This is made clear by three of  the early state constitutions. 

 I have two of them here for you  to see.  Beginning with the Virginia  Declaration of Rights in 1776.  It was authored by George Mason,  who was a neighbor of George  Washington.  And the basic proposition was  that men cannot be taxed or  deprived of their property for  public uses without their own  consent, which of course, is  impractical in a society of a  large number of people, or that  of their representatives so  elected, nor can they be bound  by any law to which they have  not, in like manner, assented  for the public good.  The Massachusetts Constitution,  written by John Addams in 1780,  has a similar declaration, as  part of its Declaration of  Rights.  No part of the property of any  individual can, with justice, be  taken from him, or applied to  public uses, without his own  consent, or that of the  representative body of the  people.  In fine, which is the phrase  that John Addams liked to use,  the people of this commonwealth  are not controllable by any  other laws than those to which  their constitutional  representative body have given  their consent.  The Pennsylvania Constitution,  in 1776, had similar language.  In Massachusetts, Pennsylvania,  and Virginia were the three most  populous states at the time of  the American Revolution.  So when we speak of this idea  of government having powers  with the consent of the  governed, it was envisioned that  the legislative branch of  government, both the Congress  and the state legislatures would  serve this function of giving or  withholding the consent of the  governed to specific proposals  for legislation. 

 And for that reason, both the  Wisconsin Constitution and the  US Constitution, the Wisconsin  Constitution at the top says the  legislative power shall be  vested in a senate and assembly.  The legislative power, not part  of it.  And similarly, the United States  Constitution says all  legislative powers herein  granted shall be vested in a  Congress of the United States.  Why do we have those vestings  of legislative power in the  Congress and in the Wisconsin  Legislature?  In part, it's a matter of  history.  In part, it's a matter of  values, as I alluded to in the  beginning.  If you look at the history of  the American Revolution, it was  really about the right of the  people to make their own laws.  The period began with the Stamp  Act.  You may recall the phrase,  "No taxation  without representation,"  was the objection.  When the British were forced  to repeal that, they passed  something called the Declaratory  Act in 1766.  And Parliament declared that it  had, and it ought to have,  "full power and authority to  make laws to bind the colonies  and the people of America  in all cases whatsoever."  You recall this declaration  as the rights we just saw,  speaking about no power  to bind the people without  consent of their representatives  in the legislature. 

 Well, that's what they're  speaking to.  It was in the context of the  British assertion that they did  have power to bind the people  without their consent.  The Wisconsin Constitution  contains other provisions,  which reinforce these concepts.  There's a provision  that requires each bill  to have an enacting clause.  It states, be it enacted by the  people of the state of Wisconsin  represented in the Senate and  Assembly, as follows.  And every bill--  You have Article V, Section 10  in the Wisconsin Constitution--  "Every bill which shall have  passed the legislature."  It must pass the legislature  before it can become a law.  And then, this is the provision,  Article V, Section 10, which  lays out the governor's veto  power.  If the governor approves and  signs the bill, the bill shall  become law.  Then the 1930 amendment, which  we'll discuss in a few moments,  added, "appropriation bills may  be approved in whole or in part  by the governor, and the part  approved shall become law."  And this last sentence is what  has lead to the evolution of an  executive power to create laws  that the legislature did not  approve.  What has been done?  This contradiction that I speak  of is perhaps best illustrated  by an appropriation. 

 The Wisconsin Supreme Court has  defined an appropriation as, and  I quote, "a setting aside from  the public revenue of a certain  sum of money for a specified  object in such manner that the  executive offices of the  government are authorized to use  that money, and no more,  for that object and no other."  Well, this is a veto from the  1991 Budget Bill, in which  Governor Thompson created  a $319 million appropriation  that the legislature  did not authorize.  You can see that, well,  I'll just read through it.  You can see that most of this  portion of the budget bill is  struck through with diagonal  lines, indicating that it has  been vetoed.  And what you're left with  is a provision that reads,  Section 21-35-T,  79.14 of the statutes is to  read, 79.14 school tax credit,  the appropriations  under Section 20.835(3),  the "B" is picked up toward  the end of the paragraph there,  changing the section number from  which the money was to come,  from (3)(c) to (3)(b).  Then, the number $319,305,000  is created by picking up  the "$3" from the first  indented line,  another "19,"  and a "30" from the next line,  and "5,000 from the next line  and a period at the end.  This is a $319 million  appropriation  that the legislature plainly  did not approve,  in fact, did not consider,  let alone enact.  But it was treated as if  it was a law passed and approved  by the legislature.  And over four years, before  the legislature got around  to amending that legislation,  resulted in the spending  of about $1.2 billion that the  legislature did not authorize  to be spent,  at least not for that purpose.  Let me give you another example  of an appropriation from  Governor Doyle's 2003 budget.  As you may recall, one of the  most contentious issues in 2003  was the amount of money that  should be allocated for shared  revenues with local governments. 

 It was back and forth.  The legislature, which I'll jump  ahead here a moment.  The republicans controlled the  legislature, and they put  together a four-page provision  covering how they thought that  the shared revenues issues  should be dealt with in the 2003  budget.  The very last paragraphs here  contain an appropriation.  We'll come back to this in a  moment.  But all that was left of that  particular budget veto  were three sentences.  And this is one of the three  sentences of those vetoes  that covered four pages  of the 2003 budget.  There are three sections here,  actually, or sub-sections.  Originally, the legislature  wanted to appropriate  $125 million for 2004 and 2005,  for municipal aid.  The next section says  that at the beginning of 2006,  no municipality may receive  a payment under that section. 

 And the next section says  that beginning in 2006,  the amount to be distributed  will be $703 million.  The effect of this veto was  to say that beginning in 2004,  the amount to be distributed  each year to the municipalities,  from the aid account,  is $703 million.  So, there's a $1.4 million  creation of an appropriation  that the legislature  did not authorize.  Just two examples of how this  power can be used in a way  to create legislation that the  legislature did not consider,  let alone enact.  It can also be used to create  tax increases.  This is an illustration from  1999, which effectively repealed  the property tax rent credit.  If you recall, when you got your  tax forms that year, there was a  section at the top of what's new  for 1999, saying the property  tax rent credit has been  repealed.  Well, this is how it was done.  The legislature proposed some  changes with respect to the  property tax rent credit.  And this provision at the bottom  of the first column and at the  beginning of the top. 

 It says that the taxpayers  beginning after December 31,  1998, and this was to be  temporary, for just three years,  and before January 1, 2001,  a claimant may claim as a  credit, 8.4% of the first $2,000  of property taxes, or rent  constituting property taxes,  or 8.4% of the first $1,000  of property taxes, or rent  constituting property taxes  of a married person  filing separately.  Well, the government took this  partial veto power, which has  since been, I think, interpreted  to mean that the governor can  veto individual words, digits,  punctuation marks, as we saw  with the prior vetoes, to create  new law the legislature didn't  consider or approve.  In this case, he vetoed, after  the dollar sign, in the third  line in the second column,  a "2", a comma, and two zeroes.  So the formula for awarding the  tax credit became 8.4% of zero,  or zero,  instead of 8.4% of $2,000.  According to the  "Wisconsin State Journal,"  that change led to the  collection of about $234 million  of income taxes from Wisconsin  state residents that the  legislature never authorized to  be collected, assuming that  people could take that tax  credit, but for this veto.  Just another example of a tax  increase the legislature did not  authorize.  In the 1991 state budget, the  legislature proposed a series of  tax increases to be phased in  over a period of years for the  dog tracks.  It begins, the dog races,  on each race that is on or after  January 1, 1994, but the  governor vetoed the "4" in the  date, and this veto carried over  to another page.  He picked up a "3" from about  halfway down in the vetoed  material at the top of the  column.  Then joined that together with  this series of tax rates. 

 It was supposed to go into  effect in 1995.  So the effect of that was to  make 1995 tax rates go into  effect in 1993.  I can't tell you what the fiscal  impact of that was.  But it gives you another example  of what governors may do, in a  way that creates law the  legislature did not approve.  This is another example of an  extreme use of the veto power.  I should emphasize that it's not  really a veto power at all, as  you probably understand from  what we've said so far.  A veto is generally understood  to be an executive power to  prevent a law or part of a law  from taking effect, pending  reconsideration by the  legislature, in light of the  governor's or executive's  objections, and pending the  possibility that the legislature  may override that veto by a  two-thirds vote and re-pass it,  make it law, over the objections  of the executive.  With these vetoes, so-called,  when the governor makes his  deletions, they effectively  become law, because as long as  the governor has the support of  one-third, plus one member,  of one house of the legislature,  the veto will stand.  You can't get to two-thirds.  And as a result of that, our  legislature very rarely has even  attempted to override a veto. 

 I've often maintained that they  should make the attempt and make  a record that at least a  majority does not approve some  of these vetoes.  But it's been viewed as an act  of futility, and the legislature  simply has not made the record.  In effect, if the legislature  were to try to override one of  these vetoes, it's try to get a  two-thirds vote to enact what it  proposed in the first place, and  put on the governor's desk.  There's really no way for the  legislature to object to what a  governor has done.  Here we have an increase in  bonding ability from the 2003  budget.  For transportation, major  highway and rehabilitation  projects, existing law said that  the state could borrow up to,  not to exceed, $140 million.  The legislature proposed  to reduce that amount  to $100 million.  The vetoes had the effect--  And as you can see, on the  left-hand side is the existing  law, and the line striking  through to indicate that it is  to be repealed.  And just to the right, the  $100 million amount is written,  with an underline, to indicate  that that is the proposed  amendment.  Well, the governor vetoed  the dollar sign, a one and a  zero from the repeal of the  existing law. 

 So he wants to take the dollar  sign and a one and a zero from  the existing law.  He vetoed the dollar sign and a  one from the proposed amendment.  And the result was a billion  dollars of bonding authority,  where under the prior law, it  was only $140 million, and the  legislature had proposed to  reduce that to $100 million.  Now, this shows, I think,  pretty starkly the danger  that still exists.  We have had two constitutional  amendments to limit the scope of  the veto power.   And set forth here in Section  Sub-Part C, of Article V,  Section 10, our constitution  now reads, at the top,  Every bill--  I'm sorry, from the prior  section, the legislative power  shall be vested in the Senate  and the Assembly.  But Section 1(c) says, in  approving an appropriation bill  in part, the governor may not  create a new word by rejecting  individual letters in the words  of the enrolled bill.  And I come back to how we got  into that.  And he may not create a new  sentence by combining parts of  two or more sentences of the  enrolled bill.  Now, in my view, this absolutely  contradicts the idea that the  legislative power should be  vested in the Senate and the  Assembly. 

 Because it's clear, at the very  least, governors can still  create new sentences, in terms  the legislature does not  consider or authorize.  Suppose the proposed law was  "Thou shalt not kill."  The governor can take out  the word "not."  In the case of the bonding  authority increase  that I gave to you moments ago,  this is an amendment within the  context of a single sentence.  The legislature sought  to amend the bill,  to change the amount  that would be authorized.  And the governor took advantage  of that to say, all right,  I'm going to take part of the  existing law and part of the  amendment, smash them together,  and create something different,  and much more  than the legislature  sought to authorize.  Well, this same technique can be  used to increase the amount  of an appropriation,  to increase fines or fees,  to increase taxes.  There was a proposal  in the most recent state budget  to increase, to create  a new tax bracket of 7.75%.  Well, the governor could have  vetoed that to make it 77.5%  state income tax,  maximum bracket.  Not that he would've done  such a thing, because  it was just too extreme.  But in principle,  there was no constitutional  barrier to the governor having  done such a thing.  And it's totally arbitrary and  capricious, because the governor  is limited. 

 He can't determine, whatever his  individual policies, preferences  or whims might be, he is only  free to create new legislation  given on he's got to work with  here.  So at best, it may be an  approximation.  As it turned out, the  legislature got mad about this  particular veto, the increase  in bonding authority,  and threatened a lawsuit.  They worked out a compromise.  They passed a replacement  for this that authorized  about $500 million  in bonding authority.  So, the governor got what he  wanted, which was really about  $400 million of additional  bonding authority.  And the legislature got to say,  well, we did something  about that particular veto.  This is a very critical aspect  of one of the most significant  issues of the 2003 budget.  As you recall, we had a very  severe structural deficit,  billions of dollars short.  One of the consequences of that  was to try to deal with  the shared revenue situation. 

 The republicans wanted to  severely limit shared revenues  to the local municipalities.  How did Governor Doyle get the  money to fund that $703 million  appropriation?  Well, in part, and I'm not sure  that this is the exact trade-off  that he used to do it.  In part, it's understood that he  took money from the  transportation fund and used it  for his priorities, one of which  was to preserve as much of  shared revenues as he could.  He needed about $400 million  more to do that.  So at the end of the day,  he got what he wanted.  But he had increased his  bargaining power a whole lot,  by saying, I'll accept  $500 million, but if you don't  agree to that and pass me  legislation I can sign  providing $500 million, you're  stuck with a billion dollars  of bonding authority.  So, that's how the system works.  And that's why the governor has  much more leverage with this  kind of veto power  than was certainly contemplated  when the nation was founded  and when our state constitution  was written.  How did we get into this mess?  By 1930, in 1927, actually,  most of the states had  item veto powers, 75%.  And the reason why,  as government became more  complex and complicated,  legislatures started putting  together packages of different  bills. 

 They'd package legislation in a  larger chunk.  In part, there was log rolling.  The idea that, you know, I'll  vote for your project if you  vote for mine.  And even if neither one of them  could pass on an up or down vote  on its own merits, by putting  them together, we can create a  package that can get a majority  vote in each house of the  legislature.  It's called log rolling.  That was part of it.  But in Wisconsin, we also had  another problem.  The budgetary system had become  so unwieldy and fragmented that  we didn't know how much we were  spending.  We didn't know how much we had  in revenues.  The thought was in the 1927  legislature, we will improve  this situation by mandating that  governors prepare an executive  budget bill. 

 This was routine.  All of the proposed  appropriations go into one bill.  Proposed revenues go into one  bill.  And we can see if we're going to  have a balance or not.  And the legislature will  consider the whole package at  one time.  Well, think what this does.  In fact, it was actually said  by one of the principle sponsors  of the constitutional amendment  that created the partial veto  power, back in 1930.  "Appropriation bills may be  approved in whole or in part by  the governor, and the part  approved shall become law."  That was the 1930 amendment.  He said, we're now requiring--  This was Tom Duncan.  He was a socialist  from Milwaukee,  a third party candidate. 

 He took up the cause for reform,  creating the partial veto power  in the 1929 session  of legislature.  It was first proposed by  Senator William Titus,  of Fond du Lac, a progressive.  And it went through,  without much controversy,  both in the 1927 session,  and in the 1929 session.  But Senator Duncan said,  he opened his campaign for the  ratification of the amendment  right around the corner here,  at the Loraine Hotel.  And he spoke to the American  Businessman's Club.  I always think this is an  interesting image, of a  socialist from Milwaukee going  in to talk to the American  Businessman's Club, and say,  you know, what we need in this  state is a partial veto power.  He did.  He went in there and he said,  you know, this is not a radical  proposal.  And it certainly would be deemed  radical if it was intended to  give the governor power to  create law the legislature  didn't approve.  He said, this proposal,  to give the governor a partial  veto, is merely giving back to  the governor the power that we  took away from him when we  mandated an executive budget  bill, and required that all the  appropriations be put into one  package. 

 It doesn't make sense to force  the governor to swallow bad  proposals with good proposals.  Make the whole budget process  start over again.  The government must go on.  If the governor agrees with 90  or 95% of the budget bill, why  don't we let him simply approve  it.  And you will end up  with items that--  You will end up with items  that have been approved by  the Senate, Assembly  and by the governor.  That was the intent.  It was intended to be the same  kind of item veto power that  other state governors have.  There's no sense that other  state governors have the power  to create laws the legislature  did not approve.  It was drafted by Edwin Witte,  who for a long time, was the  chief of what we now call the  Legislative Reference Bureau,  the bill drafting agency of the  legislature.  He ultimately went on to draft  the Social Security Act  for Franklin D. Roosevelt. 

 He was not an inexperienced  drafter.  But he did something that has  led to a lot of problems in the  state.  He used the word "part"  to define the scope  of the veto power.  And why he did so is a mystery.  Senator Titus asked for an item  veto power.  Edwin Witte drafted this  language, "appropriation bills  may be approved in part..."  And he sent it to Senator Titus  saying, here's the item veto you  requested.  In that next session, Senator  Duncan said I want you to give  me a draft of the item veto bill  that passed last session.  Edwin Witte wrote back and said,  here's your item veto.  After it passed the legislature  and it was about to be submitted  to the people for ratification,  Witte wrote a draft or a brief,  it's called the Witte Brief,  giving Senator Duncan reasons  why it should be passed.  And I don't know how broadly  it was distributed. 

 But it's clear that Senator  Duncan used it in a press  release, in which he declared  that the amendment would permit  the governor to veto single  items in an appropriation bill  without vetoing the entire bill.  The Witte Brief goes on at some  length and says that the reason  for having this amendment is  that with a new budget bill,  the executive budget, the  legislature can take the budget  proposal to the governor and  increase the appropriations, add  new appropriations, and what's  the governor to do, if he can't  take them out.  Witte was very clear.  You had to end up with  legislation or items that the  Senate, the Assembly and the  governor could agree upon.  He said the Wisconsin proposal,  although it's hard to see where  he got that from, he said it  would not permit the governor  to reduce the amount  of an appropriation.  Now, that was customary in all  the 35 of the 37 states that had  item vetoes at the time.  But there was nothing in his  brief or in the language that  you see before you that would  indicate that there was no power  to reduce an appropriation.  And in fact, the Wisconsin  Supreme Court subsequently said,  well, the governor can reduce an  appropriation to a lesser  included amount, part of the  whole appropriation that was  proposed.  And that's not unreasonable.  But it's also clear that it's  not what Witte intended. 

 Witte said the proposed  amendment would permit governors  to veto items in appropriation  bills entirely, and then send  them back to the legislature,  which may pass the same entire  items over the veto.  Passes of the amendment, he  said, would give the governor  the power to block any  appropriation which he deems  unwise, and which two-thirds of  the members of both houses did  not think ought to pass over his  objections.  So it's clear.  Neither the framers of the 1930  amendment that created the veto  power, and I could talk to you  about what the newspaper said  about it in the same vein, nor  the voters who ratified it,  intended to give the governor  any power to create laws that  the legislature did not approve.  So then what happened?  Well, ironically, Governor Phil  LaFollette was the only person  of any prominence to oppose the  enactment or ratification of  this amendment.  He became the first to use it in  a way that made a law the  legislature did not approve.  His signature issue was the  creation of a work relief  program.  It was during the Depression.  There was very high  unemployment.  He negotiated a deal with  Franklin D. Roosevelt and  Harry Hopkins,  his chief aid administrator,  to let Wisconsin experiment  with a work relief program  and provide much of the funding. 

 But LaFollette and the  federal administration wanted  that money spent by a state  agency.  He submitted a work relief bill.  The legislature said no, we like  the idea of having the counties  distribute this money.  And so, they took out parts of  the bill, and had the effect of  leaving, there was an existing  law which provided the county  distribution of aid monies.  And in fact, it kicked into the  existing statute, leaving the  counties to distribute the  money.  Well, Governor LaFollette vetoed  portions of the bill that the  legislature added during the  legislative process, and put it  back the way he had introduced  it.  The Wisconsin Supreme Court said  it was a valid veto.  But they did not establish any  overriding principle that said  governors have the power to make  laws the legislature did not  approve.  They said, the proper test for  determining the validity  of a veto is the test  of severability.  Now, this is a doctrine of  deference to the legislature on  the part of the courts. 

 They say, if we have to hold  part of the statute  unconstitutional, we'll try to  leave as much of what the  legislature enacted in place, as  possible.  And what is the test for this?  First, what's left after the  veto has to be a complete  and workable law,  capable of working as a law,  standing on its own.  And it must--  be apparent from the face of  the bill that the legislature  "would have enacted,"  and let me repeat that,  would have enacted what remains,  if it knew that part of the  statute was going to be held  invalid.  In other words, it's primarily a  question of legislative intent,  as to whether what was left  after a veto to remain standing.  Now, how did the Supreme Court  in 1935 uphold this work relief  program?  They said some of these  provisions that were deleted  were simply statements of intent  that didn't create any rule of  conduct.  And the others were merely  incidental.  I mean, it provided for the  change of distribution of this  money from going out through a  new state agency, and it was  going to go out through the  counties.  Merely incidental.  And why was it merely  incidental?  Well, because if the legislature  had known that the governor was  going to veto this, in light of  the overriding need to provide  relief to the impoverished and  distressed, it's still  consistent with the legislative  intent to have the bill go back  to the way it was originally  introduced even though it is  amended in each house in the  legislature to create something  much different.  That was the first case. 

 It was disingenuous, I think, on  the part of the Supreme Court to  reach that result.  But the way that they did it  meant that the case was limited  to its facts.  It's very hard to think that  you're going to have future  governors able to say that, you  know, that the legislature  intended to do one thing they  plainly did not intend to do.  The case came on in 1940.  And the short answer is the  court just kind of threw up its  hands, and the entire extent of  its analysis was well, we  permitted a change of intent to  1940.  This is a change of intent.  Okay.  1976 is a longer opinion.  But the court essentially says,  you know, our constitution uses  the word "part," not item.  They must have meant, intended  that the word part be broader  than an item. 

 And they upheld some of the  vetoes of Governor Lucy.  There was not much more analysis  than that.  1978, acting Governor Schrieber  changed the proposal for the  check-off for campaign funds.  Initially, you could make a  check, and it would add a dollar  to your income tax to fund  campaign finance.  The veto made it so you didn't  have to pay an additional  dollar, but there was an  automatic contribution, all you  had to do was check.  It cost the state $600,000 a  year, estimated.  The Supreme Court said, in  essence, the governor may create  any bill that the legislature  could have created in the first  instance.  How did they get there?  Well, they changed the test of  severability that they had  applied in 1935, and which  applies in every other context,  both at the state and national  level, in interpreting when can  the remainder of the statutes  stand.  And he said, the test of  severability is simply whether  the result can stand as a  complete and workable law.  Forget about, although he didn't  say forget about, he just  pretended that that was all  there was to the test. 

 What about the part that said  you have to find from the face  of the bill that the legislature  would've have enacted what was  left, in the form in which it  was left?  That got dropped with no  explanation by the court, and no  acknowledgement that it was  changing the test of  severability.  1988, you get some Tommy  Thompson vetoes, including,  well, not any of the ones I've  shown you, but there were many  similar ones.  And the court said, yes, the  governor can veto letters of the  words to create new words.  Any part of the bill.  And they premised that on the  word "part."  The court gave constitutional  status to this by saying, well,  our expansive governor's power  to create law is based  on the word, "part."  And the dictionary definition of  the word "part" is any portion  of something larger.  Therefore, words, digits,  punctuation marks, are all  parts.  Ignore the fact that the part of  the definition is, if I can find  it real quick, because our time  is limited.  It requires you to look at how a  word is to be understood in the  context in which it appears, and  how it is generally regarded.  Does anyone seriously regard an  appropriation bill as being put  together in terms of individual  words, digits, punctuation marks  instead of separate items of  legislation?  At any rate, that is how we got  to where we are.  Those Supreme Court decisions,  how did the legislature respond?  Well, as you see, in Section  (c), contradicting the basic    provision granting legislative  power to the Senate and the  Assembly says, "in approving  an appropriation bill in part,  the governor may not create  a new word by rejecting  individual letters in the words  of the enrolled bill."  This is the 1990 amendment. 

 And in 2008, we just added,  "and may not create a new  sentence by combining parts  of two or more sentences  in the enrolled bill."  That may contradict the idea  that the legislature  has all the legislative power.  Now, this is--  How much time do we have?  >> It's about 1:00 right now.  >> Wade: This is veto  that led to the 1980 amendment.  It basically provided for  sanctions for violations of a  juvenile court order.  The legislature had said not  exceeding 48 hours.  The governor vetoed this in a  way that made the remainder read  as, "placement of a child in  a secure detention facility  of juvenile portion of the  county jail for not more  than 10 days."  In Dane County, I checked about  a year or so after this was put  into place.  The court was tacking these ten  day incarcerations end-to-end,  so one guy got incarcerated,  pursuant to this provision,  for 50 days.  And that led to the provision  that the governor may not veto  letters of a word to create a  new word, as if that dealt with  the issue of governors not  created law that the legislature  didn't approve.  This was the so-called  Frankenstein veto  that led to the--  Or, one of them.  I went to far. 

 Basically, this led to the idea  that governors should not  combine parts of two or more  sentences to make a new word.  Basically, the governor took the  money, and wanted to fund  education as his priority.  This is one way he did it.  What's left, you can see this  entire page is basically blotted  out.  But the Department of  Transportation shall transfer  to the...  I can't quite read that  in that version.  Anyway, transfer to an  appropriation from the  transportation fund to an  education appropriation.  And basically, at the top of the  next column on the next page,  creates the number $427 million.  That's the one that was  often reprinted in  the Wisconsin State Journal.  So it's clear that, you know,  we have a serious contradiction  here. 

 For some reason, our legislators  have not seen this as an issue  that ought to be dealt with by  completely eliminating the  governor's power to create laws  the legislature did not approve.  Now, our system is not a perfect  one, by any means.  Winston Churchill once said  democracy is the worst form of  government, except for all the  other forms that have been  tried.  But there are only three  choices.  You can have government by one  person, or by less than a  majority, or by a majority.  LaFollette once put it, I think  it's a good argument as to why  we ought to have government by  majority through our legislative  representatives.  It was a remarkable speech out  at Blue Mounds on July 4, 1902,  when he was governor.  He said the American concept of  self government "comes closest  to doing justice to all, because  the amalgamated whole," and I  would add in the microcosm of  the legislature, "represents the  experience of all, recognizes  the needs of all, and expresses  the will of all as no one  class," and I would add or for  that matter, one man or one  woman, "possibly could."  Thank you very much.  (applause)