Drake White-Bergey / Wisconsin Watch
Rep. Amy Binsfeld (R-Sheboygan) argues that making it harder to raise taxes will make Wisconsin a more attractive place to live.
Facing political opposition in both the governor’s office and Wisconsin Supreme Court, legislative Republicans are seeking to lock in existing conservative policies — and in some instances, create new ones — with the direct help of voters.
Using Wisconsin’s constitutional amendment process, Republicans are looking to codify a wide-ranging set of policies in the state constitution — changes that could only be removed or modified using the same process or via a court order.
Lawmakers are considering this legislative session almost as many amendments as have been passed over the last 20 years.
To amend the constitution, lawmakers must approve identical changes in consecutive two-year legislative sessions. Constitutional amendments do not require the governor’s approval. From there, Wisconsin voters must approve the change via a majority vote on a referendum.
Among the proposed changes receiving first or second consideration from lawmakers this session are proposals that would require a two-thirds supermajority in the Legislature to enact tax increases; prevent municipalities from using private grants to cover election-related costs; and give the Legislature, not the governor, decision-making power over how the state spends certain federal funds.
Some Republican-aligned policy advocates want to enshrine the state’s right-to-work law, which prevents any requirement that all employees at a unionized business join the union, and the state’s private school voucher programs in the constitution.
They contend the amendments are the most democratic way to settle debates about these issues, by allowing Wisconsinites to have a direct vote on them.
“At the end of the day, this avenue of constitutional amendments is wholly legitimate, pro-democracy, and it gives Wisconsinites a chance to vote up or down on these important questions,” says Anthony LoCoco, chief legal counsel at the Institute for Reforming Government, a conservative think tank.
Democrats have cried foul on the amendments, likening them to the lame-duck legislation that stripped the governor and attorney general of certain powers.
“(The amendments are) just a way to retain power and they’re going to do that as long as they are in power,” Gov. Tony Evers said in an interview with Wisconsin Watch. “And I think it’s been amplified even more recently because there might be an end of the road on this power thing pretty soon.”
Several amendments in the works
During the 2021-22 legislative session, Republican lawmakers introduced nine constitutional amendments for first consideration, passing four of them through both chambers of the Legislature.
Two of them have been approved already this session and ratified: a pair of amendments that made changes to Wisconsin’s cash bail system, including allowing judges to consider past convictions for violent crimes when setting bail for someone accused of a violent crime.
For someone accused of a crime, the proposals also allowed a judge to set conditions for pretrial release that protect the public from “serious harm.” Both amendments were approved by Wisconsin voters in April, but they are being challenged in Dane County Circuit Court by EXPO Wisconsin, an organization that advocates for formerly incarcerated people.
Among the amendments up for second consideration this session are:
- A proposal that would prevent local governments from accepting grant money or other private resources to help administer elections. The amendment would also bar “any individual other than an election official designated by law from performing any task in election administration,” according to a Legislative Reference Bureau analysis of the bill. The amendment arises from Republican anger about private grants that were distributed to both large and small municipalities ahead of the 2020 election. Sen. Eric Wimberger, R-Green Bay, the amendment’s chief Senate sponsor, said at a public hearing Oct. 24 that an Evers veto of similar legislation in June 2021 prompted the amendment.
- An amendment that would give the Legislature, not the governor, say over how certain federal funds are spent by the state. This amendment stems from legislation vetoed by Evers in April 2021. The Assembly approved the amendment this session but the Senate has yet to act.
- A proposal that declares only “qualified electors” can vote in “an election for national, state, or local office or at a statewide or local referendum” in Wisconsin. The amendment comes as some towns in other states — 11 in Maryland and two in Vermont — allow noncitizens to vote in certain local elections.
Coburn Dukehart / Wisconsin Watch
Gov. Tony Evers says the attempts to change the constitution are just a way for Republicans ‘to retain power.’
Republicans have released four constitutional amendments for first consideration in the 2023-24 legislative session, including:
- Requiring a two-thirds supermajority in both chambers of the Legislature to raise the state sales tax, corporate tax or income tax rates in Wisconsin. The amendment passed the Assembly in September and has been referred to a Senate committee.
- Barring the state or “a political subdivision” of the state from forbidding gatherings in places of worship in response to a state of emergency, including a public health emergency. The amendment has not yet been voted on by either chamber.
- Codifying an existing state statute that requires a voter to show an accepted form of photo ID before casting a ballot. The amendment passed the Assembly last session but not the Senate, so it’s up for first consideration again in the 2023-24 session.
- Requiring certain fees collected by communications providers to be deposited into designated funds that can only be spent on updates to existing 911 service infrastructure. The money currently goes to the state’s general fund. Neither the Assembly nor Senate has voted on the amendment.
9 of 10 amendments passed since 2000
Since the state’s founding in 1848, Wisconsin voters have passed about three in four amendments. Of the 200 put before voters, 148 have been ratified, according to the Legislative Reference Bureau. Two others were passed but invalidated by a court.
Over the past two decades 10 amendments have been posed to voters, with all passing except one: abolishment of the state treasurer office in 2018.
Those that passed included a 2003 amendment that guaranteed “the right to fish, hunt, trap, and take game subject only to reasonable restrictions,” which received 82% support from voters.
Others have been more controversial. A 2015 amendment that allowed justices to elect the chief justice, rather than the longest-serving justice to act as chief, was ratified with 53% support.
And several others have landed in court. A 2006 amendment — approved by 59% of voters — that declared “only a marriage between one man and one woman shall be valid or recognized as a marriage in this state” was deemed to violate the U.S. Constitution when the U.S. Supreme Court legalized same-sex marriage in 2016.
A lawsuit challenging a 2020 amendment that expanded the rights of crime victims, known as Marsy’s Law, worked its way to the Wisconsin Supreme Court. The complaint contended the question on the April 2020 ballot — which passed with 75% approval — didn’t adequately inform voters about the ramifications of the change. A Dane County judge ruled in favor of the challenge, but the state Supreme Court overturned that decision 6-1, finding the question was properly worded and therefore legally ratified.
In its lawsuit challenging the amendments approved by voters in April, EXPO Wisconsin argues the amendments were not submitted on time to the proper elections officials.
Dane County Circuit Court Judge Rhonda Lanford ruled Oct. 16 the case could move forward. The next hearing is scheduled for March 19.
Amendments protect key rights, Republicans say
GOP lawmakers have offered several reasons why the current legislative session is the right moment to amend the constitution, saying the changes protect Wisconsinites’ fundamental rights, like the right to vote.
Others, such as making it harder to raise taxes, are billed as a way to make Wisconsin a more attractive place to live.
“We want to make sure that each taxpayer sees that we are being conscious of the fact that we’re not just here to take their money and spend it for them, but rather it would be a last resort option,” said Rep. Amy Binsfeld, R-Sheboygan, who introduced the amendment at an August press conference at the Capitol.
“We also feel that it should be a two-thirds majority in which both parties should have a say, we need to work together,” Binsfeld added. “We need to use our ideologies together and do what’s best for Wisconsin — not just do it by a simple majority.”
Sen. Van Wanggaard, R-Racine, chief sponsor of the voter ID amendment, warned during an Oct. 24 public hearing that the now-liberal-controlled Wisconsin Supreme Court could throw out the state’s voter ID laws.
“I cannot say for certain how the Wisconsin Supreme Court would rule on voter ID laws, but I’m also not willing to risk the Wisconsin Supreme Court declaring voter ID laws unconstitutional,” Wanggaard said at the hearing. “The only way to ensure it will not happen is to enshrine this basic election integrity law in Wisconsin’s constitution.”
Evers prefers ballot initiatives
Evers says in his travels across the state he has not heard that amending the constitution is a top concern for voters.
“I’ve never heard any person in Bayfield County come up to me and say, ‘Oh, my God, we have to have a constitutional amendment on X’ — especially when X is already in state law,” Evers says. “It’s all about power. And I think it’s wrongheaded.”
Evers agrees with Republicans that Wisconsinites should have the final say on certain issues, but he would prefer they do so through ballot initiatives, similar to what happens in states like Michigan and Ohio.
A constitutional amendment that would have created a ballot initiative process for Wisconsinites was put before voters in November 1914 — before women’s suffrage — but 64% of voters at the time rejected the amendment, according to a memo from the nonpartisan Legislative Reference Bureau.
Earlier this year, Evers called a special session for lawmakers to consider an amendment that would allow popular referendums. Republicans gaveled in and out of the session without considering the amendment.
“If (Republicans) are that concerned about people having the ability to voice their final agreement with something, then they should be able to trust people to initiate (a ballot referendum),” Evers says. “That would solve this problem.”
Wisconsin Watch is a nonprofit, nonpartisan investigative newsroom.
