This summer, Wisconsin voters are in for a surprise.
When they go to the polls on August 13, voters across the state will see not one but two seemingly obscure constitutional amendments on their primary election ballots.
The amendments in question have huge consequences for the state’s ability to make effective use of federal funds, especially during emergencies, and for the balance of power between a Republican-dominated legislature and its Democratic governor.
Of equal importance, the vote will mark the first time in Wisconsin history that voters have been asked to weigh in on a constitutional amendment in an August primary. What’s going on here?
What’s at stake? Control over billions in federal aid.
To see what’s at stake here, let’s start by looking at the text of the two proposed amendments, which read as follows (also see the image above):
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?”
If you’re scratching your head about what this all means, you’re not alone. Not only are the questions opaque, Wisconsin (unlike a number of other states) does not provide voters with a plain-language guide to referendums before they head to the polls. So, let’s break it down.
To begin with, the amendments affect the use of funds Wisconsin receives from the federal government. Between 2023 and 2025, Wisconsin expects to receive about $28 billion in federal aid. This represents roughly one third of the revenues in the state’s entire biennial budget.
This is a lot of money, and it’s money that the state spends on everything from disaster relief and the cleanup of toxic waste to the financing of transportation projects, scientific research, and the provision of health care to low-income Wisconsinites. In short, if you can think of an important function the state of Wisconsin performs, chances are there are at least some federal dollars going to support it.
The question, then, is who can make decisions about how Wisconsin should use those funds when they come in the door.
Taken together, the amendments contained in Question 1 and 2 would eliminate virtually any power the governor has to allocate certain federal funds without approval from the legislature. This would represent a significant enhancement of the legislature’s power, overturning a law that has been in place since 1931, which says that: “whenever the United States government shall make available funds for the education, the promotion of health, the relief of indigency, the promotion of agriculture or for any other purpose other than the administration of the tribal or any individual funds of Wisconsin Indians, the governor on behalf of the state is authorized to accept the funds so made available.”
In other words: suppose Wisconsin experiences a natural disaster, an economic crisis, or — as happened in 2020 — both. The federal government rushes aid to the state. Under current law, the governor would be authorized to accept these unanticipated funds and allocate them to impacted businesses, communities, or individuals.
But if the amendments contained in Questions 1 and 2 pass, the state legislature would be able to insert itself into the process, preventing the governor from allocating the funds until the legislature approves.
What would this approval process look like? How cumbersome would it be? The amendment suggests that legislative approval could happen through what’s known as a joint resolution, a proposal that expresses the opinion of the legislature and requires adoption by both the Assembly and the Senate. Yet the amendment also allows the legislature to design some other approval process in the rules it sets out at the beginning of each legislative session.
Earlier versions of the proposal explicitly stated that this process might include a “joint committee of the legislature.” This would have included the Joint Finance Committee (JFC), a powerful fifteen-member body that has elicited controversy in recent years for holding up the executive branch’s allocation of funds for numerous purposes, ranging from aid to communities affected by “forever chemicals” to support for struggling hospitals. While the legislature ultimately dropped the mention of the “joint committee,” it seems plausible that legislative leaders could try to use the vagueness of the language to their advantage to empower a body like the JFC.
The bottom line: the bill shifts significant power to the legislature on the allocation of federal funds, even in emergency situations.
Of course, the legislature already has a heavy hand in the use of federal funds received by state agencies — as opposed to the governor’s office itself. Take transportation, for example. When Wisconsin received $283 million in federal highway funds from the Infrastructure Investment and Jobs Act (IIJA), it required the blessing of the legislature’s Joint Finance Committee. The Committee’s 11-member Republican majority rejected a motion from its four Democrats to approve the plan. With little public fanfare, the Committee made a number of revisions to the plan, including one that specified that congestion-reduction funds could only be used for right-of-way improvement projects, curbing the department’s efforts to invest in alternative forms of transportation, including bicycle and pedestrian facilities, as well as mass transit. Even when the legislature does not block WisDOT proposals, it can also simply slow down the process of using those funds — as in the case of the state’s Electric Vehicle charging program.
Yet whereas the JFC already asserts significant control over federal grant programs run by executive-branch departments, the federal government’s response to the COVID-19 pandemic resulted in a massive flow of aid to the governor’s office. For Republicans accustomed to directing policy from the confines of a JFC hearing, this was intolerable. They passed legislation enhancing their control over pandemic relief funds in the 2021-22 session. Evers vetoed it.
What’s the broader political context here?
As a report by the Wisconsin Legislative Reference Bureau points out, proposals like those contained in Questions 1 and 2 have floated around since the Great Recession, when the state received a significant infusion of federal relief aid. Yet the proposals voters will see in August are of pandemic-era vintage. In 2020, Wisconsin’s efforts to respond to COVID-19 were marked by legislative intransigence.
According to a WisPolitics analysis, the state had the least active full-time legislature during the first year of the pandemic. But the political context for pandemic response changed dramatically in 2021. The passage by Congress of the American Rescue Plan Act (ARPA) provided the state government with over $3.2 billion dollars in emergency relief funds. In part because the Evers administration could use these funds without significant legislative interference, Wisconsin was able to speed aid to where it was needed most.
Consider just one example. As the state’s most recent report to the U.S. Treasury Department puts it, Wisconsin ranked “number one in the country for both aid directed to support businesses and aid directed toward economic development.” (For a comparison of how the fifty states have used these funds, see here.)
During the pandemic years, the state provided funds to over 110,000 businesses, 20,000 farms, and 1,500 organizations, spread across 1,000 communities. This aid was especially significant for industries like tourism. Under a state-funded grant program, for example, nearly 970 lodging facility operators received funds to recoup pandemic-related losses.
Yet pandemic relief was only one battle in a larger war for control of Wisconsin’s government. Over the past six years, since Evers defeated Scott Walker in the 2018 gubernatorial election, Republicans in the state legislature have repeatedly taken steps to cabin the authority of the executive branch, including limiting the Attorney General’s ability to file lawsuits on behalf of Wisconsinites and refusing to consider gubernatorial appointees. Yet perhaps the most important move Republicans have made is centralizing authority in small, unrepresentative bodies like the legislature’s JFC and the Joint Committee for Review of Administrative Rules (JCRAR). As the party’s power has waned, Republicans have unveiled a series of constitutional amendments that would entrench the party’s policy goals and would be difficult to undo.
If anything, the constitutional amendments voters will see in August suggest that the stakes of the fight extend beyond the halls of the state capitol complex. As lobbying reports indicate, opposition to the legislation that created these referendums came from a cross-cutting coalition of organizations representing teachers, farmers, health officials, and environmental advocates. Representatives from the Main Street Alliance, an organization representing small businesses, also voiced their opposition, noting that speedy approval of federal emergency funds were critical to the survival of restaurants, bars, and shops during the early days of the COVID-19 pandemic. Requiring legislative approval, by contrast, would have slowed the process to a crawl.
The only groups supporting the proposal were the conservative Badger Institute and Wisconsin Manufacturers and Commerce, the state’s main business lobby. This is not entirely surprising. In recent years, conservative policy entrepreneurs have made state legislatures a focal point in their effort to dismantle federal grant programs.
For decades, enhancing state legislative control of federal funds has also been a perennial issue for the American Legislative Exchange Council (ALEC), arguably the most important policy entrepreneur in the states. ALEC’s model policy on the legislative review of federal grants, which has appeared on the organization’s list of suggested state legislation sourcebook in one form or another for more than 40 years, envisions “legislative review of all state applications for federal assistance or participation in federal programs, prior to the submission of such applications to the federal government.” In 2024, ALEC highlighted the model bill in its annual guide to “Essential Policy Solutions.”
These sorts of procedural maneuvers, however low-profile or obscure, can play an important role in blocking states from implementing important federal programs. As my coauthors and I show in our 2016 book Obamacare Wars, the existence of strong veto points was one of the key factors explaining why some Republican-dominated states were able to delay implementation of the Affordable Care Act’s insurance exchanges and Medicaid expansion for the first half-decade of its existence. By contrast, we attribute the relatively speedy implementation of the ACA’s consumer protections in part to rules that promoted cooperation between state insurance regulators and federal officials.
In the years that followed the ACA’s passage, Republicans also created new veto points to impede the implementation of the law. Following Evers’ election as governor in 2018, Republicans passed legislation during a lame-duck session to prevent the Department of Health Services (DHS) from seeking waivers or other changes to the state’s Medicaid program without (including proposals for the expansion of Medicaid) first obtaining approval from the JFC.
This is one reason why, even as 40 states and the District of Columbia expanded Medicaid coverage after the ACA’s passage, Wisconsin remains one of a small handful of (primarily southern) states that have refused to use the expansion program to broaden access to affordable healthcare.
If the two constitutional amendment proposals pass in August, legislators will gain still more opportunities to block the implementation of federal-state programs.
A small fraction of Wisconsin’s voters will decide the fate of these amendments
The fate of these amendments hinges on who turns out to vote in August. And who turns out depends at least in part on the timing of the vote.
Since 1854, Wisconsinites have voted on over 200 proposed state constitutional amendments. Yet every one of these votes has taken place during either spring elections (which feature contests for governor and other statewide offices or presidential preference primaries) or the fall (which feature general congressional or presidential elections).
In 2022, just 27% of voters participated in the state’s August primaries, which was a 40-year high. Since 2000, turnout in November general elections has been, on average, three times higher than it is in partisan primaries.
In just a few months, Wisconsin voters will for the first time vote on whether to amend the constitution in an August primary election. Unlike 2022, there will be no big-ticket contests for governor or U.S. senator. Of Wisconsin’s eight congressional districts, only two (District 3 and District 7) will see a contested Democratic primary. There are three contested Republican primaries (in Congressional Districts 2, 4, and 8). Of the 99 State Assembly districts, only 21 will feature contested Democratic primaries. In the Republican column, there are 24 contested primaries. In short, August elections will likely see a turnout rate lower than in 2022.
The decision to schedule the vote on the amendments was made by Republicans in the state legislature. To understand how this happened, it’s important to look carefully at the legislative timeline for putting these measures on the ballot.
As required by the state constitution, both chambers of the legislature approved joint resolutions in two successive legislative sessions (2021-22 and 2023-24) to put the amendments before the electorate. Once the resolution has made it to the second session, it requires a calendar date for the election in which voters will make the final decision on the amendments. In the first version of the Assembly’s 2023 joint resolution , that date coincided with the upcoming April elections, where the state Supreme Court race between Janet Protasiewicz and Daniel Kelly was heating up. Yet at this point, the legislative process on the joint resolution slowed down. The judicial election broke turnout records, but it came and went. It was not until September that the resolution saw floor action in the Assembly. At this point Assembly authors amended the resolution to schedule a vote during the April 2024 presidential primaries. Their Senate colleagues offered an alternative proposal to push the vote back further still to November, the date of the 2024 presidential election. Assembly Republicans countered with a proposal to slate the vote for the August primaries. This version of the resolution carried.
Because Wisconsin’s legislature has the power to schedule votes on important constitutional amendments, it can game election timing to engineer a favorable result. And while the August primary is a new iteration of this, the practice of pushing constitutional amendments to lower-turnout elections is itself not new.
Since 1948, the legislature has scheduled roughly over half the votes on constitutional amendment in years with no presidential primaries — typically lower-turnout elections where the most visible contest at the top of the ticket might be for a seat on the Wisconsin Supreme Court. The remaining votes occurred either during spring elections with presidential primaries or during high-profile November general elections.
Will these constitutional amendments ultimately become law? Since 1854, Wisconsin voters have approved over 70 percent of the constitutional amendments put before them.
There are exceptions, of course. In April of 2018, voters defeated a Republican-backed initiative to eliminate the State Treasurer’s office. After a highly visible campaign by the “Save Our Fiscal Watchdog” committee that illustrated the potential adverse consequences of the move, the “No” side won with over 60% of the vote.
With the odds stacked in favor of passage of the August amendments, the question now is whether the opponents of the proposals can dredge them out of the bog of legalese, and into the spotlight.