Senate Republicans approved two referendums Tuesday that are likely to appear before voters on the April 4 ballot: one, an advisory question asking whether adults should have to actively seek work to continue receiving taxpayer-funded benefits, and the other an amendment to the state Constitution changing the basis for how judges set cash bail in the state.
Voting along party lines, the GOP-controlled Senate also rejected a proposal by Democratic Gov. Tony Evers and legislative Democrats to substitute the welfare question with one asking voters if the state’s near-complete abortion ban should be repealed.
The benefits and bail measures next go to the Republican-led Assembly, which is scheduled to vote on the measures Thursday. If approved by both houses, the proposals would appear on the April 4 ballot. Results of advisory referendums, like the work-requirement one, are nonbinding. Results of the constitutional measure would be binding.
Gov. Tony Evers discusses his abortion referendum proposal at a news conference on Tuesday, Jan. 17, 2023.
The GOP proposal about welfare benefits, which passed with all Republicans and Sen. Brad Pfaff, D-Onalaska, voting in favor, would ask voters: “Shall able-bodied child-less adults be required to look for work in order to receive taxpayer-funded welfare benefits?”
The question would appear on the ballot alongside a high-stakes race for the Wisconsin Supreme Court, which will decide the ideological balance of the state’s high court. The court currently has a 4-3 conservative majority. The winner is expected to play a decisive role in several upcoming cases, including the legality of Wisconsin’s near-complete 1849 abortion ban.
Work search
State law already requires those receiving unemployment benefits to conduct at least four work-search actions each week in order to receive benefits. Wisconsin Works, the state’s primary Temporary Assistance for Needy Families program, also requires participants to work or take part in “activities to help you get ready to work.”
But Senate Majority Leader Devin LeMahieu, R-Oostburg, on Tuesday singled out the lack of a work or job-search requirement for Medicaid.
Former President Donald Trump’s administration in 2018 required Medicaid recipients to spend 80 hours a month working, in job training, engaging in community service or participating in a work program. That requirement was revoked by President Joe Biden’s administration in Wisconsin in 2021.
“Their resolution, simply put, attacks low-income people in the state of Wisconsin,” said Senate Minority Leader Melissa Agard, D-Madison. “They’re trying to gin up their voters.”
Evers last year vetoed several GOP proposals that would have reduced benefit programs in Wisconsin — proposals that Republicans said would have helped put more Wisconsinites back into the workforce as employers statewide deal with labor shortages.
Abortion
The amendment offered by Evers and legislative Democrats Tuesday sought to replace the language in the GOP-authored welfare resolution with an unrelated question: “Shall Wisconsin’s 1849 abortion law be repealed and the constitutional rights guaranteed under Roe v. Wade be restored?”
Evers argued his proposal to add the abortion question to the April ballot was not intended to boost Democratic voter turnout, but rather to further confirm that the majority of voters support abortion rights.
The Marquette Law School’s November poll found that 84% of respondents — including 73% of Republicans — think abortion should be legal for victims of rape or incest. Fifty-five percent of respondents said they oppose the U.S. Supreme Court’s decision to overturn Roe.
Evers’ proposal marks the latest effort by Democrats to challenge the state’s more than 170-year-old law, which hasn’t been enforced since the Roe v. Wade precedent established abortion as a constitutional right nationally.
Last fall, the governor asked Republicans to approve a process whereby voters could propose and repeal state laws, like the abortion ban. But Republicans quickly shot that down, as they did his latest proposal.
Cash bail
The Senate also approved a constitutional amendment requiring judges, when setting bail, to consider the criminal histories of people charged with violent crimes and whether they present a risk to public safety.
The measure, which passed 23-9, heads to the Assembly on Thursday. Two Democrats — Pfaff and Bob Wirch, of Somers — joined all Republicans in voting in favor of the measure.
Under the Constitution, judges may only use bail to ensure defendants appear in court, not to keep defendants from engaging in criminal activity by keeping them locked up. Judges may, however, add conditions to a person’s bail that seek to address public safety concerns.
The Constitution also states defendants shall be eligible for release under reasonable conditions aimed at protecting community members from “serious bodily harm.” The proposal changes that standard to “serious harm.”
The measure, SJR 2, passed both chambers with bipartisan support last year.
State law requires the Legislature to approve proposed constitutional amendments in two consecutive sessions before Wisconsinites can vote on them. The governor cannot veto a proposed constitutional amendment.
Calling Wisconsin’s current bail system broken, proposal author Sen. Van Wanggaard, R-Racine, said judges need the ability to look at the whole picture when considering bail for people accused of violent crimes.
“Nothing else can happen until we pass and ratify this amendment,” Wanggaard said. “This is the first step, and this has to be the first step.”
Opposing views
Criminal defense attorneys and other opponents of the amendment have argued the changes will result in more people presumed to be innocent held behind bars longer because they can’t make bail while awaiting trial.
“This is wasteful,” Sen. Chris Larson, D-Milwaukee. “It’s likely unconstitutional.”
Opponents have argued that if the proposal results in keeping people in jail for long periods before trial it could violate the U.S. Constitution’s due process clause, which states nobody may be “deprived of life, liberty or property without due process of law.”
Supporters said that’s not realistic since the proposal was modeled on other states’ bail systems.
Opponents have also said the proposed amendment could violate the excessive bail prohibition under the Eighth Amendment to the U.S. Constitution.
Wanggaard said the measure would not change the excessive bail prohibition, noting that judges would have to put on the record why they believe bail amounts are appropriate.
Sen. Lena Taylor, D-Milwaukee, criticized the proposed switch from “serious bodily harm” to “serious harm,” saying there was no clear definition of the latter.
The amendment wouldn’t have much practical effect, according to Michael O’Hear, a professor of criminal law at Marquette Law School.
That’s because violent crime already constitutes a small percentage of criminal cases, O’Hear said. Additionally, factors that make a defendant a public safety risk tend to be the same kinds of factors judges consider when determining whether a defendant is a flight risk, he said.
But even the small number of cases affected by the bail changes could worsen jail crowding, he said, because some defendants would be unable to pay significantly higher bail amounts under the new system. Keeping people in jail longer before trial could also raise constitutional issues, he said.
