Blistnnsin ~Riefs from the Reference Bureau

Legislative ;Blistnnsin ~riefs from the Reference Bureau

Brief 79-3 April 1979

CONSTITUTIONAL AMENDMENT TO BE CONSIDERED BY THE WISCONSIN ELECTORATE APRIL 3, 1979

I. INTRODUCTION Only one proposed amendment to the Wisconsin Constitution will be submitted to the Wisconsin electorate for ratification at the election on April 3, 1979. This constitutional amendment, appearing on the ballot in the form of four questions, provides for gubernatorial succession, filling a vacancy in the office of lieutenant governor, selection of the Senate's presiding officer from among the members of the Senate, and a revision of several constitutional sections to make the text more understandable. Amending the Wisconsin Constitution requires the adoption of a proposed amendment by two successive sessions of the legislature and ratification of an amendment by the voters. A proposed amendment is introduced in the legislature in the form of a joint resolution. This step is called "first consideration". If the joint resolution is adopted by both houses, a new joint resolution embodying an identical text may be introduced on "second consideration" in the following session of the legislature. Joint resolutions are not submitted to the governor for approval.

Sections Affected Joint Resolutions Subject

Art. IV, Sec, 9; Art. Proposed by 1977 SJR Provides for gubernatorial V, Secs. 1,1m,1n, 7 51 (Enrolled JR 32) succession, filling a and 8; Art. VI, Secs. (1st Consideration); vacancy in the off ice 1, 1m, 1n, and 1p; Art. 19 7 9 SJR 1 (Enrolled of lieutenant governor, XIII, Sec. 10 JR 3) (2nd Consider selection of Senate's ation) presiding officer, and miscellaneous revisions to clarify the text.

II. BALLOT QUESTIONS The proposition, in its four parts, will appear on the ballot in the following questions: Gubernatorial succession. Shall sections 7 and 8 (except the first sentence thereof) of article V of the constitution be amended so that the lieutenant governor, or the secretary of state if there is a vacancy in the office of lieutenant governor, succeeds to the office of governor as "governor" whenever there is a permanent vacancy, but continues to serve in the office as "acting governor" wherever the vacancy is temporary? Lieutenant governor vacancy. Shall section 10 of article XIII of the constitution be amended so that, whenever there is a vacancy in the office of lieutenant governor, ti)e successor nominated by the governor requires confirmation by the state senate and assembly before assuming the duties· of the office? Senate presiding officer. Shall section 9 of article IV of the constitution be amended, and shall the first sentence of section 8 of article V of the constitution be repealed, to eliminate the lieutenant governor's function as senate presiding officer and to permit the state senate, instead, to select its presiding officer from among its members? Making the 4-year terms understandable. Shall section I of article V and section l of article VI of the constitution be amended, and shall sections Im and ln of article V and sections Im, In, and Ip of

Prepared by Gary A. Watchke, Research Analyst. - 2 - LRB-79-WB-3

article VI of the constitution be repealed, to make il more understandable that constitutional officers in this state have been elected to 4-year terms since 1970?

III. ANALYSIS BY THE WISCONSIN LEGISLATIVE REFERENCE BUREAU The following analysis appeared in l 979 SJR I: This constitutional amendment, to be given 2nd consideration by the 1979 legislature for April l 979 submittal to the voters, provides for: (I) Gubernatorial succession. (2) Filling a vacancy in the office of lieutenant governor. (3) Selecting the senate's presiding officer from among the members of the senate. ( 4) Revision of section I of article V and section I of article VI to make the text more understandable. A. Gubernatorial Succession Since 1848, the state constitution has provided that the powers and duties of the office of governor "shall devolve upon the lieutenant governor" when the person elected governor is unavailable. It does not distinguish between temporary and permanent vacancies. Orland S. Loomis died in December 1942 after his election to the governor's office; in January 1943 Walter S. Goodland, elected lieutenant governor, took the oath of office as lieutenant governor and served the entire term as "acting governor". Governor Patrick J. Lucey resigned in the summer of 1977 to become U.S. ambassador to Mexico; Lieutenant Governor Martin J. Schreiber served the balance of Lucey's term as "acting governor". When there is a permanent vacancy in the position of governor as the result of death, resignation or removal from office, this proposed constitutional amendment provides that the lieutenant governor succeeds to the position of "governor" [this creates a vacancy in the office of It. gov.; see below] . When there is a temporary vacancy in the position of governor as the result of absence from the state, impeachment, or inability to perform the duties of the office as the result of mental or physical disease, this constitutional amendment provides that the lieutenant governor assumes the powers and duties of the office as "acting governor". Similarly, this constitutional amendment provides that when a permanent vacancy occurs in the office of governor while there is a vacancy in the office of lieutenant governor, the secretary of state becomes "governor", but when such vacancy is temporary the secretary of state serves as Hacting governor". B. Lieutenant Governor Vacancy The state constitution has, since 1848, directed the legislature to determine, by law, what constitutes a "vacancy" in any office and how such vacancy is to be filled (for the general law on vacancies and the filling of vacancies, see chapter 17 of the statutes). Sec. 17.19 (4) provides that vacancies in statewide elective offices are filled by appointment by the governor until a successor can be chosen through election, but does not mention the position of lieutenant governor. When Lieutenant Governor Henry A. Gunderson resigned in 1937, Governor Philip F. La Follette appointed Herman L. Ekern to.fill the vacancy, and the governor's right to do so was upheld by the state supreme court in "State ex rel. Martin v. Ekern", 228 Wis. 645. This constitutional amendment provides that, when there is a vacancy in the position of lieutenant governor, the governor is to nominate a successor to serve for the balance of the unexpired term, but the person so nominated cannot take office until the appointment has been confirmed by both the senate and the assembly. C. Senate Presiding Officer Unlike the assembly, the senate of the Wisconsin legislature does not select its presiding officer from among its members. Instead, it elects one of the senators "temporary president" (president pro tempore) to preside over the senate when the lieutenant governor -identified by the constitution as the senate's presiding officer -is unavailable. Specifically, the constitution already requires the president pro tern. to preside over the senate when the lieutenant governor serves as acting governor. This constitutional amendment eliminates the lieutenant governor's role as senate presiding officer. Instead, the senate will elect its presiding officers, including the president of the senate, from among its own members. . LRB-79-WB-3 - 3 -

D. Revision of V-1 and VI-I In prescribing the method by which it may be amended, the state constitution requires that when more than one amendment is submitted to the people at a single election, "they shall be submitted in such manner that the people may vote for or against such amendment separately". In the election of April 1967, this required separate submission of the questions granting 4-year terms to the governor, lieutenant governor, secretary of state, state treasurer and attorney general; in each instance, the people voted "yes". However, the result is that the constitution -in section I of article V and in section I of article VI - still speaks of terms of office of "two years", while ~ach specific office is then granted a 4-year term as an exception to the general rule. This constitutional amendment makes the text more understandable by incorporating the 4-year term into the general rule, and deleting the 5 exceptions.

IV. TEXT (NOTE: Scored material would be added; stricken material would be deleted.) [Article IV] Section 9. Each house shall choose its ewn presiding officers, a11a th• so11ato sliall sheeso a t•m!lerary !lFOSiao11t whon tho lieuto11a11t gevorner shall net attona as !lFesiaont, er shall ast as geverner from its own members. [Article VJ Section 1. The executive power shall be vested in a governor, who shall holdhls office for twe :[years; a lieutenant governor shall be elected at the same time, and for the same term. [Article VJ Section Im. Netwithsta11ai11g soetien I, beginning with the goneral olostien in 1970 ana oYory fel!f years thoroaftor, thoro shall eo oloetoe a geverner te hale effiee fer a torm ef fellF yoars. Section In. Netwithstanaing soetien I, bogi1111ing with tho genoral oleetien in 1970 a11e ovory feur yoars thereaftor, thore shall be oleetoa a lioutoHant gevorner te hel-lieute11aat geverner shall be prosieent ef the senate, but shall have enly a easti11g 'o'BI• therein. ill If,.during there is a vacancy in the office of lieutenant governor, and the lieutena11t governor shall be dies, resigns or is removed from office, the secretary of state shall become governor for the balance of the unexpired term. (2) If there is a vacancy in the office of lieutenant governor and the governor is absent from this state, impeached, aisplasee, resig11, die, or from mental or physical disease beeeme becomes incapable of performing the duties of hls the office, er be abse11t frem the state, the secretary of state shall aet serve as acting governor for the balance of the unexpired term or until the nea11ey shall lie fillea er the governor returns, the disability shall eease ceases or the impeachment is vacated.

•\ [Article VI] Section 1. There shall be eheseR by the The qualified electors of tho this state, at the times and places of choosing the members of the legislature, shall in 1970 and every 4 years thereafter elect a secretary of state, treasurer and atterney geooral, attorney general who shall severally hold their offices for tlle term sf twe :[ years. - 4 - LRB-79-WB-3

[Article VI] Section Im. Netwithstaadiag sostioe-1,l;ogiaaiag with tho goaoral oloetioa in .J.Jl+

V. ATTORNEY GENERAL'S EXPLANATORY STATEMENT A. Gubernatorial Succession The Wisconsin Constitution presently provides that when death, resignation or removal from office causes a permanent vacancy in the office of governor, or when the governor is temporarily absent or unable to act because of illness or impeachment, the lieutenant governor becomes "acting governor" but does not vacate the office of lieutenant governor. When the lieutenant governor is unable to act for any of the same reasons and the office of governor is vacant, the secretary of state becomes "acting governor" until the vacancy is filled. A "yes" vote on this amendment would change these provisions of the constitution to provide that, in the event of a permanent vacancy in the office of governor as the result of death, resignation or removal from office, the lieutenant governor will become "governor", unless the office of lieutenant governor is vacant, in which event the secretary of state will become "governor." The officer succeeding to the office of governor will thereby vacate the office previously held. A "yes" vote on the amendment would also continue provisions in the constitution to provide that when the governor is temporarily absent or unable to act because of illness or impeachment, the lieutenant governor will become "acting governor", unless the office of lieutenant governor is vacant, in which event the secretary of state will become "acting governor." B. Lieutenant Governor Vacancy Where no provision is made in the Wisconsin Constitution for the filling of a vacant office, the Legislature may declare the manner in which the office may be filled. The constitution presently contains no provision for filling the vacant office of lieutenant governor, and current legislation provides that the office shall be filled by appointment by the governor. A "yes" vote on this amendment would add a provision to the constitution which would require that when there is a vacancy in the office of lieutenant governor, the governor must nominate a successor, who then must also be confirmed by the senate and by the assembly before taking office. C. Senate Presiding Officer The Wisconsin Constitution presently provides that the lieutenant governor shall be president of the senate, but may cast a vote therein only in the event of a tie, and that the senate must choose a temporary president when the lieutenant governor is "acting governor" or does not attend as president. A "yes" vote on this amendment would eliminate the lieutenant governor's role as president of the senate and would provide that all presiding officers of the senate be chosen from its own members. D. Making the 4-year Terms Understandable At the April, 1967, election, the electorate voted on a number of separate constitutional amendments of similar language which would create four-year terms of office for the governor and lieutenant governor, the secretary of state, the state treasurer or the attorney general, beginning in 1971. These amendments were proposed as individual exceptions to the then existing two-year term requirement for all such offices. Since all such amendments were approved, the two-year provision is no longer effective. LRB-79-WB-3 - 5 -

A "yes" vote on this amendment would allow changes which would make the four-year term provision in reference to such offices more understandable by restating it in positive terms and in fewer words.

VI. BACKGROUND A. Gubernatorial Succession The purpose of the gubernatorial succession process is to ensure order in carrying out state business when the governor is not available. According to Section 7 of Article V of the Constitution the lieutenant governor acts as governor when the chief executive is impeached, removed from office, dies, becomes incapacitated due to mental or physical disease, resigns or is absent from the state. If the vacancy is permanent, the lieutenant governor serves as acting governor for the remainder of the elected governor's term. If the vacancy is merely temporary, the lieutenant governor acts as governor until the governor is again able to serve. Where both the governor and the lieutenant governor are unavailable, the secretary of state serves as governor until the vacancy is filled. Temporary disability may be determined by the State Disability Board (Sections 14.015, 17.025). When the resignation of Governor Patrick Lucey to become U.S. Ambassador to Mexico, made Lieutenant Governor Martin Schreiber "acting governor", it brought forth anew the questions and problems that arise when gubernatorial succession occurs in Wisconsin. In the Wis,consin Legislature, the renewed interest in gubernatorial succession focused upon the distinction in the legal status expressed by the titles "acting governor" and "governor". The lieutenant governor who be.comes "acting governor" is still the lieutenant governor and therefore cannot appoint a replacement for:,the latter office. Other problems relating to salary and staffing have necessitated the issuance of several Attorney General's opinions to help clarify the legalities involved in the process. As a result of these uncertainties, the Legislature adopted the proposed constitutional amendment providing that when there is a permanent vacancy in the position of governor, the lieutenant governor succeeds to the position of "governor". I. A Brief History of Past Gubernatorial Successions In Wisconsin In Wisconsin, six governors have been succeeded during their terms of office by the lieutenant governor. No secretary of state has permanently succeeded a governor. The first governor to create a vacancy in the Executive Office was Wiiliam A. Barstow, who· resigned on March 21, 1856. In the gubernatorial election of 1855, Governor Barstow had run against Coles Bashford. Both claimed victory, and Barstow remained in office during court proceedings to remove him. When the Wisconsin Supreme Court ruled in favor of Bashford, Barstow resigned and Lieutenant Governor Arthur McArthur became acting governor. However, his tenure was a brief four days until Bashford presented a court order taking over the Executive Office. Governor Louis P. Harvey was one of two Wisconsin governors to die in office, and the only governor to die as the result of an accident. After a Civil War battle it was reported that Wisconsin units had suffered considerably. Governor Harvey decided to lead an expedition for their relief. The party reached Tennessee, where they administered aid to the wounded and ill. As they were preparing to depart, the Governor slipped and fell into the river and, because of the strong current, efforts to assist him were fruitless. The body was recovered about 60 miles from the scene of the accident. While Governor Harvey died on April 19, 1862, his body was not recovered until May 3, 1862. On April 22, Lieutenant Governor Edward Salomon issued a proclamation announcing the death of Governor Harvey and declaring that he was assuming the powers and duties of the Executive Office. The reason for Salomon's delay in the announcement of his succession to the Executive Office was probably because of the absence of Governor Harvey's body. The third governor to create a vacancy was Robert M. La Follette, Sr., who resigned on January l, 1906 after the State Legislature elected him to the United. States Senate. He was succeeded by Lieutenant Governor James Davidson. It was this resignation that prompted the opinion by Attorney General L.M. Sturdevant which established the rule that the acting governor is entitled to the governor's salary if the vacancy is permanent (3 OAG 602). On May 27, 1936, Lieutenant Governor Thomas J. O'Malley died. At the time Governor Philip F. La Follette was not in Wisconsin so Secretary of State Theodore Dammann became acting governor. The temporary elevation of Secretary of State Dammann to the top post created some debate about who would succeed the Secretary of State as acting governor. Neither the Wisconsin Constitution nor the - 6 - LRB-79-WB-3

statutes provide for succession beyond the secretary of state. Two possible solutions to the dilemma were advanced. One suggested that the chief justice of the Wisconsin Supreme Court call an election. The other suggested that the remaining constitutional officers would assume the powers and duties of the governor in some unknown and undeter1nined order. The next question regarding gubernatorial succession occurred in 1942, when Governor-elect Orland S. Loomis died prior to his inauguration. This controversy was unique in that there was no precedent regarding a governor-elect. Incumbent Governor Julius Heil claimed that a new election must be held and that he should remain in office until the election was decided. Supporters of Lieutenant Governor-elect Walter S. Goodland maintained that he should assume the duties of the office because the lieutenant governor was the constitutional successor to the governor. However, associates of Secretary of State Fred Zimmerman believed that because neither the Governor-elect nor the Lieutenant Governor-elect had yet taken the oath, he alone could become governor. Governor Heil immediately referred the matter to the Attorney General, who petitioned the Supreme Court to rule. The court decided in State ex. rel. Martin v. Heil, (1942), 242 Wis. 41, that Goodland should become acting governor. Again the question of the salary of the acting governor was raised. The discussion focused on whether the acting governor was entitled to the governor's salary or only to the then $5 (now $25) per day which the lieutenant governor received when acting as governor. Attorney General John E. Martin ruled that Acting Governor Goodland was entitled to the governor's salary, 32 OAG 7 (1943). The opinion was based on Attorney General Sturdevant's earlier statement in 1906. To clarify the issue, Chapter 53, Laws of 1943, was enacted. The law stated that when a lieutenant governor permanently assumes the powers and duties of a governor he receives the salary and all the rights, privileges, and emoluments of the office of governor. In a related matter, Chapter 486, Laws of 1943, created Section. 7.01 (5), providing for a special election if there was a vacancy both in the office of governor and lieutenant governor, and Section 7.04 ( 1), providing that such election for governor should be called by the attorney general. (Incidentally, in 32 OAG 206 (1943), the Attorney General stated his opinion that the bill which was to become Chapter 486 would be constitutional if enacted). These sections were renumbered and amended to be Sections 8.50 (4) (c) and (1) (a) respectively by Chapter 666, Laws of 1965 (a general revision of election laws). Section 8.50 (4) (c), (providing for the special election for governor), was subsequently repealed by Chapter 261, Laws of 1967, which was a law enacted to make changes in the election laws made necessary by the constitutional amendment providing for the joint election of governor and lieutenant governor. However, this chapter did not amend or repeal Section 8.50 (I) (a) (providing that when there is to be a special election, a special election for governor is to be called by the attorney general). This provision still remains the same (a 1977 amendment to the section does not affect it). Prior to the general election law revision, another section of the statutes, Section 7.01 ( 4) provided for ....._.,,-] special elections for offices other than governor and lieutenant governor. In the general 1965 revision, this became Section 8.50 (4) (d) and the·exception for governor and lieutenant governor was replaced by "except under par. (c)", which did not change the meaning. In the 1967 law, the par. (c) exception was deleted since the paragraph itself was repealed. Both Sections 8.50 (I) (a) and (4) (d) remain in the statutes. The next gubernatorial succession through death of the incumbent in Wisconsin occurred on March 12, 1947, when Governor Goodland died and Lieutenant Governor Oscar Rennebohm assumed the powers and duties of the governorship. In April 1947 Attorney General Martin (34 OAG 176) again ruled that the acting governor was entitled to the governor's salary. The most recent vacancy, which we mentioned earlier, occurred when Governor Lucey resigned and was succeeded by Lieutenant Governor Martin Schreiber. Again the Attorney General was requested to issue an opm10n regarding the salary of the succeeding governor. In June 1977 Attorney General La Follette (OAG 50-77) ruled that the succeeding governor is entitled to the current salary established by law for the office of governor. 2. Legislation Proposed in Wisconsin In Wisconsin there has been frequent legislation proposed regarding gubernatorial succession. Most of the proposals have been in the form of a constitutional amendment and have related primarily to making the lieutenant governor who succeeds to the governorship actual "governor" rather than "acting governor" authorizing the succeeding governor to appoint a new lieutenant governor, and adding n1ore positions to the line of gubernatorial succession. 3. Status in Other States .. LRB-79-WB-3 - 7 -

All states have constitutional provisions concerning gubernatorial succession. In a majority of states (35) the successor becomes governor rather than acting governor, but the lieutenant governor serves as acting governor when the chief-executive is absent fro1n the state. B. Lieutenant Governor Vacancy The Wisconsin Constitution has, since statehood, directed the legislature to determine, by law, what constitutes a "vacancy" in any office and how such vacancy is to be filled. Section 17.19 (4) of the statutes provides that vacancies in statewide elective offices are filled by appointment by the governor until a successor can be chosen through election, but does not mention the position of lieutenant governor. In other words, when a lieutenant governor succeeds to the governorship (through death, resignation and the like), there exists no statute or constitutional provision for filling the vacancy in the lieutenant governor's office under those circumstances. The reason for this is that the governor is "acting governor" and lieutenant governor at the same time. The above circumstances are in contrast to an incident that happened when Henry Gunderson, who was elected lieutenant governor in 1936, resigned. From October 16, 1937 until May 16, 1938 the state did not have a lieutenant governor, but on the latter day Governor La Follette appointed Herman Ekern as lieutenant governor. Ekern thus became the first, and only appointed lieutenant governor that Wisconsin has ever had. The action was contested, and in State ex rel Martin v. Ekern (1938) 228 Wis. 645, the Court held that the governor could appoint a lieutenant governor if that office was vacant, as was true because Mr. Gunderson had resigned. Prior to 1921, such action might not have been possible, but by Chapter422, Laws of 1921, Section 17.27 ( 4) of the statutes was created specifically authorizing the governor to fill all vacancies not otherwise provided for in accordance with Article XIII, Section 10 of the Wisconsin Constitution, which authorizes the legislature to determine how vacancies shall be filled. It is interesting to note that the court also indicated that had Gunderson been "acting governor", he could not have appointed a lieutenant governor because he, acting as governor, was still the lieutenant governor. This constitutional amendment provides that, when there is a vacancy in the position of lieutenant governor, the governor shall nominate a successor to serve for the balance of the unexpired term, but the person so nominated cannot take office until the appointment has been confirmed by both the Senate and Assembly. This follows the procedure for filling a vacancy in the office of vice president of the United States. Under the 25th Amendment to the U.S. Constitution, a President's nominee must be confirmed by both houses of Congress. During the Wisconsin Senate debate on 1977 SJR 51, which was the gubernatorial succession proposal on first consideration, Senator F. James Sensenbrenner led support for a provision that confirmation of both the Senate and Assembly be needed for the governor's choice of lieutenant governor. According to the Capitol Times (2/15/78), Senator Sensenbrenner claimed that "It would be the same procedure followed by the federal government when Gerald Ford was selected to succeed Spiro Agnew as vice president and Nelson Rockefeller was tapped to succeed Ford. In both instances, the presidential selection of a vice president had to win Congressional approval." C. Senate Presiding Officer Of the four questions to be voted on, this one is perhaps the most controversial. The Wisconsin Constitution presently provides that the lieutenant governor shall be president of the Senate but may cast a vote only in the event of a tie. Additionally, the Senate selects a temporary president (president pro tempore), who presides over the Senate when the lieutenant governor is unavailable. Specifically, the Constitution requires the president pro tempore to preside over the Senate when the lieutenant governor serves as acting governor. This amendment, therefore, would remove the lieutenant governor from the position as Senate presiding officer and permit the Senate members to choose their own presiding officer. Only one proposal removing the lieutenant governor as president of the Senate has been introduced during the past 40 years. 1967 Assembly Joint Resolution 11, introduced by Assemblyman G.K. Anderson, would have amended Article IV, Section 9, and Article V, Section 8, of the Wisconsin Constitution, to remove the lieutenant governor as president of the Senate and make him "executive assistant" to the governor. The president pro tempore would have become president of the Senate. This proposal failed to be adopted in its house of origin. During the 1977 and 1979 sessions of the Wisconsin Legislature, however, the status of the lieutenant governor has been the subject of considerable debate both within and without the Legislature. For example, Senate President pro tern Fred Risser, in an October 12, 1977 press release concerning 1977 SJR 54, a constitutional amendment proposal that would have repealed the lieutenant governor's - 8 - LRB-79-WB-3

service as the president of the Senate and allowed the Senate to select its own presiding officer, made the following statement: "Since the Governor and Lieutenant Governor currently run for office as a team and are no longer selected through a separate balloting process, it is necessary to change the Constitution to eliminate any potential infringement of the executive branch in the legislative process. "Separation of these two branches of government is a fundamental principle and the removal of the Lieutenant Governor as the Presiding Officer in the Senate creates a clearly defined division of power". The press release mentioned that Senate Minority Leader Clifford Krueger had co-authored this proposal with Senator Risser. During the 1979 session debate on this subject, the following remarks by various senators, were reported by the MILWAUKEE SENTINEL (1/31/79): "When this matter gets to the people, they're going to reject it. They're going to want the ··1·.if lieutenant governor to preside and to break ties." {Sen. Lorge, R-Bear Creek). "Our forefathers thought it necessary that the lieutenant governor preside over one of the houses." (Sen. Murphy, R-Waukesha). "I don't believe a member of the executive branch ought to be voting" (Sen. Flynn, D-West Allis). "The present situation 'is a mockery to the separation of powers.' Such power is an undue influence by the executive branch on the legislative branch.'' (Sen. Theno, R-Ashland). The following is a partial excerpt from an editorial that appeared in the CAPITAL TIMES ( 1 /20 / 79): "Wisconsin is one of 29 states in which the lieutenant governor presides over the State Senate. A proposed constitutional amendment would take us out of that category. That would be a mistake. "Wisconsin has gotten along very well with the present system for almost 131 years and we see no crying need to change the system. "We don't have any quarrel with the provision to call the lieutenant governor "governor" instead of "acting governor" or with the change to allow the governor to fill a vacancy by appointment. "But the section that would remove the lieutenant governor as the State Senate's presiding officer is unwarranted. He doesn't have anything else to do as it is." The constitutional provision making the lieutenant governor the president of the Senate with the power to cast a vote in case of a tie is, of course, following the U.S. constitutional provision regarding the vice president as president of the U.S. Senate. The current discussion over the lieutenant governor's role as president of the Senate is very similar to the debate that took place during the Unites States Constitutional Convention of 1787, when the issue of making the vice president the presiding officer of the United States Senate was considered. Alexander Hamilton, writing as Publius in THE FEDERALIST (No. 68), made the following analysis concerning the role of the vice president in this matter: The appointment of an extraordinary person, as Vice-President, has been objected to as superfluous, if not mischievous. It has been alleged, that it would have been preferable to have authorized the Senate to elect out of their own body an officer answering that description. But two considerations seem to justify the ideas of the convention in this respect. One is, that to secure at all times the possibility of a definite resolution of the body, it is necessary that the President should have only a casting vote. And to take the senator of any State from his seat as senator, to place him in that of President of the Senate, would be to exchange, in regard to the State from which he came, a constant for a contingent vote. The other consideration is, that as the Vice-President may occasionally become a substitute for the President, in the supreme executive magistracy, all the reasons which recommend the mode of election prescribed for the one, apply with great if not with equal force to the manner of appointing the other .... Additionally, Mr. Charles Warren, in his book, THE MAKING OF THE CONSTITUTION, reviewed the debate which took place in the Constitutional Convention on September 7, 1787, concerning the vice president as president of the United States Senate. The following commentary and debate was excerpted from that section of Mr. Warren's book: LRB-79-WB-3 - 9 -

.... there must be some impartial person to preside over the Senate, without taking a member of that body and thus depriving a State of its two votes, thereby reducing its equality. The latter reason was interestingly set forth by William R. Davie in the North Carolina State Convention, in 1788: "It was in the Senate that the several political interests of the States were to be preserved and where all their powers were to be perfectly balanced. The commercial jealousy between the Eastern and Southern States had a principal share in this business. It might happen in important cases that the voices would be equally divided .... It would then be necessary to have some person who should determine the question as impartially as possible .... From the nature of his election and office, he represents no one State in particular, but all the States ... the officer and representative of the Union .... These, I believe, are the principles upon which the Convention formed this officer." When the Vice President was debated in the Convention, on this day, little enthusiasm was expressed for such an officer. Randolph was opposed to the provision. Mason "thought the office of Vice President an encroachment on the rights of the Senate and that it mixed too much the Legislative and Executive which ... ought to be kept as separate as possible." Gerry was "against having any Vice President"; and he thought that a Vice President as head of the Senate would be practically equivalent to putting the President himself there, owing to "the close intimacy that must subsist between the President and Vice President." As to the suggested danger from this "close intimacy", G. Morris made the sage reply (highly prophetic of the future course of our history) that "the Vice President then will be the first heir apparent that ever loved his father." Sherman also stated that he saw no danger in a Vice President acting as head of the Senate, and unless this officer should so act, then a member of the Senate must be chosen, which would deprive him of his vote (except in case of an equal division.) It is to be noted that the whole discussion on the subject of the Vice President centred on his status as a Legislative officer. The convention adopted the proposal to have the vice president serve as presiding officer of the Senate on an 8 to 2 vote with North Carolina being absent. Looking at this issue from a broader nationwide perspective, we see that 12 states have ratified amendments rescinding the lieutenant governor's legislative authority as presiding officer of the State Senate ( 45 states liave lieutenant governors). The lieutenant governors were given key legislative assignments in the 19th century in an attempt to dilute the powers of strong legislatures. The. expansion of the executive branch in many states has tipped the balance of power. According to the September-October 1977 issue of STATE LEGISLATURES, "Several state lawmakers and lieutenant governors question the executive's presence in the legislature as a violation of separation of power. Others say because the lieutenant governor and Senate majority are of different parties, the executive can use his powers to diminish that of the majority leaders." Perhaps the most recent change occurred in the State of Ohio, where the Legislature recently implemented a constitutional amendment that required joint election of the governor and lieutenant governor. The law also relieved the lieutenant governor of the responsibility of presiding over the Senate, requires the Senate to elect its presiding officer, and makes the lieutenant governor a member of the governor's cabinet. The following table shows each state's practice in this matter. - IO - LRB-79-WB-3

THE LIEUTENANT GOVERNOR AS PRESIDENT OF THE SENATE

+ Lieutenant Governor + + Lieutenant Governor + state Presides Does Not Preside State Presides Does Not Preside Alabama x Mississippi x Alaska x Montana x Arkansas x Nebraska x (Unicameral) California x Nevada x Colorado x New Mexico x Connecticut x New York x Delaware x North Carolina x Florida x North Dakota x Georgia x Ohio x Hawaii x Oklahoma x Idaho x Pennsylvania x Illinois x Rhode Island x Indiana x South Carolina x Iowa x South Dakota x Kansas x Texas x Kentucky x Utah x Louisiana x Vermont x Maryland x Virginia x Massachusetts x Washington x Michigan x WISCONSIN x ------Missouri x TOTAL 29 13 Minnesota x

Source: Wisconsin Legislative Reference Bureau Informational Bulletin 78-2, "Gubernatorial Succession in Wisconsin and the Other States", January 1978. From questionnaires sent to each state. D. Miscellaneous Revisions for Clarification Purposes In the election of April 1967, the electorate ratified on separate questions, a constitutional amendment granting 4-year terms to the governor, lieutenant governor, secretary of state, state treasurer and attorney general. However, the result is that the Constitution (in Section 1 of Article V and Section 1 of Article VI) still speaks of terms of office of "two years", while each specific office is then granted a 4-year term as an exception to the general rule. This constitutional amendment would make the text more understandable by incorporating the 4-year term into the general rule, and deleting the 5 exceptions.

VII. LEGISLATIVE ACTION

~ i' A. First Consideration SJR 51 was introduced September 15, 1977 by the Committee on Judiciary and Consumer Affairs. The committee recommended adoption of the measure 5 to 0 (February 7, 1978). Senate Amendment 1, introduced by Senators Sensenbrenner, Swan and Flynn, and Senate Amendment 4, introduced by Senator Sensenbrenner, were adopted (February 14, 1978; Senate Journal, pp. 1695, 1697). Senate Amendments 2 and 3, introduced by Senators McKenna and Theno, respectively, were rejected. The Senate adopted 27 to 4 (February 14, 1978; Senate Journal, p. 1698). The Assembly adopted Assembly Substitute Amendment l, introduced by Speaker Jackamonis, and Assembly Amendment 1 to it, introduced by Representative Shabaz, on voice vote (March 7, 1978; Assembly Journal, pp. 3436, 3437). Assembly Amendment 2 to the substitute, introduced by Representative Kedrowski, was rejected. The Assembly concurred in as amended 97 to 1 (March 7, 1978; Assembly Journal, p. 3437). Senate Amendment 1 to Assembly Substitute Amendment l, introduced by Senator Lorge, was rejected. The Senate concurred in Assembly Substitute Amendment 1 on a voice vote (March 16, 1978; Senate Journal, p. 1997). B. Second Consideration 1979 SJR 1 was introduced January 9, 1979 by Senators Flynn, et al, and cosponsored by Representatives Jackamonis, et al. The Senate Committee on Judiciary and Consumer Affairs recommended adoption 5 to 0 (January 23, 1979). Senate Amendment 1, introduced by Senators Lorge and Murphy, was rejected. Senate Amendment 2, introduced by Senator Berger, was adopted 16 to 14 (January 30, 1979), and the Senate adopted 20 to l 0 (January 30, 1979; Senate Journal, p. 85). LRB-79-WB-3 - I I -

Assembly Amendment I, introduced by Representative Byers, was recommended by the Committee on State Affairs for adoption by I 3 to 0. The committee recommended concurrence 7 to 6 (February 8). Assembly Substitute Amendment I, introduced by Representative Duren, was rejected 51 to 46 (February 15, 1979). Assembly Amendment 1 to Assembly Sub. I, introduced by Representative Miller, was rejected. Assembly Amendment 2 to Assembly Sub. I, introduced by Representatives Duren, Byers and DeLong, was adopted (February 15), but since the substitute was rejected that made this amendment moot. Assembly Amendment I was adopted 82 to 15 (February 15), and the Assembly concurred in as amended 54 to 42 (February 20, 1979; Assembly Journal, p. 182). The Senate concurred in Assembly Amendment 1 by a vote of 26 to 4 (February 27, 1979; Senate Journal, p. 181).