Voting for ESAs – An Interesting Dilemma

I’m frustrated to report that Oklahoma school choice proponents had several reasons to celebrate last week.

First, Representative Jason Nelson’s (R-OKC) legislation to establish Education Savings Accounts (HB2949) in our state cleared a significant hurdle by narrowly advancing out of the House Education Committee on Monday.

As reported in the Tulsa World, the bill passed by a narrow 9-8 margin. Votes from Speaker Jeff Hickman, R-Fairview, and Speaker Pro Tem Lee Denney, R-Cushing, were necessary to get the measure through the committee, where Nelson’s similar bill failed on a 9-9 tie a year ago.

This news was followed on Tuesday with the release of a unanimous ruling from the Oklahoma Supreme Court overturning a previous district court ruling on the constitutionality of the Lindsey Nicole Henry scholarship program:

¶0 The Oklahoma legislature established a scholarship voucher program designed to provide educational choices for children with disabilities who reside within the state. The question presented is whether this program offends the no aid clause of the Oklahoma Constitution, Article II, Section 5. We hold that it does not.

In short, the Supreme Court found that the LNH scholarship program does not violate separation of church and state language in the Oklahoma Constitution because the scholarships are issued to parents.

The Court’s decision asserts that since parents ultimately make the choice of where to apply their scholarship, there is no direct government interference in the decision of whether to enroll children in sectarian schools or non-sectarian schools.

As a result, the word on the street is that House leaders may attempt to seize on this momentum and bring the legislation to the full house for a vote as early as next week.

Based on the current super majority of House Republicans, it seems unlikely that this bill won’t pass. The Governor has already proclaimed her unwavering support for ESAs in her SOTS speech (“I’m 100% in favor of ESAs–100%.”) and has promised to sign the legislation as soon as it reaches her desk.

I do find it odd that a piece of legislation marketed as “expanding options for low-income families” does not seem to have the support of even one of the thirty Democrats in the Oklahoma House. Do these Dems no longer care about the poor and disadvantaged children in our state?

The truth is they know what this game is all about. They understand the vast majority of ESA scholarships will go to middle class and upper middle class families to offset private school tuition or to parents who want to home school their children.

No one has any problem with allowing parents to make these types of choices for their children. The problem is having everyone else pay for it.

While the current language of Nelson’s bill stipulates that ESA scholarships will be available only to students currently included in public school child counts, new residents to Oklahoma, and incoming children to Pre-K and Kindergarten, we all know how easy it will be to tweak that language to “vouchers for all” in future sessions.

Representative Nelson and other choice supporters would likely tell you complete access for all students is the goal of ESAs and vouchers. They simply recognize that the public is not ready to support this at the present time. Thus, this year’s legislation simply represents the camel’s nose under the tent. You can be certain the body will soon follow.


But, here’s an interesting question. How will legislators choose to vote if they want to access ESAs for their own family?

I don’t have specific numbers relative to how many state representatives have school-aged children at home. As with the general population, I am sure many of their children attend public schools. At the same time, I am sure there are also Representatives who choose to send their children to private schools or educate them at home.

If so, does the floor vote on ESAs introduce a potential constitutional conflict of interest for some members?

Article V, Section 24 of the Oklahoma Constitution addresses this potential conflict (emphasis mine):

A member of the Legislature, who has a personal or private interest in any measure shall disclose the fact to the House of which he is a member, and shall not vote thereon.

This constitutional language is also encoded into House Rule 4.2. Additional clarification is found in Oklahoma statutes, 257:20-1-7:

Votes, deliberations, and discussions by legislators or statewide elective officers. (a) A legislator or statewide elective officer shall not introduce or cause to have introduced, request the introduction of, promote, or vote on any legislation if the statewide elective officer or legislator or a child adopted child, step-child or spouse of the officer or legislator or a business or entity with which the legislator or officer or a member of the immediate family of the legislator or officer is associated has: (1) a pecuniary interest in; or (2) a reasonably foreseeable benefit from; the legislation.

Pecuniary is a fancy word for MONEY.  In other words, if a state representative might reasonable benefit from passage of a piece of legislation, they are required by the state constitution and associated rules and statutes to recuse themselves from any votes on that legislation.

I do not profess to be a constitutional scholar. Yet, this language seems to indicate that any Representative who votes in favor of ESAs will forever relinquish their choice to access this program.

However, if a Representative publicly discloses he or she might access an ESA for their own children, they would then be required to recuse themselves from any vote or sponsorship of the legislation. By doing so, if the bill still passes, they would be able to apply for an ESA.

For example, I am aware that Representative Chuck Strohm from Jenks has two children who attend Victory Christian School in Tulsa. Since he has co-authored Nelson’s bill, it appears he could never benefit from ESAs or vouchers for his own children now or in the future. This would seem to be the case for any of the other co-authors of the bill.

This poses an interesting dilemma for other House members.

If they cast a vote in favor of ESAs, they essentially forfeit their right to use them for their own children. This seems pretty clear from the constitutional language above.

On the other hand, if they recuse themselves from any and all votes on the legislation, and the bill still passes, they would be able to access an ESA since they did not contribute to the passage of the bill.

A simple primer for House members is this:

ESAs–Vote yes, no access. Recuse, you can use.

One thing is for sure. We will be paying close attention.

Sorry OCPA, We’re Not Going Away!Who’s Standing in the Dark?
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