Aaron Sanderford
LINCOLN — State Sen. Lou Ann Linehan, the author of Nebraska’s Opportunity Scholarships Act, asked Secretary of State Bob Evnen on Tuesday not to allow a ballot initiative that could repeal a new tax break for helping low-income kids attend private schools.
Linehan’s core argument is that the Nebraska Constitution reserves the power to set and raise revenues expressly for the Legislature. Linehan wants Evnen to reconsider his October certification of the Support Our Schools petition effort for the November 2024 ballot.
She said several lawyers she consulted questioned whether a referendum can repeal a revenue-setting law. But this was the first time any of them knew of a Nebraska referendum involving a revenue law already in effect, she said.
Her letter to Evnen cites Article VIII, Section 1 of the State Constitution, which says the “necessary revenue of the state and its governmental subdivisions shall be raised by taxation in such manner as the Legislature may direct.”
The constitution also says only the Legislature can undo revenue laws, she and her attorneys wrote. Linehan said Tuesday she has been exploring this option since September but wanted to make sure lawyers agreed with her approach.
“I’m not a lawyer, but it’s pretty basic, clear language,” she said. “On top of that there is a statute that says only the Legislature can do revenue bills.”
Jackie Ourada, spokeswoman for Nebraska Secretary of State Bob Evnen, said he “hopes to make a decision as soon as possible” about Linehan’s request but said there is not yet “a set timeline.”
Linehan said school choice advocates are prepared to explore their legal options if Evnen disagrees. Benson said supporters of the repeal referendum are also prepared.
Public school supporters will fight
Proponents of protecting public funds for public schools, including Jenni Benson of Support Our Schools, said Linehan seems determined to stop voters from weighing in on diverting public funds for private K-12 education.
“Nebraskans have made it very clear they want to vote on whether to divert tax dollars to private schools,” she said. “The Secretary of State certified and has made clear that the Repeal LB 753 referendum petition met all statutory and constitutional requirements to put this issue on the ballot.”
Benson and others opposing the Opportunity Scholarships Act, including some with ties to the Nebraska State Education Association, have contended that Linehan is helping billionaires who want to save on their taxes.
Those opposing the scholarships act “will not back down” from people seeking to “impose their will on Nebraska voters,” Benson said.
Opponents of the law have said they worry the tax break given for funding scholarships for low-income Nebraskans is one foot in the door for broader, more expensive efforts to fund private school vouchers, mirroring the pattern in some other states, including neighboring Iowa.
Children need more options
Linehan and others defending the Opportunity Scholarships Act, including Gov. Jim Pillen, have said that some children need more options than their local public schools. They also say competition for students is good.
Lauren Gage, a former spokeswoman for Keep Kids First, who works now for the scholarship-granting organization Opportunity Scholarships of Nebraska, said she is pleased to see people try to protect the new law.
She said the law has helped an idea become more tangible for families “who see a glimmer of hope.” She said it would be “tragic” to stop the law before more people benefit. She said they “serve families who wanted a better educational opportunity and just couldn’t afford it.”
“We’ve heard from hundreds of families interested in the scholarships and our application process isn’t even open yet,” Gage said.
The Nebraska Catholic Conference, which supports the scholarships, anxiously awaits Evnen’s response, said Tom Venzor, executive director.
Under the new law, the tax break is capped at $25 million annually for three years and could rise by the tenth year to $100 million. The law lets taxpayers who donate to scholarship-granting organizations a dollar-for-dollar break from their income taxes, for up to half of what they owe.
Legal questions
Linehan’s critics have argued she is protecting her legislative legacy in her final legislative session. She is term-limited in 2025. They also note that her daughter works for a school-choice advocacy organization.
Rebecca Firestone, executive director of OpenSky Policy Institute, which has advocated to protect state funding for public schools, said the premise of Linehan’s legal argument would seem to put school bond elections, municipal bond elections and levy cap overrides at risk.
“Preventing voters from weighing in on state revenue policy undermines democracy, stifles public participation and removes a check on elected officials that is a hallmark of Nebraska’s Unicameral system,” Firestone said.
Asked why she’s trying to stop the referendum this way, Linehan said she believes in the constitution and the law. She said it appears referendums can’t reverse revenue or spending measures by the Legislature.
“It’s because the Legislature has to look at the whole picture, revenue and appropriations,” Linehan said.
What’s next
University of Nebraska law professor Anthony Schutz, who has argued the Opportunity Scholarships Act itself might violate the State Constitution’s provision on appropriating public money to private schools, said Linehan’s legal argument has some holes.
Schutz, an expert on the Nebraska Constitution, said the document reserves powers for the people “separate and higher than the Legislature.” He said the only power not granted to the referendum process in his read is “appropriations.”
Since Linehan’s law was designed, in part, as a revenue bill to avoid triggering that provision, he said it either is open to the referendum process or an appropriations bill that is open to a legal challenge on constitutional grounds.
He said the people reserved for themselves the power to repeal existing laws and to write their own.
“I think this is a pretty steep hill for them to climb,” he said. “The people wanted, through those provisions on referendum, the power to check the Legislature’s work. To say the referendum doesn’t extend to the tax laws is a massive power.”
