Group launches campaign to oust liberal justices on Oklahoma Supreme Court

We're one month out from the election, and finally, someone is actually attempting to do something about activist liberal justices on the Oklahoma Supreme Court and running a campaign to get folks to vote 'NO' on the judicial retention ballot. Since Oklahoma went to this system in the 1960s, no justice or judge has ever lost a retention vote.

Watch the ad from People for Opportunity:

OCPA supports drivers licenses for illegals because they're "already driving on our roads"

I admit to being somewhat baffled about the state of the Oklahoma Council of Public Affairs in recent years.

I was troubled by the antagonism and outright hostility they displayed toward valid concerns by the homeschool community last year when OCPA was pushing a "school choice" bill by Sen. Greg Treat. This was followed by the stunning announcement that OCPA supports expanding the sales tax to include services in Oklahoma, a multi-billion dollar tax hike primarily on the backs of small businesses.

Now? OCPA is seemingly abandoning all good sense and advocating in favor of giving drivers licenses to illegal immigrants because... "these people are already driving on our roads" and pay taxes?

There's been some serious compromise on their espoused conservative principles, and my bet is that it's likely driven by the folks with the purse strings that keep their lights on (for example, they've received millions over the years from groups like the Walton Family Foundation, which advocates liberal views of immigration).

Tremendously disappointing.

Read on for to see the serious disconnect in OCPA's logic for yourself:

Small: Parents’ rights are fundamental

Parents’ rights are fundamental

by Jonathan Small

We all have our “hot-button issue.” Among conservatives, it might be gun rights, or property rights, or religious liberty. Accounting nerds like me can even get worked up over tax policy. But whatever we care about, if we want to win, we had better protect parental rights.

This is especially true as elite culture becomes more hostile to conservative values and religious faith. If the next generation is taught our Constitution is fundamentally flawed, nothing in the Bill of Rights will be safe.

OCPA staff seek dismissal of "abusive court filings"

For some background, State Rep. Anthony Moore's wife filed for, and received, a protective order against four individuals employees of the Oklahoma Council of Public Affairs following allegedly "threatening" text messages that were sent to Moore's wife. The OSBI got involved (customary, as it deals with a sitting legislator) in investigating the messages. Here is OCPA's response:

 

OCPA staff seek dismissal of abusive court filings

OKLAHOMA CITY (June 22, 2022)— In filings today, four employees of the Oklahoma Council of Public Affairs asked for the immediate dismissal of protective-order petitions filed against them by state Rep. Anthony Moore’s spouse. The motions show that the petitions fail to meet the requirements needed for a valid protective order. 

OCPA leaders announce support for State Question 805

Conservative leaders support SQ 805

OKLAHOMA CITY (October 6, 2020) -- Jonathan Small, President of Oklahoma Council of Public Affairs; Trent England, David and Ann Brown Distinguished Fellow at Oklahoma Council of Public Affairs, and Ryan Haynie, Criminal Justice Reform Fellow for Oklahoma Council of Public Affairs, issued the following statement today in support of State Question 805: 

One of America’s most popular conservative pundits is known for his catchphrase, “Facts don’t care about your feelings.” While people may feel differently about the policy of SQ 805, here are the facts.

Oklahoma has one of the highest incarceration rates in the country. We have the highest incarceration rate for women. Yet Oklahoma crime rates are not so extreme--neither in the very worst nor the very best among the states.

Oklahoma puts people in prison for much longer sentences than the national average. This includes sentences that are 70% longer for property crimes and 79% longer for drug crimes. Sentencing enhancements, which SQ 805 will curtail for nonviolent offenders, increase sentence lengths by 36% based on a study conducted by OCPA.

OCPA column: Education innovation

Education innovation

by Trent England, executive vice president at the Oklahoma Council of Public Affairs

School boundary lines are moving in Oklahoma’s largest school district. A smaller district, Deer Creek, is shifting lines as well. These changes are tough on kids and on those families who purchased a house to be within a particular school’s boundaries. A child who attends one school today may wind up assigned to a different school in August.

One thing these changes have in common: they are not about what is best for each child. The only determining factor is where a child happens to live. Are we really stuck doing school this way?

Some things have to be this way. Electricity travels on wires that connect each house to a generating plant. Piped-in natural gas requires buried pipes. Utilities like these leave us with one provider based on where we live. As monopolies, they have lots of power over consumers and are heavily regulated by government.

Telephone service used to be this way. There was one provider based on which wires reached a particular house, at least until the era of cell phones. Today, we have choices. It would make no sense to assign you a cell phone carrier based on your neighborhood.

Education services are a little like telephone services. Before cars and buses, students needed a school within walking distance. Before modern technology, teaching had to be done in person. Schools were built to pack students in a room with a teacher. In the factory era, schools were designed to be education factories (and to produce good factory workers). During all this time, where we lived determine where we went to school.

Times have changed. Oklahoma’s population has grown, becoming more urban and suburban, and much more diverse. This means that while the needs of children have become more varied, most people also live within reach of multiple schools. At the same time, the inefficiency of factory-style education in diverse urban areas is becoming obvious: costs go up, outcomes go down.

Like the first cell phone providers, some disruptive schools are on the scene. Positive Tomorrows is for children whose families are homeless. Trinity School helps kids with autism and dyslexia. Families who want a rigorous classical education can choose one of three campuses, and either a full-time or part-time program, at The Academy of Classical Christian Studies.

In some cases, Oklahoma state law helps families choose these innovators. Children with special needs can receive a Lindsey Nicole Henry Scholarship, redirecting their state funding to attend a school like Trinity. The Equal Opportunity Education Scholarship Act gives a tax benefit to donors who help low-income families choose these kinds of schools.

Expanding these programs is the best way to modernize Oklahoma education. Debates over where to draw school boundary lines are vestiges of the past and reminders of how far we have left to go.

Trent England serves as the executive vice president at the Oklahoma Council of Public Affairs.

OCPA column: unethical mission creep

Unethical mission creep

By Trent England
Executive Vice President, Oklahoma Council of Public Affairs (OCPA)

Two weeks ago, the Oklahoma Ethics Commission held its final hearing on proposed rules for this year. The unusual process calls for the Commission to write ethics rules then send them to the Legislature at the beginning of session. Lawmakers can veto the rules; otherwise, they take effect when session is over.

While the Commission has backed away from one obviously unconstitutional proposal, the debate exposed an unfortunate trend toward mission creep that threatens the agency’s core mission.

The Oklahoma Ethics Commission was created in the early 1990s when Oklahoma voters—rightly fed up with repeated tax hikes and corruption scandals—also enacted term limits and adopted the taxpayer protections in State Question 640.

A distinguishing feature of American government is that it is limited. For example, the U.S. Constitution spells out the powers of the federal government and leaves everything else to the states. In the case of the Oklahoma Ethics Commission, state law is likewise specific. Transgressing these boundaries is nothing short of lawless.

The Oklahoma Constitution grants the Commission power to “promulgate rules of ethical conduct for state officers and employees, including civil penalties for violation of these rules.” And that’s all. The proposal dropped by the Commission two weeks ago would have regulated private people talking with other private people about what goes on in the Legislature—clearly beyond the agency’s power.

Still, the Commission has moved forward with other rules that tinker with political fundraising in ways that stretch these boundaries and do nothing to make government more ethical. Rather than focusing on real corruption, it has wrapped legitimate political practices in so much red tape that just about any campaign will fall afoul of one rule or another.

The Oklahoma Ethics Commission has an important mission. It also has a great staff, as anyone who has worked with them knows. But the Commissioners need to steer the agency back on track.

How about an initiative to simplify and even reduce current rules? Commissioners could test every rule, and any new proposal, with two questions. First, is this within our lawful power? Second, is it easy for ordinary people to figure out and comply with?

The Oklahoma Ethics Commission has an important and challenging mission. Squandering its power on mission creep is bad for our state. Some might even say it’s unethical.

Trent England serves as the executive vice president at the Oklahoma Council of Public Affairs.

OCPA comment on State of the State, start of 2019 legislative session

OCPA statement on 2019 legislative session

At the opening of Oklahoma’s 2019 legislative session, Trent England, executive vice president at the Oklahoma Council of Public Affairs (OCPA), released the following statement:

“There’s a lot of optimism in the Capitol. It’s exciting to see our new Governor and so many new lawmakers bringing new ideas to the table. At the same time, leadership in the Senate and House have the experience necessary to really get things done.

“One of the biggest threats to all this comes from unions talking about school shutdowns. With education a top issue for lawmakers, and session just beginning, it’s appalling that unions are already threatening to shut down schools for political leverage.

“These union political tactics smack of bad faith and are disrespectful to lawmakers, taxpayers, parents, and teachers.”

OCPA reacts to Gov. Stitt’s first State of the State address

After Gov. Kevin Stitt made his first State of the State address, Jonathan Small, president of the Oklahoma Council of Public Affairs (OCPA), released the following statement:

“The Governor’s theme was accountability. It was great to hear him dig into the details, pointing out that the only way to make agencies accountable is to change their structure. Either the Governor can hold agency directors accountable or not, and right now, most agencies are unaccountable.

“Governor Stitt pointed out that it’s dangerous to make Oklahoma more dependent on federal programs like Medicaid. As a businessman, he knows not to count on the promises of politicians in Washington, D.C. Oklahoma should continue to steer clear of Medicaid expansion.”

OCPA files open records request with the OK Ethics Commission on proposed rule

OCPA's open records request

OCPA files open records request with the Oklahoma Ethics Commission on proposed rule 2019-02

Note to media: please find attached a copy of the request submitted electronically by OCPA to the Oklahoma Ethics Commission on Dec. 18, 2018.

The Oklahoma Council of Public Affairs (OCPA) today filed an open records request with the Oklahoma Ethics Commission seeking details of the Commission’s work with an out-of-state political organization or other outside groups on proposed rule 2019-02. OCPA Executive Vice President Trent England released the following statement:

“It is beyond ironic that the Oklahoma Ethics Commission is working with the Brennan Center on a proposed rule that would violate Oklahoman’s rights to free speech and personal privacy.

“The Brennan Center is a Washington, D.C.-based liberal organization—not that there’s anything wrong with that—funded by George Soros and closely aligned with former President Obama. It does not represent Oklahoma values. In fact, it routinely attacks policies most Oklahomans support, like the death penalty and showing identification in order to vote.

“Since the Oklahoma Ethics Commission wants to be the agency responsible for all state open records requests, I’m sure they will quickly comply with this request.”

OCPA column: Happy Birthday, Oklahoma

Happy Birthday, Oklahoma

By Trent England, Executive Vice President of the 

Oklahoma Council of Public Affairs (OCPA)

Oklahoma’s birthday was November 16. On that day in 1907, President Teddy Roosevelt issued the proclamation that made us a state. It’s a fitting time to consider what it means to be a state and to live in a nation made up of states.

How we became a nation of states is a story of the triumph of common sense. Political thinkers had declared it impossible to build a country of sovereign states. You could either form a loose alliance, or you could form a nation by dissolving the states. But that conflicted with Americans’ own experience.

Within the British Empire, the colonies governed their internal affairs on their own. They were together, however, when it came to trade, foreign policy, and fighting wars. The American Founders, to their credit, cared more about real examples than philosophical speculations.

The Constitution, in this sense, was not revolutionary. It was a return to what worked. States would manage their internal affairs, from criminal laws to business regulations to, eventually, schools. States could create counties, cities, and other local institutions, putting power even closer to the people. Most of the governing—and taxing and spending—would happen at the state or local level.

Observers from other countries were amazed. Regular Americans were involved in government. Breaking up power and keeping most of it local created a sense that government belonged to everybody, and that anybody could participate in it.

It also meant that different states could experiment with different policies. We learn by seeing the results of different choices. When two similar states take two different policy paths, everyone can learn what works best.

Over the course of the last century, all this has changed. Today, federal appointees make rules for your local schools, hospitals, and businesses. They expect you to be grateful because they take your money—or borrow money on your behalf—and send some of it back to your community.

Americans today feel less connected to, and have less trust in, our public institutions. We feel that way because it is true—more decisions are made farther from us, by people who know less about us. And as government becomes top-down, one-size-fits-all, politics becomes winner-take-all.

If we want to restore trust and strengthen our communities, we need to return real power to them. And if we want to take some of the bitterness out of our politics, and even make government work better, we need to revive our constitutional system of states.

Trent England serves as the executive vice president of the Oklahoma Council of Public Affairs.

OCPA's Trent England comments on Kavanaugh appointment

OCPA Statement on Kavanaugh appointment to the U.S. Supreme Court

After Brett Kavanaugh was appointed to the U.S. Supreme Court, Trent England (pictured), Executive Vice President of the Oklahoma Council of Public Affairs (OCPA), issued the following statement:

"Both of Oklahoma's United States Senators, Jim Inhofe and James Lankford deserve thanks for taking the confirmation process seriously and, after considering all that was presented, voting to confirm Judge Brett Kavanaugh."

"As someone who worked in Washington on judicial confirmations, I can say I have never seen such bad faith and vicious partisanship as that deployed over the last few weeks by the minority party Senators on the Judiciary Committee."

“The role of the Supreme Court is to uphold the law, not make policy beyond it. Our most precious law is the United States Constitution. The Court has for too long imposed its will on social policy while failing to enforce constitutional limits on federal power. I think Justice Kavanaugh will be part of a new majority that will begin to right the ship and restore the rule of law."

OCPA column: PolitiFact’s Double Standard

PolitiFact’s Double Standard

by OCPA Fellow and Executive Vice President Trent England

When I moved to Oklahoma, I got a raise simply because things cost less here than in the Seattle area where I grew up. Housing, especially, is cheaper here than anywhere else I’ve lived.

So, it only seems fair to me, when comparing Oklahoma to other states, to consider differences in the cost of living. When you do, it turns out that Oklahoma does much better, and it exposes inconvenient truths, like the fact that California has the worst poverty in the country.

As Oklahomans debate education funding and teacher pay, people want to know: Where does our state rank compared to other states?

Considering the raw numbers: Oklahoma was near the bottom before the governor signed legislation to raise taxes and increase teacher pay (the average raise will be $6,100 per year). Yet when cost-of-living differences are factored in, even before the raise, Oklahoma teachers were somewhere in the 30s—not great, but hardly dead last.

The mainstream media’s self-appointed “fact-checkers” at PolitiFact, however, insist on ignoring this obvious economic reality. PolitiFact’s Jon Greenberg, writing about references to the cost of living in Oklahoma teacher pay debates, claims that “labor and education economists say it’s not that simple [to adjust for cost of living],” and declares that “people who study education labor markets raise big issues with using cost of living adjustments this way.”

The trouble is, PolitiFact is fine with considering cost-of-living differences in California or New York, just not in Oklahoma.

That statistic about California poverty? That comes from PolitiFact, which rated as “True” a claim that “California had the country’s worst poverty rate, after factoring in cost-of-living expenses.” PolitiFact’s explanation: “Experts said the distinction [cost-of-living differences] was important, because factors such as California’s huge housing costs affect the poverty rate.”

Another PolitiFact article evaluates a claim about “middle class” people in Manhattan by using an online cost-of-living calculator. It turns out that making adjustments for the cost of living is just fine—in coastal blue states, but not low-cost states in the heartland. Why?

This is a common trick used by those who want bigger government. By adjusting for cost of living in high-cost states, they make those states look poorer. Doing the opposite in low-cost states makes those states, places like Oklahoma, look poorer, too. So then everybody needs more government, right?

Some of the best things about states like Oklahoma is that the burden of government is lighter and life is somewhat less expensive. For its work on cost-of-living adjustments, PolitiFact has earned the rating: FALSE.

Trent England is a fellow and the executive vice president at The Oklahoma Council of Public Affairs (www.ocpathink.org).

Coburn headlining 'Growth and Opportunity Summit' in Tulsa Saturday

AFP Co-Hosts 2018 Growth and Opportunity Summit in Tulsa Saturday

Dr. Tom Coburn to headline conference

TULSA, Okla.—The 2018 Growth and Opportunity (GO) Summit is coming to Tulsa this Saturday, Feb. 24 at the DoubleTree Hotel in South Tulsa. The event will be headlined by a keynote address from former U.S. Senator Dr. Tom Coburn.

“We are thrilled to have Dr. Coburn address this year’s Growth and Opportunity Summit,” said. AFP-OK State Director John Tidwell. “Things are moving quickly at the State Capitol and the GO Summit provides an opportunity for citizens and voters to learn more about what the state legislature is up to and how they can impact lawmakers when they engage on issues.”

Among other learning opportunities available at the GO Summit, Oklahoma Council on Public Affairs Executive Vice President Trent England will give a lunch presentation on the Oklahoma Constitution, the longest state constitution in the country, and how the state can follow the law and best serve taxpayers. Rounding out the day will be a legislative roundtable with current members of the state legislature on the state budget “crisis” and what comes next for our state budget after the failure of the Step Up plan.

In between speakers will be breakout sessions that will provide a more detailed picture of issues that are being talked about at our State Capitol. These breakout sessions include:

• Hollywood Handouts: Even in Oklahoma Hollywood is gobbling up tax credits. Where is the money going and what to we do about it?
• Fact or Fiction: The Oklahoma Budget
• Occupational Licensing 101: I need a license to do that?
• Impacting your legislator: How to cut through the clutter and best communicate with your legislator.
• Healthcare and Medicaid Reforms: How we can audit and right size our system through common sense reforms.
• Inside the Oklahoma Education Funding Formula: What goes into the formula, what comes out and all the nonsense in-between.

The 2018 Growth and Opportunity Summit is presented by Americans For Prosperity-OK, Oklahoma Council on Public Affairs and Tulsa 912. For more information or to register for the conference please visit okgrowthsummit.com. Registration will also be available the day of the event.

For further information or an interview, reach John Tidwell at jtidwell@afphq.org or (918) 606-1182. 

Americans for Prosperity (AFP) exists to recruit, educate, and mobilize citizens in support of the policies and goals of a free society at the local, state, and federal level, helping every American live their dream – especially the least fortunate. AFP has more than 3.2 million activists across the nation, a local infrastructure that includes 36 state chapters, and has received financial support from more than 100,000 Americans in all 50 states. For more information, visit www.AmericansForProsperity.org

OCPA's Trent England debates Electoral College at Georgetown Law

As multiple Republican state legislators here in Oklahoma are flirting with the National Popular Vote effort to change how we elect our President, OCPA's Trent England recently debated in favor of the Electoral College system at a debate hosted by the Georgetown University Law Center.

From Georgetown Law:

Rep. Jamie Raskin (D-Md.) and Trent England, executive vice president of the Oklahoma Council of Public Affairs, recently debated the merits of the electoral college versus the popular vote in U.S. presidential elections.

The debate in full can be viewed below:

The Trent England Show Now Live on Facebook and YouTube

The Trent England Show Now Live on Facebook and YouTube

Show airs weekdays at 9 a.m. on Facebook and YouTube

OKLAHOMA CITY—The Oklahoma Council of Public Affairs (OCPA) announced today that The Trent England Show can now be viewed live on Facebook and YouTube.

The show airs weekdays from 9-9:30 a.m. on OCPA’s Facebook and YouTube pages. Additionally, anyone can replay the show at any time by subscribing to the iTunes podcast.

The Trent England Show takes viewers deeper into the news and public policy discussions of the day and provides viewers with the latest news from the Oklahoma Capitol and around the country. Plus, the show features exclusive interviews with renowned Oklahoma and national conservative guests.

About Trent England
Trent England serves as Executive Vice President at the Oklahoma Council of Public Affairs, where he also is the David and Ann Brown Distinguished Fellow for the Advancement of Liberty and directs the Center for the Constitution & Freedom and the Save Our States project. He is an adjunct fellow of the Freedom Foundation.

Trent previously served as Executive Vice President of the Olympia, Washington-based Freedom Foundation and had also directed the Foundation's constitutional studies programs and Citizen Action Network. He was a candidate for the Washington State House of Representatives in 2006 and earlier served as a legal policy analyst at The Heritage Foundation.

Trent is a contributor to two books—“The Heritage Guide to the Constitution” and “One Nation Under Arrest: How Crazy Laws, Rogue Prosecutors, and Activist Judges Threaten Your Liberty.” His writing has also appeared in The Wall Street Journal, Christian Science Monitor, Washington Times, and other newspapers.

Trent earned a law degree from The George Mason University School of Law and a Bachelor of Arts in government from Claremont McKenna College. He lives in Oklahoma City with his wife and their three children.

About the Oklahoma Council of Public Affairs
The Oklahoma Council of Public Affairs (OCPA) is a public policy research organization focused primarily on state-level issues. OCPA conducts research and analysis of public issues in Oklahoma from a perspective of limited government, individual liberty, and a free-market economy.

OCPA: Did Harvey Weinstein Benefit From Oklahoma's Hollywood Handout?

Trent England, OCPA Executive Vice President

Did Harvey Weinstein Benefit From Oklahoma's Hollywood Handout?

Businesses mostly maximize profits. Big businesses often discover one way to do this is to get special tax deals for their particular industry. Hollywood is a big business, and has followed this game plan in state capitols, including in Oklahoma City. Current state law provides “a cash rebate of 35-37% on qualifying Oklahoma expenditures to film and television productions filming in the state,” plus a sales tax exemption.

To put this into perspective, Oklahoma every year gives a handout to Hollywood equal to enough money to pay for nursing home care for over 200 Oklahomans.

The argument goes like this: filming movies costs money, some of that money gets spent in the community where filming takes place, and so politicians should pay off these companies in order to stimulate the economy. Now it is true, of course, economic activity is good for an economy. But when Hollywood moguls get checks from Oklahoma, someone still has to pay that bill. Oklahomans pay that bill.

We’ve written before about the principled case against these Hollywood handouts. But what about how these handouts are actually used, and who gets them?

It turns out that Harvey Weinstein was a beneficiary of Oklahoma’s largesse. His company produced and distributed "August: Osage County," which was filmed near Bartlesville. The movie’s director described the search for subsidies as a “Weinstein Company edict.” In fact, “August: Osage County” received $4.6 million of the total $5 million in rebates available in 2013—or 92% of the total subsidies available.

At least Weinstein’s film made it to real theaters. Other subsidized movies never reach wide release. Taxpayers wind up subsidizing unheard of films by local filmmakers who almost certainly would shoot here anyway.

One of these is "Pax Masculina," a 42-minute, straight-to-video film about scantily-clad female “freedom fighters.” Oklahoma Film and Music Office Director Tava Maloy Sofsky said she was “thrilled to have "Pax Masculina" utilize our rebate program…. We look forward to seeing this ‘steampunk’ spectacle come to life on-screen.”

Some films may also portray Oklahoma in a negative light, or graphically celebrate behavior that many Oklahomans find repugnant and destructive. By its own description (this is not on our watch list), "Pax Masculina’s" plot includes “Seduction and murder of policemen and government officials” and “televised executions of captured soldiers.”

A larger-budget film that did achieve wide release in theaters and was filmed in Oklahoma is "American Honey." According to IMDB, the movie includes a “disturbing” scene of sexual abuse and includes “strong sexual content, graphic nudity, language throughout, drug/alcohol abuse—all involving teens.”

Interestingly, while "American Honey" received the smaller sales tax exemption, a timing issue prevented it from benefiting from the rebate program. The movie was filmed in Oklahoma anyway.

Should Oklahomans have helped make Harvey Weinstein richer? What about subsidizing local filmmakers on projects almost no one will ever see? And should Oklahomans pay people to make movies normalizing, or even celebrating, anti-social behavior?

The current rebate allowed each year by state law is $4 million. That might not sound like a lot within state government, but it would be enough to prevent nursing homes from taking the provider rate cut currently threatened by the Oklahoma Health Care Authority. In fact, the state could pay for nursing home care for 213 elderly Oklahomans every year, or for mental health services for 1,402 Oklahomans each year, with $4 million—but no, that money is earmarked as a handout for Hollywood.

OCPA's England: Was It Legal to Drain Oklahoma’s Rainy Day Fund?

Trent England - OCPA Vice President for Strategic Initiatives

Was It Legal to Drain Oklahoma’s Rainy Day Fund?

Gov. Mary Fallin’s administration has drained Oklahoma’s Constitutional Reserve Fund, often called the Rainy Day Fund. Executive branch officials spent all $240 million from the Fund to pay the state’s monthly bills rather than declare a larger or additional revenue shortfall. Whether or not this was good budget policy, was it legal?

Can the executive branch spend money from the Constitutional Reserve Fund at will, so long as they promise to repay those funds before the end of the fiscal year? Here is a look at the law.

Oklahoma’s Constitutional Reserve Fund is established and governed by the Oklahoma Constitution, section 23 of Article 10. The section creates the framework for the state’s budget process and begins as follows:

The state shall never create or authorize the creation of any debt or obligation, or fund or pay any deficit, against the state, or any department, institution or agency thereof, regardless of its form or the source of money from which it is to be paid, except as may be provided in this section and in Sections 24 and 25 of Article X of the Constitution of the State of Oklahoma.

To ensure a balanced annual budget, pursuant to the limitations contained in the foregoing, procedures are herewith established as follows:

[Sub-sections 1, 2, and 3 are about revenue forecasts.]

4. Surplus funds or monies shall be any amount accruing to the General Revenue Fund of the State of Oklahoma over and above the itemized estimate made by the State Board of Equalization.

5. All such surplus funds or monies shall be placed in a Constitutional Reserve Fund by the State Treasurer until such time that the amount of said Fund equals fifteen percent (15%) of the General Revenue Fund certification for the preceding fiscal year. Appropriations made from said Fund shall be considered special appropriations.

The Oklahoma Constitution then describes how the fund can be used (bold and italics added):

6. a. Up to three-eighths (3/8) of the balance at the beginning of the current fiscal year in the Constitutional Reserve Fund may be appropriated for the forthcoming fiscal year, when the certification by the State Board of Equalization for said forthcoming fiscal year General Revenue Fund is less than that of the current fiscal year certification. In no event shall the amount of monies appropriated from the Constitutional Reserve Fund be in excess of the difference between the two said certifications.

[The rest of sub-section 6 creates a manufacturing incentive program, which up to $10 million of reserve funds can be spent on under certain limited circumstances.]

7. Up to three-eighths (3/8) of the balance at the beginning of the current fiscal year in the Constitutional Reserve Fund may be appropriated for the current fiscal year if the State Board of Equalization determines that a revenue failure has occurred with respect to the General Revenue Fund of the State Treasury. In no event shall the amount of monies appropriated from the Constitutional Reserve Fund pursuant to this paragraph be in excess of the amount of the projected revenue failure in the General Revenue Fund, which total amount shall be computed by the State Board of Equalization, for the entire fiscal year. Monies appropriated to any state governmental entity from the Constitutional Reserve Fund pursuant to this paragraph may only be made in order to ensure that the monies actually received by the entity for the then current fiscal year are equal to or less than, but not in excess of, the total appropriation amount for such entity in effect at the beginning of the then current fiscal year.

8. Up to one-quarter (1/4) of the balance at the beginning of the current fiscal year in the Constitutional Reserve Fund may be appropriated, upon a declaration by the Governor that emergency conditions exist, with concurrence of the Legislature by a two-thirds (2/3) vote of the House of Representatives and Senate for the appropriation; or said one-quarter (1/4) could be appropriated upon a joint declaration of emergency conditions by the Speaker of the House of Representatives and the President Pro Tempore of the Senate, with a concurrence of a three-fourths (3/4) vote of the House of Representatives and Senate.

And that is all. Those are the only three ways to access Oklahoma’s Constitutional Reserve Fund. In each case, an appropriation is required--in other words, a piece of legislation explicitly authorizing expenditure of monies from the Fund. In each case, that appropriation can only be made if certain conditions are met. This is what makes the fund a Reserve Fund. The fact that all this is spelled out in the Constitution is what makes it the Constitutional Reserve Fund.

The Constitutional Reserve Fund is not just another state bank account. Staff in the Governor’s office point to a statute that empowers them to shift funds among the state’s “treasury funds” to pay the state’s monthly bills. But statutes trump constitutional provisions exactly never.

What about the claim that they simply borrowed the money and plan, or at least hope, to put it back? First, there is simply no express or implied power to do that in any of the constitutional provisions above. Second, the Constitution does actually mention--and limit--the use of debt to pay the state’s bills. The final sub-section of section 23 of Article 10 anticipates revenue shortfalls and says:

10. The Legislature shall provide a method whereby appropriations shall be divided and set up on a monthly, quarterly or semiannual basis within each fiscal year to prevent obligations being incurred in excess of the revenue to be collected, and notwithstanding other provisions of this Constitution, the Legislature shall provide that all appropriations shall be reduced to bring them within revenues actually collected, but all such reductions shall apply to each department, institution, board, commission or special appropriation made by the State Legislature in the ratio that its total appropriation for that fiscal year bears to the total of all appropriations from that fund for that fiscal year; provided, however, that the Governor shall have discretion to issue deficiency certificates to the State Treasurer for the benefit of any department, institution or agency of the state, if the amount of such deficiency certificates be within the limit of the current appropriation for that department, institution or agency, whereupon the State Treasurer shall issue warrants to the extent of such certificates for the payment of such claims as may be authorized by the Governor, and such warrants shall become a part of the public debt and shall be paid out of any money appropriated by the Legislature and made lawfully available therefor; provided further, that in no event shall said deficiency certificates exceed in the aggregate the sum of Five Hundred Thousand Dollars ($500,000.00) in any fiscal year.

It is a basic legal principle that such explicit provisions as are found throughout Article 10, section 23, of the Oklahoma Constitution exclude any other claims to power (expressio unius est exclusio alterius). And if the Governor has no constitutional authority to take funds from the Constitutional Reserve Fund in the way she did, simply calling the taking of funds a “loan” does not cure or obscure the violation.

The Governor has also sidestepped the legislative branch. While the Constitution does establish a way, with large supermajorities, for the legislature to tap the Constitutional Reserve Fund without the Governor’s approval, it does not authorize any method for the Governor to access the fund without the legislature. The Governor’s actions here challenge the fundamental idea of the separation of powers, which is specifically described in Article 4, section 1, of the Oklahoma Constitution:

The powers of the government of the State of Oklahoma shall be divided into three separate departments: The Legislative, Executive, and Judicial; and except as provided in this Constitution, the Legislative, Executive, and Judicial departments of government shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others.

In addition to serving as Vice President for Strategic Initiatives at the Oklahoma Council of Public Affairs, Trent England hosts a radio program, The Trent England Show, from 7-9 a.m. every weekday on Oklahoma’s AM 1640, “The Eagle.” Trent earned a law degree from The George Mason University School of Law and a bachelor of arts in government from Claremont McKenna College.