The odds we have a federal school choice law

Bah Gawd, that’s the Senate Parliamentarian’s music!!

Last week, I was on a panel hosted by AEI (video here and transcript here) that discussed the prospects of advancing a federal school choice proposal through the budget reconciliation process. I genuinely learned multiple new things as a participant, so I recommend giving it a watch.

In particular, it is worth watching the first two speakers, Lindsay Fryer of Lodestone DC and John Schilling of 2020 Strategies. They opened the panel by walking through reconciliation and the Education Choice for Children Act (ECCA), the piece of legislation that serves as a template for what might be included in the reconciliation bill.

Reconciliation is a process by which Congress can pass budget bills via simple majorities, bypassing the Senate filibuster rule. Given the makeup of the Senate, it is unlikely that major pieces of legislation will be able to clear the 60-vote threshold necessary to pass, so reconciliation is becoming the only game in town.

As of the time I am writing this, the future of such a bill is very much in flux.

Many choice advocates would like to see ECCA included in the eventual reconciliation bill. As John articulated and I seconded, ECCA is probably the best piece of federal choice legislation we’ve seen. By creating a federal tax credit administered by the IRS rather than the Department of Education, it is designed to avoid the micromanagement that critics of federal involvement in choice have fretted about in the past. (To be clear, I am one of those critics.)

There is much to recommend in ECCA. It is $10 billion in credits, which could translate to north of one million scholarships. It has multiple useful provisions related to the equitable distribution of tax credits from state to state and flexibility in who can operate scholarship granting organizations, what they can fund, and who can receive scholarships.

But herein lies the rub. Reconciliation is governed by something called the Byrd Rule. As the Center for Budget and Policy Priorities writes, the rule “allows senators to block provisions of reconciliation bills that are ‘extraneous’ to reconciliation’s basic purpose of implementing budget changes.” This limits what policy provisions can be attached to reconciliation bills. If it is budgetary, it can stay, but if it is policy, it has to go. Ultimately, the Senate Parliamentarian gets to decide if the provision can be included in reconciliation or not.

It is unclear just how many of ECCA’s provisions violate the Byrd Rule. As Lindsey Fryer said on the panel:

“I personally think a lot of ECCA can survive, because it’s all about conditions on spending, but we’ll have to see. But the Byrd Rule is probably the most important thing to watch here, because if, in fact, a Democrat raises a point of order and the parliamentarian says these provisions are more about policy than budget, then the school choice credit could be in a little bit of trouble or some of the provisions around it. So we’ll have to see, but this is definitely something to watch.”

To game this out, for ECCA to pass in the form its backers want, the House and Senate need to work out a deal on reconciliation. ECCA would need to be included in that deal. The Senate Parliamentarian would need to rule that the desirable provisions are allowable under the Byrd Rule. And then the whole thing would need to pass.

But here is the funny thing about probabilities. Let’s say that each of those steps has a 95% chance of happening. To get the odds of all four happening means we have to multiply 95% by 95% by 95% by 95%. That probability? 81%. If any one of them is just a 75% probability, that brings the overall chance of it happening to 64%. If two are 75%, it’s a coin flip. As anyone who has sweat out a March Madness four-leg parlay will tell you, getting the dominoes to all fall together can be tough. (And this treats the inclusion of all of the desirable provisions as a single event. If we take each of them as individual decisions, the odds plummet faster than my bracket predicting St. Johns as the national champion did in the EdChoice office pool.)

To borrow an old Sorkin-ism, it’s six to five and pick ‘em, at best. So we’ll have to watch to see how it all shakes out.

We also have to ready ourselves for a possible future wherein parts of ECCA are passed and others are not. For those of us who are supporting ECCA with qualifications, what are the deal breakers? What needs to be included? At what point is it no longer worthy of support?

Folks are very excited for the big dollar amounts and the possibility of a school choice program for students in blue states that might never have one otherwise. But the desire to do something often creates as many problems as it does solutions. We need to be careful.

We’ll see what happens, but we could be in for a wild few weeks.