“Congress’s inability to limit the scope of a convention suggests that a limited convention, even if requested by the States is not permissible.”
~~James Kenneth Rogers
Harvard Journal of Law & Public Policy [Vol. 30]
This is part one of a two-part interview with the president of the Compact for America, Chip DeMoss. Part two addresses the actual amendment to the U.S. Constitution they are trying to pass using a closed amendment convention. The following video explains their Interstate Compact Agreement. Via their Youtube page:
The organizers for the Compact for America have a plan to amend the Constitution, and they plan to make this happen over the course of a weekend. DeMoss is a CPA who describes himself as “fiscally-responsible.” He agreed to an interview with TAG.
The Amendment Gazette: In a few paragraphs, tell our readers what the Convention of States will be, how it will work, how close you are to having one.
Chip DeMoss: Today, the amount of money the United States owes is larger than our National Economy…This is a clear and present danger to the American way of life. And knowing that Congress will never balance the budget on its own as long as it can borrow money without limit makes it even worse. Fortunately, our Founding Fathers provided a way to come together, state‐by‐state, and amend the Constitution when structural changes like limiting debt and imposing fiscal responsibility on Congress are necessary. Article V of the Constitution offers a provision that with just 38 states in agreement, the states themselves can propose and ratify the necessary balanced budget and debt control amendment into the Constitution.
With just 38 states in agreement, we can force Congress to operate under a balanced budget and limit the use of debt in doing so. The Compact for America presents a comprehensive state‐based approach to Article V change to ratify the CFA Balance Budget and Debt Control Amendment in as few as 12 months. We propose to bring states together in a way to speed the arduous process of amending the Constitution. The Compact for America (“CFA”) proposal calls for “compacts,” or agreements among the states, to organize and deploy their power under the Constitution to provide by amendment the necessary structural changes when Congress refuses to do so.
The compact approach consolidates the entire amendment process that the states originate into just two overarching legislative acts. First, you have the compact, which is the agreement among the states. All you need to do is have 38 states pass this compact. In the compact are all of the moving parts, legislatively, that they would otherwise control and have to separately enact in various stages. These include the application for the convention, designation of the contemplated amendment, identification of and instructions to all delegates, rules for the convention and who would attend the convention, and most importantly, the pre-ratification of the contemplated amendment.
On the Congressional side, legislators would need to pass one resolution with simple majorities in each House calling a convention in accordance with the compact and pre-selecting ratification by the state legislatures if the amendment that’s contemplated in the compact is approved at the convention. So, in total, 39 legislative acts would be needed under the CFA approach: 38 state resolutions calling for the convention and one resolution in Congress. All could be accomplished in as few as 12 months.
In April of 2014, the states of Georgia and Alaska passed the Compact for a Balanced Budget and officially formed the required interstate compact agreement. Once 36 additional states join the compact, the required Article V convention, which is limited to 24 hours in duration by the compact, will be held. At that time, the balanced budget amendment will be formally proposed for ratification. And because the requisite 38 states have already pre-ratified the amendment, the Archivist of the United States will be able to certify the amendment into the Constitution shortly thereafter.
TAG: Do you have state chapters of volunteers lobbying state legislators, or do you use paid lobbyists? In other words, is the CFA a movement or a moneyed faction?
CD: We currently do not have any paid lobbyists. We have been relying on our internal legal and briefing team to educate the legislators as to how an interstate compact can be effectively used to organize the states to deploy their amendment power under Article V. That is all the compact does – it organizes and binds the states among each other to achieve a common goal.
TAG: According to Article V, amendment conventions are “for proposing amendments,” plural. What do you believe will happen during your 24 hour convention if a delegate calls for debate on another amendment, a pro-life amendment for example?
CD: It is understood that in Article V of the Constitution, the plural word “amendments” is intended to also include the singular word “amendment”. You will see the same plural word used in the same context at the beginning of Article V where Congress is also authorized to propose “Amendments”. Congress has confirmed this understanding as ever since the Bill of Rights, every other proposed amendment by Congress has been a singular amendment.
- In joining the Compact, the Member States agree in Section 2 of Article VII of the Compact that the agenda of the Convention shall be entirely focused and exclusively limited to introducing, debating, voting upon, and rejecting or proposing for ratification the Balanced Budget Amendment. This same Section 2 also provides that it shall not be in order for the Convention to consider any matter that is outside the scope of the agenda.
- The Members States also agree in Section 1 of Article VIII of the Compact that the Member States shall not participate in the Convention unless: (a) Congress first calls the Convention in accordance with the terms and provisions of the Compact, and (b) the Convention Rules of the Compact are adopted by the Convention as its first order of business.
- So it is clear that in the event any delegate were to call for debate on another amendment, the Compact would require that the Chairman of the Convention rule the request to be out of order.
TAG: What if a delegate proposes amending the amendment by, for example, attempting to attain a vote to strike down Section Five. Would that speech also be repressed by the “rules of the convention?”
CD: The agenda provides for an up/down vote on the amendment as written. Proposed changes to the amendment are not allowed and would be ruled out of order. The state legislatures, Congress and the convention delegates will all agree to this in advance.
TAG: Has it occurred to anyone in the CFA that a judge may decide this is in violation of the First Amendment and rule your convention unconstitutional?
CD: All the parties involved (state legislatures, Congress, delegates) in the Article V process are in agreement – there is no controversy. A concurring opinion issued by the U.S. Supreme Court in 1939 in Coleman v. Miller case indicates that:
- “Congress, possessing exclusive power over the amending process, cannot be bound by and is under no duty to accept the pronouncements upon that exclusive power by this Court. Neither State nor Federal courts can review that power. Therefore, any judicial expression amounting to more than mere acknowledgment of exclusive Congressional power over the political process of amendment is a mere admonition to the Congress in the nature of an advisory opinion, given wholly without constitutional authority.”
This would suggest that any challenge to the Compact could be defended on such grounds once the congressional resolution sets the Compact’s convention and ratification process in motion.
TAG: A single amendment convention with a predetermined outcome means that there will be no political opposition, which violates the speech and debate clause, and offers no reason for citizen participation of all issues. Bill Walker, co-founder of Friends of the Article V Convention (FOAVC), considers this “the most dangerous” type of convention and unconstitutional. If enough state legislators figure this out, then your scheme will become terminal. You’re counting on legislators in the states not understanding this legal obstacle, right?
CD: The idea that the States cannot control the Article V convention process is entirely anachronistic. There is no evidence that anyone during the Founding era or immediately thereafter—whether Federalist or Anti-Federalist—thought that the Article V convention process was not meant to be controlled by the States. All of the available Founding-era and near-Founding-era evidence shows that it was the public understanding of the Framers and the Ratifiers that the states would target the Article V convention process to desired amendments.
For example, on January 23, 1788, Federalist No. 43 was published with James Madison’s attributed observation that Article V “equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other.” Similarly, George Washington wrote on April 25, 1788, “it should be remembered that a constitutional door is open for such amendments as shall be thought necessary by nine States.” On June 6, 1788, George Nicholas reiterated the same points at the Virginia ratification convention, observing that state legislatures may apply for an Article V convention confined to a “few points;” and that “it is natural to conclude that those States who will apply for calling the Convention, will concur in the ratification of the proposed amendments.” This public understanding of Article V was further confirmed by the last of the Federalist Papers, Federalist No. 85, in which Alexander Hamilton concluded, “We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority” by using their amendment power under Article V. These representations about how the states would organize and target the Article V convention process did not occur in a vacuum. They reflected the custom and practice of more than a dozen interstate and inter-colonial conventions that were organized prior to the ratification of the U.S. Constitution. Simply put, it was usual and customary for states to set the agenda for any such convention and to instruct their delegates specifically on what to advance and address at the convention. Delegates were regarded as “servants” of the states that sent them. None of these conventions—not even the Philadelphia Convention—strayed from their state-determined agendas. Naturally, the Founders repeatedly represented to the public that an Article V convention would operate in the same way. In fact, for decades after the Constitution’s ratification, it was an uncontroversial proposition that the states could organize the Article V convention process to consider desired amendment proposals. [Emphasis added.]
For example, on February 7, 1799, James Madison’s Report on the Virginia Resolutions observed that the states could organize an Article V convention for the “object” of declaring the Alien and Sedition Acts unconstitutional. Specifically, after highlighting that “Legislatures of the States have a right also to originate amendments to the Constitution, by a concurrence of two-thirds of the whole number, in applications to Congress for the purpose,” Madison wrote both that the states could ask their senators to propose an “explanatory amendment” clarifying that the Alien and Sedition Acts were unconstitutional, and also that two-thirds of the Legislatures of the states “might, by an application to Congress, have obtained a Convention for the same object.”
Also, keep in mind that at the time of the framing of the Constitution, the word “application” was a legal term of art that described a written means of petitioning a court for specific relief. The historical record of “applications” to the Continental Congress confirms that this meaning extended to legislative bodies as well, with applications being addressed to Congress by various states with very specific requests on a regular basis. The contemporaneous usage of “application” thus naturally supports the conclusion that state legislatures had the power to apply for an Article V convention with a specific agenda. Moreover, the usual and customary practice in response to specific applications was either to grant what was requested or to deny them. Given Congress’ mandatory obligation to call a convention for proposing amendments in response to the requisite number of applications, any convention called in response to applications of state legislatures seeking a convention with a specific agenda is—and was—naturally understood as adopting that specific agenda.
As you can tell, we respectfully disagree with Bill Walker’s position.
TAG: According to Article I, Section 10, Clause 3 of the Constitution, a compact among states is illegal. “No state shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.” [Emphasis added] Do you believe that Congress will ignore this fact when they’re asked to sanction your amendment convention?
CD: The quote you provided coming from Article I, Section 10, of the U.S. Constitution is called the “Compact Clause” and it addresses the necessary consent of Congress for states to compact among one another. The term “compact” is used to describe the situation when two or more states enter into binding agreements or contracts to address a common problem or achieve a common goal. Although the Compact Clause provides that states may not enter into compacts without the “consent” of Congress, the Supreme Court has held for nearly 200 years that congressional consent to interstate compacts can be given expressly or impliedly, both before or after the underlying agreement is reached. While it is true that the Compact Commission is meant to go live after two states join the Compact (Article IV, section 9), the Compact Commission is purely a logistical entity with no substantive powers whatsoever until Congress consents to the compact in its call. Furthermore, the compact is designed through conditional enactments and express provisions to prevent member states from taking any action in the Article V process that they do not have the inherent power to control independently of Congress, prior to receiving implied congressional consent. For example, the pre-ratification is made subject to a conditional enactment that makes its effectiveness entirely contingent on: a) the convention proposing the balanced budget amendment; and b) Congress selecting legislative ratification of that proposed amendment (see Article IX, section 2). These contingencies obviously may never occur, and if they do not occur, the pre-ratification will never be effective. If the pre-ratification is never effective, the amendment cannot trench on Congress’ exclusive role in the ratification process or federal budgetary powers.
Indeed, because of the foregoing conditional enactments, the ratification will go live (if it ever goes live) only in the precise sequence required by the text of Article V. Moreover, member states are prohibited from participating in the convention organized by the compact before the convention is called by Congress “in accordance with the Compact” (see Article VIII, section 1(a)). Accordingly, there is no reason to conclude that States would be prohibited from joining the Compact before Congress impliedly consents to it in the counterpart congressional resolution. The applicable language in the congressional resolution states:
Concurrent Resolution Prospectively Calling Convention Contemplated by Compact for a Balanced Budget.
Sec. 101. EFFECTIVE DATE—This Title does not take effect until Congress receives sufficient certified conforming copies of the chaptered version of the Compact for a Balanced Budget formed initially by the State of Georgia and the State of Alaska pursuant to 2014 Georgia Laws Act 475 (H.B. 794) and 2014 Alaska Laws Ch. 12 (H.B. 284), respectively, as it may be joined by additional states and amended from time to time (“Compact for a Balanced Budget”), evidencing that at least three-fourths of the several States are Member States of the Compact for a Balanced Budget and have made application thereunder for a convention for proposing amendments under Article V of the United States Constitution.
Sec. 102. CONVENTION CALL— Upon the effective date of this Title, be it resolved by the _________ of the United States of America (the ____ Concurring) in Congress Assembled, Congress hereby calls a convention for proposing amendments under Article V of the United States Constitution in accordance with the Compact for a Balanced Budget.
TAG: There have been more than enough states that have applied for a convention, but Congress has refused to act on them, thereby violating their oath of office. What makes you believe that you’ll have any better luck getting Congress to act on the CFA convention process?
CD: Except for the push for a balanced budget amendment in the late ‘70’s/early 80’s, there has not been any recent (sic) organized and concerted effort by the states to propose and ratify any amendment. Sure, many applications have been issued, but mainly to make a political statement and not in any real effort to make the necessary structural changes. These applications have not been consistent among each other and have requested distinct and disparate convention objectives. It is no wonder that Congress has done nothing – there is no evidence of a current collective political will. If Congress’ role in Article V is meant to be ministerial in nature, then the states have to get serious and get their act together.
The goal of CFA is to simultaneously present to Congress a turnkey solution to Article V that cannot be resisted, including a binding interstate compact agreement among 38 or more states that includes 38 or more identical applications, the text of the amendment to be proposed and ratified, the identification of the delegates, the rules of the convention, and the pre-ratification of the amendment by 38 or more states. There would be no holes left for Congress to fill. Under these circumstances, we believe Congress will concede and perform their ministerial role. However, If Congress were to reject this overwhelming show of political will by the states and not call the subject convention, then we would rather know that sooner than later. It would mean that the intent of Congress is to thwart the states from using their Constitutional amendment power. We would not expect that the courts would intervene. At that point, it would then be up to the people and the states to resist this tyranny. The actions of our founding fathers would provide moral support, guidance, and encouragement in that historic endeavor.
Update, 4/09/2015: For a thorough critique of CfA’s approach to amending the Constitution, see Bill Walker’s “The Diabolical Plot Of “Compact For America” A Blueprint for Disaster.“