An Article V Convention may not be the end of the Republic, but is it wise to leverage support in blue states to pursue a convention now?
Article V of the U.S. Constitution creates two pathways for proposing constitutional amendments, and two methods for ratifying amendments once they have been officially proposed. Amendments can be proposed:
- In the U.S. Congress when a two-thirds supermajority of both the Senate and House of Representatives vote in favor of a joint resolution proposing an amendment;
- By a Convention of States when applications calling on the U.S. Congress to convene such a convention are approved by simple majorities in the legislatures (both chambers) of two-thirds of the several states (34 of 50).
The U.S. Congress then has the power to determine which of two methods will be used for the ratification process:
- Majority votes in the state legislatures (both chambers) by three-fourths of the several states (38 of 50);
- Majority votes in statewide ratification conventions by three-fourths of the several states (38 of 50).
Many organizations are working to overturn the Supreme Court’s decision in Citizens United, which has served as a galvanizing force in rallying Americans of all political persuasions to voice their opposition to big money in politics and public policy. While it’s true that comprehensive legislation would have to follow, there can be little doubt that the most effective and durable solution to the problems created by Citizens United (and other related Supreme Court decisions) is a constitutional amendment. The Supreme Court must be swept from the field of battle by abolishing constitutional rights for artificial entities and ending the Court-created doctrine of treating the spending of money as a form of speech protected under the First Amendment. Several organizations recognize that an amendment is the best protection against further incursion into the right of self-governance now and for future generations, but there are some areas of disagreement about how best to affect that outcome. Probably the most contentious of those issues is the Article V Convention or Convention of States.
Organizations like Wolf PAC, ArticleV.org and Friends of the Article V Convention (FOAVC), as well as many state-level activist groups, all believe that a Convention of States is the best way to create the necessary changes and the most effective organizing tool, both as a means of generating support and forcing the U.S. Congress to act. Organizations like Public Citizen, Democracy 21, Common Cause, People for the American Way and others strongly oppose a Convention of States out of a belief that the risks of reversing gains in civil rights, hard won over many decades, outweigh any potential benefits of an open forum potentially capable of proposing wholesale changes to the U.S. Constitution.
Move to Amend takes the position that educating, organizing and movement building are necessary to create the desired outcome, irrespective of the method employed, and that there is still too much work to be done in those areas to be concerned with the issue of how best to utilize Article V. American Promise is not in the habit of taking positions on such issues at all, instead focusing on providing the platform and infrastructure for movement activists and concerned citizens to engage one another in discussions and debates that allow the best ideas to bubble to the surface and serve as inspiration to groups and individuals in their own efforts to gain support for an amendment.
There is a space between support and opposition to an Article V Convention that is neither agnostic nor completely hands-off. While a convention may, in the long run, be the best solution, the amendment movement is nowhere near prepared for an Article V Convention right now, or probably for several years to come. This movement has also not yet learned how to overcome the opposition’s framing of a liberal, pro-Democratic party crusade, which has only been exacerbated by the passage of applications for Article V Conventions in states that are considered Democratic party strongholds: Vermont, California, Illinois, New Jersey and Rhode Island. The lack of a coordinated national strategy for calling a Convention of States has only played into the opposition’s framing and, at best, been unhelpful in the effort to reach across ideological lines.
Were a convention to be called today, it would very likely be composed of delegates that resemble the partisan divide seen in the U.S. Congress right now. While it’s possible that delegates to a convention might take their temporary jobs more seriously than the majority of reelection-obsessed representatives in Congress, Article V’s silence on the rules of a convention leaves little doubt that partisans will gravitate to one another to form familiar ideological coalitions. It’s entirely possible that the majority would create rules that effectively block the minority from having any meaningful input on the debate and subsequent votes on amendment proposals.
Convention enthusiasts like to point out that it only takes “no” votes in 13 states to prevent regressive or absurd amendment proposals from being ratified and made part of the U.S. Constitution, which is true. There are more than 13 states that can be reliably counted on to vote “blue” or “red” in any given election cycle, meaning that any proposal carrying the aroma of partisan trickery would seemingly be doomed to failure before the ink is dry. But there is another important aspect of constitutional amendment proposals that needs to be understood: once a proposal has been officially sent out to the states for ratification, it’s out there forever, unless the proposal itself includes a time limit for ratification [see Dillon v. Gloss (256 U.S. 368) and Coleman v. Miller (307 U.S. 433)]. Even if 13 or more states reject an amendment, those same states can revisit the proposal at any time and continue to schedule votes until proponents achieve the desired outcome.
The Fourteenth Amendment was officially ratified in July of 1868 when the legislatures in Louisiana, North Carolina and South Carolina voted to approve the proposal. All three states had initially rejected the proposal in previous legislative sessions in 1866/67. The Ohio legislature rejected the Fifteenth Amendment in 1869 and then voted to approve it in 1870, seven days before the Iowa legislature clinched ratification with its approval of the proposal. There are many instances of states ratifying an amendment proposal after initial rejection, as well instances of rescissions after initial approval, and also instances of approvals after the requisite number of states had already been achieved and the proposal had become part of the Constitution. The examples above are highlighted because the final approvals happened prior to ultimate ratification. It doesn’t matter how many times a state legislature rejects a proposal or rescinds its initial approval, when three-quarters of the state legislatures are on record with the most recent vote being for approval, an amendment proposal is adopted as part of the U.S. Constitution.
Since Article V has never been used to call for a Convention of States in American history, we don’t really know what could happen. We do know that the only Convention of States ever called under the authority of the Articles of Confederation was the Convention of 1787 that resulted in the scrapping of the Articles and the proposal to the states of a whole new Constitution. That seems to have turned out pretty well (especially given the sociopolitical realities of the time), but our Constitution was only accepted on the condition that additional provisions, which became the Bill of Rights, be sent out to the states for immediate ratification and adoption into the new Constitution. In other words, the original document wasn’t good enough on its own to replace the flawed Articles of Confederation, and only the promises of honorable men to improve upon it with the Bill of Rights allowed it to survive.
Surely, there are scant few people in today’s political climate that trust in the promises of honorable men, and those that do are clearly not paying attention. That isn’t to say that there are no honorable people in America or that a convention must necessarily be devoid of honorable intentions, but merely to acknowledge the reality that the amendment proposal and ratification process, by definition, is a holistic enterprise that is susceptible to partisan and ideological manipulation at nearly every step and in every region of the country. It must not only be assumed, it must be included in the organizing calculus that powerful moneyed interests will attempt to shape, distort, manipulate and define every aspect of any proposal that has the potential to become part of the supreme law of the land.
Most Americans do not occupy the extremes of political opinion and either pay no attention to ongoing “culture wars” or see them for what they are: distractions from the rampant theft of public resources (i.e., taxpayer dollars) in the runaway kleptocracy in the Federal and State governments. The effect of the wall-to-wall coverage of irrelevant partisan bickering and gotcha propaganda is a voting public that is either too angry or too tired to care about the kind of nuanced issues that this movement depends on communicating to build an effective campaign.
The phrases “abolish corporate personhood” and “money is not speech” make for good bumper stickers but fail to communicate the issue completely or accurately. In the time it takes to adequately untangle the many threads that form the fabric of the Citizens United and other Supreme Court decisions, most American voters have tuned out and gone back to the pursuits they have personal passions for, like family or sports or music. Most people that engage in some form of activism stick with the specific issues they care most about and haven’t yet been convinced that rolling back corporate constitutional rights and ending money as speech is either connected with their own passions or would lay the groundwork for the outcomes they desire.
On a spectrum from exciting to boring, corporate personhood and money as speech are definitely closer to boring for most Americans. Dry civic issues, like infrastructure, are ripe for manipulation by the powers that benefit most from a disengaged public. Net neutrality is a perfect example. If not for a handful of well-resourced organizations and their persistent efforts at educating and mobilizing support, Comcast and Verizon would have put speed tolls all over the information superhighway a long time ago, and there’s still a good chance that they will. The question for the amendment movement in this context is how vigilant can its champions be if a convention spits out proposals that make the problem worse than it already is? What leverage has the amendment movement amassed? How many millions of Americans does it take to force elected officials to turn away from their financial backers as an act of self-preservation?
Are the competing groups working for an end to corporate personhood and money as speech ready to go toe-to-toe with ALEC in 50 state legislatures? Because ALEC, and others like them, are exactly who stand in the way. When Wisconsin State Representative Chris Taylor (D-Madison) went to an ALEC conference in 2013, she was stunned to learn about the depth of the coordination between corporations, think tanks and elected officials across all 50 state legislatures. It wasn’t just audacity and elitism she encountered, it was a confidence borne by money, influence and the protections afforded by a series of Supreme Court rulings up to and after Citizens United. In a phone interview with Moyers & Company a few weeks after the conference, Rep. Taylor had this to say:
One guy I was talking to, who was from one of these right wing think tanks was saying we need to curb Obama’s reckless power with these administrative regulations, and he wanted a federal constitutional amendment saying Congress has to approve federal regulations. I said, I don’t think most people are going to want to amend the Constitution for that. I don’t think that ignites people. Maybe it does on the far right, but most people don’t really care about that. And he said, “Oh, well, you really don’t need people to do this. You just need control over the legislature and you need money, and we have both.”
At this moment, and for some time to come, the amendment movement has neither. But long before we even get to that point, there are a myriad of unanswered questions about the convention process that can only be answered if and when the U.S. Congress chooses to take state applications for an Article V convention seriously. No matter what any legal scholar or self-described expert says on the subject, it is not possible to know how any of these questions will be answered until they are answered by Congress. Life-long constitutional scholars at the most prominent and prestigious of academic institutions across the country disagree on every single one of the issues raised by the vagueness of Article V.
Convention enthusiasts tend to frame the future of this movement in Manichean terms, pitting their best-case scenario against the certain doom of pursuing any other path. There can be no doubt that the best-case scenario they envision would be a powerful elixir for American politics and public policy. But it is a best-case scenario that depends on favorable answers to every one of the questions posed by the lack of detail in Article V. So, if the best-case scenario is an obedient Congress that calls for a single-issue convention, resulting in a well-worded proposal that easily sails to ratification and becomes part of the Constitution with minimal and mostly ineffective opposition, what would a worst-case scenario look like?
It starts with the decision that only the U.S. Congress can make: determining if and how state applications for an Article V Convention are officially tallied. While there are good arguments that point to an assumption that applications should be tallied by subject—meaning that the threshold of 34 states is not reached by tallying 20 applications for a balanced budget and 14 for overturning Citizens United—there is no legal precedent or statute on the books that binds Congress to that interpretation. There has also never been any judicial or legislative guidance on the amount of time that can pass before an application is considered no longer valid, if ever.
According to FOAVC, which sponsored a review of the Congressional record that concluded in 2010, there have already been more than 700 state applications, including more than enough applications on at least four separate subjects to trigger an Article V Convention. FOAVC has a fairly broad interpretation of application validity but if they’re even partly correct, Congress is obviously ignoring all these state applications. Infuriating as that is to convention enthusiasts, it serves as an important reminder that Congress controls this process, no matter what method is being employed.
The Supreme Court has mostly held to the position that interpreting the issues not addressed in Article V is a political—or non-justiciable—task that must be left to the Congress. In his concurring opinion in Coleman v. Miller, Justice Hugo Black stated: “Congress has sole and complete control over the amending process, subject to no judicial review, the views of any court upon this process cannot be binding upon Congress.” But even if the Court attempts to force the Congress to act, there is no enforcement mechanism at the Court’s disposal to make Congress comply with its order. The Supreme Court does not have the power to send federal law enforcement officials onto the floor of both chambers of Congress to compel lawmakers to act. It’s simply not true that Congress can be forced to call a Convention of States by the state legislatures, or the courts. Only the people, using their powers at the ballot box and in petitions to lawmakers, have any hope of compelling action in Congress.
But let’s assume that Congress does call a convention, there is then the question of how convention delegates are apportioned: equal suffrage for the states, as with the U.S. Senate, or proportionally, as with the U.S. House of Representatives, or some as-yet-undefined middle ground. After that is the manner of selecting delegates, which can be left to state law or potentially mandated by the U.S. Congress. There is the question of convention rules and if the Congress, or the states, can impose any conditions or restrictions on the convention’s rules and rule making abilities. There is the ratification process, if it will go through state legislatures or state ratification conventions, and, in the case of the latter, any rules imposed by Congress on the manner of conducting such conventions and selecting the delegates.
Although there are other factors to consider, the ones listed above are more than enough to provide the framework for a worst-case-scenario, which could easily look something like this:
- Pro-corporate elected officials decide to follow ALEC’s prescription for a Balanced Budget Amendment and draft a joint resolution establishing rules that validate enough state applications to call an Article V Convention on the three issues that have been the most common subject of recent convention applications from the several states: balanced budget, term limits and overturning Citizens United. It squeaks through both chambers of Congress.
- The resolution rules give the states equal suffrage in the convention, so California and New York have the same voting power as Alaska and South Dakota, which gives ALEC (and friends) an edge due to their influence in more low-population states than in high-population states.
- Delegates to the convention are elected at-large in statewide campaigns in every state in the country simultaneously. It is the most expensive election in American history, but will be eclipsed by yet another round of elections in short order. The ballots for electing delegates are dominated by former lawmakers, political operatives and lobbyists who are familiar and comfortable with the status quo.
- The convention is dominated by delegates from low-population states who make rules that restrict debate, shield proceedings from the public and impose gag orders on the participants. The convention then predictably votes down overturning Citizens United and sends the balanced budget and term limits proposal out to the states as one amendment.
- In the initial legislation calling for the convention, the U.S. Congress chose to mandate that any proposals from the convention be ratified in state ratification conventions, and further set forth the structure of the state conventions and the manner of electing delegates. All delegates are at-large and run in statewide elections simultaneously in every state in the country. The elections are even more expensive than the Convention of States delegate selection campaign, with big money interests sparing no expense to sway public opinion and ensure that their agenda wins the day.
- The movement to call for an Article V Convention succeeds in getting the Term Limit/Balanced Budget Amendment adopted as part of the U.S. Constitution. The energy and enthusiasm of the overturn Citizens United movement is depleted and it’s back to square one.
While the rhetoric from some anti-convention groups—that constitutional rights for women, blacks, immigrants, LGBT people, etc, could be imperiled by a Convention of States—is probably overblown, the scenario above is far from hyperbole. And it’s just one of several possible outcomes, some of which could be worse. It is not fear-mongering to posit a variety of plausible outcomes. As any sports fan will tell you, it’s the most critical aspect of developing a winning strategy. It is, however, disingenuous and unnecessarily antagonistic to portray all who reject the optimistic predictions of convention enthusiasts as saboteurs and enemies of progress.
In light of the ability of big money interests to exert influence, if not dominance, in every state legislature, it’s worth being reminded that a proposal without a sunset clause, once it has been officially sent out to the states, can remain operable forever. The last amendment to be adopted into the U.S. Constitution—the 27th Amendment, prohibiting any law that increases or decreases the salary of members of Congress from taking effect until the beginning of a new Congressional term—was submitted to the states for ratification, along with eleven other proposals (ten of which would become the Bill of Rights) on September 25, 1789, and ratified 202 years, 7 months and 12 days later.
Supporters of the convention route take heed: hypotheticals are insufficient. Faith in the American people does not and cannot answer any of the questions left unanswered in Article V. It is not logical to assume that an American public, overworked, underpaid, distracted, disenfranchised and frustrated for decades, will become constitutional revolutionaries without several more years of hard work in all 50 states. Picking the low-hanging fruit may score some quick victories but it leaves the hardest lift for late in the game, while simultaneously reinforcing the appearance of partisanship that has tarnished the drive to overturn Citizens United, along with the actions and messaging from both major political parties.
Most convention skeptics do not claim to be able to predict the future, they simply fear some of the possible outcomes. It is the convention enthusiasts who bear the burden of convincing everyone else that their rosy prognostications are founded upon something more than wishful thinking. The onus is not on Public Citizen or Common Cause to defend their fear of a convention, it’s on WolfPAC and others not only to explain exactly how and why the convention strategy will succeed, but how and why pursuing a convention strategy in Democratic strongholds right now is better than any other approach. When an application for an Article V Convention in favor of overturning Citizens United comes out of the legislature in a state like South Dakota, Indiana or Utah, the convention strategy will start to make more sense.
As previously mentioned, American Promise (AP), co-founded by author, lawyer and activist Jeff Clements, was created to provide tools and resources to concerned citizens, activists and groups engaged in the movement to end “natural” corporate personhood and the doctrine of spending money as a form of speech. As the AP community grows, debates on this and other important issues should involve more activists across the country. It is almost certain that the best ideas for reconciling the differences between pro- and anti-convention groups have yet to be introduced. Everyone is invited to discuss those ideas here or on the AP platform.
In the meantime, there is still too much work to do on all other fronts to spend time and energy engaging in turf battles, with pro-convention and anti-convention forces arrayed against each other. If the amendment movement is to gain the kind of momentum that is needed to actually win, the key activist groups must find a way to set this disagreement aside, whether through compromise or the implementation of a more realistic national strategy. If this movement continues on the path it’s on, it will spin its wheels until the ice caps melt and still get no closer to victory. The stakes, and the hurdles, are too high to treat the amendment process like any other run-of-the-mill campaign.