Constitutional Convention

The Threat

ConCon-map

The Constitution, as amended, is America’s cornerstone and has long been a model for democratic governance around the world.

It is not perfect, however. The original draft permitted slavery and denied women the right to vote. It did not explicitly protect freedoms of speech, religion and press or the right to bear arms. It did not guarantee a speedy or public trial to those accused of crimes and it did not protect citizens against the seizure of their homes or property by the government.

Americans have amended the Constitution repeatedly to address its flaws. Today there are 27 amendments, the first 10 of which – the Bill of Rights were – ratified in 1791.

Arguably the greatest genius of the Constitution is our built-in authority to revise it. The nation’s charter surely would not have lasted so long had we not been able to adapt it to changing times and conditions. But while the founders recognized the Constitution would have to change, they wanted it to endure; they devised mechanisms to ensure that any amendments would require careful deliberation and broad support.

The most recent amendment, limiting Congress’ ability to raise the salaries of its members, illustrates the challenges inherent in the amendment process. The amendment was first suggested in 1789 but not ratified until 1992.

Like all the others, it was approved by at least three-fourths of our state legislatures – 38 states – after being passed by a two-thirds majority in both houses of Congress. By contrast, the 26th amendment, which lowered the voting age from 21 to 18, took only three months and eight days to be by the states once it was passed by Congress.

Article V sets out another amendment process, albeit one that has never been used. It calls on Congress to convene a constitutional convention any time two-thirds of the state legislatures petition for such a gathering. Governors, who typically wield veto power over legislatures, are not part of the petition process.

Theoretically, any amendment produced by the convention would have to be ratified by three-fourths of the states. Some legal scholars argue the ratification process could itself be changed in a new convention, much like it was in the 1787 convention.

Some supporters of a proposed amendment that would generally require a balanced federal budget want to convene a convention to implement their proposal. These advocates, overwhelmingly conservative and with deep-pocketed allies in the business community, have turned to the convention process after repeated failures to convince Congress to pass an amendment and send it to the states.

By some counts, the balanced budget forces are within striking distance of securing the 34 petitions needed to require Congress convene a convention. At one point, they claimed to have 32 states on board, but some states have rescinded petitions passed during the 1970s and 80s. Most agree that the current count is 27 live petitions, meaning proponents of an Article V convention need only seven more states to demand that Congress act. Meanwhile, at least eight Republican-controlled legislatures where ALEC wields influence – Arizona, Idaho, Montana, Oklahoma, South Carolina, Virginia, Wisconsin, and Wyoming, and five with split partisan control – Kentucky, Maine, Minnesota, Washington, and West Virginia – loom as additional targets.

Balanced budget advocates are pursuing several avenues toward a convention. Most of the states involved have passed resolutions independently, but four states – Alaska, Georgia, Mississippi, and North Dakota – have adopted a “Compact for a Balanced Budget Amendment” that would work something like a contract among participating states. If 38 states join the compact, each would submit an identical petition for a convention to Congress, with specific language for a balanced budget amendment.

Other conservative Article V advocates are pushing for a “Convention of States” that could undertake a wide range of potential changes in the Constitution. The Compact and the Convention of States are discussed in more detail later in this report.

At the other end of the political spectrum, a group of activists on the far left, mostly Democrats, now supports a convention to propose an amendment overturning the Supreme Court’s Citizens United decision on campaign finance. Advocates have won passage of Article V petitions in four Democratic-controlled state legislatures: California, Illinois, New Jersey, and Vermont.

Given how close convention advocates are to calling a convention, some legislators already are discussing how a convention would work and be governed. The Assembly of State Legislatures, originally called the “Mount Vernon Assembly,” is a bipartisan group of state legislators charged by participating states with “defining the rules and procedures” for an Article V convention. The group’s inaugural meeting in December 2013 at Mount Vernon, Virginia was attended by more than 100 legislators from 32 states. It was held one day after the American Legislative Exchange Council’s (ALEC) winter meeting in nearby Washington, DC. Since then, the Assembly has met in Indianapolis and Washington, DC in 2014 and in Salt Lake City in 2015 to discuss an Article V convention.

Uncertainties about the Article V process run deep and cut across party and ideological lines. The unanswered questions about a convention have led to debate among legal scholars. Among the questions:

  • What if the state petitions are not identical? Would Congress still have to act?
  • What if Congress was deadlocked and failed to act on those petitions; could a court step in and order the convention convened?
  • If Congress acted, how would the convention work?
  • Who would choose the delegates and decide how many each state could send?
  • Would the convention’s work be limited to one subject – like the balanced budget plan or campaign finance reform – or might delegates undertake a wholesale re-write of the national charter?
  • And if the convention agreed on one or more amendments, would Congress be required to forward them to the states for ratification?

There are dozens of such questions and multiple possible answers to each of them. Supreme Court Justice Antonin Scalia, a conservative icon, told the Federalist Society last spring that a convention is “a horrible idea. This is not a good century to write a Constitution.” Veteran campaign finance reform advocate Fred Wertheimer, a former president of Common Cause, argues that a convention “is not a bad idea, it’s a disastrous idea.”

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