David Vance National Media Strategist Ph: o: 202.736.5712 c: 240.605.8600 email@example.com
on April 17, 2017
UPDATED November 8, 2017
A well-funded, highly coordinated national effort is underway to call a constitutional convention, under Article V of the U.S. Constitution, for the first time in history. With special interest groups gaining more momentum, conservative advocates are just six states short of reaching the constitutionally-required 34-state goal.
The unknowns surrounding a constitutional convention pose an unacceptable risk, particularly in the current polarized political climate. Given how close calling a new convention is, it’s time to spotlight that risk and sound an alarm for the preservation of our nation’s charter.
Too few Americans are even aware that a constitutional convention can be called, let alone that there would be no checks on its scope and further that the process to call one is well underway and being underwritten by some of the nation’s richest individuals.
Calls for a convention are coming from right and left, with more money, a stronger campaign structure, and national coordination on the right. Several major conservative organizations have renewed and intensified efforts to thrust this issue into the spotlight after years of inactivity. Several Republican presidential candidates and a few governors are starting to comment favorably on the idea.
While there are several ongoing pro-convention campaigns, the effort to add a federal balanced budget amendment (BBA) to the Constitution has progressed furthest. Throughout the 1970s and 1980s, dozens of states adopted calls for an Article V convention to propose a balanced budget amendment. Some BBA proponents claim that by 1989, 32 states had called for a convention for a balanced budget amendment.
Concerns about a potential runaway convention, plus an intensified drive to push a BBA through Congress, led over a dozen states to rescind their convention calls between 1989 and 2010. However, conservative groups have revived the convention plan, persuading more than a dozen state legislatures to pass Article V convention calls since 2011. Most convention proponents agree that 28 states have live calls for a BBA convention; that is just six states shy of the constitutionally required 34 applications. GOP-controlled states conservative BBA advocates are targeting that have yet to pass the BBA Article V call include Kentucky, Idaho, Minnesota Montana, South Carolina, and Virginia. Recently, several state legislatures have rescinded their Article V BBA convention applications, including Delaware (2016), New Mexico (2017), Maryland (2017), and Nevada (2017).
As outlined in Common Cause’s 2015 report, The Dangerous Path: Big Money’s Plan to Shred the Constitution, a constitutional convention is open to many problems, including:
THREAT OF A RUNAWAY CONVENTION: There is nothing in the Constitution to prevent a constitutional convention from being expanded in scope to issues notraised in convention calls passed by the state legislatures, and therefore could lead to a runaway convention.
INFLUENCE OF SPECIAL INTERESTS: An Article V convention would open the Constitution to revisions at a time of extreme gerrymandering and polarization amid unlimited political spending. It could allow special interests and the wealthiest to re-write the rules governing our system of government.
LACK OF CONVENTION RULES: There are no rules governing constitutional conventions. A convention would be an unpredictable Pandora’s Box; the last one, in 1787, resulted in a brand new Constitution. One group advocating for a “Convention of States” openly discusses the possibility of using the process to undo hard-won civil rights and civil liberties advances and undermine basic rights extended throughout history as our nation strove to deliver on the promise of a democracy that works for everyone.
UNCERTAIN RATIFICATION PROCESS: A convention could re-define the ratification process (which currently requires 38 states to approve any new amendments) to make it easier to pass new amendments, including those considered at the convention. This happened in 1787, when the convention changed the threshold necessary for ratification.
THREAT OF LEGAL DISPUTES: No judicial, legislative, or executive body would have clear authority to settle disputes about a convention, opening the process to chaos and protracted legal battles that would threaten the functioning of our democracy and economy.
APPLICATION PROCESS UNCERTAINTY: There is no clear process on how Congress or any other governmental body would count and add up Article V applications, or if Congress and the states could restrain the convention’s mandate based on those applications.
POSSIBILITY OF UNEQUAL REPRESENTATION: It is unclear how states would choose delegates to a convention, how states and citizens would be represented in a convention, and who would ultimately get to vote on items raised in a convention.
At a time when extreme gerrymandering has created unprecedented polarization and big money buys access and influence for a few very wealthy special interests, a new constitutional convention would lead to chaos; the interests of everyday Americans would be shut out of the ultimate closed-door meeting. There would be no way to limit the scope of a constitutional convention and no way to guarantee that our civil liberties and constitutional process would be protected.
Conservative proponents of a proposed constitutional convention include Ohio Gov. John Kasich, U.S. Sen. Marco Rubio, former Florida Gov. Jeb Bush, U.S. Sen. Ted Cruz, and Texas Gov. Greg Abbott. A 2017 investigation by Fusion found that the conservative groups pushing for an Article V convention had funding ties to the billionaire Mercer family, known for their close relationships to the Trump administration, and the GOP mega donors Charles and David Koch.
Another major supporter of calling an Article V convention is the American Legislative Exchange Council (ALEC), a corporate lobby that masquerades as a charity. ALEC has adopted several Article V convention bills as model legislation and lobbied legislators to support convention bills. ALEC is funded by conservative foundations connected to the Koch brothers as well as its corporate members, including ExxonMobil, Comcast, AT&T, Chevron, Altria, Koch Industries, Pfizer, UPS, Verizon, State Farm Insurance, Peabody Energy, PhRMA, FedEx, and Eli Lilly.
While the threat of a runaway convention is real, many convention proponents deny it --all without one piece of evidence. They claim their one-and-only aim for a convention is adoption of a federal balanced budget amendment (BBA). A BBA is really a wolf in sheep’s clothing that could harm our economy and constitutional process:
MISUSE OF THE CONSTITUTION: The U.S. Constitution should not be used to determine a detailed subject matter that is often subject to change such as fiscal policy. The budgeting process and fiscal policy is foreign to the Constitution’s traditional use and purpose.
ENFORCEMENT PROBLEMS: Enforcement of a constitutionally imposed balanced budget amendment would be difficult, if not impossible. It is unclear who would interpret the amendment. The amendment would force courts to do so and it is an area for which our judicial system is not equipped. Judges are not trained in fiscal policy, appropriations and expenditures. The result would be a budget process subject to endless litigation that could damage the judiciary and the budgetary process.
LIMITING GOVERNMENT’S RESPONSE: A federal balanced budget amendment would not allow adequate flexibility to respond to sudden changes in the economy, natural disasters, or national security threats. While proponents argue that most state governments and American families have to balance their budgets and checkbooks, the analogy to a constitutional balanced budget amendment is misleading. Along with building reserve funds, state governments often borrow money to finance highways, schools, and other public projects. Everyday American families borrow money for mortgages, student loans, and other investments. When natural disasters strike in a state, the federal government’s ability to step in with resources to help get people back on their feet is vital, and would be impossible under a BBA. A balanced budget amendment also would render the federal government unable to finance a response to a national security threat or to boost economic growth.
POSSIBILITY OF A LESS TRANSPARENT BUDGETING PROCESS: A balanced budget constitutional amendment would increase pressure inside Congress to change budget formulas so that spending items are hidden from public view, as many states already do. It would encourage Congress to hide federal spending in off-budget agencies or increase the number of off-budget items.
POSES SERIOUS ECONOMIC RISKS: A 2011 study by Macroeconomic Advisers, one of the most respected nonpartisan private economic forecasting firms, concluded that “recessions would be deeper and longer” under a balanced budget constitutional amendment, leading to economic uncertainty that could stifle economic growth. Another economic analysis by the Center on Budget and Policy Priorities concluded that a balanced budget constitutional amendment could force significant cuts to Social Security, military retirement benefits and other important public services.
While balanced budget amendment advocates are closest to reaching the 34 application target, other recent convention proposals – such as the Convention of States initiative – would include amendments imposing term limits for members of Congress and the judiciary, “fiscal restraints on the federal government,” and limits on the power of the federal government. The vague language in the Convention of States proposal, which was introduced in 37 state legislatures in 2015 and has passed in nine states, perfectly illustrates the threat of a runaway convention. Former Sen. Tom Coburn of Oklahoma has become one of the most vocal proponents for the Convention of States initiative, traveling to several states to push for the measure. In the last three years, the Convention of States resolution has passed in 12 states: Georgia, Alaska, Florida, Alabama, Tennessee, Indiana, Oklahoma, Louisiana, Arizona, North Dakota, Texas, and Missouri.
While conservatives are pushing a balanced budget amendment, there is also an effort underway to call an Article V constitutional convention for an amendment overturning the U.S. Supreme Court’s decision in Citizens United. Leading this effort is a group called Wolf PAC, founded by left-wing political commentator Cenk Uygur. Since 2014, Wolf PAC’s resolution has passed in five states: Vermont, California, New Jersey, Illinois, and Rhode Island.
While Common Cause fully supports and advocates for overturning Citizens United, we believe the traditional Article V process, which relies on Congress to pass an amendment and send it to the states for ratification, is the best way to reach our goal. Common Cause also knows that an amendment overturning Citizens United is not a silver bullet for reforming our democracy; it must be part of a larger reform package including public financing of elections, strong disclosure of political spending, election modernization, and impartial redistricting reform.
Due to the threat of a runaway convention and the lack of rules to protect Americans' constitutional rights, more than 200 public interest, civil rights, government reform, labor, environmental, immigration, and constitutional rights organizations released a letter in April 2017 opposing calls for an Article V constitutional convention. Organizational signers of the letter include Common Cause, the Center on Budget and Policy Priorities, Democracy 21, the AFL-CIO, AFSCME, Americans for Democratic Action, the League of Women Voters of the United States, Dream Defenders, the Sierra Club, the NAACP, the National Council of La Raza Action Fund, the National Education Association (NEA), SIEU, the Campaign Legal Center, Greenpeace, People For the American Way, Daily Kos, the National Women's Law Center, and the Brennan Center for Justice.
As stated in the letter, the organizations "strongly urge state legislatures to oppose efforts to pass a resolution to call for a constitutional convention" and "urge state legislatures to rescind any application for an Article V constitutional convention in order to protect all Americans’ constitutional rights and privileges from being put at risk and up for grabs."
“[T]here is no way to effectively limit or muzzle the actions of a Constitutional Convention. The Convention could make its own rules and set its own agenda. Congress might try to limit the convention to one amendment or one issue, but there is no way to assure that the Convention would obey.” – Warren Burger, Chief Justice of the U.S. Supreme Court (1969-1986)
“I certainly would not want a constitutional convention. Whoa! Who knows what would come out of it?” – Antonin Scalia, Associate Justice of the U.S. Supreme Court (1986-2016)
“There is no enforceable mechanism to prevent a convention from reporting out wholesale changes to our Constitution and Bill of Rights.” – Arthur Goldberg, Associate Justice of the US. Supreme Court (1962-1965)
“First of all, we have developed orderly procedures over the past couple of centuries for resolving [some of the many] ambiguities [in the Constitution], but no comparable procedures for resolving [questions surrounding a convention]. Second, difficult interpretive questions about the Bill of Rights or the scope of the taxing power or the commerce power tend to arise one at a time, while questions surrounding the convention process would more or less need to be resolved all at once. And third, the stakes in this case in this instance are vastly greater, because what you’re doing is putting the whole Constitution up for grabs.” –Laurence Tribe, professor of constitutional law at Harvard Law School
"The bigger threat is that a constitutional convention, once unleashed on the nation, would be free to rewrite or scrap any parts of the U.S. Constitution. Do we really want to open up our nation’s core defining values to debate at a time when a serious candidate for the White House brags about his enthusiasm for torture and the surveillance state, wants to "open up" reporters to lawsuits, scoffs at the separation of powers and holds ideas about freedom of religion that are selective at best?" – David Super, professor of law at Georgetown University
“Note what [Article V] does not say. It says not a word expressly authorizing the states, Congress, or some combination of the two to confine the subject matter of a convention. It says not a word about whether Congress, in calculating whether the requisite 34 states have called for a convention, must (or must not) aggregate calls for a convention on, say, a balanced budget, with differently worded calls arising from related or perhaps even unrelated topics. It says not a word prescribing that the make-up of a convention, as many conservatives imagine, will be one-state-one-vote (as Alaska and Wyoming might hope) or whether states with larger populations should be given larger delegations (as California and New York would surely argue).”- Walter Olson, senior fellow at the Cato Institute’s Center for Constitutional Studies
“Danger lies ahead. Setting aside the long odds, if California and 33 more states invoke Article V, there's a risk that we'd end up with a “runaway” convention, during which delegates would propose amendments on issues including abortion, gun rights and immigration.” – Rick Hasen, Chancellor’s Professor of Law and Political Science at the University of California, Irvine
“Holding a Constitutional convention when the U.S. is embroiled in extremely toxic, uninformed and polarized politics is a really, really bad idea.” – Shelia Kennedy, professor of law and policy at Indiana University Purdue University Indianapolis
“An Article V convention might propose an amendment to restore or expand the liberties of the American people, but it also could propose an amendment that diminishes the liberties of the American people, or of some of the people. “ – John Malcolm, director of the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies
“We may disagree about the wisdom of these individual proposals, but no rules limit a constitutional convention to a pre-assigned topic. Once states call for a convention, anything could be fair game. Private-interest groups wouldn’t be looking for compromises that serve the nation well in the long-term. To the contrary, they’d fight to further their current political objectives, and it’s anyone’s guess what kind of a country we’d end up with.” – Eric Burger, professor of law at the University of Nebraska College of Law.
“There are no such guarantees. This is uncharted territory…We should not now abandon the very document that has held us together as a nation for over two and one quarter centuries. Rewriting the Constitution is a dangerous errand that would not only unravel the legal ties that have kept us together for so long but would also undermine our sense of national identity and the way that view ourselves as a people.” – William Marshall, professor of law at University of North Carolina.
“Many of us can point to one constitutional provision or another that we believe we could improve upon if given a chance. But a convention could do great damage to a charter that, on balance, has worked pretty well for a pretty long time. To take such a risk on behalf of a stupendously unworthy cause such as a balanced-budget amendment would be foolhardy in the extreme.” - The Washington Post
“A convention would be impossible to control. Nothing in the Constitution gives Congress or the Supreme Court the power to tell the conventioneers what to do, or not do. A convention might be tasked to draft a balanced budget amendment and then decide that it wants to radically change the nature of the federal government or its relationship with the states. It might take up a passion of the moment by, say, limiting immigration by nationality or religious affiliation. It would have nearly unfettered powers to tinker with the DNA of America's 240-year-old democracy.” – USA Today
“Supporters will tell you that the convention would be limited to writing an amendment on a balanced budget. But once assembled, those in attendance might find they have an appetite for more changes. Maybe there’d be a temptation to curb all those annoying protests by limiting the freedom to assemble. Or to make this a more Christian nation by messing with the freedom to worship. Or to act against mass shootings by taking out any right to bear arms. Or to move against what the president has labeled as “the enemy of the people,” a free media.” – Milwaukee Journal Sentinel
"Convening a summit to amend the U.S. Constitution in today’s world of polarized-and-social-media-ized politics would be like giving a baby a ball-peen hammer — there's no telling what the damage would be." - The Dallas Morning News
“There’s good reason why this has never happened: There are no rules, and for every “good” idea for an amendment that a convention could produce, there are several “bad” ones that could also result from it.” – The Fort Worth Star-Telegram
“Once convened, however, delegates to the convention could radically rewrite the Constitution, a potentially dangerous development that should be avoided.” – Knoxville News-Sentinel
“Calling a Convention sets a precedent that could endanger the very document so many Americans hold dear…There’s a reason a Constitutional Convention hasn’t been called since 1787. Conservatives and others who value the nation’s founding document should be wary of the can of worms a Constitutional Convention could open.” – Charleston Gazette-Mail
“The danger of such an event is that its delegates would run amok. No one can say with certainty what the government would look like after they got done reinventing the country.” – The Lincoln Journal Star
"With so little precedent to guide the proceedings, a constitutional convention would be messy, unpredictable and dangerous." - Wisconsin State Journal
"A runaway convention, and that is very possible, could be a threat to the Bill of Rights. Liberal states might try to alter the Second Amendment. Conservatives might want to change the First Amendment making Christianity the official religion of the country. There are no limits or restrictions on what such a convention could address." - Tulsa World
"The first convention was guided by a presiding officer who put country above politics. That’s another reason why a second convention should be avoided. There is no George Washington among us today." - Greensboro News & Record
"It is a misguided effort that has the potential to corrupt the Constitution, splinter an already divided nation and give smaller, less-populous states disproportionate political influence over larger states, including Ohio...The United States today is in need of more unity, and a constitutional convention would divide, not unify, the nation’s states and people." - The Youngstown Vindicator
"A constitutional convention might not sound like such a bad idea if it stopped there. But a convention, once convened, could go in other directions." - Corpus Christi Caller-Times
"America hasn’t held a constitutional convention since 1787. Given the quality of the statesmen we have today compared with then, and given the dangerous polarization that marks the United States today, calling one now could spiral into unknown territory and is an exceedingly bad idea." - The Charlotte Observer
"Supporters generally say they want the convention to write a balanced-budget amendment. Other ideas are floating out there, too, including term limits for Congress, refiguring how federal judges are chosen or allowing a vote of state legislatures to override Supreme Court rulings. As New Hanover County's Rep. Deb Butler wisely pointed out, this is a dangerous proposition -- a bit like putting an Uzi in the hands of a toddler with a tantrum. Feelings are high right now, and an angry faction could do things that rest of us will regret for a long, long time." - The Wilmington Star News
You can find Common Cause’s report, “The Dangerous Path: Big Money’s Plan to Shred the Constitution,” and other information about the dangers of the proposed constitutional convention and federal balanced budget amendment at www.dangerouspath.org.
Common Cause is a nonpartisan grassroots organization dedicated to upholding the core values of American democracy. We work to create open, honest, and accountable government that serves the public interest; promote equal rights, opportunity, and representation for all; and empower all people to make their voices heard in the political process.
Office: Common Cause National