Article V: The danger to democracy you may not know about

This month, on September 17th, our nation celebrated our Constitution. Little do most people know that there is a movement afoot to rewrite that very Constitution, putting the rights we cherish in peril. . 


Article V of the U.S. Constitution lays out two methods to amend the Constitution. Congress may approve an amendment through a joint resolution and send it to the states for ratification, which is how amendments have traditionally been added to the document. The other is for two-thirds of states to petition Congress for a convention, at which amendments may be proposed. Those amendments would then need to be ratified by three-quarters of the states to become law. Since the first convention in 1787, the constitutional convention option for amending the Constitution has never been exercised. 


There is a well-funded movement to convince state legislatures to trigger an Article V Convention. Such a convention would pose a danger to American democracy. It would provide a forum for a wholesale rewriting of the Constitution, led by some of the most extreme and authoritarian forces in society today. Illinois must not aid this undemocratic effort. 


What is an Article V Convention?

It’s a convention that would be called by the states under the Constitution. The Constitution prescribes no rules relating to who can attend, who writes the agenda, how the votes are cast, or whose voices get heard in the process. 


How close are we to meeting the Article V threshold?

Calls for a constitutional convention have come in waves over the course of American history. In the 1970s, conservatives made a major push for states to call for a convention for the purposes of considering a Balanced Budget Amendment to the Constitution. In just six years — from 1973 to 1979 — 29 states added their names to the call for an Article V convention. 


Another major push occurred in the 2010s, when Florida passed a resolution calling for a Balanced Budget Amendment. Another wave of laws then passed in state legislatures around the country. 


So where does the number now stand?  It depends on how — and who — is doing the counting. Pro-convention advocates have a broad definition of what constitutes a “call” for a convention, and they include laws on the books no matter how old those laws may be (for example, New York has a standing call from the late 1700s). Generally, most scholars agree that there are 28 active resolutions which could legally be considered as triggering an Article V convention. 


Several states, including Vermont and Colorado, have recently repealed their calls for a convention in light of the extremism of the new Article V movement. Still, in 2021, some 42 Convention of the States resolutions have been introduced in 24 states. 


What are the dangers of a convention? Isn’t updating the Constitution a good thing?

Legal scholars have long warned of the dangers of calling a convention. The Constitution does not provide any guidance or framework for such a convention. How the convention is held, by whom, who gets a seat at the proverbial table, who decides the agenda — every aspect of a convention would be conceived out of thin air. 


It is quite possible that such a convention could attack the very bedrock of our democracy, curtailing the protections of the First and Fourteenth Amendments, hamstringing the federal government from protecting citizens against state overreach, undermining progress on climate change and labor regulations, and more. 


Article V convention proponents claim that limiting languages in state laws can offer some protection against a “runaway” convention. This is false. There is nothing prohibiting convention attendees from adopting new rules — their own rules — at the convention. As scholars are quick to point out, the last constitutional convention was called to tweak the Articles of Confederation. That document was rejected wholesale by delegates who decided to create a new constitution from scratch. Nothing in the Constitution prohibits delegates from doing the same during a new Article V convention — with far more nefarious policy intentions. 


Who is trying to call for an Article V convention? 

Article V convention proponents would have people believe their movement is “bipartisan,” pointing to efforts by left-leaning groups to call for a convention. There was indeed a left-leaning movement that — with limited success — was able to convince some state legislatures to call for a constitutional convention to address Citizens United. Led by groups like WolfPAC, Illinois and a few other states adopted resolutions calling for a constitutional convention to address campaign finance reform. As noted above, nothing in the Constitution requires delegates to abide by such limited language in state laws. 


There are left-leaning groups currently calling for a convention to address issues like campaign finance reform, climate change, universal basic income, etc. WolfPAC, the Popoulist Party, and other smaller groups continue advocacy on the matter. However, they represent a miniscule amount of the money and effort being directed at triggering an Article V convention. 


The overwhelming force behind the new Article V movement are some of the most extreme, convervative, and yes, authoritarian players in American politics today. 


At the forefront is the American Legislative Exchange Council (ALEC), the organization that purports to be a membership organization for state legislators but which is actually a vehicle for corporate America to guide the hand of lawmakers in drafting pro-business, anti-consumer legislation. ALEC has shifted its focus in the last decade to curtailing the right to vote, opposing climate change measures, and fighting reasonable gun safety legislation. It is in that context that its campaign to trigger a new Article V convention should be viewed. 


ALEC has drafted model Article V legislation which it has seeded in state legislatures across the country. It is calling for a convention to “impose fiscal restraints on the federal government, limit the power and jurisdiction of the federal government, and limit the terms of office for its officials and for members of Congress.” This model legislation has been introduced in the 102nd General Assembly in Illinois by Rep. Brad Balbrook. 


Rep. Brad Balbrook is a Republican, conservative legislator representing the 102nd district in Central Illinois. He is against choice, gun safety, marriage equality, and voter protections. He was one of only a handful of state lawmakers who voted against the Illinois Right to Vote Amendment, which provided that “No person shall be denied the right to register to vote or to cast a ballot in an election based on race, color, ethnicity, status as a member of a language minority, national origin, religion, sex, sexual orientation, or income.”


Balbrook is in good company in the Article V movement, which is led by some of the most extreme, anti-democratic voices in American politics today. Along with ALEC, the Convention of States (COS), “a project by Citizens for Self-Government,” is the main advocacy group convincing legislators like Balbrook and others that they should call for a convention. 


According to SourceWatch, “[v]arious activist groups have sought to amend the constitution on specific points through an Article V convention before, but few have been as well-funded or as ideologically driven as the Convention of States Project, steeped in evangelical Christianity and backed by millions of dollars in dark money. Between 2011 and 2015, the group’s budget more than tripled to $5.7 million—buoyed by donations from the Mercer Family Foundation and various donor-advised funds linked to the Koch brothers.”


But it is the operational leader of COS that sheds the most light into the true intentions of an Article V convention. The President of COS is former Tea Party Patriots founder Mark Meckler. Meckler is also the current CEO of Parler, the social media platform popular with far-right extremists, such as those who participated in the violent January 6th insurrection. 


While the Article V movement began in the 1980s as an attempt to pass a Balanced Budget Amendment, the effort now seeks much more. The amendments proposed by the dominant players in today’s movement seek to upend the very concept of federalism. Some amendments proposed seek to remove all power from Congress to regulate activities in a state “regardless of its effect outside the state,” while others seek repeal of the 16th Amendment (making it extraordinarily difficult for the federal government to levy any taxes).  There is at the Article V movement’s core a desire to enshrine an explicit “right to be armed.” And, in response to efforts to reform the Supreme Court, amendments proposed now also include limiting the number of justices on the Court. 


The leaders of the movement, the sheer breadth of the movement’s demands, and the opposition of those demands to the very concept of American federalism and representative democracy demand action against an Article V convention. 


What can we do about it?

First and foremost, we must educate others about the dangers of a constitutional convention in this political and social climate. During his speech at the closing of the first constitutional convention, Benjamin Franklin noted that “you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an assembly can a perfect production be expected? It therefore astonishes me, Sir, to find this System approaching so near to Perfection as it does…”


Who would be assembled at a new Article V convention today? What prejudices, passions, errors of opinions, and selfish views would they bring to the table? Given the anti-democratic funders behind the Article V movement, we should be wary of who gets to rewrite — or even destroy — the Constitution all of us work so hard to protect. 


We’ll be tracking this movement and will be bringing you more insight and action items to help protect our Constitution against this Article V attack.