Dissecting the Call for a New Constitutional Convention
- Scott Swenson, Dale Eisman
A Common Cause Edit Memo
TO: Interested reporters and editors
FROM: Common Cause
DATE: February 2016
RE: The Call for an Article V Constitutional Convention
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. Public trust in the institutions of our democracy is at an all-time low. Anger that government at all levels responds only to wealthy special interests is increasingly common and with it comes an understandable impulse to hit the “reset” button.
But the unknowns surrounding a constitutional convention pose an unacceptable risk, particularly in the current polarized political climate. With one pro-convention campaign within seven states of success, it’s time to spotlight that risk and sound an alarm for the preservation of our nation’s charter.
Put simply: There are no rules governing constitutional conventions. A convention today would put the Constitution up for grabs for wholesale rewrites at a time of extreme gerrymandering and polarization amid unlimited political spending.
This editorial board memo details our concerns with convention proposals and urges action on your part to begin raising the issue for your audiences.
Calls for a convention are coming from right and left, with substantially 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 use a constitutional convention to add a federal balanced budget amendment 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 (“BBA”). Some BBA proponents claim that by 1989, 32 states had called for a convention for a balanced budget amendment.
The lack of any rules, concerns about a potential runaway convention, and an intensified drive to push a BBA through Congress had led over a dozen states to rescind their convention calls between 1989 and 2010. However, conservative groups have revived the convention plan, persuading 11 state legislatures to pass Article V convention calls since 2011. Most convention proponents agree that 27 states have live calls for a BBA convention; that is just seven states shy of the constitutionally required 34 applications. The 2016 state legislative sessions will be key in this effort, as convention proponents are targeting several conservative states that have yet to pass a convention call, including Arizona, Idaho, Oklahoma, Montana, South Carolina, Virginia, West Virginia, Wisconsin, and Wyoming.
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 the American Legislative Exchange Council (ALEC), a corporate lobby that masquerades as a charity.
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 five states, perfectly illustrates the threat of a runaway convention. Former Sen. Tom Coburn of Oklahoma has become one of the most vocal proponents of the Convention of States initiative, traveling to several states to push for the measure.
As outlined in Common Cause’s recent 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 not raised 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 disputes 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.
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.
While Common Cause fully supports and advocates for overturning Citizens United and other cases that prohibit Congress and state legislatures from limiting the undue influence of money in campaigns, 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.
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.
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.
The late Supreme Court Justice Antonin Scalia, one of the nation’s most prominent conservative thinkers, was a vocal convention skeptic. “I certainly would not want a constitutional convention,” he said in 2014. “Whoa! Who knows what would come out of it?”
Leading constitutional scholar Prof. Laurence Tribe of Harvard Law School has said that a constitutional convention, with all of its unknown and unanswered legal questions, “risks putting the whole Constitution up for grabs.”
Given the urgency of this issue and dangers detailed above, we urge you to editorialize against the call for an Article V constitutional convention. Even if your state is not targeted, this issue is one of great national importance and the alarm should be sounded wherever possible to raise awareness of this underreported threat to our democracy.
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
If you have any questions or would like additional information, please contact Common Cause Vice President of Communications Scott Swenson at firstname.lastname@example.org or 202-736-5713.
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.