Reform Groups Strongly Oppose Constitutional Convention; Would Put Constitutional Rights at Risk

Statement by the Brennan Center, Center for Media and Democracy, Common Cause, CREW, Democracy 21 and People For the American Way

Efforts are being undertaken in state legislatures to pass resolutions calling for a constitutional convention to send various constitutional amendments to the states for ratification.

If these efforts are successful, it would result in the nation’s first constitutional convention since the 1787 convention that adopted the Constitution. It also would create the opportunity for a runaway convention that could rewrite any constitutional right or protection currently available to American citizens.

One such effort to establish a constitutional convention involves passing a constitutional amendment to require a federal balanced budget. Another effort involves making sweeping changes in the constitutional structure of our government. Another effort involves passing a constitutional amendment to overturn the Supreme Court’s Citizens United decision.

Our reform groups support various campaign finance reform measures to respond to the Citizen United decision. The groups include: the Brennan Center, Center for Media and Democracy, Common Cause, CREW, Democracy 21 and People For the American Way.

Some of our groups are working to have Congress approve a constitutional amendment to overturn Citizens United. Others are working to develop a new jurisprudence to serve as the basis for upholding campaign finance laws that could be adopted by a new Supreme Court majority.

All of our groups, however, are strongly opposed to a constitutional convention which  would put at risk the constitutional rights and protections of all Americans.

The effort to call a constitutional convention to pass a balanced budget constitutional amendment is being led in part by the American Legislative Exchange Council (ALEC), an organization consisting of corporations and conservative state legislators. Advocates of such a balanced budget amendment claim that 27 states already have passed such calls. A major effort is underway in 2016 to obtain the seven more states they believe they need to reach two-thirds of the states, the number required by the constitution to call a constitutional convention.

The effort to call for a convention to overturn Citizens United has been approved in a handful of states. This effort, however, is providing support for the idea that a constitutional convention makes sense at a time when the efforts to obtain a constitutional convention on the balanced budget amendment is within striking distance.

The Constitution provides that Congress “on the Application of the Legislatures of two thirds of the several states, shall call a Convention for proposing Amendments.”

Regardless of any limits that are being placed in the state calls for a constitutional convention, it is widely believed that once a convention is called there is no way to limit the constitutional amendments that the convention can consider and on which they can act.

A USA TODAY editorial (January 6, 2016) has observed that a constitutional “convention is an invitation to constitutional mayhem.”

Harvard Law Professor Laurence Tribe, a leading constitutional scholar, has stated that a constitutional convention could not be limited to a single issue if convention delegates decided to pursue other agenda items. According to Tribe, a constitutional convention would put “the whole Constitution up for grabs.” 

Supreme Court Justice Antonin Scalia has said, “I certainly would not want a constitutional convention. Whoa!  Who knows what would come out of it?”

Former Supreme Court Chief Justice Warren Burger stated, “[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.”

This means that any existing constitutional right and protection could be up for consideration and revision by a convention. This includes constitutional protections for civil rights, civil liberties, voting rights, freedom of religion, freedom of speech and privacy, among others. The role of the courts in protecting the constitutional rights of individuals and minority interests would also be up for consideration and revision.

Furthermore, there are no rules on what would happen if and when a convention is called: no rules on how delegates are chosen, how voting occurs at the convention, how money can be spent to choose and influence delegates, or how the convention would operate.

Supporters of a convention argue that any amendment adopted by the convention must be ratified by three-quarters of the states and that this will protect against a runaway convention. However, since 34 states already would have approved the creation of the constitutional convention, this would provide a strong base for obtaining the additional states necessary to reach the 38 states required to ratify any amendment approved by the convention.

Furthermore, if a duly constituted constitutional convention approves one or more constitutional amendments that take away basic constitutional rights or protections, even if the amendments are not ratified by 38 states, this would seriously undermine the legitimacy of these rights and protections.

A constitutional convention would put at risk the constitution our Founding Fathers created and the constitutional rights and protections that exist today. Our groups strongly urge state legislators to recognize the dangers that a constitutional convention poses for the constitutional rights of all citizens and to oppose a call for a constitutional convention.