Executive Summary

 

This report is an update to the 2016 Common Cause report The Dangerous Path: Big Money’s Plan to Shred the Constitution, examining the dangerous efforts by secretive, well-funded special interest groups to push state legislatures around the nation to call for a constitutional convention through a little-known provision in Article V of the U.S. Constitution.

The effort to convene a constitutional convention is backed by wealthy special interests, organizations, and individuals that span the ideological spectrum. This includes right-of- center supporters of new limits on federal power, such as a balanced budget constitutional amendment, as well as backers on the left who support a constitutional amendment to overturn the Supreme Court’s decision in Citizens United v. Federal Election Commission (FEC), a ruling that reversed decades of well-settled law limiting corporate political spending.

A federal constitutional convention was last held in 1787 when the Constitution itself was drafted. Since then, the U.S. Constitution has been amended 27 times through the first of two processes described in Article V: Congress by two-thirds majorities of both the House and Senate passes the amendment, which must then be approved (i.e., ratified) by three fourths of the state legislatures. The second, never used path to amend the Constitution laid out in Article V is for two-thirds of the state legislatures (34) to pass resolutions applying for a new constitutional convention to propose amendments and then send those amendments to the states for ratification (i.e., an Article V convention).

There are too many unanswered questions regarding an Article V convention to risk a free- for-all rewrite of our Constitution. Could a convention be limited to one issue? What rules, if any, would be in place to govern a convention? What role would outside special interest groups have in influencing a convention’s agenda? Who would choose delegates to send to the convention? What would happen in the case of legal disputes about the convention? What role would the courts play? How would votes be delegated by state, and would the American people really be equally represented?

Simply put, there are no guardrails in place to ensure an orderly course for an Article V convention. Any Article V convention, regardless of the stated purpose going in, runs the risk of becoming a runaway convention. There is no saying what could happen to any of our rights or what could be traded in an exchange between special interests—who will most definitely have their hands in the process. There is no predicting what could happen and far too many open-ended questions for this to be a good idea.

For all these reasons, Common Cause co-leads the national Defend Our Constitution co- alition, which seeks to stop an Article V convention from being called in order to protect all Americans’ constitutional rights and civil liberties that would be threatened by such a convention. Holding such a convention runs the very high risk of being taken over by highly polarized politicians and wealthy special interests seeking to cripple federal powers and roll back our rights. At a time when disinformation is running rampant and deliberately being disseminated through various channels, a constitutional convention could be absolutely devastating to our rights and liberties.

This report aims to examine the pro-convention campaigns and who is behind them, and to shed light on the immense dangers of what would happen should these efforts succeed. It will also make the case that a convention could easily exceed any narrow mandate—e.g., a balanced budget amendment (BBA)—and instead undertake a wholesale and highly divisive rewrite of our nation’s charter.

The Threat of an Article V Convention

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

However, it is not perfect. The Constitution, as originally ratified, did not prohibit slavery or denial of voting rights on the basis of race or sex/gender. Slavery was outlawed by the 13th Amendment, and broad voting rights were guaranteed by the 15th and 19th Amendments. Only through the first 10 amendments—the Bill of Rights—does the Constitution protect freedoms of speech, religion, and press; the right to bear arms; the right to a quick and public trial when accused of a crime; and freedom from unreasonable search and seizure of our homes and property.

To date, the Constitution has been amended 27 times. The Constitution’s built-in process for revision is among its greatest features. The nation’s charter 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.

All of the 27 amendments to date have been enacted through the first process set forth in Article V: passage of the amendment by two-thirds majorities of both the U.S. House and Senate, followed by approval (i.e., ratification) by three-fourths of the state legislatures (presently 38 states).

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

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 are the following:

• 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 rewrite 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, once told the Federalist Society that a convention is a “horrible idea,” arguing, “This is not a good century to write a constitution.”

Countdown to a Convention

Currently, the campaign closest to meeting the 34-state threshold for an Article V constitutional convention is the BBA campaign. However, there are over 30 organizations working to call a convention. Some of these campaigns are better bankrolled than others or have leaders with larger public profiles, therefore providing a more significant platform to make their case for an Article V constitutional convention. While each campaign has a different agenda, they have one goal in common: opening the Constitution up to revision in a forum that risks being hijacked by powerful partisan, ideological, and wealthy special interests in ways that threaten and could roll back hard-won rights.

Considering those risks, state legislatures can rescind past applications for a constitutional convention. This has been one of the main focuses of Common Cause and coalition allies for the past few years, and at least five states have already changed their minds about the wisdom of the dangerous convention path.

We will explain the various players who are trying to rewrite our Constitution through a dangerous convention. The biggest two campaigns that continue to have resolutions introduced in states across the country year after year are the BBA and the COS. And as you will see in the following sections, some of these campaigns are now defunct, or see little movement in states, while others are well-funded with active campaigns.

The Fuzzy Math of an Article V Convention

Even with a dramatic advantage in conservative control of state legislatures across the country, the BBA and COS efforts have found it difficult to win the state resolutions needed to get to the 34-state threshold. With frustration mounting, the leaders of the pro-convention movement are attempting to mainstream a fringe legal theory put forward by Rob Natelson in 2018. This theory allows plenary (or generic) calls for a convention to be combined with existing COS and BBA convention calls.

These generic calls for a convention are often not so generic and were passed decades or even centuries ago. New York, Illinois, Washington, and Oregon have applications on their records that are referred to as “plenary” applications. Upon review, these applications are not generic but call for conventions on issues that are no longer relevant—i.e., popular election of senators or opposition to the Civil War.

For example, New York’s application for a convention dates back to 1789 and asks the Senate of that time for a bill of rights to be added to the newly minted Constitution. Although Framer’s eventually added one, this application has not yet been rescinded and has been disingenuously counted in the opposition’s list of states toward the 34-state threshold needed.

Broad Opposition to an Article V Convention

Because of the threat of a runaway convention and the lack of rules to protect Americans’ constitutional rights, more than 240 public interest, civil rights, government reform, labor, environmental, immigration, and constitutional rights organizations released a statement in April 2017 (signers were updated in March 2019) opposing calls for an Article V constitutional convention. Signers of this letter include AFSCME, Campaign Legal Center, Democracy 21, Economic Policy Institute, NAACP, National Disability Rights Network, Sierra Club, National Education Association, SEIU, Greenpeace, the National Women’s Law Center, and Brennan Center for Justice.

The letter to state legislatures everywhere begins with the organizations’ concerns:

“Plans to convene a new constitutional convention under Article V of the U.S. Constitution are a threat to every American’s constitutional rights and civil liberties. Article V convention proponents and wealthy special interest groups are dangerously close to forcing the calling of a constitutional convention to enact a federal balanced budget amendment (BBA). This would be the first constitutional convention since the original convention in 1787—all constitutional amendments since then have been passed first by Congress and then approved by three-fourths of the state legislatures. There are no rules and guidelines in the U.S. Constitution on how a convention would work, which creates an opportunity for a runaway convention that could rewrite any constitutional right or protection currently available to American citizens.”

As further 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 applications 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.”

These are powerful organizational allies who work at the state and national levels to sound the alarm about the dangers of an Article V convention. Common Cause works with these champions of democracy every day to protect our country and our Constitution.

How Common Cause is Working to Stop a Convention

Polling

Common Cause and our coalition allies worked with J. Wallin Opinion Research to survey voters in a national poll. The sample is stratified, meaning that the demographic composition of our results matches the demographic composition of the region and turnout model that was surveyed.

Polling revealed a majority (59.2%) of Republican voters oppose changing the U.S. Constitution by calling an Article V constitutional convention. Furthermore, evidence in the poll shows the reluctance of Republican voters to take drastic steps to alter this foundational document. Protecting and preserving the rights guaranteed by the Constitution is one of the top three priorities for Republican voters, who view this issue as being significantly more important than traditional conservative totems such as reducing taxes and government finances.

Key takeaways from this polling research include the following:

• Of GOP voters, 70.2% become less likely to support a convention when they learn it could change the rights to free speech, bear arms, freedom of religion, and even our right to vote. Overall, 60.2% of voters become less likely to support a convention after learning this.

• Of Republicans, 70% become less likely to support a convention knowing that the Constitution is one of the most important documents in the world—but some supporters of a convention have openly said they want to use the convention to put every part of the document up for discussion.

• Of GOP voters, 65% become less likely to support a convention when they learn that many conservative organizations oppose a convention.54

• Of Republicans, 56.7% feel that calling an Article V constitutional convention is counterproductive toward the goal of protecting American interests and ensuring the safety of our nation.

This opinion research also found that our opposition messaging introduces a high level of uncertainty into the framework of those working to promote the constitutional convention and makes voters unsure if these groups would be able to control a convention if it were called.

On the Ground in the States

Although the 2020 legislative season ended quickly and in an unexpected way, there were still successes across the country and momentum to carry Common Cause and the coalition into the 2021 legislative season.

Along with our successful rescissions described in the following sections, Common Cause and our allies on both the right and left were also able to stop 133 active applications from being passed. Despite their early work in legislatures and increased funding, the BBATF, the COS, and Wolf PAC were not able to pass any new Article V convention application in any state. U.S. Term Limits was the only win our opponents had when they passed a call in West Virginia—this was the first new application passed in two years. In several states, legislators from both parties outright rejected these applications. With only one of hundreds passing, our public education campaign has clearly had an impact on Republican and Democratic legislators across the country.

Colorado

On April 21, 2022, after a three-year campaign, Colorado rescinded all past calls for a convention. The House passed HJR21-1006 unanimously by voice vote, and the Senate passed rescission with strong bipartisan support 29–3. This is the single most significant legislative event to prevent an Article V convention in the last four years.

New Hampshire

Early in the 2020 legislative session, New Hampshire introduced HCR 9, which was a crucial step in rolling back the efforts of Scott Walker and other key figures who are supportive of a convention that could potentially risk the constitutionally granted rights and liberties Americans share and enjoy. This resolution would have rescinded all calls New Hampshire has on record for a constitutional convention. However, as the legislation was to be heard on the House floor, the pandemic shut down all legislative action on issues deemed nonessential for pandemic relief. With the transition in power from Democrat to Republican and the loss of some of our legislative champions in New Hampshire in 2020, our 2021 efforts were put on hold.

New Jersey

New Jersey rescinded all prior calls for a convention in December 2021 through the passage of SCR 161.  The Senate rescinded on a 24–10 vote, and the Assembly vote was 44–21 in favor of recission. The champions in the Senate and Assembly, Senate President Steve Sweeney and Assemblyman Nicholas Chiaravalloti, jointly published an op-ed noting this as a critical victory for the preservation of our democracy.

 

Conclusion

As Warren Burger (chief justice of the U.S. Supreme Court from 1969–1986) said, “There 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.”

An Article V convention is still a very real and credible threat to our democracy, made even more complex by the pandemic and the added secrecy of legislatures because of remote hearings and closed sessions. With multiple campaigns working with state leaders and legislatures to pass these resolutions with the help of deep-pocketed secret donors, the fight from these actors is far from over.

As we look at the 2022 legislative sessions and beyond, it is imperative that the public and the leaders who serve them understand the immense risks an Article V convention brings to the Constitution and the republic it was founded on.