U.S. Constitution Threatened as Article V Convention Movement Nears Success

U.S. Constitution Threatened as Article V Convention Movement Nears Success

A Common Cause Background Memo

Fact Sheet

This background memo was originally published in March 2017. A new version was published in February 2018. To view a printable PDF of this memo, click here

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. The result of such a convention could be a complete overhaul of the Constitution and supporters of the convention are dangerously close to succeeding. With special interest groups gaining more momentum, conservative advocates are just six states short of reaching the constitutionally-required 34-state goal. They are targeting Republican-controlled legislatures in 2018 and are within striking distance.

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 Constitution.

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. A number of major conservative organizations and donors, including Mercer family and Koch-funded groups such as the American Legislative Exchange Council (ALEC), have renewed and intensified efforts to thrust this issue into the spotlight after years of inactivity.

This memo that outlines the different campaigns calling for an Article V convention and why it is just a dangerous idea. These calls for a constitutional convention represent the most serious threat to our democracy flying almost completely under the radar.

 

Current Article V Convention Campaigns

The Balanced Budget Amendment Effort

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 state legislatures passed resolutions or “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 interest groups have revived the convention plan, persuading more than a dozen state legislatures to pass Article V convention calls since 2011.

With the help and endorsement of the American Legislative Exchange Council (ALEC), a corporate lobbying group masquerading as a charity, the Article V BBA campaign has gained steam in the last eight years. Most convention proponents now agree that 28 states have “live” calls for a BBA convention (i.e. where the state has not passed a rescission to nullify an earlier call); that means they are just six states shy of the constitutionally required 34 applications.

There are also six GOP-controlled state legislatures controlled that do not have an Article V BBA application on the books: Kentucky, Idaho, Minnesota Montana, South Carolina, and Virginia. Those will be the main targets for the 2018 sessions, although Montana’s legislature does not meet in 2018.

Due to the threat of an Article V convention, several state legislatures have rescinded their Article V BBA convention applications, including Delaware (2016), New Mexico (2017), Maryland (2017), and Nevada (2017). Had those four states not rescinded their applications, BBA convention proponents would be at 32 states, just two away from reaching the 34-state goal.

 

The Convention of States Effort

Another conservative effort to call a new constitutional convention, known as the “Convention of States,” is also underway. This proposal calls for a convention for the broad purposes of limiting the powers of the federal government, imposing fiscal restraints on federal spending, and applying term limits for Members of Congress. The vague language in the Convention of States proposal perfectly illustrates the threat of a runaway convention.

The Convention of States effort has major resources behind it, including at least $500,000 from the Mercer family (known for their support of President Trump and Republican candidates) and numerous large contributions from the Koch-connected Donors Trust. The well-funded Convention of States campaign is led by Tea Party Patriots co-founder Mark Meckler and former U.S. Sens. Tom Coburn, R-OK, and Jim DeMint, R-SC; DeMint also is a former Heritage Foundation president.  The campaign has garnered major endorsements from other major conservative media personalities, elected officials, and special interest groups, including Jeb Bush, Sen. Marco Rubio, Mike Huckabee, Texas Gov. Greg Abbott, Mark Levin, Sean Hannity, Sarah Palin, the American Legislative Exchange Council (ALEC), and others.

In September 2016, the Convention of States held a mock convention to come up with proposed amendments to the Constitution. The results show how they plan to use a convention to implement an extreme agenda into the Constitution and how a convention cannot be limited. The changes they proposed (found here) would drastically alter the federal government and put civil rights and needed programs, including Social Security, Medicare, and Medicaid, at risk.

In just 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, and has been introduced in over 37 states.

Wolf PAC Effort

The 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 v. FEC. 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 just five states: VermontCaliforniaNew JerseyIllinois, and RhodeIsland.

Common Cause fully supports overturning Citizens United and other cases that have bolstered the undue influence of money in politics. We support a constitutional amendment as one path – but oppose an Article V convention as the mechanism, for the reasons that are discussed later in this memo.  An amendment overturning Citizens United is by no means the only solution to reform our democracy so that people are put first; it must be part of a larger context of solutions including public financing of elections, strong disclosure of political spending, election administration modernization, impartial redistricting reform, and other pro-democracy solutions.

 

Why the Article V Convention Process is a Threat

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 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 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.

Simply put, an Article V constitutional convention is a dangerous and uncontrollable process that would put Americans’ constitutional rights up for grabs.

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.

 

Bipartisan Group of Legislators & Organizations Oppose an Article V Convention

Due to the threat of a runaway convention and the lack of rules to protect Americans’ constitutional rights, more than 230 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 CommonCause, the Center on Budget and Policy PrioritiesDemocracy21, the AFL-CIOAFSCMEAmericans for Democratic Action, the League of Women Voters of the United StatesDream Defenders, the Sierra Club, the NAACP, the National Council of La Raza Action Fund, the National Education Association (NEA), SEIU, the Campaign Legal CenterGreenpeacePeople For theAmerican WayDaily 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.”

Although pro-convention campaigns are being proposed on the right and left, Democratic and Republican legislators alike have opposed calls for a new convention due to the threat it poses to Americans’ civil rights and liberties. During the 2017 sessions, Republican-controlled legislative chambers in Idaho, South Dakota, North Carolina, Utah, and Wyoming voted against calls for an Article V convention proposed by conservative groups. Likewise, Democratic controlled legislatures in Delaware, New Mexico, Maryland, and Nevada have rescinded their applications for an Article V convention for a balanced budget amendment in recent years.

“This is definitely entering into unchartered territory…We cannot control what comes out of this convention. We don’t know who all would go up there… It would be a mess.” – Sen. Ron Sharp (R-OK)

“It’s a dangerous thing to do … we don’t know if there will be any way to stop a constitutional convention from running amok.” – Del. Anne Healey (D-MD)

 “It’s like playing Russian roulette. We kind of think it would work out well. You put a bullet in one chamber, the odds of it working are pretty good. But the consequences of being wrong are immeasurable.” – Sen. Richard Black (R-VA)

“There is no safeguard for what gets dealt with when this constitutional convention gets started.” – Sen. Kathleen Vinehout (D-WI)

 “If we go down this rabbit hole, what are we going to find at the end of the tunnel? When I think about the lobbyist money and where we are today as a society, I just don’t see anything good coming out of it.” – Rep. John Becker (R-OH)

 

Legal Scholars Warn of the Dangers of an Article V Convention

“[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

“But no rule or law limits the scope of a state-called constitutional convention. Without established legal procedures, the entire document would be laid bare for wholesale revision. Article V itself sheds no light on the most basic procedures for such a convention. How many delegates does each state get at the convention? Is it one state, one vote, or do states with larger populations, like California, get a larger share of the votes? The Supreme Court has made at least one thing clear — it will not intervene in the process or the result of a constitutional convention. The game has neither rules nor referees.” – McKay Cunningham, professor of law at Concordia University

“The result will be a disaster. I hate to think of the worst-case scenario. At best, the fight over every step along the way would consume our country’s political oxygen for years.” – David Marcus, professor of law at the University of Arizona

“At present, there are no rules regarding who can participate, give money, lobby or have a voice in a constitutional convention. There are no rules about conflicts of interest, disclosure of who is giving or expending money. No rules exist that address political action committees, corporate or labor union involvement or how any other groups can or should participate. Not only might legitimate voices of the people be silenced by convention rules, but special interests may be given privilege to speak and affect the deliberations…there are no rules limiting what can be debated at a constitutional convention. Given the potential domination by special interests, who knows the result?” – David Schultz, political science and election law professor at Hamline University

“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

“The prospect of opening up the Constitution to edits threatens every right and protection that we hold dear:  freedom of speech and religion, the right to vote, equal protection the law, the right to a trial by jury and the separation of powers, for instance.  The role of our federal government to uphold the basic standards concerning how people can be treated, as well as the rules governing how these standards are set, could be undone.” – Kate Miller, advocacy director for the America Civil Liberties Union of Kentucky

“But nothing in the Constitution limits such a convention to the issue or issues for which it was called. In other words, anything and everything could be on the table, including fundamental constitutional rights. Nor are there any guarantees about who would participate or under what rules. Indeed, for these reasons, no constitutional convention has been called since the first in 1787.” – Helen Norton, professor and Ira C. Rothgerber, Jr. Chair in Constitutional Law at the University of Colorado and David Super, professor of law at Georgetown University

“The lack of clear rules of the road, either in the text of the Constitution itself or in historical or legal precedent, makes the selection of the convention mechanism a choice whose risks dramatically outweigh any potential benefits.” – Richard Boldt, professor of law at the University of Maryland

“We live in deeply partisan times. There are no certainties about how a constitutional convention would play out, but the most likely outcome is that it would deepen our partisan divisions. Because there are no clear constitutional rules defining a convention’s procedures, a convention’s “losers” may deem illegitimate any resulting changes. Regardless of the ultimate outcome, the process itself would likely worsen our already vicious national politics.” – Eric Berger, associate dean 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

“Terrible idea…Today’s politicians don’t have the timeless brilliance of our framers. If we were to rewrite our constitution today, we wouldn’t get a particularly good one.” – Adam Winkler, professor of constitutional law and history at the University of California, Los Angeles

“I believe it’s a time for constitutional sobriety. It’s a time to keep our powder dry and not to move on an uncharted course. We are not the founding fathers. This would be disastrous.” – Toni Massaro, constitutional law professor at the University of Arizona

“Having taught constitutional law for almost 40 years, and having studied constitutions from around the globe, I have difficulty imagining anything worse.” – Bill Rich, professor of law at Washburn University in Topeka, Kansas

“There are no constitutional limits on what the convention could do, no matter what the states say going into it.” – David Schwartz, professor of law at the University of Wisconsin Law School

“The Constitution allows for the calling of conventions on a petition of enough states, but not limited conventions of enough states. If the delegates decide they don’t want to be bound by the (state) resolution, they are right that they can’t be bound.” – Richard H. Fallon Jr., constitutional law professor at Harvard University

“Once you open the door to a constitutional convention, there are no sure guidelines left. This is the constitutional equivalent of opening a can of worms.” – Miguel Schor, constitutional law professor at Drake University School of Law

“Thus, neither the states nor Congress may limit the convention to specific subjects. While the goal to propose a balanced budget amendment may provide guidance to the convention, it would not have the force of law…Put simply, the rewards of any constitutional change is not worth the risks of a convention. ” – Sam Marcosson, professor of law at the University of Louisville

“Most significantly, we advise the Legislature that a federal constitutional convention called with this resolution could potentially open up each and every provision of the United States Constitution to amendment or repeal. In other words, a federal constitutional convention could propose amendments to eliminate the protections of free speech; the protections against racial discrimination; the protections of freedom of religion; or any of the other myriad provisions that presently provide the backbone of American law.” – March 2018 legislative testimony of Russell Suzuki, Acting Attorney General, and Deirdre Marie-Iha, Deputy Attorney General, of the state of Hawaii

 

Newspaper Editorial Boards Oppose Calls for a Constitutional Convention

“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

“The problem with the Convention of States Project is that once the convention of states is called, there is no real limit on what amendments could be proposed. It is a radical method of amending the U.S. Constitution that should be reserved as an option of last resort.” – Lawrence World-Journal

“What would happen at a convention of states?. We don’t know, because everyone who thinks about this has different ideas about what needs to be done. A part of the Constitution that means something important to one person is another person’s problem.” – Danville Register & Bee

 

Key Media Coverage of the Article V Convention Threat

The New York Times: “Inside the Conservative Push for States to Amend the Constitution” by Michael Wines; August 22, 2016

The Economist: “America might see a new constitutional convention in a few years” by Dan Rosenheck; September 30, 2017

USA Today: “In latest job, Jim DeMint wants to give Tea Party ‘ a new mission” by Fredreka Schouten; June 12, 2017

Splinter News: “Right-Wing Billionaires Are Buying Themselves a New Constitution” by Brendan O’Connor; April 4, 2017

The Dallas Morning News: “Mega-rich conservative donors are behind Texas’ obsession with amending the Constitution” by Brandi Grissom; March 1, 2017

Salon: “Hey, wouldn’t it be cool to have a constitutional convention? Oh, hell no” by Paul Rosenberg; March 12, 2017

Esquire: “Why Do the Koch Brothers Want a Convention of States?” by Charles Pierce; January 8, 2018

Fox News: “Push for Convention of the States to rein in government gains steam” by Doug McKelway; May 15, 2017

Slate: “Liberals and conservatives are teaming up to call a new constitutional convention” by Ashley Balcerzak; January 26, 2016