Posted April 22, 2016 12:51 PM
Updated April 27, 2016 9:56 AM
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Constitutional conventions enter uncharted waters

Michael Leachman
Michael Leachman
Kyle Maichle
Kyle Maichle
Jason Holsman
Jason Holsman
By Patricia Manson
Law Bulletin staff writer

Congress, contended John O. McGinnis, “is as likely to pass term limits as turkeys are to vote for Thanksgiving.”

The drafters of the U.S. Constitution knew senators and representatives would balk at any measure reducing their power, said McGinnis, a constitutional law professor at Northwestern Pritzker School of Law.

He said that’s why Article V includes a provision allowing citizens to convene to propose amendments to the Constitution themselves.

“The Article V convention was an important safeguard to make certain the people could call a constitutional convention without going through Congress,” McGinnis said.

Michael Leachman of the Center on Budget and Policy Priorities thinks Americans should refrain from making use of the convention provision.

Invoking the “untried and untested” provision is “a terrible idea,” said Leachman, director of state fiscal research for the Washington, D.C.-based think tank.

An Article V convention would be “kind of a crazy free-for-all,” he argued, with special-interest groups trying to influence delegates.

“A lot of people are rightly concerned about money in politics,” Leachman said. “This would be the mother of all demonstrations of that.”

Article V sets out two ways to amend the Constitution.

An amendment may be proposed by a two-thirds majority of both the U.S. House and Senate.

Or a convention may be requested by two-thirds of state legislatures.

However it is proposed, any amendment must be ratified by three-fourths of the states.

All 27 amendments added to the Constitution since 1791, including the Bills of Rights, were proposed by Congress.

Although none were proposed at a convention, it wasn’t for a lack of trying on state lawmakers’ part.

State legislatures over the past two centuries have submitted hundreds of applications for an Article V convention.

Some sought conventions on matters Congress eventually took up itself in its own proposed amendments, including slavery, presidential term limits and the direct election of senators.

Other applications called for conventions to consider amendments that would limit income taxes, impose judicial term limits, restrict abortion rights, allow officially sponsored prayer in public schools or forbid the desecration of the American flag.

Efforts to amend the Constitution through an Article V convention are underway today.

Proponents are calling for a convention to consider amendments on various topics — including a balanced budget requirement and campaign finance reforms — they contend Congress will not consider itself.

Kyle Maichle of The Heartland Institute said state lawmakers are responding to these calls.

“They’re not waiting for Washington to get its act together,” said Maichle, project manager for constitutional reform issues for the Chicago-based think tank.

One current campaign for a convention was triggered by the U.S. Supreme Court’s decision in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), throwing out limits on independent campaign expenditures.

Legislatures in four states, including Illinois, have approved resolutions calling for a convention to consider an amendment that would effectively overturn Citizens United and end corporate personhood.

Legislation is pending in 11 other states.

Backers of a balanced budget amendment are faring better.

As of April 1, The Heartland Institute reported, 28 states had asked Congress to assemble a convention to consider an amendment requiring the federal government to pass annual budgets that don’t increase the federal debt.

A resolution filed in four states also seeks a convention on a balanced-budget amendment. That resolution, however, would require a governor’s signature as well as the approval of state lawmakers.

A separate resolution filed in about 14 states calls for a convention on a term-limits amendment.

Florida is the only state that had approved that resolution by April 1. Utah state representatives approved it, but the state Senate voted it down.

Six states have given the go-ahead to a resolution asking Congress to call a convention on multiple amendments that would balance the budget, impose term limits on members of the House and Senate and reduce federal regulations.

Some states have approved more than one resolution supporting an Article V constitutional convention.

For example, Indiana approved one resolution calling for a convention solely on a balanced-budget amendment and another calling for a convention on term limits and federal regulations as well as a balanced budget.

Opinion on the wisdom of calling an Article V convention isn’t split along typical political lines.

Advocates of such a convention range from the Convention of States Project, an organization that wants to limit the power and jurisdiction of the federal government, to Wolf PAC, a political action committee seeking the public financing of elections in the United States.

Among the opponents of an Article V convention are the Eagle Forum and The John Birch Society on the right side of the political spectrum and Common Cause and People for the American Way on the left.

Some opponents worry that convention delegates might wreak havoc on the Constitution in a runaway convention.

Article V includes no details on how a convention would be conducted.

“We don’t know from the Constitution whether a limited-scope convention is possible,” said Harold J. Krent, dean of ITT Chicago-Kent College of Law.

And if delegates cannot be restricted to proposing amendments on only certain topics, he contended, “then it’s a Pandora’s box.”

While significant revisions have been made to the constitutions of such countries as Mexico, Krent said, the U.S. Constitution “has not been fundamentally changed for over 200 years.”

He said that stability gives the Constitution “an air of legitimacy.”

“The convention could be a destabilizing force in terms of knocking the Constitution off the pedestal of respect,” Krent said.

Leachman contended delegates wouldn’t need to deviate from an agenda to cause problems.

The amendments proposed for consideration at a convention — particularly one that would reduce the powers of the federal government — are extremely broad, he said.

“They are talking about some very, very radical changes to the Constitution,” Leachman said, “Major changes that would greatly shift power away from the federal government to the states in ways that would drastically change how the country is governed.”

Leachman contended a balanced-budget amendment also would harm the country.

Requiring the government to take in the same amount of money it spends every year would undermine the Social Security system and make economic recessions deeper and longer, he maintained.

But other observers contend concerns about a runaway convention are overblown.

Professor Steven D. Schwinn of The John Marshall Law School conceded Article V imposes no direct restrictions on delegates.

“There’s not really a set of rules for cabining discussions at a convention,” he said. “And so the potential that it could run wild is great.”

But Schwinn is not worried.

“Our Constitution is the oldest written constitution in the world,” he said. “And it’s one of the hardest — if not the hardest — to change.”

Also, Schwinn continued, Article V has “kind of a built-in constraint.”

That constraint is the requirement that three-fourths — currently 38 — of the states ratify a proposed amendment before it becomes part of the Constitution, he said.

Under that circumstance, he said, anyone who wants to amend the Constitution “faces a strong headwind before they even get going.”

Missouri Sen. Jason Holsman, a Democrat from Kansas City, also cited the ratification requirement as a safeguard against a runaway convention.

“We’re going to have to have moderate and measured proposals to get the support of both red states and blue states,” he said.

Holsman and Wisconsin Rep. Chris Kapenga, a Republican from Delafield, are co-presidents of The Assembly of State Legislatures.

The assembly is a bipartisan group of state lawmakers that was formed to draft rules for an Article V convention.

The assembly, then named the Mount Vernon Convention, first met in December 2013. Its second meeting was held the following June and another is set for this June.

The final rules will be sent to the states for ratification, Holsman said, and delegates who attend a convention will be bound by them.

The rules will not require delegates to agree ahead of time on the topics that will debated at a convention, Holsman said.

He said topics that “could gain traction” at a convention include campaign finance reform, term limits, a balanced budget and congressional redistricting.

These are among the issues that Congress is unwilling to tackle, Holsman said.

The nation’s founders anticipated such a situation, he said, and so put Article V in the Constitution “as kind of a time capsule — a break-glass-in-case-of-emergency for the states to address concerns about the federal government.”

McGinnis contended more awareness of the option of calling an Article V convention would help maintain the balance of power among the three branches of governments.

When people don’t believe they can change the Constitution any other way, McGinnis argued, they tend to turn to the courts to do it.

“That’s divisive and dangerous and, indeed, endangers the culture of the court,” he said.

On the other hand, he contended, the recognition that citizens can amend the Constitution through an Article V convention boosts confidence in the system.

And the ratification requirement acts as a brake on a runaway convention, McGinnis said.

“I don’t think we’re going to get a consensus on replacing the Constitution any time soon,” he said.

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