The March Toward a Constitutional Convention Slows to a Crawl

(Photo: AP/Michael Conroy)

Indiana Senate President Pro Tempore David Long welcomes delegates meeting to set up the framework for states to amend the Constitution in Indianapolis on June 12, 2014.

The slow and steady march of conservatives to have states call for a constitutional convention seemed poised, after the November elections, to take major steps forward.

After all, Republicans emerged from the elections with control of both houses of state legislatures in 32 states and governor’s offices in 34 states, and having “trifectas” in 23 states. Democrats, by contrast, have legislative control in only 13 states, governors in 16, and full executive and legislative control in only six.

Since the days of Ronald Reagan, conservatives have hoped to win enough support to call a convention vested with the authority to amend and potentially remake the Constitution to their specifications. Their efforts commenced in the 1970s, in the wake of California’s enactment of Proposition 13, with their campaign for a balanced budget amendment and a constitutional convention to enact it. Article V of the Constitution creates this alternative means of amending the Constitution if two-thirds of the states (that is, today, 34 of them) issue a call for such a convention. A number of Republican state legislatures did just that in the 1970s, but the effort then slowed until the GOP won control of a large number of states in the 2010 election. Today, the total number of states that have open “applications” for a constitutional convention is 28, though that total includes states that passed such resolutions nearly 40 years ago.

Since the GOP’s 2010 victories, a number of right-wing power brokers have revved up the campaign for a constitutional convention. In just the past three years, the effort has received major funding from both the Koch Brothers’ Donors Capital and Robert and Rebekah Mercer. It has won organizational support from ALEC (the business-backed consortium that promotes right-wing legislation at the state level) and Citizens for Self-Government, the organization headed by former Tea Party founder Mark Meckler. Former Oklahoma Senator Tom Coburn has been pursuing the convention as his holy grail.

There are currently seven states with Republican control of their legislatures that have not passed a call for a constitutional convention: Wisconsin, Montana, Idaho, Minnesota, Kentucky, South Carolina, and Virginia. (Three of those states have Democratic governors, but legislative calls for a constitutional convention aren’t subject to gubernatorial vetoes.) This alarming or alluring math has caught the attention of advocates as well as opponents of the convention, and in recent weeks there’s been a flurry of convention resolution activity.

On March 13, Arizona adopted the call for a constitutional convention without any specific issue references. Sponsored by Majority Whip Kelly Townsend and State Senator John Kavanagh, and promoted by Citizens for Self-Governance, HCR 2010 passed on a vote of 16–14.

Just two days later, however, on March 15, New Mexico rescinded its call, which legislators had adopted back in 1979. The New Mexico rescission, according to Viki Harrison, director of Common Cause New Mexico, came about as a result of a strong coalition effort with both labor and community organizations leading the way, coupled with new Democratic legislative leadership, particularly House Speaker Brian Egolf, who authored the bill, and Senate President Peter Wirth.

On April 4, the Maryland legislature, on a House vote of 93–47, joined the Maryland Senate in rescinding all previous calls for a constitutional convention. On the same day, the Vermont Senate rescinded its call (which now goes to the House), as did the Nevada Senate.

In three other states, legislative activity remains possible. A potential addition to the states calling for the convention is Wisconsin. Governor Scott Walker and his pliant majorities seem likely to add this to their string of ALEC-certified notches. But there is strong opposition from editorial boards and grassroots organizations, and Senate President Scott Fitzgerald has publicly expressed skepticism.

However, the other two likely state actions are the rescissions in Vermont and Nevada. If Nevada, New Mexico, Maryland, and Vermont all rescind their votes this year, in addition to Delaware’s 2016 decision to rescind its call, this would be a major setback to the advocates for the convention.

One reason why a number of progressive organizations have been paying close attention to this issue is their conviction that such a convention could take away fundamental constitutional rights—both minority and majority—that Americans have long enjoyed. Opponents of the convention argue that once called, there is no way it could be held in check or its powers proscribed.

The convention would raise a host of basic questions for which there are no clear answers. First, how do we even tell when the requisite number of states have passed the call, since some did so 40 years ago, and the wording and issue bases of the applications vary significantly? How would delegates be allocated by states—equally, like the Senate, or proportionally, like the House? How would they be selected? Would there be any regulations on how much money would be spent to influence the outcome? Are there any limits to what could be discussed? Would the convention be confined to amending the constitution, or could it scrap it altogether and start anew, which is, of course, what happened the only other time such a convention was called, in 1787? 

Karen Hobert Flynn, president of Common Cause, one of the key organizations opposing the calls, says: “There is nothing to prevent a convention from being expanded to issues not raised in the original petitions calling the convention. Simply put, an Article V convention could lead to a constitutional crisis where everyone’s rights and liberties are on the auction block.”

One wrinkle in the debate is that a very small but vocal wing of the campaign-finance reform movement passionately favors calling an Article V convention, in order to repeal the Citizens United decision and clarify that unlimited campaign spending is not constitutionally protected free speech. These advocates have had some success as well. Five states, including California, Illinois, Vermont, New Jersey, and Rhode Island (which are not included in the 28), have passed calls with this explicit purpose. They argue that the convention can be limited to this topic, that there is precedent for orderly conventions at the state level, and that the ratification process would ensure that awful things won’t be written into the Constitution. But perhaps most significantly, they argue that things are so awful now with our democracy that there is really nothing to lose.

One exchange last year between Flynn and Ryan Clayton of Wolf PAC, a campaign-finance outfit strongly supporting a constitutional convention, at a conference of the State Information Exchange, was illustrative. In so many words, Flynn argued that such a convention would be tantamount to being asked to take medicine where there have been no clinical trials, no idea of its effectiveness, and not a clue about potential damaging side effects. Would you ask your mother to do this? Clayton replied: If my mother were dying from incurable cancer, of course I would; why wouldn’t I try anything?

If the number of states calling for the convention even gets close to 34, it’s a certainty that the court cases dealing with the myriad uncertainties about the convention would take years to resolve. But if this year’s likely legislative outcomes hold, and are a predictor of the future, the advocates for a constitutional convention of any kind and for any reason may have to wait an even longer time for those endgames to begin. On this issue, thanks to persistent organizing, the word on the street—that the 2016 election results in the states foretold disaster for opponents of the convention—turned out to be fake news.

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