Calling for a Convention

To keep money from corrupting our democratic politics, we need constitutional change. No doubt lots can be done by statute alone—meaningful transparency rules, such as the Disclose Act, and small-dollar public funding, such as the Fair Elections Now Act. The Supreme Court, however, has all but guaranteed that these won’t be enough. Transparency by itself won’t build trust; public funding can only be voluntary; and independent expenditures are all but certain to swamp even the best reforms tolerated by the Court. If we’re ever going to get a Congress “dependent,” as James Madison put it in Federalist Paper No. 52, “upon the People alone,” and not “the Funders,” it is clear that Congress will need new constitutional authority.

Yet it is also clear that Congress won’t ask for this authority itself. The chance that this Congress, or any Congress elected in the current environment, could muster 67 votes in the Senate to alter Washington’s economy of influence is zero. Congress is the problem. Fixing itself is just one of the items on a very long list of things that it simply cannot do. A whole industry of influence depends upon preserving the status quo. For that industry, blocking change is child’s play.

At some point, we reformers must consider the one way the framers gave us to revise the Constitution when Congress itself is the problem. This is the Article V convention. If 34 state legislatures apply, then Congress must “call a Convention for proposing Amendments.” The product of such a convention is just that—proposals, not constitutional change. As with amendments proposed by Congress, those put forward by the convention become law only if ratified by 38 states. But the convention is the one path to making such proposals that Congress can’t easily control, and the one path that could create enough of a mandate to force Congress to act.

Liberals and conservatives alike fear a convention. That fear is fair. In the 223 years since our Constitution was ratified, we’ve never had a convention (though we’ve gotten close). It’s not even completely clear how one would be organized or how it would be controlled. But any remaining uncertainty must be viewed practically, with a clear eye to the political constraints that would cabin any amending process.

So what happens if the convention exceeds its mandate (the so-called runaway convention)? What happens if it proposes radical changes on either the left or the right? Why would anyone expect reform from a convention to be more likely, or more sensible, than change coming out of Congress?

Let’s start with the politics: It is easier to imagine 34 states calling for a convention than it is to imagine 67 senators voting to propose an amendment to end the corrupting influence of money in Congress. Much easier. That’s because the 34 states need not agree on the reason for a convention; they only have to agree on the need for a convention. Some states might want a convention to propose a balanced-budget amendment. Some states might want a convention to propose amendments to address money in politics. Reformers of different stripes can thus work together for the chance to convince a convention of their own version of reform. Agreement on substance comes later; the first step is agreement on the process.

But what if the convention proposes radical reform? What’s to protect us from extreme change? Again, the question must be viewed practically. If 38 states must ratify any proposal, then 13 states can block any proposal. There are plainly 13 red and 13 blue states, so radical change is not on the table. Even if one believes the majority of state legislatures are nuts (not my view, but maybe yours), one must believe that at least 25 percent are sane.

Of course, it is possible that a proposal that exceeded the scope of a convention—call it a runaway proposal—would be ratified. Indeed, some say that’s precisely what happened with our own Constitution. But again, speaking practically, if a convention runs away, that’s a good reason to ignore its proposals. If despite its running away, three-fourths of the state legislatures ratify the proposal, how bad could it be?

Deploying a convention to bring about constitutional reform may well carry risk, no doubt. But risk can also come from doing nothing. There is an endless list of critical problems that this Congress won’t face because of the corrupting influence of money in politics. Is that any less risky?

Is the risk of a runaway convention greater than the risk from doing nothing about global warming? Or from accepting the only health-care system we can get so long as insurance and pharmaceutical companies can blackmail even an Obama? Or from a financial system that can block any meaningful reform, even after the greatest collapse since the Depression? There are risks on both sides here. At least for those who are convinced that fundamental reform of our system is needed, it is hard to believe the risks from doing nothing are smaller than the risks from an Article V convention.

The Republic our framers gave us—one “dependent upon the People alone”—is lost. This Republic is now heavily dependent upon “the Funders.” So long as the system remains as it is, the Funders will always have the power to block essential reform. That power is a constant danger. There will be risks in fighting it. But we must accept those risks if we’re going to restore our Republic.

Comments

Mr. Lessig fails to mention the most important point regarding state applications though he has finally admitted that all applications from the states need not be on the same identical amendment subject. This is the first time I have read such a statement from him and I consider this a tremendous step forward.

The reason that applications need not be on the same amendment subject is because Article V specifies the purpose of the application from the state is to cause Congress to call a convention. The applications may contain a propose amendment on a specific subject but that portion of it is constitutionally irrelevant vis' a vis' causing Congress to call a convention. All applications have the same subject--a convention call.

The portion of the application dealing with a specific amendment issue or subject is directed at the convention when it is held. It becomes a petition which the convention then takes up as business in its proceedings. Remember the states, when they submit an application are asking a convention, not Congress, pass a proposed amendment and states cannot propose amendments, only a convention or Congress can. States can only ratify or refuse to do so. If it were otherwise, states could propose in an application and ratify a proposed amendment when 38 states so applied without there ever being a convention, debate, public input or whatever. Obviously this would be against the intent of Article V.

In any event, Mr. Lessig fails to mention that public record shows 49 states have submitted over 700 applications for an Article V convention call. These applications can be read at www.foavc.org.

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