Wishcasting and Personal Responsibility

David Super

      Several progressive scholars of late have endorsed holding an Article V convention.  These statements of support will be invaluable to the American Legislative Exchange Council (ALEC), which for years has been coordinating a well-funded campaign to hold such a convention.  Alas, these progressive convention supporters fail to explain why we should expect a convention would yield anything positive in light of state laws that would give ALEC full control of 29 state delegations.  Indeed, they rarely mention these laws – and Republican dominance of state legislatures – at all.  Absent a plausible plan for how a convention open to progressive ideas could be convened in light of these laws, these endorsements of a convention are deeply irresponsible.

      These activities are, however, not the same.  The difference resembles that between basic science research and engineering or between exploring political theory and running an election campaign.  What is worthwhile in one kind of scholarly activity may be useless, or even counterproductive, in the other. 

      Theoretical advances often result from many scholars separately solving different problems.  It therefore is entirely appropriate and useful for one scholar to address one facet of a larger conundrum, explicitly neglecting other facets that must be solved for the present contribution to ever have any eventual practical value.  A theoretical physicist may helpfully predict characteristics of a transuranium element without any assurance that experimental physicists will be able to synthesize that element in the foreseeable future.  On the other hand, an engineer accomplishes little designing an airplane engine that is fast and fuel-efficient but emits such vibrations that it will quickly break loose from any known mounting.  Indeed, if that engineer promotes their creation widely, an irresponsible manufacturer might incorporate it into an airplane without solving the vibration problems, leading to catastrophic loss of life. 

      So it is with legal scholarship.  Perhaps some interesting work could be done on how this country’s laws would be different if we had come out of 1787 with a parliamentary system of government.  This would be a purely theoretical work:  we have not had a parliamentary system and no serious movement is afoot to adopt one.  It could teach us something useful about the relative roles of structural factors versus social and economic ones in shaping a legal system; those insights would not necessarily depend on the author presenting a plausible theory of how we might have adopted such a system.  And because it would not intervene in any current debates, its author would have little reason to worry about unintended consequences. 

      By contrast, when scholars intervene in current practical political struggles, they bear the same responsibility as any other political activist:  they should weigh the likely practical consequences of their intervention for people and for the health of our political system.  In 2002 and early 2003, some international relations experts wrote essays endorsing the Bush Administration’s plans to invade Iraq, hypothesizing a brief, benign campaign to establish democracy.  Yet they were well aware of numerous characteristics of the Bush Administration that made it wildly unlikely that an invasion would conform to their script.  Intervening in the Iraq War debate based on a fantasy they knew to be unrealistic was deeply irresponsible. 

      For this reason, I am deeply disappointed in the essays now appearing from some progressive scholars favoring an Article V convention.  These are not merely theoretical explorations:  they are intervening in an active current controversy being fought out in state capitals around the country and very possibly coming to Congress early next year.  They should, at a minimum, take care that they are not making this country’s problems worse. 

      This quasi-Hippocratic duty is all the more important as these Article V convention advocates are intervening on the side of ALEC, which has been facilitating a well-financed campaign to force an Article V convention, and against Common Cause, the Center on Budget and Policy Priorities, and other progressive groups that have been battling these efforts for years and have developed considerable insight into ALEC’s plans.  To be sure, ALEC could be right about some things, and these progressive groups could be wrong.  But progressive convention advocates ought to have a clear reason for believing that their interventions will do more good than harm in the real world. 

      Sadly, these progressive convention advocates invariably duck this question.  The fundamental problem with an Article V convention is that it would be controlled by extreme forces aligned with ALEC.  This is not surmise:  it is readily ascertainable fact.  The Center on Media and Democracy reviewed state laws on delegate selection and found that 29 state delegations would be controlled entirely by Republicans, 19 would be entirely selected by Democrats, and two would have to be negotiated by the two parties.  A convention with a comfortable Republican majority will have no interest in campaign finance reform, cleaning up the Supreme Court, dumping the Electoral College, reforming the Senate, ending gerrymandering, modifying the Second Amendment, or any other progressive cause.  And it will have no need to compromise or trade votes because it will have all the votes it needs.       

      This is not the sort of problem that can plausibly be “left for future research” finding creative solutions:  progressive convention advocates are making statements aiding ALEC’s campaign today, now, without waiting to see if this problem can be solved.  And there is no room for “creative” solutions when state laws giving ALEC control over a convention is a simple, clear problem, with only a handful of possible answers.  First, Republican state legislatures and governors could amend their laws on delegate selection to allow popular election of delegates.  (This would not work if Congress calls for a convention to convene before elections are possible, which ALEC appears to intend.)  Second, Republican legislatures and governors could choose moderate or progressive delegates themselves.  Third, delegates selected for their MAGA loyalties could surprise everyone and start voting as moderates or progressives.  If progressive convention advocates are pinning their hopes on one of these events, surely they have the burden of explaining why this seemingly implausible behavior is likely.  In this regard, it should be noted that although most progressive advocates have come to this issue only recently, ALEC and its allies have spent many years and many millions of dollars mapping out their strategy:  they will leave nothing to chance.  

      Other paths to a progressive convention are even more fanciful.  Six states could flip from Republican to Democratic control; not remotely that many are in play this fall.  Congress could select the delegates itself.  Even if Democrats keep the Senate and retake the House, does anyone seriously believe they would unite behind a plan to sideline the state legislatures (we have certainly seen Democrats refuse to back controversial procedural changes).  Or that this Supreme Court would sit quietly if they did?  Congress could try to impose some version of one-person-one-vote on a convention.  Nothing in Article V grants Congress that power, and it is difficult to see Congress doing so when roughly forty states would have less influence under such a system than under one-state-one vote. 

      I have actually heard some Democratic state legislators argue that the courts will save us from any harm a convention might do.  Leaving aside the cases holding that the process of amending the Constitution is a political question into which federal courts may not intervene, I am startled to find that any progressive still thinks that this Supreme Court would intervene to prevent the country from veering rightward. 

      Few academic progressive convention advocates have explained that how those holding power could be persuaded to implement any of these mechanisms for achieving a convention open to their ideas.  The closest I have seen is a spectacularly optimistic post on this blog that posits an entirely Democratic Congress (which does not exist) taking a series of wildly controversial actions; it also begins by telling us that the Supreme Court’s lawless extremism necessitates a convention but then assumes the Court will calmly allow Congress to take these actions.  And if any of these highly unlikely assumptions does indeed fail, we would serve up the Constitution on a silver platter to ALEC.  Pro-convention statements will provide vital cover to ALEC, whether or not Democrats regain control of Congress next year. 

      Instead of even mentioning state laws on delegate selection, progressive convention advocates deride the mental stability of those that have been fighting the lonely battle against ALEC and hide behind one of three rhetorical dodges. 

      First, they insist that a convention is inevitable so progressives might as well prepare.  This might explain making proposals for what preparation might mean, but it hardly justifies making a convention more likely by speaking in favor of one.  It also has little empirical support.  The new advocates cite Larry Lessig, who for many years has been seeking a convention to allow campaign finance reform.  But that campaign has essentially failed:  it never had more than five state applications (the most recent of which passed in 2016) and recently has seen two states rescind their applications.  The leading organization seeking a convention for campaign finance reform is now openly collaborating with ALEC.  A convention is far from inevitable, but with the cover progressives are providing ALEC it certainly can become more likely.  At a minimum, those seeking to justify their actions on these grounds has an obligation to familiarize themselves with the state of play in the states rather than take one partisan’s contested views at face value. 

      Second, some progressives argue that our political system is so badly broken that any chance is worth taking.  Yet allowing ALEC to rewrite our Constitution is not a chance.  Without a viable means of avoiding 29 ALEC-controlled state delegations, this is not even a long-shot to improve our system.  One should not fall into the fallacy of thinking that facts that one does not personally know are not knowable – and worth knowing.  Someone may not start out knowing the laws on delegate selection or the partisan control of state houses – or how thoroughly moderate Republicans have been marginalized at the state level – but if one is going to intervene in a major political struggle, one has an ethical duty to find out.  And anyone who really believes that things cannot get worse should read the constitutional amendments proposed by one of the ALEC-backed groups’ mock convention last summer:  amendments that would strip the federal government of the ability to pass most environmental and civil rights laws while making counter-cyclical anti-poverty programs like SNAP impossible.  Former Sen. Rick Santorum and other ALEC-aligned convention advocates have been quite open about their intent to lock-in policies lacking majority support.

      Finally, some progressives take the position that they are blameless as long as they say they want a progressive convention or a convention with delegates chosen in some manner other than according to existing state laws.  This is troubling for several reasons.  It confuses theoretical scholarship, where leaving large unanswered questions is harmless, with interventions in real-world politics, which can have devastating consequences.  (Even if progressive academics’ advocacy of an Article V convention is seen as theoretical scholarship, its contribution is unclear at best:  presumably everyone already knows that if progressives were allowed to rewrite the Constitution, we would have a more progressive Constitution.  On the crucial question of how progressives, or even moderates, can gain that opportunity, these writers offer nothing plausible.)  Moreover, the concept that academics intervening in political struggles are not responsible for the consequences of their interventions is a remarkable appeal to privilege with little apparent justification. 

      This approach also is deeply misleading:  when an academic, especially a legal academic, says that we should follow a particular course, readers naturally assume that the academic has worked out the consequences of doing so.  If someone advocating an Article V convention has not worked out a plausible scenario for adoption of their preferred method of delegate selection, it is rather disingenuous not to say so and to fail to note all the state laws that mostly-Republican state legislatures would have to amend for the envisioned progressive convention to be possible. 

      What would we think of a progressive political scientist who tells Pennsylvania voters that they may safely vote for Jill Stein without increasing Donald Trump’s chances of winning the presidency?  The voters would naturally assume that the political scientist had studied polling data and relied on well-tested models to support that conclusion.  Would it suffice if the political scientist did nothing to correct these assumptions but turned out to be only relying on the fact that, if everyone took their recommendation to vote for Jill Stein, she would win and Trump would lose?  Recommending an Article V convention to progressives without having worked out any plausible path around the laws and partisan controls that would put that would put ALEC in control, and without admitting to readers that those laws and partisan controls exist, would seem to be consciously disregarding a known substantial and unjustifiable risk.

      Pollsters report that many voters refuse to believe that our democracy’s future is on the ballot this November and regard Democrats as shrill and disingenuous for claiming that it is.  When progressives voluntarily make statements that anti-democratic corporate interests can leverage to gain the chance to rewrite our Constitution, it is easy to see why voters do not think we take our own warnings seriously. 

      @DavidASuper1