an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Since the 1970s, conservatives have vastly outspent and out-organized progressives in their efforts to control state-level politics. These efforts have produced impressive fruit: Republicans now enjoy majorities in 66 of 99 legislative chambers nationwide, and Republican governors preside in 33 states.
As any student of redistricting knows, state-level dominance may have profound national implications. The party that controls state institutions has various levers to pull to project power nationwide.
One of these levers has never been pulled before, but it is about to be.If conservative state legislatures have their way, a convention will assemble in the near future to propose amendments to the U.S. Constitution that would greatly hobble the federal government’s power.
Article V provides two methods of amendment.The first method resulted in all 27 amendments to the Constitution. Two-thirds majorities in both houses of Congress vote to propose an amendment, and three-fourths of the states ratify it.The second method is a response to the possibility that Congress might block amendments that threaten its institutional interests.If two-thirds of the state legislatures apply for a convention, Congress must call one.The convention then may propose amendments to the states for ratification.
A number of conservative groups, including the American Legislative Exchange Council and Koch Brothers-funded entities, hope to trigger the second, convention method for the first time in the history of the United States.The various proposals differ in their particulars, but they all center on one goal – to curtail federal power dramatically.The most narrowly tailored would require a balanced federal budget each year, while effectively disabling Congress from increasing tax revenue to cover any shortfall.Although terrible policy, by one count at least 28 of the necessary 34 states have already voted in favor of it.
A broader proposal not only would impose a balanced budget amendment.It would also restore Lochner era limits on Congress’s Commerce Clause power, and would require the sunset of all federal tax laws, to be re-enacted only by a super-majority vote.The amendments this proposal contemplates presage an end to the modern American state.
Of course, no amendment can become constitutional law until three-fourths of the states ratify it.Perhaps for this reason, most progressives have ignored these efforts to rewrite the Constitution. They may rest secure in the knowledge that only thirteen states would have to say no to send a proposed amendment to constitutional oblivion. In fact, some of the very few progressive lawyers and scholars that are following these Article V developments actually favor calling a convention. They hope that it might generate proposals to undo Citizens United or abolish the Electoral College.
To my mind, progressive indifference to or support for a convention is a serious mistake.Because the convention method has never been triggered, no one knows the rules for it beyond what Article V’s skeletal text provides.For instance, how similar must state applications for the convention be to count toward the 34 state threshold?How would delegates be selected?How would votes at the convention be apportioned?What voting rule would govern the convention’s proceedings?
Conservative groups already have invested time and sizable resources to skew the answers to these critical questions to ensure right-wing outcomes and block progressive countermoves.Consider two important examples:
The Convention’s Agenda.Until recently, state-led efforts to trigger Article V have failed because of conservative opposition.Groups like the John Birch Society and the Eagle Forum have feared a “runaway” convention that would propose amendments not only to remove limits on government power, but also to change the rules to ensure easy ratification.Responding to these concerns, state legislatures have passed resolutions that purport to impose strict limits on convention delegates.The Arizona Legislature, for instance, recently passed a resolution that would condition its application for a convention on a convention agenda limited to the reactionary proposals described above.The legislature would also enjoy the power to recall and punish delegates who pursued anything – to wit, a Citizens United amendment – inconsistent with these proposals.
Delegate Apportionment and Voting.If delegates were apportioned according to population and directly elected, progressives might have reason to support resolutions calling for a convention.But conservatives argue that each state should get a single vote at the convention, with delegates selected by the state legislatures.They believe that the power to amend the Constitution through the convention method is a power “retained by the pre-existing sovereign States,” U.S. Term Limits v. Thornton, 514 U.S. 779, 800 (1995), and one not altered by any subsequent constitutional change.Delegates would act as agents of the states, with each state a co-equal sovereign regardless of population size.This extreme mal-apportionment would dramatically skew voting at the convention to favor conservative states.
A progressive lawyer might respond, “so what?” ALEC doesn’t get to write the rules for the convention, so who cares if its members want to limit the convention’s agenda to the federalism proposals or apportion votes on a one-state, one-vote basis?
Here is a reason to care: conservative groups have a years-long head start in at least three ways that portend trouble for a progressive constitutional agenda.
First, they have developed sets of proposed rules to govern every aspect of a convention.ALEC and its allies can offer starting points for convention governance.From the get-go, progressives will be rebutting presumptions, not setting them.
Second, conservative groups have spent considerable time researching and developing legal arguments to support their proposed rules for convention governance, couching most of what they devise in originalist terms.For a set of legal issues utterly bereft of precedential guidance, historical sources about eighteenth century meanings will factor importantly when a court must decide challenges to methods for delegate selection or the like.Progressives have no such body of research to draw upon, and as far as I know, have given no thought to the sorts of arguments they would need to make to rebut what conservatives have already crafted.
Finally, conservative groups already have planned litigation strategies.They are miles ahead of progressives in their preparation for the lawsuits that will surely erupt once a convention call looms.I recently testified against an Article V resolution at an Arizona Senate committee meeting.After the hearing, a proponent described to me how his group planned to litigate several questions involving convention voting rules.I was struck by the strategy’s sophistication, as well as by the ways the strategy might trap unwitting progressives into taking positions on upstream issues (e.g., whether states can enter into a compact to bind themselves to support only a convention that calls for a balanced budget) that could have serious implications for downstream issues (e.g., what voting rule should govern at the convention).
There’s always the three-fourths ratification rule.Even if the convention assembles as ALEC and its allies would prefer, and even if its delegates vote for a balanced budget amendment, surely thirteen progressive states could stand as a bulwark against this draconian constitutional change, right?
I’m not so sure.For forty years, conservative groups have honed their powers to dominate state-level politics.They have effectively mobilized voters in elections for obscure state offices that would decide an amendment’s fate.How much time and how many millions of dollars would the Koch Brothers or other like-minded conservatives make available to get the constitutional amendments they prefer?Could progressive groups match their fundraising or organizing efforts, even in states that have to date remained governed by Democrats?The last four decades give no reason to think so.
Some progressive proposals for amending our Constitution have great merit to them.But any assessment of the wisdom of an Article V convention must take our political terrain as it is, not as progressives might wish it to be.With the states so dominated by conservatives, these progressive proposals have never had less of a chance of success.The best thing progressive lawyers and scholars can do now is to advocate against a convention, and to prepare to play defense once the 34-state threshold gets crossed.This unprecedented constitutional moment will arrive very soon.
David Marcus is Professor of Law at the University of Arizona Rogers College of Law. You can reach him by e-mail at dmarcus at email.arizona.edu