Balkinization: The Paradox of Liberal Fascination with an Article V Convention

The Paradox of Liberal Fascination with an Article V Convention

David Super

The drive to call a convention under Article V of the Constitution is being driven primarily by various groups positioning themselves on the Right. They say they seek to add a balanced budget amendment to the Constitution, to impose term limits, or more broadly to curtail federal power. Other groups on the Right have been deeply critical of these groups, wondering how one can claim to be a conservative and yet take such a cavalier approach toward opening up our Constitution.

But some groups on the Left are also seeking an Article V convention. They generally frame their efforts as trying to strengthen democracy. The most organized of them seeks to overturn Buckley v. Valeo and Citizens United. Occasionally progressives also call for an Article V convention to eliminate the Electoral College or to curtail the disproportionate power of small states through the U.S. Senate.

The notion of calling an Article V convention to improve democracy is deeply paradoxical. Far from being the salvation of democracy, an Article V convention is one of the least democratic features of our Constitution. Of all the means of achieving legal change in this country, it is one of the least affected by one-person-one-vote and perhaps the most vulnerable to the corrosive effects of corporate and foreign political money.

Consider first one-person-one-vote. In Federalist No. 22, Alexander Hamilton wrote that “Every idea of proportion and every rule of fair representation conspire to condemn a principle, which gives to Rhode Island an equal weight in the scale of power with Massachusetts, or Connecticut, or New York; and to Delaware an equal voice in the national deliberations with Pennsylvania, or Virginia, or North Carolina. Its operation contradicts the fundamental maxim of republican government, which requires that the sense of the majority should prevail.” Our Constitution represents a mix of arrangements distributing political power by population and ones giving that depart from this “fundamental maxim” by giving smaller states weight equal to that of larger ones. The U.S. Supreme Court’s one-person-one-vote decisions of the 1960s made our country more democratic by requiring districts of equal size where population is the basis for representation.

Although the Electoral College gives smaller states power disproportionate to their populations, the effect is limited: over eighty percent of electoral votes are apportioned by population. Thus, although the winner of a thin plurality of the popular vote can lose the Electoral College – and did in 2000 and 2016 – a solid majority of the popular vote is all but assured of translating into the presidency.

Ordinary legislation requires a majority in the House of Representatives, whose seats are apportioned among the states by population, as well as the approval of a President elected on a basis that gives much more weight to the outcomes in more populous states. The traditional route for amending the Constitution through Article V requires that any proposed amendment garner two-thirds support in the House.

By contrast, one-person-one-vote plays very little role in amending the Constitution through an Article V convention. Two-thirds of the states must ask Congress to call such a convention, but in that process Wyoming’s request counts just as much as California’s. The Constitution does not tell us how votes will be allocated within a convention, but Article V proponents claiming to be on the Right are adamant that states will have equal votes, as they do in the Senate. Only the dreamiest of optimists would believe that population-weighted voting will prevail in a convention with thirty-three states having below-average populations and thus weakened by such a system. Even when it was much more liberal than it is today, the Supreme Court made clear that the process of amending the Constitution is a political question into which it will not intervene. And, assuming the convention adheres to Article V, the ratification process, too, will give equal weight to the decisions of each state, regardless of population.

Concerns about the corrosive influence of money are even greater in an Article V convention. As flawed as our campaign finance and lobbying laws are, we at least have some laws regulating money’s role in elections and legislatures’ deliberations. Because we have never had an Article V convention, many of those laws were not drafted with a thought to curbing corrupt efforts to influence the selection and decisions of delegates. A convention will be a one-time event, tempting many shadowy players to decide that the benefits of going all-out to capture such a convention are worth the risk that laws may be interpreted to proscribe their actions – especially because any interpretive ambiguities will allow them to argue lack of criminal intent. Even if Congress were inclined to try – which seems unlikely – regulating efforts to corrupt a one-time convention is vastly more difficult than regulating recurrent activity like political campaigns and lobbying. Should the Supreme Court find unconstitutional any attempts at regulating money’s role in influencing a convention, Congress would have no time to try again.

In Federalist No. 22, Hamilton also urged Americans to be ever-vigilant against “foreign corruption” of our democracy. If we hold an Article V convention, we can be sure that Vladimir Putin is not throwing away his shot. The problems with foreign financial and other intervention in an Article V convention would be orders of magnitude greater than anything we have experienced to date. If Putin was willing to devote substantial resources, and take considerable risks, to undermine confidence in western democracy with polarizing social media posts and dirty tricks, we can only imagine how eager he would be to insert divisive poison pills into the U.S. Constitution. Putin demonstrated his interest in constitutional questions with his intervention against the European Union in the Brexit referendum. As troubling as it is to think of our country being governed by a Siberian Candidate, that is far better than living permanently under a Siberian Constitution.

But potential foreign intervention is not limited to Russia. One can imagine China seeking amendments to the Constitution’s provisions on intellectual property or funneling money to domestic critics of the Federal Reserve to hobble U.S. monetary policy. Countries critical of us for allowing parodies of the Prophet Muhammad might seek modifications to the First Amendment to remove protection for perceived blasphemy. Multinational corporations already achieved many of their top priorities in December’s tax cut legislation, but they still could try to constitutionalize rules preventing the U.S. from reaching income artificially assigned to foreign tax havens.

Advocates of strengthening democracy through an Article V convention insist that this country’s problems are so severe that we must take the risk that a convention poses to civil rights and civil liberties. But arguing that reforming our current electoral process is an emergency implies that we should maximize the chances that it gets done. And an Article V convention is about the least likely means of achieving that.

Because Citizens United and other campaign finance decisions were the product of a closely divided Supreme Court, that Court can be changed by a series of presidential appointments over time. This necessitates winning the presidency and (these days) maintaining a majority in the U.S. Senate. Winning a majority in the Senate, obviously, requires carrying at least 25 states (or splitting two for every one short of 25 that is fully carried). Winning the presidency requires even less: President Obama won 26 states against Governor Romney. Had his close wins in Florida and Ohio gone the other way – leaving him with only a minority of the states – he still would have had a solid Electoral College majority.

By contrast, if a convention follows the ratification process under Article V, any change would require approval of thirty-eight state legislatures or state conventions. That means that just thirteen could block ratification. Yet in eighteen states, Hillary Clinton received less than 40% of the vote. Thus, not only would proponents of liberal constitutional change need to secure ratification from all states where she crossed the 40% mark – a group including states such as Mississippi, South Carolina, and Texas – they also would have to pick up five states that voted more than three-to-two against Senator Clinton. If any of the states where Senator Clinton reached 40% does not ratify, proponents would need even more deep-red states. Advocates of these measures claim to be non-partisan, but they have demonstrated little support even in many light-blue and purple states she won, much less in states where she was buried. Any reforms to weaken the Senate would require ratification by more than twenty states that are proportionately better-represented there than in the House.

Much of the rhetoric supporting an Article V convention from all of its advocates romanticizes the delegates as true representatives of The People whom we should expect to rescue us from the corrupt institutions of Washington. Yet nothing in the Constitution requires that delegates to an Article V convention be selected by states’ voters. Indeed, we have every reason to expect state legislators to appoint themselves to the prestigious, powerful and attention-getting role of convention delegates. (Even if a few states did allow voters to choose their delegates, state politicians have the campaigning skills, the name recognition, the organization, and the ability to raise funds quickly that will be necessary to win a delegate election called on short notice.) If you think you would like an assembly of ambitious state legislators from around the country, you should adore Congress: almost half of its Members are former state legislators. Those delegates hoping to leverage their positions to run for higher office will be particularly attentive to the wishes of potential donors to those campaigns.

If election reform is crucial, then avoiding the doomed Article V convention process is crucial, too. Put another way, the enormous risks of calling an Article V convention – including the possibility that it would entrench Citizens United in the Constitution’s text – must be compared with the extremely remote chance that a convention would accomplish anything positive.

Liberal enchantment with calling an Article V convention is the latest manifestation of an unfortunate preference for political get-rich-quick schemes over the hard work of organizing, persuading, and compromising through the electoral process. Just as Judge Kavanaugh’s nomination is awakening many people to the limited potential for overcoming hostile legislatures and executives through the courts, some are embracing an Article V convention as the new silver bullet. (Recurrent fascination with impeachment and the Twenty-Fifth Amendment – always detached from an appreciation of how many Republican votes either approach would require even if Democrats sweep November’s elections – is another manifestation of this magical thinking.) Unfortunately, our nation is in a very deep hole that we took a long time to dig. Just as law reform litigation was never going to render irrelevant the electorate’s choice of leaders disinterested in poverty, civil rights, civil liberties, and the environment, an Article V convention will not cure the very real pathologies of our democracy. Indeed, it is far more likely to make them worse.

Posted 4:48 PM by David Super [link]