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.