Balkinization: A Backdoor Approach to Calling an Article V Convention

A Backdoor Approach to Calling an Article V Convention

David Super

Proponents of calling an Article V convention certainly have hit a rough stretch. In 2017, the most prominent of these groups, the Balanced Budget Amendment (BBA) Task Force, secured three new state resolutions asking Congress to call a convention under Article V, but three other states rescinded old resolutions seeking a convention. In 2018, neither the BBA Task Force nor the Convention of the States Project (COSP) secured a single new state resolution calling for an Article V convention. Several states with Republican majorities in both chambers of their legislatures buried or voted down convention resolutions.

In addition, a third group seeking an Article V convention to reduce federal powers, the Compact for America, released a legal analysis showing that many of the state resolutions from the 1970s and 1980s, which the Task Force includes in its optimistic count of states, have divergent and often inconsistent language from the BBA Task Force’s newer resolutions. The American Legislative Exchange Council (ALEC), which has heavily supported the BBA Task Force and COSP, ejected the Compact from its meetings, but with a pro-convention group admitting the validity of arguments that liberal and conservative Article V opponents have long made, the BBA Task Force’s claims are increasingly difficult to defend to serious observers.

One might imagine that this would cause funders to flee and leaders of these groups to engage in some introspection. Instead, the pro-Article V groups are responding to these setbacks by trying to move the goalposts. This suggests that, if next week’s elections yield pro-Article V majorities in both houses, we could easily see an Article V convention without Article V’s prerequisites being met.

Former law professor Rob Natelson, a long-time spokesperson for those advocating an Article V convention to limit federal powers, wrote for the Federalist Society this Spring claiming that the BBA Task Force has understated the number of resolutions in force. Offering little explanation for why he has not made this claim over the many years he has been working with the BBA Task Force, Prof. Natelson identified some old state resolutions seeking an Article V convention and argued that, because he believes they are not facially inconsistent with considering a balanced budget amendment, they should be aggregated with the old and new BBA resolutions that the Task Force has been counting.

This methodology led Professor Natelson to conclude that 33 states have active resolutions, one short of the 34 that would trigger the calling of a convention. This creates the prospect that if a single additional state passes an Article V resolution, the BBA Task Force will demand that its allies in Congress convene an Article V convention. Given the BBA Task Force’s strong ties to ALEC and major Republican donors, Republican senators and representatives would find these demands would difficult to brush aside. Although a few Republicans – notably Arizona Rep. Andy Biggs, one of the most conservative in Congress – staunchly oppose calling an Article V convention, proponents would only have to pick up a handful of naïve Democrats to open up the Constitution to moneyed special interest groups’ wildest fantasies. Even if Democrats retake one or both chambers of Congress on Tuesday, a coalition of pro-convention Democrats and Republicans could bring a resolution to call an Article V convention to the floor with a discharge petition.

Professor Natelson’s idea for adding five states to the Article V tally without any state legislative action would be alarming enough by itself, but it turned out that he was not finished. A few months, later, he went further and claimed that several states’ rescissions of previous Article V resolutions are not valid. He disagrees with statements made in the preambles to the rescissions and suggests that these “errors” might render the resolutions invalid on the grounds of “mistake.” He urges Congress “to weigh whether or not to count purported rescissions flawed by material mistakes.”

It appears that in Prof. Natelson’s view, a state legislature commits a mistake almost any time it departs from Article V advocates’ talking points. For example, he criticizes six states for referring to an Article V convention as a “constitutional convention”. Article V advocates prefer the euphemistic “convention of the states”. Neither term is in Article V, but as “constitutional” is an adjective defined as “of or relating to the constitution,” it is difficult to see why a convention whose business is changing the Constitution is not a “constitutional convention”. He similarly faults five states for preambles expressing concern that an Article V convention could stray to topics far-removed from those motivating states to ask that it could be called. Article V advocates strenuously insist that such a “runaway” convention would not occur, but nothing in the Constitution imposes any limits on such a convention and it is unlikely that the Supreme Court would enforce such limits even if they existed.

Needless to say, Prof. Natelson’s theory of mistake would destabilize the entire legislative process. By this logic, a future president could disregard the December 2017 tax cut legislation because Congress mistakenly believed that the tax cuts would pay for themselves and not add to the deficit. Congress certainly operated under plenty of misconceptions when it passed the USA PATRIOT Act; do those mistakes render that legislation invalid?

Prof. Natelson apparently sees no irony in claiming to champion returning power to the states while suggesting that Congress may disregard state legislatures’ actions when it regards those legislatures as misinformed. If Congress was empowered to “correct” state legislatures’ discharge of matters clearly within their purview, states would no longer be sovereign.

It would be easy to dismiss Prof. Natelson were he not so central to the efforts of both the BBA Task Force and COSP as well as the enormously powerful ALEC. It seems unlikely that he would be undermining his credibility with these extreme positions were those groups not seriously contemplating an attempt to get Congress to make an end run around state legislatures without the required 34 valid resolutions. None of these groups appears to have made any effort to distance themselves from Prof. Natelson’s views.

This also puts to rest, once and for all, the notion that advocates of an Article V convention somehow represent a principled departure from politics as usual. If they are open to disregarding the constitutional prerequisite of 34 state resolutions prior to the calling of an Article V convention, no one should expect that they will respect Article V’s requirement that 38 states ratify any proposed constitutional amendments before they take effect. And they certainly will not respect state resolutions purporting to control convention delegates or their own promises about limiting the scope of an Article V convention.

The effort to call an Article V convention is not about aspirations for a better country. Instead, it is very much an extension of the single-minded, bare-knuckles, brand of interest-group politics that has dominated in recent years. The only difference is that the stakes are even greater.

Posted 11:09 PM by David Super [link]