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other states rescinded old resolutions seeking a convention.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.