Just How Bad Would an Article V Convention Be?

David Super

     In progressive advocacy as in lawncare, the grass always looks greener on the other side.  Among immigrants’ rights, anti-poverty, and other progressive advocates, those most engaged in legislative advocacy are among the first to say that we need to accomplish more through litigation.  The litigators, on the other hand, keep insisting that we need to stop dilly-dallying and fix these problems legislatively. 

     The reason for this symmetrical divergence of opinions is obvious.  Litigators know only too well the problems with doctrine and the courts’ composition that keep holding them back, but they imagine a silver bullet exists in the legislative arena, which they know far less well.  Legislative advocates, in turn, are acutely aware of the political and procedural obstacles preventing their proposals from even coming to a vote but imagine that this or that legal argument is so compelling that the courts will “have to” right the injustices that they see.  In both instances, distance (from the mechanics of policy-making) causes the heart to grow fonder. 

     The ultimate expression of this ignorance-is-bliss approach to progressive reform is the fondness some are expressing for constitutional amendments.  Congress at some point might negotiate some genuinely useful amendments on a bipartisan basis, but these certainly would not be dramatic changes tilting the playing field leftwards.  That limitation understandably leaves many progressives dissatisfied. 

     Some progressives’ eyes therefore turn toward an Article V convention.  As this country has gone 235 years since its last constitutional convention, it is easy to imagine the convention as a congenial gathering of public-spirited problem-solvers, a sort of compact version of Ackerman and Fishkin’s Deliberation Day.  Progressives who feel reason and justice is on their side believe that they cannot help but prevail before such a body.  This is, of course, the same sort of idealization that makes legislative advocates confident their cause would prevail if properly presented to justice-seeking courts and litigators certain that some first-rate lobbying can mobilize legislative moderates to the cause of justice. 

     Contrary to what starry-eyed convention advocates would like to believe, the make-up of an Article V convention is actually quite knowable.  And the picture is not a pretty one, at least not for progressives. 

     Last summer, the Center for Media and Democracy surveyed state laws on how the delegates to an Article V convention would be selected.  In only one state – Rhode Island – would the voters have anything to say about it.  Everywhere else, the selection would be made by the legislature, alone or in collaboration with the governor. 

     Applying these laws to the partisan control of state governments as it was at that time, the Center found that Republicans would have complete control of 31 state delegations, Democrats would control 15, and the remaining four would be split.  That is a slightly worse for Democrats than the Supreme Court’s 2-1 Republican majority or the Mississippi Legislature’s 111-63 Republican dominance. 

     Democrats did fairly well at the state level in last fall’s elections, but even applying states’ laws to the current array of state partisan control, Republicans would control 29 delegations to just 18 for Democrats.  And as anyone who works closely with state legislatures can tell you, state Republican parties lead even the national party in their stampede toward the MAGA and ultra-MAGA right.  These will not be moderate Republican delegations by any stretch of the imagination. 

     While progressives dream about eliminating the Electoral College and reversing their most-loathed Supreme Court decisions, Republicans are recognizing the opportunity to lock in their values once and for all.  As the Center reports:

     Constitutional convention advocates are keenly aware of this advantage in a one-state-one-vote proceeding and want to make full use of it. “I think we are on the cusp of a supermajority moment,” Convention of States Action President Mark Meckler said during a session for legislators at ALEC's December 2021 national policy convention. Suggesting that progressives would have little voice in rewriting the Constitution, Meckler pointed out that Tories were not included in the crafting of the Constitution and Confederates weren't included in adopting the post-Civil War amendments.

    Republicans control small rural states that “actually have an outsized granted power under this process,” former Senator Rick Santorum explained. “We have the opportunity as a result of that to have a supermajority, even though...we may not even be in an absolute majority when it comes to the people who agree with us."

     The reality of an Article V convention is even grimmer for progressive values than that of the current Supreme Court – and far worse than that of Congress. 

     Progressives that dally with the idea of an Article V convention are providing the same service to the Republican Party’s worst elements that Lenin is said to have imagined capitalists providing to Marxist revolutionaries.  And in both cases, by the time the mistake becomes apparent, it will be altogether too late.

     @DavidASuper1