Increasingly Brazen Article V Convention Advocates Smell Victory Even as States Reject Them

David Super

      By any objective measure, the American Legislative Exchange Council (ALEC) is faring badly in its Koch-funded campaign to call a convention under Article V to revise the U.S. Constitution.  It is losing states faster than it is gaining them:  in the last few years, Colorado, Delaware, Maryland, Nevada, and New Mexico rescinded Article V applications for causes ALEC is promoting; Illinois, New Jersey, and Oregon rescinded unrelated old applications after ALEC-aligned groups claimed those could somehow be counted to reach the necessary 34 states.  ALEC now has no plausible path to gaining 34 states under the counting rules Congress has applied for more than a century.  And its supporters are increasingly proving the accuracy of opponents’ warnings about the dangers of a convention after years of vehemently denying them. 

     Yet the convention proponents are showing increasing confidence that they can force radical changes in the Constitution in defiance of the states’ will and even of Article V itself.  And they could be right.

     Politically, ALEC’s convention proponents have made important gains.  After years of ambivalence, the Heritage Foundation has now fully endorsed the convention effort.  Heritage’s ambivalence, and its papers noting the dangers of a convention, had provided cover for Republicans not eager to experiment with our Constitution.  Moreover, new House Speaker Mike Johnson is a strong convention proponent; he was instrumental in pushing through an Article V application when he was in Louisiana’s Legislature.  And House Budget Chairman Jodey Arrington has introduced resolutions in each of the past two Congresses to call an Article V convention immediately. 

     ALEC also has taken strides in coopting progressives seeking an Article V convention to reverse Citizens United.  The progressive effort is clearly dead in the water:  it has not passed a single application since 2016, and two of the five states it once had have since rescinded.  Seeking to remain relevant, however, these progressive activists have begun cooperating with ALEC and its allies, tempting naïve Democratic legislators to support ALEC’s far-more-viable Article V efforts.  A joint committee of the Maine Legislature reported favorably on a resolution to make Article V applications for campaign finance reform and for congressional term limits (one of the ALEC themes); this week the full Senate rejected that resolution, but threats remain in several other states.  In New Hampshire’s Republican Legislature, GOP lawmakers with no desire to restrict campaign financing are nonetheless pushing forward an anti-Citizens United Article V application.  In Massachusetts, ALEC and campaign finance reform groups cooperated to report each other’s Article V applications out of committee.

     ALEC has proven remarkably adept at persuading progressives and moderates that a convention would be non-ideological and that the delegations’ composition is genuinely up for grabs.  In fact, the Center for Media and Democracy recently worked through states’ delegate selection laws and found that Republicans would choose all members of 29 of the 50 state delegations.  Democrats would likely select nineteen (including Rhode Island, the only state in which voters would have any role in delegate selection).  In only two states would both parties have to agree on delegate selection.  Far from overruling Citizens United, such a convention might well codify it.  Democrats cannot hope to trade their votes because Republicans would not need them. 

     Some progressive hope that delegates will be directly elected.  This is wildly unlikely.  For progressives to have any leverage at all in an Article V convention, at least four Republican state legislatures would have to spontaneously surrender the power they have worked so hard, and spent so much money, to amass.  In many states, popular election of delegates would require changing state law.  It also would require time to organize and hold such elections, which ALEC and its allies clearly do not intend to provide.  And, of course, even if such direct elections were held, it would require progressive delegate slates to prevail in at least four states with Republican legislatures. 

     Hoping for such spectacular mass defections by Republican state legislators and governors is wildly disconnected with how politics are conducted in this country today.  Republican officeholders are labeled RINOs, primaried, and driven out of politics for much less.  ALEC’s ruthless attempt to rewrite the Constitution is a pure case of asymmetric constitutional hardball, and progressives endanger our democracy if they fail to recognize it as such. 

     ALEC-aligned groups are so confident that they are increasingly saying the quiet part out loud.  One of them convened a mock Article V convention last summer with delegations (commonly Republican state legislators) from 49 states.  Many of these same people likely would become delegates in an actual Article V convention. 

     The mock convention unanimously approved six proposed constitutional amendments, a sort of Bill of Wrongs.  These include the predictable congressional term limits and fiscal straightjacket that would end the automatic stabilizers that allow the federal government to fight recessions.  It also would cap the Supreme Court at nine justices even though such a proposal fell squarely outside the convention’s mandate.  (Even at an event staged precisely to show that an Article V convention would not run away, delegates could not resist the temptation to do just that.) 

     The convention also included several proposals, under the guise of “limiting federal power”, that would gut federal environmental protection.  Establishing or raising a carbon tax would require two-thirds majorities in both chambers of Congress.  The Commerce Clause would narrowed to the point that most major environmental statutes (as well as many securing civil rights) would become unconstitutional; the proposal would void them two years after ratification.  Even if Congress could craft stripped down environmental statutes to replace the current ones, it could not delegate any rule-making power to any administrative agencies.  The proposal would compel divestment of most federal lands within ten years, granting a further bonanza to extractive industries.  And more.  Little wonder the Koch network has found this effort so deserving of its largesse. 

     The pro-convention effort has survived seemingly unscathed after several spectacular reversals of its key positions.  For years, convention proponents responded to concerns about a runaway convention by insisting that only Article V applications stating the same purpose for a convention could be counted together and that any convention would be limited to that purpose.  Longstanding tradition supported the first contention but no law at all supported the second.  And even if some rule limited conventions’ jurisdiction, no entity is empowered to regulate a convention.  Nonetheless, many naïve legislators believed these reassurances.

     Now, however, with getting 34 states for any of ALEC’s themes clearly out of reach, proponents have shifted toward counting together wholly unrelated applications.  ALEC supporters, including Chairman Arrington, even want to count New York’s 1789 Article V application seeking a Bill of Rights.  Some convention advocates argue for counting all applications for any purpose, meaning that Article V applications passed for campaign finance reform can help ALEC advance its agenda.  House Budget Chairman Arrington’s H.C.R. 24 appears to rely on applications have nothing whatsoever to do with fiscal responsibility to assert that the 34-state threshold has been reached.  H.C.R. 24 also does not purport to limit a convention’s agenda; indeed, it contemplates multiple amendments. 

     Convention proponents also historically have sought to allay fears of what a convention might do by pointing out that Article V requires ratification by 38 states either in their state legislatures or through ratifying conventions.  ALEC would indeed have great difficulty getting its radical proposals through 38 state legislatures.  Convention proponents, however, are making increasingly clear that they intend to scrap Article V’s ratification requirements in favor of a popular vote. 

     H.C.R. 24 states that “Each proposed amendment at the Convention for proposing amendments called under this section shall be ratified by a vote of We the People in three-quarters (38) of the States”.  It then seems to suggest that these votes would be followed by pro forma conventions whose delegates would be bound to follow the referendum results.  On this last point, the resolution cites Chiafalo v. Washington, which upheld states’ punishment of faithless electors.  A resolution introduced by two dozen West Virginia legislators (partially reflecting an ALEC model bill) makes this even more explicit, demanding that a convention start work promptly so that its proposed amendments can go on the November ballot. 

     Beyond its inconsistency with Article V, ratification by referendum poses a host of problems.  Many states’ laws lack a viable method of putting something like this on the ballot, least of all at the behest of out-of-state entities.  Other states will decline to do so in deference to Article V or because they refuse to recognize a convention called illegitimately.  And because the Constitution makes no provision for national plebiscites, our ethics and campaign finance laws are ill-equipped to cope with the massive spending to be expected from extractive industries and others in support of these amendments.  One would think that, of all people, campaign finance reform advocates would recognize the danger that massive industry spending could secure ratification of calamitous constitutional amendments in our closely divided polity.  Yet still they cooperate with ALEC.  And do we really trust that a constitutional plebiscite would be fairly administered after so many honorable election administrators have been hounded out of office so that election deniers can take their places?

     This country’s political situation is indeed grim.  Particularly in light of the Supreme Court’s current supermajority, no one can be faulted for wishing we had resort to a body where reason and common sense prevail.  And as lawyers, we may be conditioned to think we are one brilliant maneuver, one tactical tour-de-force, away from victory.  For discouraged progressives, and those appealing to them, the Article V convention has become that halcyon place, that visionary feat of legal wizardry. 

     The stark reality could not be more different.  The make-up of convention delegations is entirely knowable.  ALEC’s agenda is devastating for all important progressive causes in this country and for the well-being of the planet as we know it.  With the stakes this high, both for extractive industries and for those that genuinely fear the changes they see in this country, the ruthless power politics controlling a convention will make Congress look like a New England town meeting.  And we will be massively outspent in the ratification plebiscite. 

     If Republicans take the Senate and keep the House in November, the country’s only hope will be if we can stave off new applications, and rescind enough old ones, to make proponents’ argument that 34 states have applied for an Article V convention so absurd that enough Republicans in Congress refuse to accept it.  That looks to be a tall order, especially after only three House Republicans – two of them retiring – could summon the courage to vote against a patently unconstitutional impeachment without even the pretense of high crimes or misdemeanors. 

     This strategy will become much more difficult if progressives continue to aid ALEC by making a convention sound safe and reasonable.  And the strategy will fail completely if progressives’ dalliance with Article V induces even a few Democratic Members of Congress to vote to call a convention.  As adults, each of us is responsible for the natural and predictable consequences of our actions – very much including the ways groups like ALEC will twist, exploit, and take out of context our words on an issue that is such a high priority to them.

     @DavidASuper1