The State of the Article V Convention Battle

David Super

     Yesterday I suggested that progressives should reconsider the wisdom of increasing the weight and impact of decisions made in the current political environment.  Although supported by only a small minority of progressives, efforts to call an Article V convention are the most dramatic efforts to raise the stakes.  They also are the most irresponsible. 

     Progressive proponents of an Article V convention initially insisted that a convention was essential to campaign finance reform.  This did not make much sense for several reasons, including the relative unpopularity of their vision of such reform with the public and the difficulty of devising politically plausible reforms that corporations and the ultra-rich could not readily evade. 

     Most significantly, a progressive outcome from an Article V convention is effectively precluded by the solid majority that the American Legislative Exchange Council (ALEC) and its allies would hold in such a convention.  The Center for Media and Democracy surveyed all fifty states’ laws and found that Republicans would have complete control over twenty-eight state delegations, Democrats would have complete control over eighteen, and four delegations would likely require both Republican and Democratic assent for their selection.  (Those states might prove unable to choose any delegates.)  Only one state – Rhode Island – provides for popular election of delegates.  We therefore would get a convention completely controlled by whomever the Republican legislative leaders of the various red states sought to send (most likely themselves) with no need to compromise, trade votes, or otherwise give progressives the time of day.  Even a blue wave election in November will not give Democrats a majority of the states and is highly unlikely to deprive Republicans of their majority. 

     Not surprisingly, then, the progressive Article V convention effort championed by WolfPAC has run aground.  It peaked in 2016 with just five states – all of them deep blue – and is now down to two states with active Article V applications. 

     Many progressives sensibly abandoned the project.  Those that continued to support a convention found themselves in a bit of a jam.  One response has been, in essence, “trust me”:  proponents insisting that they are confident that Republican domination of a prospective convention can somehow be overcome while not offering the barest hint of how that might occur.  With laws on delegate selection on the books and ALEC-aligned Republican majorities having no conceivable reason to change them, something more than “trust me” seems in order before the country takes to colossal gamble of opening up its fundamental document to amendment by moneyed interests. 

     Indeed, even if all the ALEC-aligned legislatures miraculously saw the light and amended their laws to allow popular election of delegates, it is far from clear that progressives would prevail.  The twenty-sixth-most-liberal state is probably North Carolina, which has a solidly Republican legislature and Republicans winning most state elections.  Several more-liberal states (such as Arizona, Georgia, New Hampshire, and Wisconsin) also have Republican legislatures while still more (such as Maine, Michigan, Minnesota, Nevada, and Pennsylvania) remain very competitive for Republicans.  Progressives would have to run the table of these states’ delegations unless they could turn one or more even more conservative states, such as Florida or Iowa.  A convention would be a progressives’ nightmare.  (Many progressives sensibly oppose one-state-one-vote rules for a convention, but those rules benefit many more states than they hurt.  Some progressives hope that the convention will agree to require a supermajority to act without offering any plausible reason why Republican legislators would voluntarily surrender control, least of all in today’s bare-knuckled political environment.)

     Perhaps recognizing the implausibility of the “trust me” approach, progressive convention proponents are increasingly declaring that an Article V convention is inevitable so progressives might as well accept that and start preparing for it:  “the convention is likely coming regardless and disengagement only guarantees progressives have no voice in the process”.  Both halves of this claim are problematic.  It is far from clear what “preparation” progressives could do now that would meaningfully affect what an ALEC-controlled convention might do.  I have heard no concrete suggestions. 

     And ALEC’s ability to trigger a convention without progressive collaboration is highly dubious.  To be sure, it has been spending prodigious sums promoting an Article V convention for many years.  (The figures below include various groups promoting a convention for a balanced budget amendment, groups affiliated with the Convention of States Project (CoSP), and those promoting a convention to enact congressional term limits.  They do not include any additional funds that ALEC may be spending directly.)

     Yet despite all that spending, the ALEC-aligned groups have stalled at 28 states, six short of the constitutional two-thirds threshold.  Over the past decade or so, ALEC-aligned groups claim to have secured Article V applications from all but three red states, but convention opponents have rescinded applications in every blue one.  With the purple states more or less evenly split, it is difficult to see a path for ALEC-aligned groups to get to 34 states honestly even under generous counting rules.  (The tallies presented here accept proponents’ calculations at face value; the continued viability of applications passed over four decades ago, and some state-specific aggregation and interpretation issues, will be for Congress to resolve if proponents start to move a resolution to call a convention.  The designation of states below as “purple” is admittedly subjective, relying primarily on elections for state offices.) 

     ALEC’s allies began reaching a similar conclusion around 2017 as the last of the blue state applications from the 1970s and 1980s were being rescinded.  They therefore started developing increasingly far-fetched versions of “fuzzy math” to reach the threshold.  They tried arbitrarily designating applications passed over a century ago for entirely different purposes as “plenary”, supposedly seeking a convention on any topic.  They claimed to have six such ancient applications in states that had rejected their proposals.  Five of those six have now been rescinded. 

     One prominent voice in the ALEC-aligned world argued that Congress should disregard states’ rescissions of Article V applications under the doctrine of “mistake”.  He argued that states acted in response to what he regards as misconceptions about Article V, such as concern about a “runaway convention.”  Few others embraced this idea, perhaps recognizing what a Democratic Congress might do with the power to override state legislation on the grounds of “mistake” (e.g., force Medicaid expansion under the Affordable Care Act).

     ALEC’s allies then insisted that all Article V applications should be counted, regardless of their purpose.  This would reverse Congress’s longstanding policy of counting applications together only when they specified the same purpose for a convention.  Had Congress followed the “all applications count” principle, we would have had an Article V convention in 1907 and every year since until 2025.  Over a century of wildly different Congresses rejecting this theory, and of states acting on the assumption that applications could only be aggregated if their purposes matched, casts this theory’s legitimacy into great doubt.  Nonetheless, several progressive states have responded by rescinding old, dusty applications.  At this writing, more than one-third of the states have no active Article V applications at all. 

     The ALEC-aligned groups now seem to have settled on the “time machine” theory.  Recognizing that they do not have the requisite two-thirds of the states today, they insist that, by retroactively applying their “fuzzy math” theories, they can say their forebears reached this threshold in 1979.  On this theory, numerous Congresses, including those led by ardent ALEC allies and ones with majority support for a Balanced Budget Amendment, have been asleep at the switch for almost half a century.  Of course, this means that the ALEC-aligned advocacy groups were also asleep at the switch for most of this time and that all their fundraising appeals to help them get the remaining states they need were, well, unfounded. 

     Supporters of an Article V convention to promulgate a balanced budget amendment, congressional term limits, or limitations on federal powers – the three core principles found in ALEC-aligned Article V applications – have filed litigation seeking to compel Congress to call an Article V convention on the “time machine” theory, to no avail.  They reportedly are preparing new litigation to the same effect.  How they will avoid the Political Question Doctrine, or establish that a federal court can order Congress to exercise its constitutional powers, is difficult to see.  And even if they could get heard on the merits, they have little basis for saying that Congress has been wrong for over a century in how it has counted Article V applications. 

     With its path to 34 states largely blocked and little prospect of prevailing in court, ALEC’s remaining hope depends on winning over just enough gullible progressives.  Progressive Article V groups have begun to work with ALEC-supported ones on the state level.  For example, they introduced a resolution in Maine that would apply for an Article V convention for both term limits and campaign finance reform.  A few years ago, a Democratic state senator gave ALEC a tie on an Article V application in Montana. 

     U.S. House Budget Committee Chairman Jodey Arrington has repeatedly introduced concurrent resolutions to call an Article V convention on the “time machine” theory.  Republicans lack the votes to move such a resolution on their own – one prominent House conservative wrote a book entitled The Con of the Con-Con – but might prevail if progressive proponents persuade a few Democrats that an Article V convention could be a good thing. 

     The cynicism of the ALEC-aligned convention supporters is difficult to overstate.  They insist that the risk of a runaway convention has been “debunked” and that a convention would somehow be confined to the purposes specified in states’ applications.  (They do not explain who would enforce these limits or on what authority.)  Yet they now propose to count together all applications for all purposes, including some that conservatives would loathe.  If the convention is allowed to consider any topic in a state application then world federal government is on the table.  Their mock conventions and fundraising appeals promote constitutional changes having nothing to do with fiscal responsibility, limiting federal powers, or term limits – such as capping the Supreme Court at nine justices or eliminating birthright citizenship. 

     Moreover, at the same time they insist that the ratification process will protect us against untoward amendments ALEC-aligned proponents seem to have settled on public referenda as their preferred ratification process.  This is not one of the options Article V provides, but apparently they envision the referenda being accompanied by the election of slates of state ratification convention delegates who would be legally bound to follow the results of the referendum, much as voters invisibly choose presidential electors.  ALEC’s ability to package superficially attractive but meaningless “progressive” provisions with core parts of its agenda, and the ability of its ultra-rich backers to flood the airwaves in advance of such referenda, should not be minimized.  I have yet to see progressive Article V convention supporters engage seriously with this threat.  

     In short, the long, difficult, exhausting effort to prevent ALEC from triggering an Article V convention that it would control has accomplished a great deal.  ALEC does not have a path to a convention that does not involve picking up almost all the purple states or securing Democratic defections in Congress.  If progressives recognize this threat for what it is, ALEC cannot prevail.  But if progressives wish-cast a convention as the solution to what ails us, they could mislead just enough state or federal Democratic legislators to bring this disaster down upon our already-reeling nation.

     @DavidASuper1 @DavidASuper.bsky.social