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Three Article V Convention Efforts

Posted on Wednesday, June 5, 2024
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by Outside Contributor
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There is increasing concern regarding excessive federal spending and mounting debt burdens. It has become clear that the statutory debt ceiling has failed to constrain the growth of the federal government and potentially insurmountable debt burdens. In addition, other statutory approaches to promote fiscal discipline have not stood the test of time.

Given Congress’ failure to pass a Fiscal Responsibility Constitutional Amendment, three separate efforts are underway to call a Convention of States to propose such an amendment under Article V of the Constitution. There has been considerable confusion regarding these efforts.

The best-known effort is being promoted by the Convention of States (COS). That effort advocates for a Convention of States that would propose three amendments. One relating to fiscal responsibility, one imposing term limits on Congress, and one that would limit the size and scope of the federal government.

This effort has achieved 19 of the required 34 state applications for a convention to be called. However, the COS effort will not be successful because the primary opposition to any Convention of States to Propose Amendments is that it might runaway, and the COS effort is leading with its chin in that regard by proposing multiple amendments at the same time.

The Balanced Budget Amendment Task Force seeks to achieve 33 state applications that focus solely on a Fiscal Responsibility Amendment to force Congress to act. This effort achieved 31 applications in 2017 and, with rescissions, has leveled off at 28 since 2021. It is unclear whether 33 applications will be completed and, if so,  whether Congress will act. In addition, it is unclear whether an amendment proposed by Congress would be effective or just a smokescreen.

The Federal Fiscal Sustainability Foundation leads the third effort, of which we are board members. This effort seeks a Convention of States that will focus solely on proposing a Fiscal Responsibility Amendment. It has conducted extensive research and discovered that 39 states had active applications for a Convention of States in 1979, of which 30 were limited solely to fiscal responsibility and nine were plenary (general) applications. Those numbers rose to 40 and 32, respectively, in 1983.

Constitutional scholars on the right and left agree that plenary and single-subject applications should be counted in meeting the 34-state application requirement. They also agree that if a majority of states want to limit the convention’s scope to a single subject (e.g., fiscal responsibility), a runaway convention can be avoided.

Despite the fact that the requisite number of applications were received by Congress many years ago, Congress has failed to call the convention as required by Article V of the Constitution. House Concurrent Resolution 24 is designed to bring light to this failure in the hope of getting Congress to discharge its explicit and non-discretionary responsibility to call the convention.

The House needs to hold a hearing on this proposal. Since 49 of 50 states already have constitutional fiscal responsibility requirements, we believe they are more likely to propose an effective federal fiscal responsibility amendment than Congress.

Given all these circumstances, the Federal Fiscal Sustainability Foundation effort represents the most timely and effective means to restore federal fiscal sustainability and the equal right of the states to propose amendments under Article V of the Constitution. We strongly support this effort and encourage the states to sue Congress if it fails to act. 

David M. Walker is a former U.S. Comptroller General.

Ken Cuccinelli is a former attorney general of Virginia.

Reprinted with Permission from DC Journal – By David M. Walker & Ken Cuccinelli

The opinions expressed by columnists are their own and do not necessarily represent the views of AMAC or AMAC Action.

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Dave Walker
Dave Walker
13 days ago

The Constitution and the supporting Federalist Papers make it clear that the Congress has a limited, ministerial, and mandatory role to call a Convention of States to propose one or more amendments if 2/3rds of the states ever have active applications for such a Convention. The Congress may set the means for ratification of any amendment that the states may propose but it is not required to do so. The states run the Convention and control the scope. The Article V effort sponsored by the Federal Fiscal Sustainability Foundation is limited to Fiscal Responsibility only. A majority of active applications in 1979 through today are for Fiscal Responsibility only. That serves to prevent a runaway convention. In addition, any amendment proposed by the Convention must be ratified by 3/4 of the states to become part of the Constitution. There is no way that 3/4 of the states would vote to support a flawed amendment. The states need to assert their rights under Article V since Congress has failed to discharge its Constitutional duties. We need a few state AGs to step up and help save our collective future

Chris
Chris
13 days ago

I do not trust a convention because it is Congress that gets to call the convention, NOT the States. We all know the Republicans fall for tricks the Democrats play. You can be 100% assured that the Dems will try to pull something in a convention and the Republicans will almost certainly fall for it.
Questions: how is the convention organized? i.e. How are delegates selected, how many from each State, and how is voting done? Who will organize and run the convention?
I see nothing in the wording of Article V that forces Congress to limit the agenda to what the States asked for. I don’t buy it. With the control of Congress so tight, the Dems will set an agenda and organize the convention in such a way that it will push their agenda. Republicans, all so anxious to simply get a convention, will misunderstand the risks and go along with it. I might buy into it if *conservatives* were firmly in control of Congress and they were demonstrating the ability to detect and counter leftists tricks. But then again, if we had that, we wouldn’t need a convention, would we?

Michael Stanton
Michael Stanton
13 days ago

I used to be pro Article V.. however, I have been convinced to accept reality. Our Congress doesn’t abide by our current constitution, why would they abide by an updated version of our constitution? It’s basically just a waste of time.

Albert Friedrichs
Albert Friedrichs
13 days ago

California leads the way in uncontrolled spending and increasing taxation with no responsibility. How does that fit into a fiscally responsible State? California liberal leaders are in lockstep with the liberal Federal government.

Charles Simpson
Charles Simpson
13 days ago

“Re: “Art. 5 Convention Efforts”
You are right, and any American with a head left on his shoulders knows that this is actually a Trojan Horse to be used for purposes of remaking the Constitution in the image of the Marxist socialist mob. The greatest danger lies in the inability of a large portion of the present day electorate to exercise critical thinking in order to see this. Thanks to the brainwashing they have received in the school system, they have become enthusiastic dupes in the destruction of the Country. God help us.

David Campbell
David Campbell
12 days ago

My primary problem with going the CoS rout is that the government doesn’t follow the Constitution now. What makes anybody think an amendment (or two or three) is going to change that dynamic? In addition to that, even if a majority of states are Republican, that doesn’t mean they are going to do the right thing. Also, the left are masters of manipulating language, and Republicans can be easily seduced by compromise (tricked) into adding or deleting a word or phrase or two that the Dem’s want that can either make the ammendment moot, or leave a back door open for future litigation.

Mark Guyer
Mark Guyer
13 days ago

For those who fear a meeting of state legislators, let me ask: Should your state legislature then be eliminated? Forty-nine states have wisely adopted state balanced budget requirements. State legislators are very capable of drafting a good amendment for Washington. Also, any draft of a federal amendment at a convention of the states must later be approved in three-fourths of the states to take effect
Ronald Reagan said a convention of the states “is a safety valve giving the people a chance to act if Congress refuses to.” The convention is THE ONLY WAY to prevent a debt created financial disaster in America. Other debt ridden nations have suffered economic chaos, and printed huge amounts of money creating hyper-inflation. Are we next?

Jim Rubens
Jim Rubens
13 days ago

Those having doubts about the Article V process by which states can act to amend the Constitution when Congress becomes unresponsive (in this case, burying our nation in debt) should read this detailed Article V FAQ.
After reading it, please comment here.
https://le.utah.gov/publicweb/BRISCJK/PublicWeb/43370/1-IAA_Article%20V%20-%20FAQs%20with%20Source%20Documents.pdf

Bob L.
Bob L.
12 days ago

Ben Franklin had no idea of where a concern he had would lead.
A Constitutional convention will only ruin what we have now. What is needed is a return to the original intent, the repeal of some later Amendments, and a massive change in the way Congress and the rest of the government operates, which is out of control now, the limits imposed by the Constitution have been totally violated and/or ignored, which should be criminal.
“When the people find they can vote themselves money, it will herald the end of the Republic.” Ben Franklin
The path to that corruption began when politicians started promising things to voters if the voters elect them. With the ratification of the 16th Amendment, the politicians had never ending source of money to use for an unending list of mainly unconstitutional pet reasons, all they had to do was continually keep raising the taxes. Unfortunately, even that wasn’t enough to keep the vote getting bribery going, so the dollar had to be unshackled for it’s stabilization anchors, gold and then sliver coinage and reserves.

Ted
Ted
12 days ago

I live in California and there is no way any representative from this state even be allowed to participate in such a convention. The corruption in California is on par with the biden administration, no good ever comes from California ever.

George Mason
George Mason
4 days ago

I believe we need to add amendments to our current constitution first. The first set of amendments would address a correction to our legally adopted but poorly written 16th amendment and the establishment of our US Supreme Court. The 16th amendment and several former liberal, globalist US Supreme Courts have transferred many of the governmental powers held by the people (the states and local communities) to the federal government.
The issue with the 16th amendment is that it contained no wording that established checks and balances to tax and spend. The American worker became a serf of the US Congress. The 16th amendment did not place any limits on how congress could raise, collect taxes nor what the funds could be spent on. It did not include a balance budget requirement. It gave our US congress a blank check to tax and spend whatever amounts it wanted.
As for our US Supreme Court, several liberal and globalist courts especially during the late 1900s substantially increased the powers of our US Congress at the expense of the people (States and local communities). As a result, many of the laws passed by our US Congress since the mid 1800s should have been ruled unconstitutional by our US Supreme Courts. The issue is that our US Supreme Court IS the federal government. It is not a body of judges representing the States. Its purpose was NOT clearly stated in our US Constitution. It is in place to limit what it has instead allowed, which is to prevent the expansion of powers at the expense of state governments.
Liberty and freedom cannot exist when the supreme government has governmental powers over large numbers of people. Laws that cover 300 million will not address the liberty and freedom of the people within the smaller divisions of our 50 states.

Mda
Mda
11 days ago

I wish them luck, the dark powers are ruthless!

Deborah Wood
Deborah Wood
11 days ago

If the Senate refuses to place a limit on the House’s runaway spending, then each of the states should be required to pay for the excess spending in proportion to their population. That is the amendment to the Constitution that is needed!

L.C.
L.C.
12 days ago

I agree with other opinions that the laws we already have are not be obeyed, how will making more laws change the actions of the lawless? I agree also with the opinion that the democrats are devilishly sneaky and would potentially use a COS to their advantage. It is a dangerous time to do this, however, to not do it is also dangerous. So, God grant wisdom, courage and right judgment to us at this time.

John De Herrera
John De Herrera
12 days ago

First and foremost you can’t be for the Constitution and against the Article V Convention (a proper noun). Based on congressional records (a living part of the Constitution) the states have legally satisfied the call many times over. Full stop. Here is text regarding the nuts and bolts of the convention found on the foavc.org website:

An argument used by convention opponents is the convention clause of Article V fails to provide the “details” about an Article V Convention i.e., selection of delegates, ratio of vote to propose an amendment and so forth. These opponents argue because Article V is “vague” on these details a convention cannot or should not be convened despite the fact the states have satisfied the two thirds requirement mandating a convention call. These opponents ignore the fact Article V does not have to provide these “details.” Article V is part of the Constitution. As with all constitutional questions, all the Constitution is applied. The “details” are found in other clauses of the Constitution. 

This page briefly discusses the constitutional effect of the 14th Amendment on an Article V Convention. As with all of the Constitution every clause is effected by every other clause of the Constitution. This is especially true for the effect of the 14th Amendment on the convention clause of Article V. The amendment explains why a convention must propose its amendment based on a two thirds vote of state delegations (assuming a quorum of state delegations). It explains why a convention must be comprised of elected delegates. It explains why a convention vote is conducted by state delegation rather than by individually elected citizens. 

The 14th Amendment states (in part): “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”

As discussed in more legal detail the Supreme Court has ruled all members of a clearly defined legal class must be treated equally under the law (See: Discussion Page 17 E). The Court has ruled, “Classification [discrimination] must always rest on some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily, and without any such basis.” In sum: there must be a reason and a basis for discrimination [classification] or it is unconstitutional. In the case of an Article V Convention, the question is whether there is a basis in the Constitution to classify the convention in a separate legal class other than a single legal class which includes both convention and Congress. By separating convention and Congress into two legal classes each mode of amendment proposal may then be treated differently under the law. There appears to be no constitutional basis to do so. 

The function of both convention and Congress is constitutionally identical, i.e., the proposal of amendments to the Constitution. The effect of the proposal, if ratified, is identical. The Constitution authorizes no other political bodies to make amendment proposal. Article V strictly and equally limits the power of amendment proposal upon both convention and Congress. Given these facts, there is no possible way to classify the two bodies differently, i.e., two legal classes, as they are identical as to authority, effect, limit, and exclusiveness. As the Constitution excludes all others from amendment proposal, there is no constitutional basis for anybody to create a classification. There is no authority in the Constitution allowing any political or judicial body to do so. 

Hawke v Smith, 253 U.S. 221, 227 (1920): “It is not the function of courts or legislative bodies, national or state, to alter the method which the Constitution has fixed.” More importantly, there is no “difference which bears a reasonable and just relation to the act in respect to which the classification is proposed” as the functions of both Congress and convention are identical in all respects. Gulf, C.& S.F. Ry. Co. v Ellis, 165 U.S. 150 at 155 (1897). (See: Discussion Page 17 E and Page 17 G).

The Supreme Court has stated the basic principle that for a convention and Congress to be viewed as two separate legal classes there must be a basis in the Constitution for such discrimination which there is none. Therefore any law which applies to one portion of the legal class must equally apply to all portions of the legal class. This explains why a convention must propose amendments based on a two thirds vote of that body. Article V mandates Congress propose amendments based on a two thirds vote by that body. Under the terms of the 14th Amendment’s equal protection clause, if the law (which in this case is the “Supreme Law” of Constitution), mandates one portion of the legal class, Congress, propose amendments by two thirds vote of that body, the other portion of the legal class, the convention, must also propose an amendment by two thirds vote of that body. 

Elected Delegates

The 14th Amendment principle of equal protection under the law extends to all aspects of a convention including delegate selection. All members of Congress are elected as required by law (the Constitution) (unless they are appointed to fill a vacancy which has no bearing in this case). As members of Congress are elected then so too must convention delegates be elected. Indeed it would nearly impossible to assert otherwise as all other groups associated with the amendment process (state legislatures and state ratification conventions) consist entirely of elected members. Similarly, attempting to “instruct” convention delegates on how they will vote, what they will propose or what subjects they will consider is unconstitutional because, under law (the Constitution) Congress cannot be so instructed in its consideration of an amendment proposal.

Thus the same election laws which regulate election of members of Congress must equally apply to election of convention delegates. Moreover the qualification of office must be equal. The lowest standard of election to office in the Constitution is for members of the House of Representatives. According to the Constitution, “No Person shall be a Representative who shall not have attained to the age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an inhabitant of that State in which he shall be chosen.” Thus this constitutional standard become the election qualifications for delegates to a convention. Further members of the House are elected to districts. Convention delegates are thus elected from the same districts. The Constitution however prevents any person from holding two civil offices simulataneously. Thus there will be two individuals representing the district, one for Congress and one for the convention. 

State Delegations

As convention delegates are federal, rather than state, that is authority for the convention originates in the Constitution (See Discussion: Hawke v Smith, 253 U.S. 221 at 230 (1920) (See: Discussion Page 17G). If delegates and members of Congress must be treated equally under the law, then the requirements for election must be equal. The Constitution establishes minimum standards for election of a member in Congress which is membership in the House of Representatives. This standard of representation (age, residency and minimum years of citizenship) must equally apply to the election of convention delegates. House members are elected from congressional districts which are apportioned in the state based on equal population. However as the populations for each state vary, so too do the number of congressional districts in each state. Consequently convention delegates must be elected from the same congressional districts to in order to equally represent the people. The number of delegates from each state must be equal to the number of congressional districts in the state.

However the Constitution mandates in amendment process each state is equal. In the amendment process each state is permitted one application for each set of two thirds applications to cause a convention call. A single state cannot submit 34 applications and cause a convention call. Thus each state gets one vote in applying for a convention call. In ratification each state has one ratification vote. Again a single state cannot vote 34 times to ratify a proposed amendment and it be ratified. In the amendment process each state has one “vote” regardless of population an thus are equal. Because the states are equal, votes at the convention must be based on an equal state basis rather than varied state population. Otherwise a few large population states with their large numbers of elected delegates would control the convention. Notably, this was the major concern of the delegates at the Federal Convention of 1787 who wrestled over the question of representation at the federal level–equal representation of the states versus state population. 

Ultimately the delegates to the Federal Convention of 1787 resolved their problem by creating two houses of representation in Congress–one based on equal state representation (the Senate) and the other on state population (the House). However the Constitution mandates “a” convention for proposing amendments (singular) meaning ‘one’ convention not ‘two.’ Thus within the confines of a convention, (one house), equal representation must occur. No vote shall have any more weight than any other vote. As each state varies in population a vote based on that variation cannot be equal. A larger, more populous, state has more votes (say) on the question of a proposed amendment than a smaller, less populous, state. This violates the principle of equal protection under the law and is unconstitutional. As citizens in the less populous state have less representation (say) in the question of an amendment proposal they are denied equal protection under the law to have an equal say in a question which all in the nation are affected equally. Being equally effected they must have equal say.

In order that the population in each state is equally represented regardless of population but so that population is still represented, elected delegates from each state are gathered into state delegations. In this way populations are equally represented within the state delegations and states are equally represented at the convention. In effect the state delegation becomes an artificial person with one vote. Each state delegation then votes within itself on any question and once decided casts its one vote on the question. Thus a total of 50 votes are recorded at the convention for each question presented to it. It therefore requires 34 votes (assuming all delegations are present) to propose an amendment. This is not the first time such a system has been successfully used in the United States. The Federal Convention of 1787 and the Congress of the United States prior to enactment of the Constitution both used equal state delegations as the basis of vote. 

Quorum

Many operational questions of a convention are resolved by the application of the 14th Amendment’s equal protection clause to a convention. A significant one is the question of quorum. In Congress the Constitution demands a quorum before either House may conduct business. The Constitution defines a quorum as a “majority” of members or fifty percent of the membership plus one. Thus in Congress a quorum of members (fifty percent plus one) may vote to propose an amendment without two thirds of the full membership of the House present. As it is in Congress, so it is in a convention. Assuming a quorum of state delegations (presently 26) and within each state delegation a quorum of members (otherwise the convention will determine that delegation to be absent), two thirds of the state delegations present may vote propose an amendment without all state delegations present or all members within the state delegations present. A majority of the quorum of state delegations present may conduct other business of the convention as required. 

While this may appear a concern, it is not. The quorum rule facilitates full representation at the convention and ensures no single delegate can prevent the convention from conducting its business. (If the quorum rule did not apply then by simply not attending a single delegate could prevent a vote on any amendment proposal or prevent a state delegation from voting on the proposal). Fully aware of the quorum rule and the possibility of proposal by a small group of delegations, all state delegations and the members within them will be present at every session of the convention in order to guard against this consequence. Thus the people that elected the delegates will therefore be fully represented at all times. 

The Supreme Court in Missouri Pacific Ry. Co v State of Kansas, 258 U.S. 276 (1919) (See Discussion Page 17F) ruled on the issue of quorum in relation to the amendment proposal process of Article V. The Court quoted Speaker of the House Thomas Reed on the passage in 1898 of the amendment to the Constitution providing for the election of Senators by vote of the people, when in reply to an inquiry from the floor as to whether such vote was in compliance with the two-thirds rule fixed by Constitution, Reed said, “The question is one that has been so often decided that it seems hardly necessary to dwell upon it. The provision of the Constitution says ‘two-thirds of both houses.’ What constitutes a house? A quorum of the membership, a majority, one-half and one more. That is all that is necessary to constitute a house to do all the business that comes before the House. Among the business that comes before the House is the reconsideration of a bill which has been vetoed by the President; another is a proposed amendment to the Constitution; and the practice is uniform in both cases that if a quorum of the House is present the House is constituted, and two-thirds of those voting are sufficient in order to the accomplish the object.”

Therefore, as with Congress, the rule of quorum, a majority plus one for both the state delegations and the members comprising each state delegation will apply, meaning such a quorum constitutes the convention and it may proceed with its business.

Levi Preston
Levi Preston
12 days ago

Convention of States is the only effort to have all the applications aggregate in the manner envisioned by the Framers. All nineteen states have matching operable language. The application is limited to term limits, fiscal restraints, and reducing overreach. The runaway argument is a myth and an insult to the Framers.
Article V says what it means and means what it says. The convention only has the power to propose amendments, limited by the applications and by the state legislature’s instructions. They can’t pass anything on their own, only make suggestions that would then have to be ratified by 38 states. Historical and legal precedence proves that each state only gets one vote.
This story isn’t even consistent. In paragraph three, you state “However, the COS effort will not be successful because the primary opposition to any Convention of States to Propose Amendments is that it might runaway, and the COS effort is leading with its chin in that regard by proposing multiple amendments at the same time.”
Then later you state: “This effort seeks a Convention of States that will focus solely on proposing a Fiscal Responsibility Amendment.”
So are we to believe that trying to fix three significant areas of the problem will “runaway”, but your “Federal Fiscal Sustainability Foundation” has everything under control? You are only addressing one area of abuse.
Article V exists because the Framers knew that it was a mistake to leave the size of the government to the very same government. But you are going to fix the government by begging the House to hold a hearing? And sue the Congress? You can’t be serious!
This is a shallow self-serving story written by board members of a group I have never heard of before.

Thomas Crawford
Thomas Crawford
12 days ago

The great danger of this effort is that such a convention, once called, cannot be controlled or limited. The original 1787 convention — which is the only precedent we have — was supposed to simply recommend amendments to the Articles of Confederation. It became a runaway convention, and completely replaced the Articles with our current Constitution. Not only did it replace the Articles, the convention also changed the method of ratification. All the states can do is apply for the convention; it is Congress that would call it, and Congress could therefore justify taking control of the convention. Then, too, do you trust your current state government to send liberty-minded delegates to such a convention? I live in Maryland; it would be more likely to send a Gavin Newsom or an Alexandria Ocasio-Cortez than a James Madison. Finally, since the current government is ignoring the Constitution as it is now, why would we think that if there were simply one or two more amendments, they would suddenly start to respect and obey it? “We need to force them to obey it,” you say. Why not do that with the current Constitution? The real solution is not Article V, it is Article VI.

lawrence greenberg
lawrence greenberg
12 days ago

Just as big a problem as the ridiculous spending, if not an even bigger problem, is the expansion (intrusion) of the federal government into functions and areas of governing where it does not belong, i.e., functions and responsibilities which the Constitution does not grant to the federal government. The Constitution specifies 18 areas of responsibility which belong to the federal government; all other areas of responsibility belong to the individual states. Over the last century or more, the federal government has expanded into an overarching behemoth, assuming upon itself all sorts of functions and responsibilities that are clearly unconstitutional. This has been enabled by Court decisions based far more on politics and ideology than the Constitution. In my estimation, the majority of federal departments and agencies, at least 2/3 of federal programs, and probably more than 2/3 of the federal budget are flat out unconstitutional. Two very clear and obvious examples of unconstitutional federal programs, which involve enormous budgets and expenditures, are Social Security and Medicare. Yes, they are blatantly unconstitutional because the Constitution gives the federal government no authority in those areas. No matter how well meaning and beneficial those programs may be, they are unconstitutional. If we are to save this nation, we must go back to following the Constitution.

Glen
Glen
12 days ago

The DC Swamp (Congress) will have to be forced to take action on a Convention of States. The Uni-party will never do so willingly, more so if it covers term limits. A Convention of States with the express purpose of enacting a Financial Responsibility Amendment is the best course. Doing nothing will only lead to our country going to HELL in a handbasket much sooner.

Dot whitley
Dot whitley
12 days ago

I don’t trust it at all.

Money savers
Money savers
13 days ago

Cut off a few red states. Boom instant gratification and we don’t have to feed the ungrateful hillbillies with government cheese or give them Medicare. Let them pull themselves up and we save the money lol

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