Since the 1970s, conservatives receive got vastly outspent in addition to out-organized progressives inwards their efforts to command state-level politics. These efforts receive got produced impressive fruit: Republicans straight off bask majorities inwards 66 of 99 legislative chambers nationwide, in addition to Republican governors preside inwards 33 states.
As whatever pupil of redistricting knows, state-level authorization may receive got profound national implications. The political party that controls the world institutions has diverse levers to clit to projection ability nationwide.
One of these levers has never been pulled before, simply it is virtually to be. If conservative the world legislatures receive got their way, a convention volition gather inwards the close futurity to advise amendments to the U.S. Constitution that would greatly hobble the federal government’s power.
Article V provides 2 methods of amendment. The outset method resulted inwards all 27 amendments to the Constitution. Two-thirds majorities inwards both houses of Congress vote to advise an amendment, in addition to three-fourths of the states ratify it. The 2nd method is a response to the possibility that Congress mightiness block amendments that threaten its institutional interests. If two-thirds of the the world legislatures apply for a convention, Congress must telephone telephone one. The convention in addition to hence may advise amendments to the states for ratification.
A number of conservative groups, including the American Legislative Exchange Council in addition to Koch Brothers-funded entities, promise to trigger the second, convention method for the outset fourth dimension inwards the history of the United States. The diverse proposals differ inwards their particulars, simply they all oculus on i destination – to curtail federal ability dramatically. The most narrowly tailored would require a balanced federal budget each year, piece effectively disabling Congress from increasing taxation revenue to embrace whatever shortfall. Although terrible policy, yesteryear i count at to the lowest degree 28 of the necessary 34 states receive got already voted inwards favor of it.
A broader proposal non solely would impose a balanced budget amendment. It would besides restore Lochner era limits on Congress’s Commerce Clause power, in addition to would require the sunset of all federal taxation laws, to hold out re-enacted solely yesteryear a super-majority vote. The amendments this proposal contemplates presage an halt to the modern American state.
Of course, no amendment tin give notice give-up the ghost constitutional constabulary until three-fourths of the states ratify it. Perhaps for this reason, most progressives receive got ignored these efforts to rewrite the Constitution. They may relaxation secure inwards the noesis that solely 13 states would receive got to tell no to transportation a proposed amendment to constitutional oblivion. In fact, unopen to of the real few progressive lawyers in addition to scholars that are next these Article V developments truly favor calling a convention. They promise that it mightiness generate proposals to undo Citizens United or abolish the Electoral College.
To my mind, progressive indifference to or back upward for a convention is a serious mistake. Because the convention method has never been triggered, no i knows the rules for it beyond what Article V’s skeletal text provides. For instance, how similar must the world applications for the convention hold out to count toward the 34 the world threshold? How would delegates hold out selected? How would votes at the convention hold out apportioned? What voting dominion would principle the convention’s proceedings?
Conservative groups already receive got invested fourth dimension in addition to sizable resources to skew the answers to these critical questions to ensure right-wing outcomes in addition to block progressive countermoves. Consider 2 of import examples:
The Convention’s Agenda. Until recently, state-led efforts to trigger Article V receive got failed because of conservative opposition. Groups similar the John Birch Society in addition to the Eagle Forum receive got feared a “runaway” convention that would advise amendments non solely to withdraw limits on regime power, simply besides to alter the rules to ensure slowly ratification. Responding to these concerns, the world legislatures receive got passed resolutions that purport to impose strict limits on convention delegates. The Arizona Legislature, for instance, late passed a resolution that would status its application for a convention on a convention agenda express to the reactionary proposals described above. The legislature would besides bask the ability to think in addition to punish delegates who pursued anything – to wit, a Citizens United amendment – inconsistent amongst these proposals.
Delegate Apportionment in addition to Voting. If delegates were apportioned according to population in addition to straight elected, progressives mightiness receive got argue to back upward resolutions calling for a convention. But conservatives debate that each the world should larn a unmarried vote at the convention, amongst delegates selected yesteryear the the world legislatures. They believe that the ability to improve the Constitution through the convention method is a ability “retained yesteryear the pre-existing sovereign States,” U.S. Term Limits v. Thornton, 514 U.S. 779, 800 (1995), in addition to i non altered yesteryear whatever subsequent constitutional change. Delegates would deed every bit agents of the states, amongst each the world a co-equal sovereign regardless of population size. This extreme mal-apportionment would dramatically skew voting at the convention to favor conservative states.
A progressive lawyer mightiness respond, “so what?” ALEC doesn’t larn to write the rules for the convention, hence who cares if its members desire to boundary the convention’s agenda to the federalism proposals or apportion votes on a one-state, one-vote basis?
Here is a argue to care: conservative groups receive got a years-long caput start inwards at to the lowest degree 3 ways that portend problem for a progressive constitutional agenda.
First, they receive got developed sets of proposed rules to principle every facial expression of a convention. ALEC in addition to its allies tin give notice offering starting points for convention governance. From the get-go, progressives volition hold out rebutting presumptions, non setting them.
Second, conservative groups receive got spent considerable fourth dimension researching in addition to developing legal arguments to back upward their proposed rules for convention governance, couching most of what they devise inwards originalist terms. For a laid of legal issues utterly bereft of precedential guidance, historical sources virtually eighteenth century meanings volition constituent importantly when a courtroom must create upward one's heed challenges to methods for delegate choice or the like. Progressives receive got no such torso of enquiry to describe upon, in addition to every bit far every bit I know, receive got given no idea to the sorts of arguments they would demand to brand to rebut what conservatives receive got already crafted.
Finally, conservative groups already receive got planned litigation strategies. They are miles ahead of progressives inwards their training for the lawsuits that volition sure as shooting erupt i time a convention telephone telephone looms. I late testified against an Article V resolution at an Arizona Senate commission meeting. After the hearing, a proponent described to me how his grouping planned to litigate several questions involving convention voting rules. I was struck yesteryear the strategy’s sophistication, every bit good every bit yesteryear the ways the strategy mightiness trap unwitting progressives into taking positions on upstream issues (e.g., whether states tin give notice larn inwards into a compact to bind themselves to back upward solely a convention that calls for a balanced budget) that could receive got serious implications for downstream issues (e.g., what voting dominion should principle at the convention).
There’s ever the three-fourths ratification rule. Even if the convention assembles every bit ALEC in addition to its allies would prefer, in addition to fifty-fifty if its delegates vote for a balanced budget amendment, sure as shooting 13 progressive states could stand upward every bit a bulwark against this draconian constitutional change, right?
I’m non hence sure. For xl years, conservative groups receive got honed their powers to dominate state-level politics. They receive got effectively mobilized voters inwards elections for obscure the world offices that would create upward one's heed an amendment’s fate. How much fourth dimension in addition to how many millions of dollars would the Koch Brothers or other like-minded conservatives brand available to larn the constitutional amendments they prefer? Could progressive groups fit their fundraising or organizing efforts, fifty-fifty inwards states that receive got to appointment remained governed yesteryear Democrats? The terminal 4 decades give no argue to think so.
Some progressive proposals for amending our Constitution receive got corking merit to them. But whatever assessment of the wisdom of an Article V convention must accept our political terrain every bit it is, non every bit progressives mightiness wishing it to be. With the states hence dominated yesteryear conservatives, these progressive proposals receive got never had less of a run a peril of success. The best affair progressive lawyers in addition to scholars tin give notice attain straight off is to advocate against a convention, in addition to to ready to play defense strength i time the 34-state threshold gets crossed. This unprecedented constitutional minute volition brand it real soon.
David Marcus is Professor of Law at the University of Arizona Rogers College of Law. You tin give notice attain him yesteryear e-mail at dmarcus at email.arizona.edu
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