Legal Docket: The Convention of States

MARY REICHARD, HOST: It’s Monday morning and a brand new work week for The World and Everything in It. Today is the 17th of June, 2019. Good morning to you, I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. We expect opinions this morning from the Supreme Court. We will bring those to you tomorrow.

It’s getting late in the month, and the court still has 24 argued cases to decide.

Because we’re in a season where Mary has no cases to break down for you, she’s going to continue exploring legal topics you’ve told us you’d like to hear more about.

REICHARD: And you’ve sent some terrific ideas to me.

Today’s topic came from two sources: Michael and Jennifer Patterson of South Carolina and also Annie Olsen in Dallas. They want to know more about the Convention of States movement.

It’s an idea that’s gained steam just in the last few years.

Convention of States is a way to amend the U.S. Constitution in a manner that’s not been done before. It’s laid out in Article V of the constitution.

Now, whether it’s a good idea actually to use Article V depends on who you talk to. Here’s Hillary Clinton during the run-up to the last presidential election:

CLINTON: They want radical pull-‘em-up-by-the-roots change. They want to have a constitutional convention to rewrite our Constitution to make it friendlier to business. To inject religious and ideological elements…

EICHER: They here refers to those who favor calling for a Convention of States. Florida Senator Marco Rubio is one of them. Here he is talking about why we need one, and he said this during the last presidential campaign season:

RUBIO: The result is a federal government that today would be unrecognizable to our founders. This is in fact entirely what they feared: a large central government, a national government, which is never what they intended. So how do you fix it? And the answer is: the people fix it.

Here’s a little Constitution 101. The Constitution is divided into seven sections, called articles. The first three articles set up the three branches of government: legislative, executive, and judicial. Article IV delineates the relationships among the states and between the states and the federal government.

Now Article V, that’s relevant to the Convention of States idea.

Article V lays out two ways to amend the Constitution. The first way is the one we’ve used to approve all 27 amendments passed since the 18th century.

It originates at the federal level, in Congress. This method requires a two-thirds vote in each the House and the Senate to approve an amendment. If that occurs, then the next step is ratification by three-fourths of the states. That’s 38 states required to ratify.

REICHARD: The other way to amend to Constitution is by way of the state legislatures. It also requires 38 states to ratify. But before that, Article V says two-thirds of the states—that’s 34—can call for a constitutional convention where amendments can be proposed, drafted, and approved.

Then on to the states to either ratify or reject an amendment.

So, that’s the process. If I were to boil down the major problems driving a convention of states movement, it’s these, in no particular order: runaway spending by the federal government; federal overreach into matters rightly belonging to the states; and concentration of power.

One leading voice advocating for an Article V convention is former Oklahoma Senator Tom Coburn. He term-limited himself out of that job, but he’s still speaking to issues he cares about. This is Coburn about two weeks ago.

COBURN: What we’ve done is bastardize our own democracy through money. That’s why term limits are such an… A lot of people don’t agree with it, but 84% of Americans do. That if in fact you had term limits you’d stop all this foolishness. And then people would be concentrated on what’s good for the country, not what’s good for their political career.

And so now why do we have $1.2 trillion dollar deficits? Because we’re doing things the federal government was never intended to do…

If you’re politically conservative, as Coburn is, you’re more likely to support the Convention of States.

If you’re more left of center, you tend not to. Groups on record against it, for example: the National Education Association, People for the American Way, the pro-choice Emily’s List, the NAACP, and ProgressNow.

Leading the charge against a Convention of States is a group called Common Cause. So I phoned up that group and reached spokesman Jay Riestenberg. I asked him why he thinks an Article V convention is a bad idea.

RIESTENBERG: This process would allow the states to call a convention. But unfortunately the Constitution doesn’t say much else in the document about how a convention would work, what rules put in place who would get to be delegates, how the American people would be represented.

So we’re pretty concerned that a convention would be taken out of place and create chaos and a lot of constitutional rights would be up for grabs.

That is the major objection to an Article V convention, fear of the unknown. Even some conservatives who oppose the Convention of States worry about dissolution of the Electoral College or abridgment of gun rights.

I called up Mark Meckler for an argument in favor. He leads Convention of States Action, the biggest organization pushing to use Article V. He says history is instructive that a runaway event isn’t going to happen. You’ll hear him refer to “applications.” And when he says that he means the form states use to approve calling for a convention.

MECKLER: So there’ve been over 400 applications in American history since the beginning of the country for an Article V Convention of States. Over 400!

Well, if today when the maximum size of the country takes only 34 states, you gotta ask yourself, well, why haven’t we had a convention yet? And the reason we haven’t is because everybody knows exactly what the rules are. It’s clear those applications have to match. If they don’t match, you don’t get to convention and therefore only matching applications count. And that’s what limits that convention.

So it’s really clear by the history and practice how this works, what it takes to get to convention and how those applications limit the power of convention.

“Matching applications” means the states have to agree on which problems will be the focus of a convention, such as runaway federal spending.  

MECKLER: There are 11 conventions before the 1787 convention …not Article V conventions, but interstate conventions. They’ve all been run according to virtually identical rule sets. The courts have said over and over that history and precedent control. It’s one state, one vote, each state chooses its own delegations, they can send as many people as they want.

But Riestenberg of Common Cause says interstate conventions aren’t the same thing. And there’s something unfair about what Meckler suggests.

RIESTENBERG: Will each state had the same number of votes? It’s not fair if Texas and California and get the same number of votes as say, Rhode Island and Wyoming, since there’s more people that live in Texas and California…It’s clear that there is no way to limit a convention regardless of what Meckler and others tell you.

Riestenberg worries about special interests and corporate money behind the Article V movement—for example, the libertarian-leaning industrialists the Koch brothers.

Meckler points to the same problem with liberal financier George Soros funding Common Cause early on, even if not specifically for Article V.

Riestenberg believes too much is up for grabs at a time when our country is so polarized. Better to use the tried and true way, with Congress originating the amendments and then sending it to the states to ratify.

RIESTENBERG: Our view is really the only way to have rules before a convention is to amend the Constitution and write the rules in an amendment to the Constitution. So that’s you know a whole other process before you call a convention and see what comes out of it. Common Cause is not opposed to the traditional, more safe process of amending the Constitution by going through Congress first and then sending it to the states for ratification.

But Meckler points out the problem with depending on the federal government to check its own power. And he points to the debate going on when the Constitution itself was being written.

MECKLER: On September 15th, 1787 two days before the end of convention, Col. George Mason from Virginia stands and addresses the men assembled, and he says, we have a significant problem here. We’ve given the power to Congress to propose amendments should they deem them necessary, but we’ve not given the same power to the people acting through the states. And then he asks what I think is a critical question. He asks, are we so naive that we believe that a federal government that becomes a tyranny will ever propose amendments to restrain its own tyranny?

The answer to that question was no, and that’s why the Article V language got written into the Constitution.

But shouldn’t we be loathe to change the Constitution, as a general rule?

MECKLER: Some people will say to me, this Constitution is beautiful and perfect the way it’s written. I don’t want to mess with it. And I agree with that and would agree with that all the way to the finish line, except that’s a fantasy. That’s not our Constitution anymore. And if we want to push back against that, Article V is literally the only way to do it.

For people like Meckler, the greater risk is doing nothing to solve our problems.

For people like Riestenberg, the greater risk is that we might create new problems.

Today, 15 states have already approved a call for a Convention of States. Those are, in order of approval: in 2014, Georgia, Alaska, Florida; in 2015, Alabama; in 2016, Tennessee, Indiana, Oklahoma, Louisiana; in 2017, Arizona, North Dakota, Texas, Missouri; and in 2019, Arkansas, Utah and Mississippi.

In order to call for the convention, 19 more states have to follow suit. This year, 17 states are considering it.

Even if those states give a thumbs up, that’s still two short for the required 34.

It’s a difficult process and that explains why it hasn’t happened. At least, not yet.

And that’s this week’s Legal Docket.

(AP Photo/Patrick Semansky) In this May 23, 2019, photo, the U.S. Supreme Court building at dusk on Capitol Hill in Washington. 

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