This column first appeared in The Hill on April 2, 2018.
Like voter suppression efforts, the campaign uses fear and disinformation to discourage citizens from exercising an important constitutional right.
Article V of the Constitution permits the American people, through our state legislatures, to require Congress to call a “convention for proposing amendments.” As the name suggests, this is a way of proposing constitutional reforms Congress refuses to propose. Any proposals must, however, be ratified by 38 states before they become law.
Our founders designed this as a way the people could fix the federal government if it became abusive or dysfunctional. The convention is, in fact, an important constitutional check, like the president’s veto or the Senate’s right to vote on treaties. Today many favor a convention to propose federal term limits, a balanced budget rule, campaign finance reform, a single subject rule for congressional bills, or combinations of these and other changes.
Popular interest in a convention grows when people are dissatisfied with the federal government — as they are now. Unfortunately, this is also the signal for opponents to re-launch their fear campaign. Well-funded organizations disseminate media articles by authors with impressive titles, but no real expertise on the subject. They focus on four talking points:
- No one knows how an amendments convention is chosen or how it operates, but
- it would be an uncontrollable “constitutional convention,”
- it would be controlled or manipulated by Congress and
- it might impose radical change.
As you can see, these points are largely inconsistent with each other. And academic research has debunked all of them. For example, we know how the convention is chosen and operates: It is a meeting of state representatives of a kind very common in U.S. history. Nor is it a “constitutional convention.” It is authorized only to offer amendments on prescribed topics, not write a new constitution.
Nor can Congress dictate to it. The convention follows a pre-set agenda and attendees are subject to state legislative direction. Incidentally, the Supreme Court case opponents sometimes cite to “prove” congressional control is a 79-year old minority opinion the courts have long repudiated.
Finally, the convention has no governmental power whatsoever. It may only propose. The states may ratify these proposals or reject or ignore them.
Nevertheless, opponents persist with their talking points, emphasizing first one, then another, according the particular audience they are trying to frighten.
The history of these talking points is interesting. During the late 1960s and early 1970s, there was widespread public dissatisfaction with the activist decisions of the Supreme Court, then led by Chief Justice Earl Warren. Many advocated constitutional amendments to overrule some of the court’s holdings.
The court was defended by an alliance of well-connected academics and opinion makers, politicians, and media outlets. Academics such as Yale law professor Charles Black suggested some of the talking points, and other convention opponents refined and publicized them. Opponents then — like their successors today — claimed they were protecting the Constitution. But what they actually were (and are) doing is protecting judges and politicians who abuse their positions by changing constitutional rules without following the normal democratic process.
Unfortunately, the disinformation campaign of the 1960s and ’70s managed to scare off enough people to kill the convention effort.
Freed of this constitutional check, the Supreme Court issued still more overreaching decisions and Congress’s dysfunction got worse and worse. These events triggered renewed convention sentiment during the 1980s and ’90s. Establishment figures responded by dusting off their old talking points and promising reform.
We know now the promises were never kept. On the contrary, the federal government’s fiscal irresponsibility and other excesses have become even worse. The result has been more pro-convention sentiment, particularly at the grassroots.
Of course, a check on federal excess is the last thing many Washington insiders want to see. That’s why you see the anti-convention talking points in the media yet again.