A billionaire-backed “movement” is dangerously close to calling a constitutional convention of states under Article V of the U.S. Constitution. If realized, it would be the first constitutional convention since the 1787 Philadelphia Convention, which replaced the Articles of Confederation with the U.S. Constitution.
After an active start to 2017, proponents are now allegedly seven states away from reaching the needed 34 states (two-thirds) to convene a convention. According to Article V, which lays out all the ways the Constitution can be amended, any amendments proposed by the convention would then need to be ratified by 38 (three-fourths) of the states.
Analysis of email blasts from proponents and a new op-ed shows that an emboldened group of paid pro-convention campaigners are advocating for a convention to go far beyond its professed purpose of passing a Balanced Budget Amendment (BBA). Their proposals include the creation of a national identification card.
Apart from the harm a BBA could inflict on the economy and the nation’s economic sovereignty, there are real fears that a BBA convention could “run away,” and open up the constitution to much more drastic changes. There is nothing to guard against a convention being hijacked by special interests, prompting progressive groups like the Center on Budget and Policy Priorities and Common Cause, as well as pro-convention groups like the Compact for America to warn of the dangers of a runaway convention.
One group called the Convention of States (COS) advocates a convention to broadly restrict the fiscal powers and jurisdiction of the federal government, as well as to introduce federal term limits. COS has passed 12 resolutions.
In an email sent to supporters, Mark Meckler, a professional Tea Party campaigner for COS, said, “when we succeed in getting 34 states to pass our legislation, a convention will be called where the states can propose amendments to…
Whether Convention of States hopes to itself get to 34 states, or if its strategy is to co-opt and expand a BBA convention is unclear. However, according to Jay Riestenberg of Common Cause, which tracks the movement closely, Convention of States lobbied hard to defend Nevada’s BBA resolution, which was rescinded earlier this year—indicating its strategy aligns with the BBA effort.
In a similar vein, former Alaska state senator and BBA advocate Fritz Pettyjohn said in an op-ed reposted on ALEC’s website in April that a “Article V Convention could…propose any number of solutions. One would be to dissolve Congress and elect a new one. When you’re the sovereign, you can do that.”
Once the convention is called, all bets are off. (According to ALEC, Pettyjohn’s op-ed “was submitted by a subject matter expert and does not necessarily reflect the views of the American Legislative Exchange Council.” Tellingly, Pettyjohn works on the Balanced Budget Amendment Task Force, the ALEC and Koch brothers-affiliated and funded group behind the BBA-specific convention, according to the op-ed.)
The 2017 state legislative sessions started with 28 active resolutions. According to Riestenberg of Common Cause, Arizona and Wyoming passed new resolutions this year, while Maryland, New Mexico and Nevada rescinded resolutions—bringing the current total down to 27.
Those 27 resolutions are focused on passing a BBA, to force the federal government to balance its budget on a regular basis. The European Union has imposed BBA-like measures on member states and the concept was central to Margaret Thatcher’s municipal austerity regime in England, for example. If passed in the USA, it would cripple the government’s ability to respond to economic crises, and would put public programs like Social Security, Medicare and Medicaid on the chopping block. Some of the 27 resolutions for a BBA date back to the 1970s.
Both the BBA and the Convention of States are endorsed and supported by the Koch-backed American Legislative Exchange Council (ALEC), a conservative corporate group that focuses mainly on state legislatures. According to journalist Brendan O’Connor, writing for Fusion, Convention of State’s recent growth has been funded by dark money groups tied not only to the religious right but also to right-wing financiers like the Koch and Mercer families.
Republican legislatures that have not passed resolutions are now being targeted by the Balanced Budget Amendment Task Force and Convention of States, including Montana, Idaho, Minnesota, Kentucky, South Carolina and Virginia. Wisconsin is voting on a resolution on June 14.
An expansive network of national and state-based civil society organizations, convened by Common Cause, have come together to oppose resolutions and to encourage states to rescind old resolutions. Earlier this year for example, Kentuckians for the Commonwealth helped beat back a well-coordinated lobbying campaign to pass a resolution there and last year Common Cause and others lobbied Delaware to rescind its resolution.
But this is a fight about power at the state level. And thanks to decades of campaign contributions and gerrymandering, ALEC, which has played an influential role in the Trump regime, and the GOP currently enjoy historic control. Republicans control 32 state legislatures and 33 governorships, including 25 “trifectas,” where they have majorities in both state legislative chambers and the governorship.
Now they want to cash in that historic—supermajority-like power—for permanent structural change. The convention has become a top priority of ALEC’s, right-wing families like the Kochs and the Mercers, and ironically, groups like the Federalist Society. Politicians like Ted Cruz, John Kasich, Texas Governor Greg Abbott and hundreds of state legislators have also made it a defining issue.
As all this dawns on the public, and reports show billionaire funding pouring into the movement, concern surrounding the possible convention seems to be heightening. However, ALEC and company may once again be one step ahead.
On March 30, the same day Trump tweeted about changing libel laws, the Arizona legislature formally invited states to meet in Phoenix this September, to propose rules for the convention and agree on a meeting place.
According to the State Legislators’ Article V Caucus, an ALEC-associated group that convenes state legislators in support of the convention, the “Phoenix Convention,” as it is being called, will be “the first formal convention of the sovereign states to be held since the Washington Peace Conference was held in 1861 as state leaders sought to head off the civil war.”
“In a sense,” claims Pettyjohn in his op-ed, “the Phoenix Convention is a demonstration project, a way to prove the feasibility and trustworthiness of the real thing, the Amendment, or Article V, Convention.” He also says that, “Bill Fruth of the BBA Task Force is responsible for this Convention, along with the indispensable Speaker of the Arizona House, J. D. Mesnard.”
In a vague yet ominous claim of sovereignty, Pettyjohn says that, “if Phoenix succeeds, an organization will have been formed. What is done with it, once the Convention adjourns, is up to its members.”
If the convention never gets called, the organizing behind it will have served to unify numerous state legislatures around the concept of fiscal restraints on government—akin to Colorado’s Taxpayers Bill of Rights, which restricts the state’s power to raise revenue. Maybe by aiming for federal constitutional change, ALEC sets the stage for the restraints on state budgets it seeks.
This isn’t the first time ALEC and company has gotten close to a convention or a BBA. They came close to calling a convention in the 1980s, and in the 1990s Congress came one senate vote away from passing a BBA. That Congressional mobilization successfully placed political pressure on Bill Clinton to balance the federal budget.
And now, it appears, some of the ideas being advanced by Convention of States are beginning to win significant support in Congress. For example, one of the seven amendments agreed on at a September 2016 Convention of States Conference proposes that if one forth of either the House or Senate opposes an existing or proposed “federal administrative regulation,” then it must be put to a vote and pass both the House and Senate.
This is strikingly similar to the Regulations from the Executive in Need of Scrutiny (REINS) Act of 2017 (H.R 26), which passed the House this January. The Act would require Congress to approve all new significant regulations within 70 legislative days of being proposed, an idea ALEC introduced five years ago.
Drawing on general calls for self-governance, Convention of States and proponents want to claim a narrative about “who decides.” But they drum up coded racial fears of changing demographics and “what this country is going to look like” to gain support.
Their messages of self-governance are hypocritical. ALEC, which pushes “model legislation” in state legislatures, is largely responsible for a highly coordinated and effective attack on local municipal governments across the country. Thanks in large part to its work, in recent years, thousands of local governments have been stripped of powers to heighten protections for minorities, gender equality, workers, migrants, and the environment. ALEC has also been instrumental in the growth of mass incarceration and attacks on the right to vote.
Those opposing the convention are not fooled by convention proponents’ effort to lay claim to phrases like “self-government.”