ALEC is at it again (or still)!! ALEC has written a handbook encouraging States to join together and subvert the U.S. Constitution, telling States they can hold an Article V convention and propose Constitutional amendments. If this ploy is successful, the States could make our current Constitution unrecognizable and unleash the Scott Walkers and Rick Scotts of the world on the nation as a whole! Check out the what, who, and why below the fleur-de-Kos.
What is an article V convention, who is ALEC, and what do the two of them have to do with each other? An Article V convention is one of the ways in which the U.S. Constitution can be amended (the other way is for Congress to do it). ALEC, the American Legislative Exchange Council, is an organization which writes model legislation and distributes it to legislators for enactment. Although most well known for its efforts at the State level (like the Voter ID and Stand Your Ground laws) ALEC has expanded its area of interest to include national politics and has gone so far as to publish a handbook on Article V conventions.
Wanting to know more about Article V conventions, and not being a constitutional scholar, I scurried to Wikipedia to find out how this amendment process is supposed to work. Article V provides two means by which the Constitution can be modified: 1) amendments proposed by Congress and 2) amendments proposed by national convention. To date all constitutional amendments have been proposed by Congress, but as we well know Congress has accomplished precious little recently. Given the inertia of Congress and the need to address issues such as campaign finance reform (Citizens United), an Article V convention is more within the realm of possibility than ever before. This raises important questions about the details of such a convention. When and where would it meet? How would delegates be selected? What procedures would be used? Who gets to answer these questions? Congress? The States? We The People?
When the Articles of Confederation proved to be insufficient to establish a sound financial system, regulate trade, enforce treaties, or go to war, representatives from the States convened in 1787 for the express purpose of "improving" the articles of Confederation. Congress 1) called a convention, 2) to meet on a specific date, 3) in a specific place, 4) for a specific purpose, 5) with rules about what constituted a quorum and the number of signatures required. The result of this convention was not a new-and-improved Articles of Confederation, but rather the Constitution of the United States (which has served us well for over two centuries).
If a modern convention were called by Congress, who would get to make the rules? The answer depends on who you ask … Constitutional scholars, the States, or Congress. Constitutional scholars are likely to be least biased, but there is no agreement among those who have addressed this matter (Lester Orfield (1942), Cyril Brinkfield (1957), the American Bar Association (1974), Russell Caplan (1988), Larry Sobato (2007), Lawrence Lessig (2011)). The states would attempt to exert control over the convention by maintaining control of its delegates. Congress, of course, would prefer to maintain the status quo. After all, if Congress wanted an amendment it could have proposed one on its own. Therefore, Congress would likely avoid a convention altogether or at least limit the power of any convention.
What if Congress never called a convention? It is uncertain whether Congress could be forced to issue a call even though required to do so under Article V. Further, it is unclear whether this matter would be justiciable in the courts. Multiple lawsuits have been filed trying to force Congress to call a convention based on the applications it has received, all to no avail. In April 2012 the FBI refused to investigate a grievance alleging that members of Congress are acting illegally by refusing to comply with the Article V requirement to call a convention. If Congress can thumb its nose at the Constitution, perhaps an Article V convention will never be called!
Article V Conventions Generally
Since an Article V convention has never been called, it is uncertain how such a thing would function. Constitutional scholars, Congress, and the American Bar Association have weighed in on the issue and provided some guidance on such a convention … the application process, scope, call, delegates, and procedures.
Applications: First of all, Article V requires Congress to call a convention upon application of two-thirds of State legislatures. Because Congress is loathe to call a convention, it has aggregated the applications in such a way that the two-thirds requirement has never been met. And, although no definitive legislation exists, it has been proposed that once Congress has determined that two-thirds of the States have submitted application for a convention on the same subject, Congress must pass a resolution calling for a convention and setting forth the nature of the amendment(s) for consideration (but see the discussion above about thwarted efforts to force Congress to call an Article V convention).
Of note, States must submit an application for a convention and not submit an actual amendment … Constitutional scholars have predicted that applications containing the actual language of an amendment would violate Article V and therefore be unconstitutional (the rationale behind this interpretation is that including the actual language of a proposed amendment in an application would eliminate the need for a convention).
Scope: Since the original convention, constitutional scholars have disagreed on the scope of an Article V convention. Some contend that the convention is absolute and is only restricted by the language of Article V. Others suggest that the convention is a body bound by all the provisions of the Constitution (but would not be beholden to Congress). The prevailing view, however, is that a convention would have limited powers subject to the restrictions imposed by the legislative call and thus, at least in part, could be constrained by Congress.
Call: If Congress calls a convention as provided in Article V, how far does Congressional power extend? Well, in addition to setting the date and place of the convention, Congress might attempt to control everything about the convention (although its power to do so is debatable). Some constitutional scholars have suggested that Congress would have a hand in setting some of the early parameters of a convention but that delegates would determine how the convention would be run. Of note, most scholars believe the States (which would be instrumental during the application process) would have no control over the actual convention.
Delegates: Delegate selection is probably the most interesting aspect of a possible Article V convention. If following the model of the original constitutional convention, the call would be addressed to the States, the States would decide how to select delegates, and the convention would vote by State. Congress has proposed that the number of delegates elected would mimic the makeup of Congress … one delegate from each district plus two delegates at large from each State. Some Constitutional scholars have suggested that delegate selection be random, like jury selection, to avoid the pitfalls and politics of elections. In fact, efforts are underway to hold mock conventions using this method of delegate selection.
Procedures: Most commentators have been silent about how a convention would operate, perhaps because the question is premature. Congress has given it some thought, however, and has proposed legislation to regulate the convention process. Congress proposes that the convention may not exceed the scope of the call and must terminate within one year. A daily transcript would be published, all votes would be recorded, and a two-thirds vote would be required to propose amendment(s) to Congress for submission to the States for ratification. Lastly, the proposed legislation provides that any conflicts regarding the convention process would be resolved by Congress (although the American Bar Association urges judicial review).
ALEC and the Article V Convention
So how does ALEC fit in this picture? We know ALEC is interested in inserting the states into the amendment process because they have proposed resolutions to rewrite Article V to that effect. ALEC has passed three separate resolutions re-interpreting Article V so as to circumvent Congress and to allow the States to call a convention or propose amendments directly. The first resolution implies that the U.S. Constitution can be amended in such a way as to give "two thirds of the states the explicit right to propose amendments without having to obtain the consent of Congress." The second resolution proposes an amendment "allowing the states to call a limited convention." The third resolution proposes an actual amendment allowing states to propose amendments which "are valid for all intents and purposes two years after they are submitted to Congress." It is important to note that these resolutions are not “model bills” to be passed by State legislatures … these are attempts to mess with the U.S. Constitution!
In its handbook ALEC is telling its members that state legislatures can amend the Constitution “by calling an Article V convention of the states." Under current law, the state legislatures must apply to Congress under Article V and have Congress call a convention to propose any amendment. The ALEC intent seems to be to alter the balance of power between the federal and State governments. Given the corporate sponsorship and involvement with ALEC, this is nothing less than corporate invasion of the federal realm!
From the ALEC perspective, the States would propose amendments and apply to Congress for a convention. It is unclear whether ALEC would be successful in this regard because applications containing the actual language of an amendment would likely be unconstitutional (since the purpose of the convention is to propose an amendment to be submitted to the States for ratification there is no need for a convention if the amendment has already been proposed by the States). If ALEC were successful in altering Article V to allow States to propose amendments, there would be no need for a convention and "We The People" would be excluded from the amendment process.
Further, ALEC considers the convention process itself to be a mechanism under State authority as evidenced by the title of its Article V handbook … "Proposing Constitutional Amendments by Convention of the States." By convention of the States? Seriously? Nowhere in Article V (or in the literature) are the States deemed to be active participants in the convention process. Nevertheless, the author of the ALEC handbook sees the States as instrumental in the application, amendment, and convention process.
The ALEC handbook was written by Robert Natelson, previously a professor of law at the University of Montana. From his other writings, it is clear Natelson believes that the States have the primary role in conducting an Article V convention. For example, he defines the convention as "an assembly composed of state delegations … responsible to their respective state legislatures." In Article V, however, there is no such definition of convention, nor is it found in the writings of constitutional scholars (other than Natelson himself). Natelson further inserts the States into the process by substituting the phrase "interstate convention" for the phrase “Article V convention." As discussed above, Article V allows the States to apply for a convention, not to actually participate in it.
The foreword of the handbook was written by Indiana State Senator Jim Buck who was the chair of the ALEC Tax and Fiscal Policy Task Force in 2011 when the handbook was published. One might ask what tax and fiscal policy has to do with amending the Constitution. When the senator makes note of Congress's failure to contain spending it is not surprising that the sample amendment used throughout the handbook is a balanced budget amendment. From the ALEC perspective then, the reason for amending Article V would be to allow States to propose a balanced budget amendment.
Why? Why? Why?
Why is ALEC so interested in changing Article V of the U.S. Constitution? If Article V were amended to allow States to propose amendments, there would be no end to the types of amendments we would see. From the handbook, one could speculate that the States would attempt to insert a balanced budget amendment, but that would be only the beginning. Already ALEC has passed resolutions to propose the following amendments: The first "permitting repeal of any federal law or regulation by a vote of two thirds of the state legislatures;" the second "for the states to nullify federal laws and regulations in such cases as the states deem that the federal government has exceeded the limits of its authority;" and a third prohibiting the federal government from imposing regulations and mandates upon the States.
The corporate sponsors that fund the ALEC organization have fought long and hard to impact federal legislation. Having failed in that regard, those corporations are now targeting state legislatures. These resolutions to insert the states into the process of amending the U.S. Constitution are nothing short of privatization of our representative form of government. ALEC is encouraging states to rebel against the federal government and redraw the lines between federal and state authority that were crafted 200 years ago. These resolutions, and the proposed amendments, are an attack on the Constitution's supremacy clause and could return us to the ineffective method of government practiced under the Articles of Confederation. If the corporations behind ALEC have their way, there would be no environmental protection agency, no workers rights, no minimum wage, no public services and no social safety net. Our country of "We The People" will become one of "We The Corporations."
One Final Note
One final note … on terminology. It will be helpful as the “convention” debate heats up to distinguish between a “constitutional convention” and an “Article V convention.” The purpose of a “constitutional convention” is to replace the Constitution while an “Article V convention” intends to amend the Constitution. Even the ALEC handbook uses the appropriate term, but the media is much less likely to grasp the finer points of the distinction.
I look forward to your interpretation of ALEC's intentions and any other comments you would like to share.