Wolf-Pac: A PAC Dedicated to Getting Money Out of Politics
By Paul Keleher and John Lawrence
The United States Supreme Court held (5–4) on 21 January 2010 that freedom of speech prohibited the government from restricting independent political expenditures by a nonprofit corporation. The principles articulated by the Supreme Court in the case have also been extended to for-profit corporations, labor unions and other associations.
Justice Kennedy writing for the majority said, “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”
However, corporations (and any legally organized group of citizens) are legal entities chartered for a dedicated purpose and created by government, and as such should be regulated by government. They are not granted the constitutional protections the Constitution grants to human beings.
It is significant that Citizens United vs FEC (Federal Election Commission) involved Hillary Clinton as she was facing the 2008 election. A conservative non-profit called Citizens United wanted to do a smear job on Hillary by airing a movie right before the Democratic primary. They planned to advertise the movie on TV, but this would have violated a Federal statute about electioneering close to an election.
Today the SCOTUS decision in Citizens United vs. FEC is seen as giving the green light to political ads by wealthy groups who can, since that decision, spend an unlimited sum to get their (usually conservative) points across. Citizens United nullified the Bipartisan Campaign Reform Act also known as the McCain-Feingold Act which had been in effect since 2002. Thus in one fell swoop the doors were opened for corporations to have an undue influence over the American political system. The poor had no similar access.
Americans Agree There is Too Much Money in Politics
A survey conducted by the New York Times in June 2015 said in part the following: “In a rare show of unity Americans, regardless of their political affiliation, agree that money has too much influence on elections, the wealthy have more influence on elections, and candidates who win office promote policies that help their donors. With near unanimity, the public thinks the country’s campaign finance system needs significant changes. There is strong support across party lines for limiting the amount of money individuals can contribute to political campaigns, limiting the amount of money groups not affiliated with candidates can spend, and requiring unaffiliated groups to publicly disclose their donors if they spend money during a political campaign. On the whole, Americans do not think donating money to political candidates is a form of free speech. Yet, opinions diverge along party lines with Republicans divided and slightly more inclined than Democrats or independents to agree.”
Article V of the U.S. Constitution, says in part, “The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments …” .
Cenk Uygur, formerly a television host for MS-NBC, founded Wolf-Pac in 2011 at a meeting of Occupy Wall Street in New York City. According to its charter, the sole purpose of Wolf-Pac is to call a convention of the states to propose one or more amendments to the U.S. Constitution to get big money out of politics. Mr. Uygur is also the host of TYT (The Young Turks), an American political commentary web series. Wikipedia defines Wolf-Pac as “an American non-partisan political action committee formed in 2011 with the goal of ending corporate personhood and publicly financing all elections in our country”. The organization gets it name from the fact that it is a “PAC” (a political action committee) whose members act together in numbers, like wolves, to fearlessly attack their prey.
Since Wolf-Pac believes that the US Congress either does not intend to or is incapable of seriously addressing the issue of campaign finance reform, it’s strategy is to amend the constitution by going around Congress and the President as described in Article V: persuade 2/3 of the State Legislatures (that number is currently 34) to each pass a resolution calling for a convention to propose an amendment to the Constitution whose intent would be to minimize the corrosive influence of money in politics. Hence Wolf-Pac is organized by state, with help provided by members volunteering to phone-bank the constituents of targeted state legislators, asking not for money, but to simply call their state senator or rep and ask them to support a resolution for an Article V convention in order to overturn the Citizens United decision and get money out of politics.
Wolf-Pac Says: Amend the Constitution to Limit Money in Politics
From the Wolf-Pac website: “Calling for a convention on a specific issue is the strongest message we can send to Congress, and the most effective way to restore our democracy in the United States.” As of September 2016, five states (Vermont, California, Illinois, New Jersey and Rhodes Island ) have each passed resolutions calling for such a convention. Not all states have proposed and passed identical resolutions, as each state composes its own. However, each resolution demands a convention for the purpose of proposing a constitutional amendment on campaign finance reform and expresses the desire that the agenda of any Wolf-Pac supported amendment convention be limited only to this topic.
An Article V convention has not been held since 1787, when the Bill of Rights was proposed. In the early part of the 20th century the proponents of the 17th amendment took 13 years to get 30 states (out of 32 needed) to pass resolutions calling for a convention to propose amendments. When it became clear to Congress that the 17th Amendment was going to happen with or without them, Congress decided to propose a constitutional amendment calling for the direct election of senators just before the required 2/3 majority was reached, thus preempting a convention. Congress may do this again.
There are presently 27 amendments to the Constitution. Not a single one addresses the issue of campaign finance reform. It’s time the Constitution addressed this issue. A vast majority of Americans agree that money is corrupting American politics to the point that a then sitting American Congressman, Steve Israel (D-NY) publicly complained on “60 Minutes” that he was required to spend about half his time every week sitting in a booth at party headquarters in Washington calling a list of major donors to his political campaign.
On January 8, 2015, Rep Israel wrote in the NY Times as he was leaving office, “As I announced on Tuesday (January 6), I’ll be leaving Congress at the end of this term — sentimental about many things, but liberated from a fund-raising regime that’s never been more dangerous to our democracy.”
Since any Amendment to the Constitution must address the relationship between a people and their government, an amendment relating to the use of money by organizations of people (any legal entity created by government) as opposed to people themselves is appropriate: thus, corporations (or any legally organized group) are not people. This expression means that an organization of people is not the same thing as the human beings who comprise that group.
Likewise, it follows that money is not speech. Money certainly can be used to buy speech, but it is not speech. It is a form of currency, while speech is language, a form of human expression, a means by which human beings express their ideas and thoughts. The importance of this distinction is that a healthy democracy depends on the ability of humans to directly express their ideas and thoughts through speech, not by paying someone else to speak for them through advertising.
Unlimited Money Tips the Balance in Favor of the Rich
The balance is tipped towards the interests of the rich when vast amounts of money are required in the exercise of free speech. There is obviously a difference between someone spouting off on a street corner and some entity organizing and paying for advertising on TV which is the form most political speech takes. Unless any legitimate group is given a certain amount of free TV ad time and every group is limited to the same amount, the balance of political speech is tipped in favor of those with the most money whether it is individuals or corporations. Wolf-Pac is dedicated to the public financing of elections.
Justice Stevens, in arguing for the minority on the Supreme Court, said that the Court’s ruling “threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution. A democracy cannot function effectively when its constituent members believe laws are being bought and sold.” He argued that in a democracy money should not determine the outcome of an election.
Furthermore, equating organizations of people to the people who comprise those organizations, and free speech to money is something that needs to be changed or elections and representation will continue to favor those with the ability to pay. This is not democracy; it is plutocracy. Wolf-Pac is dedicated to democracy and elections to any public office that are fair and affordable for all citizens.
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Paul, your comments have always been thought provoking. Glad to see that you and John worked together on this article. Hope to hear more from you.
Thanks for the compliment, Anna. I’ll contribute as I can.
Thank you for bringing attention to Campaign Finance Reform which is urgent at the local, state, and federal levels.
Gawd, a planning commissioner/developer in San Diego openly says he likes secret government because the local billionaires “know the code” spoken at City Hall. And America gets a Supreme Court that rules the First Amendment gives corporations the right to spend unlimited sums on elections. Maybe next Scrooge will be canonized as a saint and Donald Trump will walk on water.
“King Donald” is holed up in his palace in FL right now. That palace is surrounded by water, so you never know!
Good information. I hope anyone who listens/reads progressive media (or what’s left of it) contacts the hosts and authors to stress how important this issue is. I would love to hear Thom Hartmann bring up the PAC and movetoamend.org for 10 seconds of all segments he broadcasts. Every citizen and voter in the USA needs to know this is one of our last hopes to save our democracy. Money is not speech & corporations are not people.
So would I (love to hear Thom Hartmann bring up the PAC and movetoamend.org for 10 seconds of all segments he broadcasts), Frank!
One of our many challenges as I sit with MA state legislators is that our issue is “important, but not urgent”. And they go on to say they are too busy dealing with “urgent” matters to spend time dealing with our resolution.
As we both understand, dealing with this issue will make dealing with all the other “more urgent” issues much easier as such an amendment will allow our representatives to represent ALL of their constituents, not just the wealthiest few who contributed to their campaign.
I’ve spoken with Hartmann both on/over the radio and face to face, and he is, or was, last I heard, an Anti-Conventionist. In reading through these comments Paul, I see that you are an authentic American, and by that I mean, you would never say that the Article V Convention is important but not urgent, when in fact there is nothing in the Constitution more important, and there is nothing more urgent.
John, I’ve said it before and I’ll say again: last year I heard MA legislators say to me personally that campaign finance reform is “important, but not urgent” (so I don’t have time for it because around here we deal only with matters that are “urgent”.) Yet to me, campaign finance reform is not only important, but urgent also. In fact there is no issue more important or more urgent IMO.
Well, looks like we have to do something about it right? At present people at WOLF-PAC are not highlighting the objective truth, that congressional, public, records, show the states have satisfied the clause multiple times and politicians say it’s important but…. At present there are a number of groups calling for a convention, yet strangely none have realized that until we all come to the table, nobody is going anywhere.
John, I find the post to which I am replying very confusing. First, what exactly is “the objective truth” you are talking about? I do not understand what you mean by, “congressional, public, records, show the states have satisfied the clause multiple times and politicians say it’s important but….”… what clause? Wolf-Pac operates state-by-state. In MA Wolf-Pac and We the People/MA (formerly the MA chapter of Move-to-Amend) are working together. So, what exactly do you mean by “we all come to the table, nobody is going anywhere…”
Paul, the objective truth is that the states have satisfied the convention clause of Article V: congressional records show 49 states have cast hundreds of applications for the Article V Convention, thus, the convention call is currently mandated by the Constitution. In other words, it won’t takes years, we could get the call as soon as next year if groups like Wolf-Pac and MTA and COS and BBATF and others stop talking about their pet amendments, and instead unite for the call itself. Until the call is coerced out of the Congress, we’re all just a bunch of yapping poodles.
I can’t speak for the other groups, nor can I formally speak for Wolf-Pac. But as a member of Wolf-Pac, I know how it addresses this question: they say (but I’m not certain) that Congress counts calls for Article V conventions by topic, and it has yet to get 34 calls for a convention ON A SINGLE ISSUE.
My question to you is if 49 states have already cast hundreds of calls for an Article V Convention, why hasn’t Congress ALREADY called for a convention?
The reason the Constitution doesn’t place any term or condition on a state application is because there is no need to, because the convention process is simply a formal building of consensus, and because to do so politicizes the convention call itself, instead of framing it as based on an objective numeric count. The only reason we’ve come to view the convention call as something ominous is because of misunderstanding, which has resulted in a lot badly thought university papers in the cottage industry of convention chat, positing that the call is based on same subject or contemporaneous requirements. Yet if you read Article V, a single sentence, there are none.
The Congress is inching towards the call, it’s just a matter of when we get a tipping-point (roughly 30 million Americans) cognizant of what the Article V Convention is. Over the past fifteen years I’ve engaged in this conversation online and I can attest to a sudden growing awareness of this issue.
The Article V Convention (a proper noun) does not and cannot amend the Constitution, it is simply the alternate mode of formally proposing amendments. We’ve never held one. That was not very clear in this article. Check FOAVC.org for more information, including H.R. 5306 which would task the Director of the National Archives to go find all state applications and enroll them as federal documents so they can be officially counted.
Hello, Mr. De Herrera and thank you for taking the time to reply. You are absolutely correct when you say that an Article V convention does not and cannot amend the consitution. I hope the article made that clear that Wolf-Pac’s mission is not to propose any amendment text, but only to get both chambers of 34 state legislatures to each pass a resolution calling for an Article V convention on the subject of campaign finance reform.
I do not speak for Wolf-Pac but believe it understands and acknowledges that any proposal for an amendment to the Constitution would emerge from such a convention (not from Wolf-Pac), and that any proposal to emerge from such a convention (just as any proposal to emerge from Congress) must be ratified by 38 state legislatures (3/4ths of the states) before it actually becomes an amendment to the Constitution.
As to whether there has ever been an Article V convention, what about the convention of 1789? I agree there has not been an Article V convention since then.
And thank you for the references to FOAVC.org and H. R. 5306. I’ll look them up.
Paul Keleher and John Lawrence
Thank you for your article. The control of our political system by the big money special interests has subverted our political system for their own advantage. This is not original but we have become the best democracy that money can buy. Since it looks like Citizens United will be with us for a while, the only solution I see is campaign finance reform using the small donor public funding reform program instituted in New York City and Los Angeles. This gives all potential candidates the funds to run for office and empowers regular people and neighborhoods to have a say in their own government. This is what we want and what we deserve for the City of San Diego.
John Hartley: 619-299-8870
Coordinator: Neighborhoods for Campaign Finance Reform
Thanks, John (Hartley, that is). The reason I joined Wolf-Pac a few years ago is that I felt compelled to do something in response to the Citizen’s United decision. I see overturning Citizen’s United as far from all that is needed, but a necessary first step in reforming the economic system that drives this country. A CA is the most permanent solution to the problem of money in politics that I know of. And an Article V convention is the only path to passing a CA on this issue that I can see. So, I help Wolf-Pac.
Thanks Paul for what you are doing. By expressing yourself you are moving the ball down the field. It will take all of us and all of our actions to make progress.
John
First of all the convention was held in 1787, not 1789. Second the reason the convention of 1787 was NOT an Article V Convention was for the obvious fact that the Constitution, and hence Article V, did not exist either in substance or legal effect.
Thank you for both, Bill.
If I may then, if the convention of 1787 produced the constitution itself, when was the Bill of Rights added? I don’t argue that there is no predcedent for an Article V convention. This fact is one of Wolf-Pac’s biggest challenges…fear of the unknown.
Paul, one of the essays in my little book was called “The Counterrevolutionary Constitution.” If you look at the page on my website where it was originally published http://fubarandgrill.org/node/1085 you’ll find several pages of comments that talk about the Constitution and the unorthodox (if not illegal) process by which it was adopted.
I also highly recommend an old book by Lysander Spooner called No Treason: The Constitution of No Authority that is available as an ebook from Amazon for 99 cents: https://www.amazon.com/No-Treason-Constitution-Authority/dp/1938357272 and can probably be found either as a library book or online for free.
The framers knew that if they followed the required process, their Constitution wasn’t likely to be ratified and adopted, so they didn’t.
If you really want Amendments or a new Constitution, you’d probably have to do something similar to what the framers did, ignoring the required procedure and substituting a new and different procedure that could succeed.
Well, I must admit that I do really want a constitution that is what it says it is. What do you suggest be done then, Mark?
That’s THE question now, isn’t it?
When Ouspensky asked Gurdjieff that question, I think the reply was, “Do? Man cannot do.”
We can certainly undo. We seem to have undone everything that sustained us for eons. So undoing a Constitution must be possible also. In fact Venezuela did exactly that and has a new Constitution, but they had free, fair, honest elections and we don’t, so we can’t simply copy what they did.
All I can suggest is that we ask ourselves if what we are doing can accomplish what we want within a reasonable time period, and if not, stop doing it and put our energy into finding something that will.
Meanwhile, we have to participate in forums like this, because in addition to honest elections, Venezuela had something else the United States doesn’t have–a higher level of social consciousness. The minority who prefer oligarchy to government of, by, and for the people, are very loud, very powerful, and extremely violent. It takes an overwhelming majority to withstand their attacks, and even then it isn’t easy and requires great sacrifice.
Our myths tell us that we are capable, but once we learn that they are only myths, we have to question even that. Still, we’re human, so in addition to being error-prone, we, or at least most of us, are also capable of learning and of adapting for survival. We wouldn’t be here if we weren’t.
I think Einstein once said that if he had ten days in which to solve a problem, he’d spend the first nine days studying the problem and only the tenth day solving it. We seem to have begun to understand the problem, so while it may not appear that we’re doing anything, I believe that we really are.
Those who are the problem, are not going to give us any help and will place as many obstacles in our path as they can, so I appreciate that you and others are also studying the problem, rather than trying to solve things we don’t fully understand. It doesn’t take a genius to know which method is more likely to lead to success.
Hey Mark, you said in this post, “All I can suggest is that we ask ourselves if what we are doing can accomplish what we want within a reasonable time period, and if not, stop doing it and put our energy into finding something that will.” Isn’t that what we’re doing? It just takes time to find out whether what we are doing will actually accomplish the goal or not. I don’t argue that nothing is guaranteed.
Hi Paul. Remember the ERA, the Equal Rights Amendment? First introduced in 1923, it didn’t pass both Houses of Congress until 1972. Although there are several organizations still working to pass it, it was never ratified and most likely never will be. But it is commendable to see people working on a process that could take a century with little prospect of success.
Unfortunately, Citizens United did not change the status quo, it merely codified and reinforced it. If you study the Constitution, you’ll find that the framers went out of their way to ensure that the “mob and rabble” would never be able to change the plutocracy or oligarchy they established to anything resembling a republic or a democracy.
It isn’t just one Amendment to the Constitution that would be needed to change that, it would take dozens. Even with money out of elections, we’d still need to allow people to vote directly for the highest offices, to ensure that unelected officials like Supreme Court Justices could no longer intervene in elections and make rulings that were not subject to appeal (the Divine Right of Kings), to ensure that the popular vote had to be counted, was verifiable, and was the final say that could not be ignored or overturned, etc. I can list about a hundred changes that would be needed to ensure free, fair, and honest elections in this country, and it would be a lot easier to start with a new Constitution than to amend the one we have.
I have a short collection of essays online that describes a few of the problems:
Consent to Tyranny: Voting in the USA
http://fubarandgrill.org/node/1431
In a society where those who have the most money, wield the most power over all three branches of government, bringing about change by utilizing the methods specified by the system itself, can be very difficult. Even if you got your Amendment, the Supreme Court could easily interpret it to mean the opposite of what it clearly intended, or simply refuse to uphold and enforce it.
Remember the 13th Amendment that supposedly “abolished slavery?” Well, it had a loophole. Slavery is still legal in the US when it is used as punishment for a crime. A crime could be anything from drinking during prohibition to sleeping on the sidewalk when you’re homeless–that’s up to the cities and states. All the Constitution says is that if you’re convicted of a crime it is legal to enslave you as punishment. The Constitution doesn’t specify what kind of crime–it could be a felony or it could be a misdemeanor–only that slavery is still legal. Citizens United just helps ensure that only those who want to keep it that way are likely to be elected to positions of power.
Mark, you have said a great deal and it is very thought-provoking, to me at least.
I’ve read your articles on with great interest. The ERA was finally proposed by Congress. Wolf-Pac intends to use the article V process to go around Congress altogether because Wolf-Pac (like me) believes that Congress will NEVER propose campaign finance reform that takes money out of politics. Why should they, after all? They are getting all that money! We are asking them to “bite the hand that feeds them.”
I realize that the Citizen’s United decision did not really change anything, but merely reinforced what already was, which is why a constitutional amendment providing the legal groundwork to overturn that decision will not really make much of an improvement. This is in part why I view a CA to get money out of politics as only a first step in the long process of moving this country to a better economic paradigm that the one it is currently on, and why I, like many others, do not want to rely on the SCOTUS to get money out of politics. I don’t see how the SCOTUS could “easily interpret it to mean the opposite of what it clearly intended, or simply refuse to uphold and enforce it.” I don’t see how anything the SCOTUS did could influence a CA. The SCOTUS is obligated to uphold the constitution, is it not?
I agree with your comment that more than one amendment would be needed to rectify all of the wrongs is perhaps the only point on which I disagree with Wolf-Pac, which is seeking a singe-issue convention. For example, your comment that all elected offices should be decided by the popular vote, and the popular vote alone is one I agree with also. A CA modeled along the lines of the 17th amendment could be crafted that would do just that. Another CA (or perhaps the same one) could be crafted that would permanently do away with the Electoral College, another anachronism that interferes with the democratic process. The 13th amendment could be amended as well to eliminate the loophole.
It’s important to remember that “a journey of 1,000 miles begins with one step.”
While I agree that a journey must begin with a single step, Paul, I believe it critical to know what direction to step. If it happens to be the wrong direction, we’ll have to retrace our journeys to get to where we’re going.
One very important thing I forgot to mention is accountability. We have a right of recall in California, but due to the imbalance of power in our society, it doesn’t always work very well or as intended. But there is no such right at the federal level, so if an elected official does irreparable harm while in office, there is no way to replace them until they come up for election again. Theoretically, the impeachment process should cover that, but it never has and most likely never will.
But we have to keep in mind that Citizens United is about elections, primarily about using money to influence elections. One part of the Constitution, something the framers thought so important that they put it in the very first Article, as Section 5, is that, “Each House shall be the Judge of the Elections, Returns, and Qualifications of its own Members…” So Constitutionally, no matter how somebody is elected to Congress, Congress can judge that they weren’t elected, or that they’re not qualified, and refuse to seat them, or, conversely judge that somebody who wasn’t really elected actually was and decide to seat them anyway (which I believe has happened more than once in contested elections that many people believe were stolen). It’s the only place I know of where the Supreme Court doesn’t have supreme power, because only Congress can judge Congressional elections.
One lawyer I know said he thought Article 1, Section 5 could be interpreted as giving Congress the right to judge that somebody had been elected to Congress even if no election had been held.
Yes, SCOTUS is obliged to uphold the Constitution, but so are all elected federal officials. It is part of the oath that they take to be sworn into office. But there doesn’t seem to be any penalty for violating that oath. For example, assassinating your own citizens without due process would appear to violate the Constitution in many ways, such as due process, cruel and unusual punishment, etc., but the US President has that right and SCOTUS hasn’t said a word. Perhaps the only person who would have standing to ask for cert would be somebody who had already been assassinated?
The 14th Amendment, with regard to equal protection of the laws, was intended to protect the right of Blacks to vote, or at least that’s how I understand it. But SCOTUS somehow used it to justify denying Blacks the right to vote in Florida in Bush v. Gore 2000. They didn’t address the issue of Blacks being illegally purged from the voting rolls, they chose to address the issue of different precincts using different methods of voting and the likelihood of a candidate having hurt feelings if not elected.
The real problem, Paul, is that for us to have free, fair, honest elections, and a republic or a democracy (rather than a plutocracy or oligarchy) to elect people to, we’d need more than a few amendments to the Constitution–by my count at least a hundred. My feeling is that if you only need a few repairs to your car or some other appliance, you’d probably be justified in getting it fixed. But if the machine needed a hundred or more repairs, I’d suggest getting a new one, or at least considering it. The result won’t be the classic you’re so fond of, but if the old one doesn’t serve its purpose, and it is quicker and cheaper to get a new one that works, isn’t that what a disposable society is all about anyway? ;)
Mark, although I won’t argue that an Article V convention is a mammoth undertaking. Meaning it will take years just to call the convention, (Wolf-Pac has only been at it for a few years, and already it has 5 states.) and more time after that to actually convene the convention.
If it is to be like most other conventions, each state will elect and send a delegation to the convention and those delegates will vote. Wolf-Pac’s resolutions describe who is and who is not eligible as a delegate to the convention.
Although Article V states that a convention called pursuant to it is a convention “for proposing amendments to the Constitution”, I know of no other way to replace the entire constitution. That said, you are not the first person I’ve heard who believes that an entirely new constitution is needed. So maybe an amendment could be proposed at an Article V convention that makes it possible for an Article V convention to replace the entire constitution (except Article V), not just to amend the existing constitution.
Paul,
I’ve been reading two papers on another approach than a constitutional amendment to overturn certain Supreme Court decisions led by pro-corporate Chief Justice John Roberts in Citizens United case and four other cases since 2006. Decisions significantly extending the influence of private interest money (super PACs) in politics – corrupting government, public officials, and elections.
Lawyers James Marc Leas and Rob Hager in their writings, “The Problem in Citizens United Is Not Corporate Personhood,” and “Constitutional Amendment Not Needed; Congress Already Has A Remedy,” argue that an amendment would not solve the problem … a simpler solution already exists in the Constitution that can be implemented with much less effort than an amendment.
They say Congress already has the power to stop the Court from making any more decisions enabling the 1% to buy elections. Regulating elections and their financing to prevent corruption is a political question. Under Article I, Sections 4 and 5 of the Constitution, it is the Congress – not the Court – that has the exclusive power to make or altar regulations regarding the “manner” of holding elections.
According to Leas and Hager, the founding fathers provided Congress with the constitutional power to remove jurisdiction over financing elections campaigns from the jurisdiction of the Court. Here is the provision doing just that as included by the founding fathers:
“The Supreme Court shall have appellate jurisdiction, both as to Law and Fact with such Exceptions and under such Regulations as the Congress shall make (U.S. Constitution, Article III, Section 2).”
Leas and Hager conclude this is an astute check and balance on Court jurisdiction that gives Congress the power to remove Court jurisdiction over the financing of election campaigns as well as removes the Court’s ability to take up such cases. Congress and state legislatures are then free to pass laws removing private money from election campaigns and reversing decisions the Court has made.
A law requires only ‘an ordinary majority vote’ in each House to deny Court jurisdiction over funding elections and to pass legislation curbing such funding practices. Of course, this will still require substantial pressure on Congress to pass such legislation. But Leas and Hager see this as a much less difficult process than obtaining the two-thirds vote in each House and ratification of three-fourths of the states within 7 years required for a constitutional amendment.
In their words: “This direct route to restoring government of, by and for the people addresses the actual constitutional problems raised by the Court, removes Court power to find other vehicles that will corrupt elections and is a power available now without a constitutional amendment.”
The Leas and Hager approach seems similar to that of Wolf-PACs with one interesting point: once the general public understands that Congress already has the power to achieve their goal (by a ‘simple ordinary vote’) of legislatively restoring limits on Court jurisdiction over the ‘political question’ of private money flooding elections and airwaves with political advertising, acceptance of the idea might be greatly facilitated.
I’m a little puzzled by their thoughts. I’m sure you can assess better what makes sense or not in their papers.
Thank you, Frank. It looks like Article 1, Section 5 has a silver lining. It would only apply to Congressional elections, not to local, state, or Presidential elections, but it does indeed give Congress the sole power to judge Congressional elections, and to the extent that the SCOTUS decision in Citizens United affects Congressional elections, it appears to be unconstitutional and beyond their jurisdiction.
Congress can indeed restore the Constitutional limits on SCOTUS jurisdiction, if it has the will, but it would be interesting as SCOTUS would be likely to interpret the Constitution differently, to strike down any legislation limiting their power as unconstitutional, and as far as I know, the Constitution gave SCOTUS the sole power to interpret the Constitution, not Congress.
Hi Frank. Thanks for coming in.
As I read your post about the piece written by the two lawyers, I found myself asking repeatedly, “If Congress already has the power to to stop the Court from making any more decisions enabling the 1% to buy elections, then why haven’t they already done that? They’re not stupid, and most of them (Congresspeople) are lawyers. They have tried at least once and failed: see S.J.19, a CA proposed by Mark Udall.
Indeed, Congressional regulation is simpler than amending the Constitution, but personally, I don’t think Congress will EVER take money out of politics. Why should they?
Hi Frank,
Way back on 12/29 @ 5:46PM you cited an article by Leas, a patent lawyer in VT: “Constitutional Amendment Not Needed; Congress Already Has A Remedy”. He says the power to overturn Citizen’s United is already in the hands of Congress. Maybe so. But the problem I see with this is that I don’t believe enough members of Congress now or in the foreseeable future want to get private money out of politics. So they will not vote to overturn a SCOTUS decision, which is what Mr. Leas says they can do.
Paul, Mark:
An essay by Atlantic, “How To Reverse Citizens United,” notes that while one can concede that election spending restrictions may limit First Amendment rights, “the constitutional interest in protecting speech is outweighed by other compelling considerations. The essay suggests an alternative reliable way to achieve constitutional change, like campaign finance reform, through a long process of small incremental steps. http://www.theatlantic.com/magazine/archive/2016/04/how-to-reverse-citizens-united/471504/
Past legal precedent shows that the Supreme Court gets serious about change or an alternative constitutional vision that departs from earlier decisions on an issue after real change starts to become very evident at multiple state and local levels. The Court generally adheres to common law precedent and does not usually overturn a past decision, especially when it means reversing what the Court believes is a constitutional right i.e., free speech in the Citizens United case.
For example, in the Citizens United decision, the Court decided that the right of the free flow of unlimited corporate election funds (based on protecting free speech) in the political system outweighs restrictions on that right intended to curb resulting corruption of elections and government and to encourage politicians to focus on the needs of all their followers, not just the rich and powerful.
It will be no mean task to get the about to be more conservative Court to reverse this decision. Same applies even if it were a liberal Court.
It appears the Court’s high barrier against constitutional amendments can best be modified by first pressing the voter interest through strong state and local legislative reform initiatives. In this regard, a September 2015 Bloomberg poll found that about 80% of Republicans and Democrats oppose Citizens United.
This brings up your question, Paul, why do many voters and states act so slowly or passively in taking reform actions or constitutional remedy-options available to them to clean up campaign finance corruption? Some observers attribute this to a deep public disbelief, or feeling of futility, that anything constructive in election finance reform can be done given fact the money-corruption is so endemic. People become cynical about campaign finance reform ever happening when all the discussion is about the power of the super wealthy and the super-PACS.
However, as the Atlantic essay points out, gun rights advocates, and gay and lesbian marriage rights advocates eventually stirred the Supreme Court to move in the right reform direction by reversing its prior positions. Such bottom-up constitutional changes typically take a very long time. Similarly for campaign finance reform, voters and state representatives must first take the initiative on pushing for strategies and laws that regulate the role of money in elections that do not initially require a constitutional amendment. Otherwise, it’s highly doubtful the Supreme Court will ever get constitutionally serious about recognizing the massive harm being done to our democracy by the Citizens United decision
As noted earlier, most of the laws governing elections are made at the state level. If history is any lesson, this means that creative and effective state and local reform initiatives concerning fundamental societal issues, like campaign finance reform can make it less difficult for the Supreme Court to finally come to the right constitutional policy direction benefiting all Americans, not just the 1%.
I agree that legislative change founded upon sound constitutional principles occurs in what seems like perpetual, small incremental steps. That’s evident in Wolf-PACs’ 4-year impressive effort to get resolutions passed to organize a convention in each of five states to address what to do about the harmful influence of money in elections.
Zephyr Teachout, a law professor at Fordham, has shown that the Constitution’s framers expressed an active desire to fight corruption, a category they understood to include, beyond mere bribery, the undue influence of wealth on politics. Richard Hasen, a lawyer at UC Irvine and writer of “Plutocrats United,” believes that rules directed at stopping money’s manipulation of politics by a privileged few can be justified by the state’s interest in equality.
The Atlantic essay concludes:
“These arguments by Teachout and Hasen (and those on Court jurisdiction by Leas and Hager) could provide a path toward a constitutional jurisprudence that allows states and Congress more leeway in regulating campaign spending … Some promising campaign finance initiatives are already appearing at the state and local levels. Maine, Connecticut, Arizona, Seattle, and New York City have each adopted generous public-financing schemes to reduce the influence of private wealth.”
I heard that in some countries they ban all political advertising. If that’s true, that must mean there is a compelling reason to squelch private funding of political speech, just as there is a compelling interest to not allow some to yell fire in a building.
Because we know that amendments solve problems once and for all, i.e. Blacks are free and women vote, then we know an amendment concerned with electoral reform is needed at this time to secure The Vote.
If Cenk is serious, then why doesn’t he get together with Bill Walker of FOAVC, and start saying what is true: that public record shows the states have satisfied the clause multiple times in multiple ways for multiple subjects? Was doesn’t Cenk and Hartmann and Kucinich start saying it’s cleary time to find consensus in our society?
John, you may actually believe that “amendments solve problems once and for all,” but the examples that you give, i.e., “Blacks are free and women vote,” prove the opposite.
On the matter of Blacks being free, I recommend the book, Slavery by Another Name, by Douglas A. Blackmon. The 13th Amendment not only didn’t abolish slavery, it made it worse until the Russians publicized the reality of the situation during World War Two and the United States was shamed into making some reforms. Another book, The New Jim Crow, by Michelle Alexander, and a film called, 13th, by Ava DuVernay, demonstrate that the problem still hasn’t been solved once and for all.
As for women being able to vote, if you believe that voting entails nothing more than casting a ballot, even if that ballot doesn’t have to be counted, women have the same opportunity to “vote” as the rest of us. If you believe, as I do, that voting means exercising a voice in government, then only the Supreme Court justices have the right to vote in the United States, as their votes can decide elections without regard to either the popular or the Electoral “votes,” can determine policy and Constitutionality, have to be counted, and are the final say which cannot be appealed, so SCOTUS votes do constitute a voice in government.
According to my own research, about half the people in this country believe that their right to vote would still be precious even if their ballots were flushed down the toilet instead of being counted, as I explained in my own little book which I linked in an above comment.
As another example, the 18th Amendment, Prohibition, ratified in 1919, did not solve the problem of alcohol once and for all, as it was repealed by means of the 21st Amendment, ratified in 1933.
Amendments do not solve problems once and for all, and if you start from the false premise that they do, you might be misdirecting your energy towards a false solution.
Mark, you can conjure whatever rationalization you’d like to deny what I’m saying, but the fact remains, you and I are alive, and history tells us what has happened in the past and what will surely happen in the future if we don’t destroy the current status quo. The Article V Convention process initiates a formal discussion that destroys what has become a form of institutionalized corruption. You don’t want to be apart of that, neither do a lot of other Americans.
John, history does tell us what happened in the past, but there can be several versions of history. You happen to believe the version of history that says that the 13th Amendment solved the problem of Black slavery once and for all. I don’t believe that version and neither do millions of others.
I gave you links to the true history of the 13th Amendment, but you apparently do not wish to discuss it. Since you continue to insist that Amendments adopted in a formal Constitutional Convention can destroy the current status quo, the way that you believe they achieved freedom from slavery for Blacks, you apparently still believe that the 13th Amendment solved a problem that has yet to be solved.
No matter what language is selected for an Amendment, language can and will be found to invalidate it, work around it, or repeal it.
Restricting discussions to elected delegates ensures that most people will have no voice. What is your procedure for holding those delegates accountable to ensure that they represent the wishes of the people who elected them?
Benjamin Franklin was sent to the original Constitutional Convention to present a petition for Abolition. He never did and he was never held accountable. He then said that the Constitution gave us a republic (if we could keep it), when he was fully aware that it had given us a plutocracy or oligarchy that in no way could be considered to be a republic. He lied. But he was never held accountable.
Power corrupts. Electing people to positions of power, or allowing them to take power in other ways, tends to corrupt them. Here’s an example of how our current system works and how easily those who hold positions of power within it can be corrupted:
Navy repeatedly dismissed evidence that ‘Fat Leonard’ was cheating the 7th Fleet
https://www.washingtonpost.com/investigations/navy-repeatedly-dismissed-evidence-that-fat-leonard-was-cheating-the-7th-fleet/2016/12/27/0afb2738-c5ab-11e6-85b5-76616a33048d_story.html
Modeling your Convention on that system is not a way to destroy the status quo.
A better way would be to hold local, informal discussions, like this one. If agreements are reached, they can be communicated to others who have also held local informal discussions. Should a large number of local groups reach agreement, they can simply replace federal government with local government, as happened in Spain and as all but the wealthy Federalists originally intended when this country was founded.
Of course the country was founded on genocide, and still illegally occupies land seized by force with no right other than charters from foreign kings bent on conquest.
When this country was settled, there wasn’t a single European who had a residence visa, so everyone here who isn’t of Native American descent is the descendent of illegal aliens.
The stolen lands were then worked by slaves, and the Constitution was designed by slave owners to perpetuate slavery. The 13th Amendment pretended to abolish slavery, but it instead legalized slavery as punishment for a crime, and crimes were immediately invented to criminals Blacks but not whites, so that slavery would continue under the guise of “prison labor,” which it does today. If your Convention happens to be held in a distant city and you choose to fly there, your plane reservation will probably be made by a Black person sentenced to slavery for the “crime” of smoking or possessing a small amount of marijuana, which many states, including California, have now legalized.
In other words, your airplane reservation will most likely be made by an actual contemporary Black slave, while you obliviously continue to believe that the 13th Amendment solved the problem of Black slavery for once and for all, and that you are on your way to destroying the status quo.
I’d be more apt to believe you if you demonstrated some comprehension of the status quo, rather than simply denying it, dismissing it, and refusing to discuss it.
Mark, you’re making a lot of assumptions. Nothing is ever solved permanently because history is dynamic, thus the struggle for freedom is never-ending. We’re still in that struggle today, and some would say losing badly. No, I’m not here to discuss what you’ve come to know about past amendments, I’m here to discuss what we can do now with what we have. Of the 300+ millions of Americans today I doubt there are millions who believe the 13th had no effect on the institution of slavery.
You might have noticed what you’re doing when you confuse the terms constitutional convention and Article V Convention. If you haven’t we can’t really discuss the issue until you and other Anti-Conventionists stop doing such. It’s always apples and oranges. And you may want to take a look at a calendar, what went down at the 1787 Federal Convention will not go down today.
In regards to power, delegates will not be there to re-invent the wheel, but to propose amendments that the fellow citizens of their state have already lobbied for and approved, in fact of those states which choose to elect delegates, that election will be a referendum on what will likely make it out of today’s Article V Convention. Delegates will want to get through the process and get back to their families and friends, and they won’t be looking for campaign funds because a convention is not an election for a session of Congress. Apples and Oranges.
The status quo now might be characterized as whoever can throw the most money at an election or loophole of legislation will get what they want. Publicly funding elections would destroy that, and in due time, remedy all other concerns because policy makers will be representing people not special interests.
Inserting my replies:
John De Herrera (JDH): “Mark, you’re making a lot of assumptions.”
So are you, John.
JDH: “Nothing is ever solved permanently because history is dynamic, thus the struggle for freedom is never-ending.”
Then you admit you were wrong when you wrote, “…we know that amendments solve problems once and for all…”
JDH: “We’re still in that struggle today, and some would say losing badly. No, I’m not here to discuss what you’ve come to know about past amendments, I’m here to discuss what we can do now with what we have.”
Whether or not George Santayana said it, “Those who do not learn history are doomed to repeat it.” If you don’t want to know about past amendments, you’re more likely than not to repeat their mistakes.
JDH: “Of the 300+ millions of Americans today I doubt there are millions who believe the 13th had no effect on the institution of slavery.”
First of all, I never said that the 13th had no effect on the institution of slavery. As Douglas Blackmon’s book documented, it made the institution of slavery much worse than it had been previously.
Secondly, there are well over a million Blacks in US prisons today, most for non-violent crimes and a great many guilty of nothing more than being poor and Black. Almost all of them have family or friends, so the number of Blacks in the US who are concerned about modern-day slavery is in the millions. But since the issue also impacts other people of color and poor whites, it is also of concern to them and to everyone who believes in freedom and human rights, whatever their heritage may be. Do you doubt that we number in the millions?
JDH: “You might have noticed what you’re doing when you confuse the terms constitutional convention and Article V Convention.”
Article V of what, John? Wouldn’t that be Article V of the Constitution? Obviously you’re not calling a Convention for a new Constitution, as you are relying on the Constitution for instructions as to how you may hold a Convention.
JDH: “If you haven’t we can’t really discuss the issue until you and other Anti-Conventionists stop doing such.”
So because I’m not a Federalist, I’m an Anti-Conventionist? How does that differ from saying that if I’m not a Democrat, I’m a Republican (or vice versa)? The meaning remains, “If you’re not with us, you’re with the terrorists.”
JDH: “It’s always apples and oranges. And you may want to take a look at a calendar, what went down at the 1787 Federal Convention will not go down today.”
Obviously. What went down in 1787 was fraudulent and illegal. But those who broke the laws of that time to establish their political coup, made certain nobody else would ever be able to repeat their actions.
JDH: “In regards to power, delegates will not be there to re-invent the wheel, but to propose amendments that the fellow citizens of their state have already lobbied for and approved, in fact of those states which choose to elect delegates, that election will be a referendum on what will likely make it out of today’s Article V Convention. Delegates will want to get through the process and get back to their families and friends, and they won’t be looking for campaign funds because a convention is not an election for a session of Congress. Apples and Oranges.”
Comparing one form of representative government to another form of representative government is not apples and oranges, John. It is apples and apples. Whatever the purpose and however worthy the goal, I cannot assume, as you apparently do, that the ends justify the means.
JDH: “The status quo now might be characterized as whoever can throw the most money at an election or loophole of legislation will get what they want. Publicly funding elections would destroy that, and in due time, remedy all other concerns because policy makers will be representing people not special interests.”
So those with the most money will go back to throwing money at elected officials rather than at elections. I don’t see how that would change things very much despite your assumption that it would. In Confessions of an Economic Hitman, John Perkins explained that the wealthy have traditionally given elected officials a choice. If they refuse the money that is thrown at them, a hail of bullets is thrown at them instead. That was the status quo prior to Citizens United. Citizens United had the effect of pre-selecting candidates by their propensity to prefer silver to lead (money to bullets). As far as I can determine, there has been no dramatic difference in corruption, but there have been fewer political assassinations and “accidents.”
I meant “once and for all” in that we don’t hear anyone today calling for institutionalized slavery and women to be denied the vote.
I doubt you number in the millions. Your views are fringe.
There are two modes of proposal: the legislative branch does so, or a convention of state delegates does so, regardless of what is proposed, it then comes back to the people to decide by 75%+.
The reason our arguments differ is because 51% percent decide partisan issues, and 76% solves civic/structural law issues, i.e. issues that supersede partisan issues.
The 1787 Federal Convention was not fraudulent or illegal: http://www.foavc.org/reference/file12.pdf
That the ends justify the means. If consensus is achieved after a deliberative assembly, that sounds like the natural way to approach a political crises.
“[They] made certain nobody else would ever be able to repeat their actions.” Oh, OK. Yet here we are, talking about formally discussing the document that was last ratified.
Are you saying we shouldn’t advocate for the Article V Convention because it might get politicians killed?
Interspersing again:
JDH: “I meant “once and for all” in that we don’t hear anyone today calling for institutionalized slavery and women to be denied the vote.”
Nobody is calling for institutionalized slavery because it was never abolished. All we did was nationalize it, so that slavery is no longer in the private sector. As for denying women an uncounted vote, those who understand the system prefer to placate them with the worthless ritual.
JDH: “I doubt you number in the millions. Your views are fringe.”
You may be right. In this country a concern with freedom and human rights is definitely fringe. There really are millions of us, but certainly not anywhere close to a majority.
JDH:
[…]
“The 1787 Federal Convention was not fraudulent or illegal: http://www.foavc.org/reference/file12.pdf”
Well, if holding their own Conventions instead of submitting their Constitution to State legislatures for ratification as required by law at the time wasn’t fraudulent or illegal, why don’t you try doing the same thing?
JDH: “That the ends justify the means. If consensus is achieved after a deliberative assembly, that sounds like the natural way to approach a political crises.”
Sure, if it was a deliberative assembly of the people themselves, not a deliberative assembly of chosen or elected representatives. Representatives have a tendency to want to represent their own personal agendas, their political or religious beliefs, or in other ways depart from the wishes of the people who selected them, and there are always fewer representatives than there are people, so it is easier to buy them off.
JDH:
[…]
“Are you saying we shouldn’t advocate for the Article V Convention because it might get politicians killed?”
Not at all. I’m saying that if you want publicly funded elections, and a majority of people around you agree, enact it locally or state-wide. Should enough cities and states decide to publicly fund elections, Congress and the Supreme Court will eventually follow suit.
But if your position is so marginal or fringe that you can’t get enough agreement to enact it locally, and your only option is to attempt to mandate it by Amendment, I think you may encounter some difficulties in getting your Amendment ratified.
“Sure, if it was a deliberative assembly of the people themselves, not…of chosen or elected representatives.”
If the convention is called, i.e. if there is enough popular support, once the call is issued there will be thousands and thousands of Americans in all fifty states on the phone to their state representatives, inquiring how their state intends to engage in the process, and who gets to be delegate. Do you really believe that once the process starts that it won’t expose “politics as usual” for what it is, and by doing so, destroy it? Do you have so little faith in Americans that given the chance, you don’t think they would rise to the occasion and propose things we’ve all been talking about for decades? 80% want an amendment to secure the electoral process from special interests, you don’t think formal discussion about that is important?
Attempting to coerce Congress to issue the call, and attempting to get a pet amendment ratified, are two different things.
The last time there was such great popular support, if I recall correctly, was when more than 90% were opposed to the bank bailouts. Thousands and thousands in all 50 states visited, phoned, faxed, and emailed their elected representatives.
The representatives locked their doors, unplugged their computers, phones, and faxes, and the bailout went through.
But that’s just history, so you might not consider it relevant.
See, I think you’ve got the cart before the horse, John.
I don’t think that you can use public opinion to bring about democracy.
I think you first have to have democracy before public opinion can have any influence.
But I’m just fringe, so what would I know? ;)
In 2010 the 110th Congress read the Constitution from the floor of the house on the first day. Before members took turns reading clauses, Rep Goodlatte (the sponsor of the bill to do so) said that members would be reading what the Congressional Research Service said they should read due to amendments having altered the original text. They skipped over the convention clause of Article V. They didn’t read it. Then, two years later, just after the Occupy movement, the Congressional research Service issued a two-part white paper all about the Article V Convention. How is it the CRS was telling members of Congress to ignore the Article V Convention in 2010, and less than two years later writing and reporting everything they know about it? And why has that paper now been updated multiple times, most recently in March of this year: http://www.foavc.org/reference/R44435_20160514.pdf
And why has Congress begun counting applications since last year: http://clerk.house.gov/legislative/memorials.aspx
And why did a member propose H.R. 5306 this past 114th session, which tasks the Director of the National Archives to go pull all applications from the congressional records and enroll them as federal documents so we could get an official tally?
Why have these turn of events happened?
Dear American, I assume you agree the Constitution is unique in all political experience, and thus so is its convention clause. There is no other such found in a fifth article of a nation’s high law anywhere in history or presently on Earth. Some might think it a quibble or splitting hairs as to whether or not we capitalize the Article V Convention as a proper noun. Yet, as a proper noun we know we’re not talking about a constitutional convention, but a unique assembly called by the US Congress to formally propose amendment language to the Constitution. Anti-Conventionists today seem to confuse a noun with a proper noun in order to bolster their argument, when the distinction between the two is essential to understanding what’s being discussed.
Consider this: if we ever have a federal convention we can be certain that it will adjourn. Regardless of proposals on the table, at some point the presiding officer(s) will call the question of whether or not to adjourn. No delegate is then going to stand before the nation and declare that they might have a new proposal the following week, and make the motion to remain convened until then. If a delegate did, even though it was clear other delegates were satisfied the convention had considered everything worth considering, the motion would fail to carry and the convention would adjourn. Of course this is an example of practical politics, and it’s as if Anti-Conventionists conceive of a world where practical politics would not apply to the Article V Convention. In fact practical politics are unavoidable whenever humans join to determine consensus of the whole—and especially more-so if the delegates represent a nation as vast and regionalized as the USA. In terms of practical politics, a large and diverse assembly of humans works in our favor.
Because of practical politics, if we know a convention will adjourn, then we know at that point in time 1) nothing will have changed legally, and 2) it will be perfectly clear to everyone that the process of proposal and the process of ratification are two very different things.
Why did the Framers not set ratification at 25% approval? Because facts/logic/reason and political experience show that political change must be legitimized by popular consent or you won’t have a legitimate government for very long. Which led to the question of exactly how popular consensus must be for things to work? Unanimous? No, we found out that doesn’t work, and the convention of 1787 in part convened to address the problem unanimous consent poses to a functioning government. 25% would be impolitic and a mess, and 50% would still leave a republic susceptible to a reactionary period and/or persuasive demagogue. What 75% approval means, is that whatever the idea and wherever it falls on the political spectrum—Left to Right—Right to Left—it must get all one side signed on, plus at least half of the other, or it fails. In other words, 75% approval makes it mathematically impossible for partisan ideas to become high law. That’s why the bar was set at 75% for amendments to be ratified, and 50% for election of policy-makers, because those percentages adequately address the political tasks needed to maintain a functioning representational government. If electing members of Congress and the President required 75% approval we’d rarely have a Congress or a President. Anti-Conventionists must concede that 50% and 75% are two different percentages and mean two very different things when it comes to practical politics and the winds of change.
As you may or may not know, Representative Messer, 6th District of Indiana, introduced H.R. 5306 this past summer. If it had made it to the floor for a vote and passed, it would task the director of the National Archives and Records Administration (NARA) to go back through Congressional Records, find all state applications for a convention, and officially enroll them as federal documents so that they can be officially counted by the Congress. H.R. 5306 also included that all rescissions be tallied too, so that the two columns would be placed side by side to give us a correct tally as to where we are regarding the constitutional instruction to call a convention.
For the sake of clarification, let’s say that next year the resolution is reintroduced, passes, and NARA findings show we’re overdue for the convention call. Congress calls a special session and issues the call for six months from that date. If such a news item emerged, what do you think is the first thing that will happen? The first is that anyone still paying attention will blink. After everyone blinks, the next to happen is that thousands of Americans in each of the fifty states will be on the phone to their state officials, asking how their state intends to engage in the process, and who gets to be delegate. Next, we will get news of the states declaring whether they intend to elect or select delegates (in fact Michigan and Indiana, respectively, have already done so). Regardless of whether a state elects or selects its delegates, the next to happen is that a formal discussion will begin in each state and nationwide: what is a good idea for the 28th Amendment? Next, the convention convenes, and parliamentary procedure is implemented (practical politics will guarantee it because most delegates will not want to fight to be heard and parliamentary procedure ensures that they’ll simply have to raise their hand). From there, the long, slow, deliberative process begins over amendment language (as you probably know this was displayed in a mock-convention this past summer where 150 state legislators convened in Williamsburg).
Anti-Conventionists repeatedly claim that we don’t know what will happen, when we do: the call will be issued, those choosing to do so will engage in the formal discussion of amendment language, and consensus will be built to one degree or another. In sum, all that will happen with the calling of a convention is that the national discussion about amendments to the Constitution will transform from informal to formal. Right now I could tell you my pet amendment and you could tell me your pet amendment and we could begin an informal discussion on the merits of each. All the convention call does is make the discussion of amendments formal (instead of informal), and directed to a conclusion—either an amendment will attain 75% approval or not. Are you afraid to formally discuss amendments to the Constitution?
If a human is in a building and they smell smoke, does it matter if they are Republican or Democrat or something else? Of course not, any human, regardless of political affiliation/philosophy, will stop what they’re doing to determine where the smell of smoke is coming from. This metaphor renders the One State/One Vote concerns irrational, and arguments against it invalid, because we’re not talking about 50% approval determining a civil or structural change in governance, we’re talking about 75% approval, which again, means that partisan proposals, ipso facto, are DOA, which renders the rubric of one party winning out over another in this process inapplicable. 75% approval supersedes party politics. 75% approval also renders irrational any concerns that a reactionary moment in society, or a demagogue, will lead us to our demise, and if such threatened to, the idea or movement will follow the way of the 20th Amendment—yes, we actually have historic proof that practical politics will prevail on a national scale—Americans recognized prohibition didn’t work and in due time disposed of it the way a village would dispose of anything else that didn’t work. Today, with society more polarized than ever (due to an era of fake news about fake news), practical politics will again guarantee that nothing even slightly questionable will have a chance of 75% approval.
To think that nothing will have altered in our national consciousness between the time the convention is called and the time it adjourns lacks sense because by the time we get to the ratification process, we’ll have already been engaged in formal discussion for months, which will have touched on how politicians have treated constituents in the past, which means by that point legislators will be as receptive as all get out. We won’t come out of the Article V Convention only to find state legislators couldn’t care less what the people of their state think. No, by that time in the process legislators will be standing at attention like a private at boot camp.
As to the contention that special interests will set upon the convention and bamboozle the nation? I doubt the lobbyists of K Street will want to advocate, in public, before the nation, what they currently get away with at DC restaurant tables, just as no criminal will want to attend a public discussion about how to stop criminals from committing crime. And even if they did attend, and attempted to sabotage the discussion with ineffectual proposals, such proposals would never withstand the crucible of ratification. What can any special interest group propose that roughly 8 out of 10 Americans are going to agree on?
As to the argument that because the 27th Amendment was ratified after almost two hundred years on record, and how this shows the convention could propose a bunch of monsters that could somehow come back years later to destroy our government (which if you believe the Constitution is a law for Americans [and it does state that’s what it is], then you know our government is already destroyed in the sense that, as has been mathematically proven, it no longer represents the people), when the reason the 27th was ratified is 1) there was no law prohibiting it from being so ratified, and 2) it was still just as good of an idea as it was when first proposed—not because it somehow snuck in the Constitution as an odd accident. When it came to light, none of the states already signed on questioned their initial consensus—none rescinded their previous application—and the remaining states required agreed that preventing politicians from increasing their salary while in session was an acceptable addition to our high law.
We know this: either there will be requisite consensus for ratification of a 28th Amendment, or there will not. If there isn’t, then in one fell swoop we’ll have carried out a formal process in civics, and one, two, three generations will become re-educated about what the Constitution says, and why it says what it does.
Finally—sorry to break it to you—because all political polls for decades indicate only electoral reform has any chance of garnering 75% approval, then boring old electoral reform is all we’re going to get. Something simple, like—All state and federal elections for public office shall be standardized and publicly funded.
“…boring old electoral reform…”????
Back when I was an election integrity activist, John, I devoted six whole years of my life to electoral reform, and I didn’t find it boring at all. I found myself constantly learning new things about our electoral process, our form of government, and our Constitution.
It was only after I learned that the Constitution was a counterrevolutionary document, designed to establish a plutocracy or oligarchy and prevent the “mob and rabble” from establishing a republic or democracy by voting, that I became an election boycott advocate and stopped voting.
There are hundreds of reasons that I don’t vote, most of them basic and essential reforms that would require Constitutional Amendments before we could ensure free, fair, and honest elections, but perhaps I can explain it best with a simple analogy:
Take a nuclear family with two parents and two children. The parents want to run a democratic household and have the children believe that they have a say in how things are run, so they allow the children to vote on where they go on weekends. But obviously, if the children vote to go to China, or to the moon, it isn’t going to happen. The choices are limited to where the parents can afford to take them. And the parents have the final say, so even if both kids vote to go to a night club they’d seen in the news when it was busted for selling liquor to minors, that isn’t going to happen either. The parents have the final say, no matter how much they would like the kids to believe otherwise, that isn’t going to change.
While that may only be an analogy, it really does describe our form of government and our electoral process, which is why I called my little book, “Consent to Tyranny: Voting in the USA.” When the kids in my analogy get older, they might find jobs, buy cars, and even move into homes of their own, and then they will get to decide where they want to go on weekends. Until then, they can demand reforms to the manner of voting, if they have a way to back up those demands with credible threats, such as refusing to go anywhere on weekends with their parents at all unless they have more of a say in the destination, but they’re not going to be able to change the family structure or its decision making process to force their parents to do things that the parents are unable or unwilling to do.
That’s reality. If we want to exercise the unalienable rights that the Declaration of Independence told us we have, we can’t do it by asking government for permission, because unalienable rights cannot be granted or taken away by government. A good example of an unalienable right is the right to gripe, a time-honored tradition in the military that can sometimes forestall revolts or fragging, a right the colonists exercised when they wrote the Declaration of Independence even though they lacked the right to vote, and a right that even children have, as every parent of a two-year-old knows all too well.
If we really want to change our system, I think we’ll first have to reach a level of maturity and competence that we don’t yet have. The United States is a young country, and if we really want a voice in government, we need to grow up. Making demands, throwing tantrums, and/or trying to work within the system, will only result in the oligarchs cracking down to show us who’s boss. Now that we’ve figured out who is really running things around here, we first have to convince ourselves that we are capable of running things better and that we have the will and the numbers to do it. Spain has been without a central government for ten months now, and they’re doing just fine.
Mark, what is more important: the right to gripe, or the right to alter/abolish the gripe? Thus, the ultimate right, is the right of alter/abolish, handed down from the DOI, and embodied in Article V. If you’re afraid to enter into formal discussion of amendment language, which is all the convention process is, then it is you who needs to reach a level of maturity and competence, isn’t it? I have complete confidence that if the process is initiated with the call, and it is currently on its way to that, people like you will rise to the occasion and find out what we already know is true: the only issue to reach 80%+ approval is electoral reform. The Article V Convention will bring an amendment to publicly fund elections so that elected officials become public servants. Sounds good to me.
John, elected officials don’t become public servants just because their elections are publicly funded. Once they take office they are subjected to pressures from political party leaders and lobbyists.
The Constitutional Convention isn’t the only thing that elected officials have refused to act on. The Constitution gave Congress the sole power to declare war, but they’ve left that up to Presidents. There are dozens of things that are within the mandate of Congress, such as the Constitutional bans on cruel and unusual punishment, due process, privacy, etc., that have fallen by the wayside.
Just because something sounds good to you, doesn’t necessarily mean that it is really good. Sub-prime mortgages sounded good to a lot of people who otherwise couldn’t have bought homes, until those homes were foreclosed. The deregulation of banks sounded good to a lot of people until the banks went bankrupt and the public had to bail them out to the tune of trillions of dollars.
Discussing the formal language of a process that was designed by people who wished to maintain the status quo in perpetuity, may sound good to you, but it sounds like a waste of time to me.
Mark, in terms of political science, as soon as any tipping-point of any society is reached, things change. Just because a set of principles (the Constitution) have been twisted and finally ignored (due to modern court rulings and legislative acts) does not mean they cease to exist.
What’s more important: who wrote a legal document, or what it actually says? The convention clause was voted on at the 1787 convention and passed unanimously because it was and still is common sense, that when a society reaches an impasse, it’s going to have to be able to formally discuss it.
If we know private money corrupts public elections then the correct remedy is to separate the two. Publicly funding elections does that.
Who wrote a legal document is actually more important than what it says. Even more important than who wrote a legal document or what it says, is how that document is interpreted and enforced, and by whom. In the Fat Leonard case, the documents proving corruption were ignored at least 27 times in favor of documents written by corrupt officials in positions of power.
If private money were the only thing that corrupts public elections, then publicly funding elections would indeed solve that. But public elections in the United States can be corrupted by other means, such as gerrymandering, endorsements, campaign lies, media attacks, improper programming of privately owned unauditable voting machines, unequal distribution of voting machines, illegal voter purges, mail-in ballots that have no public chain-of-custody, corrupt elections officials tampering with ballots or with ballot counts (some have gone to prison, but most are never caught), and much, much more. Publicly funding elections does nothing to address those other forms of electoral corruption.
If we publicly funded policy makers, we would have already had amendments formally proposed to abolish things like gerrymandered districts. Publicly funding elections is the first step to legislating away all the other problems.
Mark – I think you make a good point but the reality of public funded elections seems to support a dramatic, democratic shift in open and responsive government. Arizona and Maine have had clean elections which is a form of public financing, since 2000. It has allowed more women and people of color to get elected, shown that you don’t have to be wealthy or a pawn of the special interests to get elected and it curbs the influence of those who want to buy government, like the Koch brothers. We see similar results in New York City which has had small donor public financing since the 1980’s. I am particularly supportive of our neighborhoods and I think public funding of elections would empower our neighborhoods because they can get behind one of their own, someone who really cares about regular people and neighborhoods, instead of wealthy and special interest candidates who only pretend to do so.
John Hartley
Hi John! Great to see that you’re still fighting to empower neighborhoods.
While I respect and admire what has been done in Arizona, Maine, and New York City, the same can be done in any locality that has the will, without a Constitutional Convention or Amendment, as those places have already proven.
I’m supportive of public funding, and of neighborhoods, but I don’t believe that a Constitutional Convention or Amendment is necessary or would be able to bring about a more open and responsive government.
In fact, since public funding can be achieved at the local level, it is a great first step towards local self-governance. I hope that many more localities, such as our own, reach the necessary level of awareness and commitment to enable public financing of local elections.
But of course the best way to undo Citizens United, in my opinion, would be to boycott elections. If wealthy interests spend money to get out the vote, and nobody votes, their Boards of Directors are unlikely to allow them to do it again.
Yet another of the more than a hundred crucial reforms we need to our electoral system, is to separate local from national elections. We should be able to vote at the local level without being counted as part of the mandate of winning federal candidates we didn’t vote for. As things stand right now, if I had gone out to vote to legalize recreational marijuana, my vote would have been counted as part of Donald Trump’s mandate, even if I had left everything else but the marijuana issue on my ballot blank.
I believe that real change always comes from below, and that attempts to mandate change from above are self-defeating, as they perpetuate top-down systems and the corruption inherent in unequal distributions of power.
John,
As a Maine native, I couldn’t agree with you more.
Mark cites other activities corrupting elections and government that are real, especially gerrymandering. But the BIG corrupting-money influence of special interests and corporations is the CORE pernicious plague pervasively distorting our democracy and transforming it into a plutocracy.
Frank, I’m sorry to have to break this to you, but we’ve never been a democracy. We’ve always been a plutocracy.
Check out my little book, Consent to Tyranny: Voting in the USA, which is a bit outdated, but explains it rather clearly and is free online at:
http://fubarandgrill.org/node/1431
If your definition of democracy is, “A system of government where citizens can vote, whether or not their votes are counted or can determine policy,” then both Hitler and Stalin presided over and were elected by democratic forms of government.
If you prefer the dictionary definition of democracy, as I do, which is “A system of government where supreme power is vested in the hands of the people,” then the United States never was and is not now a democracy.
Both the Bush and the Obama administrations stated clearly and publicly that they would not allow public opinion to influence their policy decisions. That’s plutocracy, not democracy. Am I the only one here who was paying attention?
This has become a wide-ranging discussion of a crucially important subject that has been too-long ignored, campaign finance reform. Thank you both John and Mark for engaging here.
Mark, I’ve read your view and those of others that believe the Constitution was deliberately crafted by an oligarchy to maintain control by that oligarchy. And that may be so. But it seems to me that the point of getting a CA limiting money in elections is not to presume that the SCOTUS (or any of the oligarchs) will abide by it, but rather to provide the legal basis on which groups like the ACLU and/or others may sue to have a SCOTUS decision overturned, thereby advancing the cause against the oligarchy.
“With near unanimity, the public thinks the country’s campaign finance system needs significant changes…. On the whole, Americans do not think donating money to political candidates is a form of free speech….”
If true, what it means is that we are in a political moment of reformation, it’s just a question of whether or not we can find the sweet spot for a tipping-point to join.
I’ve been through years and years, as you and others have, where a blog is posted, people comment, and we say things like, “This has become a wide-ranging discussion of a crucially important subject that has been too-long ignored….”
To be clear:
1) Someone (Paul and John) posted a lament about money in politics, with the adjoining thought that maybe we need a constitutional amendment, and maybe we ought to pursue the Article V Convention as a way to get such a thing formally proposed.
2) Then someone (Smith) says the Constitution was written by a bunch of guys who wanted to legitimize their aristocracy in the dressings of a republic, that it’s all a charade. They say we’ve got to do something about money in politics, but not with the Constitution.
3) Then someone (me) comes on and says that absolutely we need a constitutional amendment to secure the electoral process from special interests, and absolutely the Congress and the Court are moving in the opposite direction, and absolutely we ought to pursue the Article V Convention.
THE WRITING IS ON THE WALL:
In 2010 the 110th Congress read the Constitution from the floor of the house on the first day. Before members took turns reading clauses, Rep Goodlatte (the sponsor of the bill to do so) said members would be reading what the Congressional Research Service said they should read due to amendments having altered the original text. They skipped over the convention clause of Article V. They didn’t read it. Then, two years later, just after the Occupy movement, the Congressional Research Service issued a two-part white paper all about the Article V Convention. How is it the CRS was telling members of Congress to ignore the Article V Convention in 2010, and less than two years later writing/reporting everything they know about it? And why has that paper now been UPDATED MULTIPLE TIMES, most recently March of last year: http://www.foavc.org/reference/R44435_20160514.pdf
And why has Congress begun counting applications since last year: http://clerk.house.gov/legislative/memorials.aspx
And why did a member propose H.R. 5306 this past 114th session, which tasks the Director of the National Archives to go pull all applications from the congressional records and enroll them as federal documents so we could get an official tally?
The reason is, is that we are on the verge of a convention call by the Congress, and all we need is for the people lamenting money in politics to stay on point about the first thing that must happen: a convention call. From there, in a natural progression of events, consensus will be built, formally and binding, about what we already know: private money corrupts public elections and policy.
Also Paul, CEO of the National Constitution Center, Jeffrey Rosen, was talking about a national poll his organization recently hosted: “Americans overwhelmingly love the Constitution, but 57 percent want to amend it. Out of that percentage, 41 percent want an amendment for term limits, 35 percent want to amend the Electoral College, and 35 percent want a balanced budget amendment.”
1) You and John Lawrence posted a piece about the issue upon which all others depend.
2) The Article V Convention is not a free-for-all and the only reason we’ve never gone through the process is because not enough people have come forward to assure those who aren’t sure.
3) What the polls show, clearly, mathematically, is that the only amendment proposal with a snowball’s chance in hell, is electoral reform. That’s the only thing this huge, regionalized society could ever agree on today, and all we have to do is get people like you and John to get past telling us what we already know is wrong, and tell us what we ought to do.
Video of recent Article V debate with Lessig: http://www.intelligencesquaredus.org/debates/call-convention-amend-constitution
I’ll tell you what you ought to do John: join Wolf-Pac, whose sole mission is to convene an Article V convention on campaign finance reform. Go to and sign up!
Wolf-Pac needs committed people like yourself to do the work of convening an Article V convention on the most important subject of our time, getting money out of politics.
Btw, as an active member of the organization Professor Lessig founded, NH Rebellion, my older brother and I have seen him speak a few times. Like him very much.(We’re both in the Boston area.)
I have been signed up to Wolf-Pac but don’t agree with their philosophy, i.e. ignoring congressional records and recent developments, and not caucusing with other pro-convention groups. Why have they not realized the obvious: everyone has a pet amendment, but nobody gets to formally propose it until the call is made. Thus, the message should not be “Look at our amendment,” but, “Look at how this clause has been satisfied and Congress is burying it in bureaucracy. I’ve worked with Lessig since 2008, watch him in the video; he thinks we can avoid a convention if Congress would do what they’ve done before, and propose electoral reform itself. To me it looks like we’re in full corporate blitz mode now, and Congress will never do what they were forced to do in the past. I could be wrong. I hope I am. Please recognize that the Article V Convention is a proper noun.
WP is focused on its own mission: getting resolutions in 34 states. It does collaborate with other groups where it views that doing so would help it advance its mission. My own issue with Wolf-Pac is that they are insisting on a single issue convention (to appease those who fear a “runaway” convention, I think), but this position has its opponents too.
Congress has tried (and failed) to propose a CA on campaign finance reform… S.J. 19.
“Look at how this clause has been satisfied and Congress is burying it in bureaucracy.” Huh? Pls explain.
Paul, Frank,
As you know Article V is a single sentence long, and it places no terms or conditions on a state application as to its effectiveness. It does not say Congress shall call a convention upon application within a few years, or for the same subject. By basing the ministerial action of the call on a numeric count, they precluded all political arguments about why or when to issue the call. They did that because they knew for certain then, what we know for certain now: some people don’t want to see the Article V Convention take place. The reason Americans today perceive the convention as potentially disastrous is because they’ve been led to believe it also includes the ratification process when it doesn’t. So this cottage industry among constitutional academics has been going on for decades about the legitimacy of the applications. The point FOAVC has always made is the truth: the states have satisfied the convention clause, the call is currently pending, and the Congress is attempting to keep the issue buried in committees.
COS, WP, MTA, and other pro-electoral reform amendment groups are likely astro-turf organizations, otherwise they would all have already picked up on what FOAVC has been telling them for more than a couple years now. Yet they continue to not listen and follow a failing agenda. Thankfully the COS group has been successful in getting an army of COS-bots out on the internet to show Americans who are cognizant the ratification process is not involved, and who are not only unafraid of the Article V Convention, but openly advocating for it. Ten years ago, anyone calling for a convention was dismissed, today the discussion looks very different. The question is, what is that pill, what is that meme, what is the vessel which will successfully introduce the idea: that everyone has a pet amendment, but until we all come to the table, nobody is going anywhere. “Look how this clause has been satisfied. And this is what it means if we make Congress obey it.”
Hi John and thank you for these posts.
You said, “The reason Americans today perceive the convention as potentially disastrous is because they’ve been led to believe it also includes the ratification process when it doesn’t.” I wish that were their only concern, but it’s not.
A much bigger fear that MA legislators (who are themselves lawyers) have expressed to me personally is of what has become known as a “runaway” convention, meaning that an amendments (plural) convention will be open to proposals to amend any of the existing or for altogether new amendments, and therefor has the potential to alter the constitution in ways those people do not want.
That is the main fear of an amendments convention that I hear, and the main reason why Wolf-Pac is still insisting on a single-issue convention. At least one legislator (mine), who is himself a lawyer and co-sponsor of Wolf-PAc’s bill, does not think that a single-issue convention is even possible based on his understanding of the wording of Article V. I have to say he makes a good point.
I and Wolf-Pac both understand very well that a convention can only produce proposal(s) which have to be ratified by 75% of the states to actually alter the constitution.), and that any proposal, no matter how it is proposed, would have to be ratified by 3/4ths of the state legislatures. That is not the problem. What I expressed above IS the problem as I see it.
What is “COS “, by the way?
Paul, John De H.:
How can Wolf-PAC get the two-thirds of our State legislatures (34 of 51) if there is another group or groups in process now of submitting calls for a Convention on a generally similar subject,e.g., getting money out of politics but likely with different language and rules? Are there no ways or benefits/advantages to converge or unite groups like Wolf-PAC around the process of calling for a Convention on a particular subject? Would this increase as well as hasten the possibility of ultimate success?
From my readings, almost 400 applications have been submitted to Congress by the States since 1789. Of these, only two applications came close to getting the required two-thirds of the State legislatures.
In first case in 1969, 33 States had submitted call applications to address the issue of apportionment of votes and voting districts. Then several States rescinded fearing speculation that the Convention once called by Congress could not be limited to a single issue.
In second case in late 70s and early 80s, a nearly missed attempt to call a Convention emanated from the interest by State legislatures to have a balanced budget amendment. This pressure of applications to call a Convention spurred the Republicans, who controlled the Senate, to approve a balanced budget amendment by a majority vote of 69-31. But the amendment was not approved by the House of Representatives which was controlled by the Democrats.
After this happened, interest to call a Convention on the balanced budget issue petered out for, among other reasons, the same fear reason that a Convention could not be limited to a single subject.
Recent attempts to propose amendments by a Convention have been opposed out of concerns of a “runaway” Convention – fear the Convention’s limited mandate would be exceeded and radically alter the Constitution or amendments would be proposed that exceed the scope of the subject matter originally intended.
In short, it appears that a major reason why there has never been a Constitutional Convention amendment is the persistent concerns about the limitations that can be placed on Conventions. Some believe Congress has broad power to limit the scope of a Convention. Based on the text and purpose of Article V to empower States, others believe Congress does not have power to limit a Convention. Only States have this power as is the view of Harvard Law Professor James Kenneth Rogers. Based on his research, “A Convention may propose multiple amendments just as Congress can, but, it may also propose single amendments. This language expands the possible roles of a Convention, rather than limiting them.”
Other conclusions he reaches include:
“Much of the fear surrounding a Convention is unfounded. The Convention Clause’s text and history indicate that it grants power to States to limit the scope of any such amendment. In addition, the States have the ability to reject any amendments proposed by a Convention through the ratification process … If States were unable to limit the scope of a Convention, and therefore never applied for one, the purpose of the Convention would be frustrated (I read to mean ‘effectively’ made useless)… States are far more likely to call a Convention to address particular issues … The 3/4 ratification is the means of enforcing a subject-matter limit on a Convention. If the Convention proposes extra amendments, they would only be adopted if the legislatures or ratifying conventions in 38 States agree. If the States determine that the Convention exceeded its scope, they can refuse the proposed amendments.”
(Source: “The Only Way To Amend The Constitution: The Article V Constitutional Convention Amendment Process,” Harvard Journal of Law and Public Policy, James Kenneth Rogers)
It seems that the States have everything to gain and little to lose by uniting around a call for a Convention on the issue of setting strict limits on money in electoral politics. This especially makes sense when recent polls show a clear majority of Americans favor some concrete action in this direction.
Thank you Frank. What other group or groups are are you thinking of?
Frank, the sad truth is, that a convention for a single amendment will never be called. As long as we have Americans focused on their pet amendment we’re in danger of never having anything but the status quo. How do we reorient Americans away from focusing on pet amendments to focusing on the call itself?
There are some Constitutional Scholars out there (Frank, you mention Professor James Kenneth Rogers) who think that a convention can be called whose agenda is either restricted or open. Whether the agenda of an Article V Convention is open to amendment proposal on several subjects, or restricted to a single subject is a complicated topic and I need to re-read these posts. The fact that an Article V convention has not occurred only makes the question harder because it means there is no precedent to fall back on. But I think we are getting closer to an answer.
Paul and Frank,
As you may or may not know, Representative Messer, 6th District of Indiana, introduced H.R. 5306 this past summer. If it had made it to the floor for a vote and passed, it would task the director of the National Archives and Records Administration (NARA) to go back through Congressional Records, find all state applications for a convention, and officially enroll them as federal documents so that they can be officially counted by the Congress. H.R. 5306 also included that all rescissions be tallied too, so that the two columns would be placed side by side to give us a correct tally as to where we are regarding the constitutional instruction to call a convention.
For the sake of clarification, let’s say that this year the resolution is reintroduced, passes, and NARA findings show we’re overdue for the convention call. Congress calls a special session and issues the call for six months from that date. If such a news item emerged, what do you think is the first thing that will happen? First, anyone still paying attention will blink. After everyone blinks, the next to happen is that thousands of Americans in each of the fifty states will be on the phone to their state officials, asking how their state intends to engage in the process, and who gets to be delegate. Next, we will get news of the states declaring whether they intend to elect or select delegates (in fact Michigan and Indiana, respectively, have already done so). Regardless of whether a state elects or selects its delegates, the next to happen is that a formal discussion will begin in each state and nationwide: what is a good idea for the 28th Amendment? Next, the convention convenes, and parliamentary procedure is implemented (practical politics will guarantee it because most delegates will not want to fight to be heard and parliamentary procedure ensures that they’ll simply have to raise their hand). From there, the long, slow, deliberative process begins over amendment language (as you probably know this was displayed in a mock-convention this past summer where 150 state legislators convened in Williamsburg).
Anti-Conventionists repeatedly claim that we don’t know what will happen, when we do: the call will be issued, those choosing to do so will engage in the formal discussion of amendment language, and consensus will be built to one degree or another. In sum, all that will happen with the calling of a convention is that the national discussion about amendments to the Constitution will transform from informal discussion into a formal discussion. Right now I could tell you my pet amendment and you could tell me your pet amendment and we could begin an informal discussion on the merits of each. All the convention call does is make the discussion of amendments formal, and directed to a conclusion—either an amendment will attain 75% approval or not. Are you afraid to formally discuss amendments to the Constitution?
If a human is in a building and they smell smoke, does it matter if they are Republican or Democrat or something else? Of course not, any human, regardless of political affiliation/philosophy, will stop what they’re doing to determine where the smell of smoke is coming from. During the convention process all these things will simply reveal what we already know from decades of polling–most Americans think their electoral process is a complete sham.
John, you said, “For the sake of clarification, let’s say that this year the resolution is reintroduced, passes, and NARA findings show we’re overdue for the convention call. Congress calls a special session and issues the call for six months from that date.”
And Mark says that regardless of NARA or anything else, Congress will only call a convention if it wants to thanks to a SCOTUS decision. And doesn’t THAT make Trump’s nominee to replace Scalia that much more important? I’m beginning to understand how incredibly corrupt this government really is. Since when can the SCOTUS do whatever it damn pleases? (I can’t say publicly what I think of several SCOTUS decisions lately, including that one!)
Canada looks better all the time!
Canada is cold, Paul.
But with California having legalized recreational marijuana, the Mexican drug cartels are being forced out of business. They can’t compete with legal pot because the profits are no longer there. They can’t compete with the US when it comes to heroin because we control 90% of the world’s production–the oil pipeline doesn’t seem to be progressing so we’re only in Afghanistan for the opium poppies. And they can’t compete with the Colombian drug cartels with regard to cocaine, which is why the US really needs Colombia–not just as a base from which to attack Venezuela for undercutting private oil, real estate, and health care profits by means of their new Constitution.
So violence is likely to decrease greatly in Mexico, and it is a lot warmer there.
As for SCOTUS, the framers didn’t use words lightly. Supreme means ultimate, highest, superior to all others, most important, etc. Giving the Supreme Court the ultimate and highest power, AND making Supreme Court Justice an appointed rather than an elected position, was a calculated and deliberate way to ensure that we never had a democracy or republic where supreme power is vested in the hands of the people. On top of that, they made sure that the popular vote couldn’t elect the Presidents who would appoint Supreme Court Justices.
But even that wasn’t sufficient. In order to perpetuate the plutocracy they established, they had to ensure that the “mob and rabble” wouldn’t be able to bring about change some other way, such as by amending the Constitution, so they laid out the rules by which the Constitution could be amended in a way that was controlled by those already in power, those who benefit most from the status quo.
Until people realize that the Constitution did not guarantee our freedoms, it denied them, and that if we want change, rather than doing it one amendment at a time, and repeating the process at least a hundred times as we learn from the passage of each amendment that it doesn’t solve the problems, nothing will change. We need a new Constitution that vests supreme power in the hands of the people. Otherwise this country will remain an oligarchy or plutocracy–a government of the poor by the rich and for the rich.
¡Hasta luego!
How about a shack on Isla Mujeres?
Sounds good, but I don’t think I’m going anywhere, Paul. Haven’t been out of the country since 1979. No idea why I just made an appointment to renew my passport for another ten years. But shoot me an email. It’s mymark at gmail. No reason we can’t dream. I spent ten years living in Mexico back in the day, and even remember a few words of Spanish.
I tried to leave the country within minutes of the JFK assassination. I was in New York but worked for a radio and TV monitoring company, so we heard the news immediately. I withdrew all my cash from the bank across the street and phoned a travel agency for a ticket out to anywhere. But they’d already closed the borders. That apparently didn’t apply to private planes, of course, which at least one of the self-confessed shooters claims he used to leave. But since more Mexicans have been leaving the US than entering it during the last few years, maybe they have reverse coyotes.
You guys might be interested to know that of the 400+ state applications for a federal convention currently on record, a lot of them are calling for amending the judicial branch.
Mark, there is paradox here: the supreme law, this thing, according to you, to keep an oligarchy/plutocracy in place, also provides an escape clause, should the federal government become a tyranny. So to continue to fear-monger about the Constitution and the intent of the Framers, why not focus on what can be done with where we are now? In terms of political science, if one were attempting to get the crowd to head in a particular direction, what good does it do to denounce, across the board, the supreme law, when it contains an escape clause?
It is somewhat absurd to conjure the notion that it would take hundreds of amendments to regain a responsive representational republic. When fact, logic, and reason tell us that one amendment will return government to the people. Just the act of holding a federal convention will do more to detox the body politic than hundreds of amendments.
What is the escape clause you refer to?
The calling of a convention allows escape of the status quo. The convention clause of Article V is directly descended from the Declaration of Independence which declares it’s a right and duty to throw off a long train of abuse.
Mark doesn’t understand that it doesn’t matter what the government says, it only matters what the people say, and especially in a nation filled with zillions of guns.
We are on the verge of Congress being forced to issue the call for a convention. The Congressional Research Service has directly stated such. That means, those who still care–and by caring we mean willing to fight for human freedom–all they have to do, is educate themselves about what the Article V Convention is, and share it when a fellow Americans engages in political discussion.
To those who think they are going somewhere to escape corporate globalism, I contend that as soon as complete control is achieved here, it will come down across the globe. It might be the truth: we get a tipping point of Americans cognizant of Article V, or we fail.
“The calling of a convention allows escape of the status quo. The convention clause of Article V is directly descended from the Declaration of Independence which declares it’s a right and duty to throw off a long train of abuse.”
?… please explain what you mean by this. I’m sorry but I just don’t understand what you are saying.
We are currently trapped in a political status quo where what we know should be happening is not happening, i.e. the people are no longer represented; our government has become a form of institutionalized corruption due to the influence of private money on public elections, and no one is talking about the obvious, i.e. creating a federal standard for voting and voter registration, and to publicly fund all offices.
Since that is our current status quo, how would we ever escape it? We can talk about it on threads like this all over the internet. But the problem is, it’s a never ending INFORMAL discussion, as opposed to a FORMAL discussion–which is what the convention call initiates. In its initiation, literally over night, utterly destroys the status quo because we have then entered a process which entails building consensus about amendment language FORMALLY. When is the last time you heard a join session of Congress have an open deliberation about amendment language to limit the USSC?
Forcing Congress to call a convention frees us from politics as usual, thus the convention clause of Article V is an escape clause.
It sounds something like being in a prison cell. It has a door, but only the guards (Congress) have the key to the door. They could open it, but they don’t want to and the courts have said that they don’t have to. However the inmates outnumber them and have weapons, so they could riot and force the guards to open the doors.
In other words, the “escape clause” is controlled by those who have imprisoned us, and the only way we can force them to open the door is through revolution.
Thought so. ;)
In other words, the escape clause is
No, the convention clause is not controlled by Congress, it is controlled by the people. The only reason it hasn’t been called is because the people have been lied to about what a convention is, but those lies are falling on deaf ears now.
And no, the only path is not revolution–assuming you mean armed revolution. The correct path entails building a tipping point aware of the clause. As soon as enough become cognizant of what Congress is doing, it will take steps to issue the call, and those taken since 2012 indicate that is exactly what’s going on.
Right now it’s just a matter of people sharing the idea.
John, you seem certain that overwhelming public opinion can sway government.
But the reason so many people want Amendments to the Constitution and/or an Article V Convention, is that overwhelming public opinion has been unable to sway government. Government has been more responsive to corporations and big donors than to the public. That’s what many people want to change.
Which is why it concerns me that you believe that the best way to get government to be responsive to the people, is for the people to ask government to allow a process that could force government to be more responsive to the people.
Surely they know that, and aren’t going to allow it, or, if they do allow it, will have first found some way to subvert it. Didn’t Hillary say something with regard to a foreign election, to the effect that if we were going to allow an election, we should have first done something to ensure that the outcome would be favorable to our interests?
The guards know that the prisoners want to be free, and that their job is to ensure that doesn’t happen, because if it did, they’d lose their jobs.
Congress knows that the people want Congress to be answerable to the people rather than to big money interests, but they know that if they allow that to happen, they will no longer benefit from big money interests.
Congress hasn’t been responsive to overwhelming popular opinion in the past because it isn’t in the best interests of Congress. Sure, the overwhelming majority want it, just as the overwhelming majority of prisoners wish to be free. But they have many escape clauses. They can ask the guards to set them free, sue the prison system to set them free, petition the governor or the President to pardon them and set them free, etc. Sometimes it really does happen and some prisoners do get set free. That gives the prisoners hope, so they’re less likely to riot or revolt. But the prison system remains in place because most big corporations have been unable to find cheaper labor anywhere in the world than in US prisons. So those in power are sometimes amenable to reforms, when it is necessary in order to avoid a revolution that might do away with the entire system, but they can’t countenance anything that would change the system that empowers and enriches them, without losing both their power and their wealth.
Overwhelming support of something can sway the actions of the government. The people do not ask the government to do anything, they build a tipping-point (consciously or unconsciously) and the government gets out of the way.
If the jailers could lock us up and throw away the key, don’t you think they would have done it already? That they haven’t means what? That in fact the power resides with the people, and it’s just a matter of getting them/us to want something that we’ve been told will re-write our beloved Constitution.
The only reason the Congress has been able to ignore this generation after generation is because we didn’t know what we know now, thanks to the work of Walker and FOAVC.
Sure, John. Einstein must have been wrong when he said that insanity consists of repeating the same experiment over and over and expecting different results.
Our knowledge may have changed, but the experiment hasn’t changed and is being repeated in the same way, over and over.
You expect the results to be different this time.
I do not.
So, here’s John saying that if “the people” (whatever that is…) push Congress to call for a convention (without a limited agenda), it will. He says they are about to. (I’ll believe it when I see it because I don’t think Congress has any intention of calling a convention that has even a possibility of limiting the amount of money they can collect for their campaign coffers!)
And then there’s Mark saying Congress will only call a convention if it decides it wants to, thanks to the SCOTUS.
And I say Congress will not want to call a convention if there is a even a possibility that this convention might limit money in politics.
After listening to several MA legislators (who are themselves lawyers and co-sponsors of Wolf-Pac’s resolution in this state, meaning they support the bill in concept. Co-sponsorship in MA politics is NOT a commitment to vote for the bill) tell me that an Article V Convention cannot have a limited agenda and that they cannot support an Article V convention with an unlimited agenda (Wolf-Pac’s resolution in MA calls for an Article V convention with a limited agenda), especially in light of the fact that the U.S. just elected Donald Trump as President and the strong likelihood that groups like ALEC will show up at such a convention with tons of cash intent on forcing their agenda at the convention), fearing proposals amounting to a wholesale re-write of the Constitution proposing a much more conservative Constitution than the one we have now, to be ratified by state legislators, the majority of which are conservative. No thank you.
John, I do not believe that an Article V convention, if held today, would be a “conversation” (formal or informal) at all but a brawl, and most of the proposals would likely re-write much of the Constitution given the control of the federal gov’t that conservatives just won.
So, unless a convention whose agenda is limited can be called, an Article V convention will most likely be dominated by power and money, and the door will be shut in the progressives’ face once again.
Maybe John is right when he says that a convention on a single subject will never be called. And I believe a convention on multiple subjects right now would be a disaster for progressive change since it is not likely to be a “conversation” but a “brawl” with monied interests showing up en-mass to enforce their agenda. This may explain why we are stuck where we are stuck.
As for me, it’s time to read “The Only Way To Amend The Constitution: The Article V Constitutional Convention Amendment Process,” Harvard Journal of Law and Public Policy, James Kenneth Rogers which Mark says describes how a convention with a limited agenda is possible. I will be looking to learn how Congress can be forced to call a convention with a limited agenda despite what the SCOTUS says.
Mark, it may interest you to know that initially the people did not elect senators to Congress. When that was perceived as a problem for the people in the 1910s, they had their states cast applications to call a convention in order to amend the Constitution, so that the office of senator was put to a popular election. The 17th Amendment was formally proposed by the Congress. Why? Because we were a few applications away from the required 2/3 for a convention, and instead of reaching the limit, the Congress acted. That means what I’ve already said, that the power does remain with the people, and if enough want something, government will respond. In addition, there have been calls for an amendment for terms limits for members of Congress. I watched a page on Facebook all last year, one dedicated to the idea of a term limits amendment (and coupled with the idea of getting it proposed at a convention), and that page went from single digit “likes” to thousands of likes. Now Senator Ted Cruz is making headlines with his proposal of a constitutional amendment for term limits. In other words, Conventionists are saying we can’t rely on voting in new members of Congress to propose amendments, we need to hold a convention in order to discuss what it won’t. So, you’ve misapplied the Einstein quote because calling for a change through a new Congress and calling for a convention are two different things. In other words, here I am, saying we can’t go about it the way we have and expect a different result, and there you’ve been mischaracterizing and missing the point, only to say, “Sure John, and Einstein was wrong….” What do we call a person like that? The stereotypical know-it-all who is in the way? The experiment is not being repeated over and over, in fact we have more Americans than ever interested in the Article V Convention.
John, I posted a link to the little book I wrote about our electoral system. Paul read it, you did not. So you’re assuming I don’t know things that I wrote about years ago.
Congress passed the 17th because it was in their interests to have Senators elected, so that they could get in on the political cash grab of election campaigns, not because of public opinion.
I think Paul just summed up the problems very nicely. In the same way that money influences politics, it would influence an Article V Convention. (In Paul’s second to last sentence, I think he made a typo and used my name instead of John’s.)
Because you divide people into two kinds, Conventionists and anti-Conventionists, and because you’ve placed me in the second category and will therefore never read my book, here’s a snippet:
“In an undemocratic form of government….elected representatives are not obligated to represent their constituents but can represent their personal beliefs or philosophies, their big donors, or whatever they wish, and cannot be held accountable as long as they continue in office, which is the only time that people need them to represent the interests of the people.”
More people than ever in this country are interested in boycotting elections. My little book went from single digit views to tens of thousands of views, but that doesn’t mean it will happen. I don’t have or want a Facebook account, but I’ve been told there’s an invitation-only Facebook fan page for “Mark E. Smith, Election Boycott Advocate.” I suspect that ALEC, if they have a Facebook page, has a lot more “likes” than the term limit amendment page. Maybe if you put up a Facebook page proposing an Article V Convention, and it got enough “likes,” Congress would have to act? ROFL
There are those who sincerely believe that if enough people meditate on peace, the world will have peace and the wars will stop. All they have to do is have the numbers and reach the tipping point because they have the power.
I’m concerned about what might work and what won’t work. You believe that something that has never worked in the past, will work this time, so we should focus on repeating the experiment once again.
Thanks, but no thanks.
Obama has had a web page for years where, if enough people sign on to something, the White House has to respond. Many things have gotten sufficient support and the White House always responds when they do. But the White House response often comes in the form of a statement to the effect that they recognize that the issue has a lot of support and will take it into consideration.
I don’t know if Trump will continue that web page, but if he does, I expect that his response to popular issues will be the same as his predecessor’s. Once the issue reaches the tipping point, an intern will respond, “We will take this issue into consideration–thank you for your input.” Congress has the same trick–they take things that have popular support into consideration and deliberate about them–sometimes for centuries.
As the old saying goes, “Justice delayed, is justice denied.” When issues reach a tipping point, government has to respond. But it can respond by saying, like a parent to an obstinate child, “Okay, I’ll think about it.” Or it can respond with a “time out.” It is called government because it governs.
Mark,
> “Congress passed the 17th because it was in their interests to have Senators elected, so that they could get in on the political cash grab of election campaigns, not because of public opinion.”
Yes, what the people wanted at that time was turned against them. And yes, those still paying attention have lamented the 17th ever since, and yes it is subject on many state applications for a convention, because people have wanted to formally propose the repeal of it.
> “In the same way that money influences politics, it would influence an Article V Convention.”
I asked Paul, if the government is illegitimate, what is it going to influence at a convention? The idea that it can become even more illegitimate? That it can come out of the sheep’s clothing once and for all? Besides those questions, it still begs the question of whether you’re clear as to the differences between 1,000s of pages of legislation and a few sparse lines of law. When you realize that creating and influencing the former is so vastly different than the latter, you might begin to see things differently.
> “Because you divide people into two kinds, Conventionists and anti-Conventionists….”
I don’t, our high law does. Unless you find a third way to formally propose amendments in Article V, as an American, you are in fact a Conventionist or Anti-Conventionist. Inherent in the design of Article V is the political principle of boiling it all down to Yes/No in order to prevent equivocation.
> “More people than ever in this country are interested in boycotting elections.”
Perhaps, but that’s just another way of saying certain people stopped voting because they didn’t see how it matters. If a convention is called a lot of those people will likely seek to be delegates.
Paul,
> “the people” (whatever that is…)”
Meaning, today’s society at large and the bell curve of political consciousness that shows the segment of Americans still paying attention, still believing government is legitimate, and the Constitution supreme. People like Mark, who believe the government is illegitimate, are a very small percentage of the bell curve. So to be clear, when I say “the people” I mean all those still paying attention, and all those who will follow right along—i.e. the entire tipping point.
> “I’ll believe it when I see it because I don’t think Congress has any intention of calling a convention….”
If the Congressional Research Service updating their paper about the Article V Convention, alongside the advent of the last two sessions of Congress introducing rules to begin counting the state applications for the first time in history doesn’t impress you, or at least interest you, then maybe it will at some date in the future.
> “…tell me that an Article V Convention cannot have a limited agenda and that they cannot support an Article V convention with an unlimited agenda….”
Maybe that means Wolf-Pac is an astroturf organization meant to address the issue but somehow never get to the truth of the matter. The only reason Americans today think we need to limit a convention, is out of one fear or another—they think special interests will control it, fake-ratify something, etc. I’ve said earlier, some people who conceptualize this do so as if practical politics will not come to bear on the process of devising amendment language. We have proof of exactly that from this past summer in Williamsburg where COS held their mock convention. A bunch of delegates from across this vast, regionalized nation are not going to convene and start brawling and attempting to cut secret deals over amendment language with no chance of 75%+ approval.
> “…with tons of cash intent on forcing their agenda at the convention….”
Their agenda will be to write an amendment that legitimizes what they do behind closed doors and at DC restaurant tables? Yet
you’ve already conceded that the USSC has ruled directly counter to the letter and spirit of Article V by ruling the call as discretionary rather than ministerial. So if the government is currently illegitimate, what can it propose as an amendment to make it even more illegitimate than it already is? Or you believe some of the government is legitimate, but other parts aren’t, and that a convention will likely legitimize their illegitimacy once and for all? OK. But I don’t think that’s what will happen, and so we have to agree to disagree.
> “…fearing proposals amounting to a wholesale re-write of the Constitution proposing a much more conservative Constitution than the one we have now, to be ratified by state legislators, the majority of which are conservative. No thank you….”
You may not be aware, but polls regarding American reverence for the Constitution are and have always been broad and overwhelming—90%+. Americans love their Constitution. That’s a very important fact in the entire political equation.
The reasons a convention cannot be limited: 1) The law says it’s a convention of “amendments.” 2) To limit the convention is to deny fellow Americans their right to discuss what they think may supersede your idea for amendment. If the convention is open, everyone can float their idea to the people, and if it get’s overwhelming/broad support, congratulations.
John:
“…today’s society at large and the bell curve of political consciousness that shows the segment of Americans still paying attention, still believing government is legitimate, and the Constitution supreme…” to which I say, this statement is just one person’s your opinion, yours.
What are “the bell curve of political consciousness” and “the segment of Americans still paying attention”?
I was starting to believe you, but after this, you have lost credibility with me. The Congressional Research Service works for Congress. So why are you impressed by anything they say? I’m certainly not.
The only thing that impresses me is the fact that finally Congress is beginning to count convention calls! What has taken them so long?
Explain what you mean by “astroturf” organization. If you don’t think groups like ALEC and others would try to use their money and influence to dominate an Article V Convention, should one be held today, then you are completely naive.
A mock convention held by COS means absolutely nothing to me. What is “COS” anyway?
“Their agenda will be to write an amendment that legitimizes what they do behind closed doors and at DC restaurant tables?” By “their” I assume you mean ALEC. This is certainly one of the tactics they would be likely to try.
I have asked to know more about the SCOTUS decision declaring the calls for an Article V convention political and thus “discretionary rather than ministerial”. As yet I’ve heard nothing.
Americans’ may or may not regard for the Constitution highly. I’m willing to bet the vast majority of those Americans barely know anything about their constitution.
Again. the issue is whether the agenda of an Amendments convention can be limited to a single issue or not. If not, you say “everyone can float their idea to the people” I say you’re a dreamer!
Paul, what I meant is that of any society at large there is a bell curve of political consciousness. Meaning, not everyone is paying attention, but of those who are, if they head in a certain direction (calling for a convention for instance) another segment of the bell curve will follow right along. I’m sure you’ve heard Americans parrot a political idea they don’t really understand past having heard it on their favorite news radio, or from someone they think is knowledgeable. Kind of like the Anti-Conventionists who haven’t looked at the nuts and bolts of the convention process and how the dynamic of practical politics will dominate it from beginning to end.
I’m not sure I mentioned it, but in the 110th Congress (the Tea Party congress) they read the Constitution from the floor of the house on the first day. Before they read it, they said they were going to read what the CRS told them to read as some parts had been amended and were no longer applied. They skipped over Article V. Then, in 2012, the CRS published a two-part white paper all about Article V: how is it the CRS was telling members of Congress not to read the clause in 2010, and less than two years later produced a paper all about it? My answer: people becoming aware of it and inquiring about it–which indicates that if enough want it, Congress will call it.
The reason it has taken Congress so long to begin counting state applications is because for decades (generations) Americans had no interest in a federal convention. Now they do, and the Congress is responding. True, no one in Congress has stated point-blank–“Hey, enough of you are taking interest in Article V, so we’re going to start counting applications.” But that’s not how our government works. Our government will get away with as much as it can while we all look the other way. Beginning to count state applications after two hundred years means Congress wants to cover its ass, should enough (a tipping point) desire a federal convention.
If ALEC crafts an amendment and proposes it at the convention, it will first have to get 2/3 of all the delegates to agree it’s worthy of consideration, and then will have to get 3/4 of all state legislatures. Question: What could a special interest group propose that roughly 8 out of 10 Americans will be on board for? We call them special interests, as opposed to common interests, for a reason. In your mind you see an idea that currently appeals to a few, within the convention process, will somehow suddenly interest the many.
As to how much each American knows about the Constitution, it doesn’t matter really, as the convention process itself–a public discussion about the high law–will re-educate us all.
In order for a convention to be legitimate, it has to be open, otherwise you’re denying fellow citizens to discuss what they believe may be a superior idea for amendment; and since whatever is proposed must be ratified, it doesn’t really matter what is discussed. It’s either popular or it isn’t, so everyone floating their idea of what’s popular, is a good thing and fair.
If you want specific answers to you question regarding why the call was not issued back in the 1910s when Congress was first required to, look over the FOAVC.org site.
Paul,
It’s late. So I’ll respond to your question, Paul. Sorry, John.
After reading Paul Westlake’s excellent, encompassing analysis “Article V Convention,” I’m persuaded of the necessity to organize and coordinate a realistic national strategy and multiple approaches to succeed (for the first time in almost 250 years) in calling a Convention of 34 States to address the Citizens United issue. This requires reaching across ideological barriers to find ways to set aside disagreements between (and within) pro-convention and anti-convention groups. The reality is a pro-convention group fighting against an anti-convention group is not the way to treat an amendment process.
Obviously this Convention call requires the inclusion of non-partisan of delegates from red and blue States and activists at the State level to gain momentum to win over 34 States to address the Citizen’s United issue in a coherent, cooperative, compromise manner that ensures broad public support.
In this regard, Wolf-PAC might strengthen and speed up its call for an Article 5 Convention by aligning itself closely with other similar thinking groups such as Friends of the Article V Convention and Move Ahead. This step should of course be reinforced by intensive discussions/ negotiations with anti-convention forces. Both actions would be a big step forward in coming up with a unifying strategy that mitigates inevitable partisan and ideological manipulation by influential money interests.
A coming together of experts to exchange views on this subject occurred at the National Citizen Leadership Conference (NCLC) September 30-October 2. Wolf-PAC and the ‘never-Convention’ group Common Cause were at the same table exploring with others the options for coming up with a realistic strategy for calling an Article V Convention. Another valuable expert on organizing an Article 5 Convention is Jeff Clements. He co-founded American Promise which has as its mission to support groups and, activists, and citizens in ending the doctrine of ‘money is speech’ and the concept of ‘corporate personhood.’
In short, I agree with Paul Westlake that an Article 5 Constitution Convention amendment (or an amendment by Congress for that matter) cannot succeed by ignoring the opposition and working in narrow confines. Treating the call for a Convention to address the Citizens United issue like a typical competitive campaign contest will fail. The process must be inclusive, open-minded where activist groups come out of their comfort zones, join forces, and compromise on the implementation of a realistic, coordinated national strategy to address the role of money in elections.
I hope this helps, Paul. I’m no doubt preaching to the choir on this subject!
Typing correction : Move Ahead in 3rd paragraph should be Move to Amend..
According to the fed gov’t’s own website, http://clerk.house.gov/legislative/memorials.aspx, the trigger point at which Article V of the Constitution requires Congress to call an Article V convention was reached in 1972. Yet 44 years later, Congress has yet to call an Article V convention! Why do you think this is so?
H. R. 5306 was introduced on May 23, 2016 and promptly referred out to committee (the same day). Nothing has happened since to H.R. 5306. Why do you think this is so?
Don’t you think just maybe Congress does not want an Article V convention? Yet we have let them ignore their constitutional requirement for > 40 years. What’s up with that?
We have a money economy, Paul, or for those who have read David Graeber’s book, Debt, we actually have a debt economy.
Congress doesn’t have a very high approval rating. But voters elect people to Congress because if they want representation, they have no choice but to elect people to Congress. They can, and often do elect people to state and local or even neighborhood governments, but at the federal level the Constitution mandated that people be elected to Congress. Often the people who are elected to Congress are influenced by money, so there’s a lot of agreement that we should try to get money out of politics. But there isn’t much agreement on getting money out of our economy because then we wouldn’t have an economy. The one we have is deeply in debt, but economists don’t worry much about debt when the entire economy is based on debt.
Congress might not want an Article V Convention because if the citizens did manage to get money out of politics, a lot of Members of Congress could be out of a job. Why rock the boat?
I’m just speculating, but if I had a good job and somebody asked me to do something that might put my job at risk, I suspect that I might look for ways to avoid doing that. It seems like a natural reaction.
Of course, Mark. All the money in federal elections goes to the candidates, so why would they want to “bite the hand that feeds them”? This is not hard to understand and totally explains why they want to avoid an Article V convention, especially on the topic of getting money out of politics. God forbid “the people” should take their precious money away!
Last year Senator Udall introduced a proposal for a CA that simply allowed Congress to regulate campaign spending with no specified limits (under this proposal Congress could choose not to regulate campaign spending at all, or set the limit so high that no change would take place at all!), and they could not even pass that. S. J 19 failed.
This obviously speaks to the need for an Article V convention to get money out of politics. That isn’t the question. The question is, why hasn’t Congress called the convention a long time ago already?
Because the political will has never reached a level that forced them to. And that’s because everyone used to believe that calling a convention means a bunch of lobbyists re-writing the Constitution. The NRA scared the right by saying, that if ever called, the left would take away the 2nd, and the ACLU has frightened the left by saying the right would do away with the 1st.
But that is changing.
It is a natural reaction, and it’s as old as the hills. The question then becomes, how do you counter-act that? In our case the answer is: get a tipping-point of Americans cognizant of what a federal convention is, and how and why we have nothing to lose and everything to gain by going through the process.
Paul, that’s the funny thing. Have we let them get away with it all these years (our first should have happened in the 1910s) or has it taken this generation to finally get a handle on the situation? Bill Walker had the situation right back when he filed his first suit in 2000.
If we’ve been letting them get away with it, then it’s odd that they’ve printed and updated papers about it, most recently last year, and that such a thing as HR 5306 was even suggested last session.
It’s all about when a tipping point becomes aware. As soon as we reach it, Congress will take the steps to call it, i.e. HR 5306 will be reintroduced, make it to the floor for a vote and passed. All of the activity surrounding this since 2012 can be characterized as Congress covering their ass before they call it. And I have heard multiple secondhand accounts that staffers for the House Judiciary have said they know a convention is on the way. Unless of course there’s not enough sustained pressure to call it, then they will run out the clock on those who know about this (presumably like they have to generations in the past; people get old and tired and the newbies never quite get the memo on this subject).
Does anyone have resources available, or do you know anyone who would be interested in an entertaining/informative documentary about this? In this audio/visual day and age, one good documentary to place everything out into the sunlight, and it could put us over the top.
I do not. But certainly there are more than a few documentary filmmakers out there who would love to make this film! If anyone reading this blog know someone, please contact him or her.
John, there is a debate going on now as to whether an Article V convention can have a limited agenda. I need more education on this subject. So, I intend to read some of the writings that Frank and others have suggested on this topic.
Paul, in terms of political science and practical politics, a limited convention is impossible because you’re never going to get enough consensus about what that subject is before it can be called. The Balanced Budget Amendment on the right does not have enough support, and the electoral reform issue that’s been branded as Citizen’s United, is code for shutting down free speech to many, which hamstrings the left’s greatest claim to a convention. It is my contention that those debating whether or not a limited convention can occur haven’t thought about this long enough to conclude that we won’t have formal consensus before going through the process to build formal consensus. It’s almost like seeking to have a convention for the purpose of figuring out what we want the Article V Convention to be about.
We have to somehow show the right and left to put down their pet amendments and realize that until we all get to the table, nobody is going anywhere.
Article V doesn’t say anything about “reaching a tipping point” before calling a convention. So, I ask again, how is it that we have allowed them to ignore the Constitution all these years? Isn’t that “unconstitutional”?
It’s unconstitutional, yes, but a USSC ruling allowed members of Congress to look away by ruling that the convention call as a political question. Yet we know the spirit of the clause and that the call is not discretionary, but peremptory and ministerial in nature. The court ruled Congress gets to decide if it will ever issue the call.
Disheartening, yes, but remember, it doesn’t matter what the Congress or Court says the Constitution means, it only matters what the people say it means, and if we get the tipping point to say it means an immediate convention call, we’ll get it.
So, a SCOTUS interpretation is the reason Congress has not called an Article V convention all these years, despite clear language to the contrary?
Yes. I believe it was Coleman or Hawke.
Ran directly counter to Federalist 85 where Hamilton, making the final rebuttal to Anti-Federalists, says that if the states ever get concerned, they cast applications and Congress must call it, it is peremptory, done without debate.
foavc.org and article5.org has the work of Bill Walker.
And, as I believe I mentioned earlier, Paul, SCOTUS is likely to do the same thing with any Amendment that was passed and ratified.
It doesn’t really matter what the Amendment says, because it is subject to interpretation by SCOTUS. They determine how it is to be understood and enforced (or not enforced).
We have a very curious system, but it in no way resembles a republic or a democracy where people have a voice in government. We do have a voice, but it is limited to “free speech zones,” forums where the owners happen to tolerate it, and, my own personal favorite, in the event that you can determine that your phone is being tapped, telling them exactly what you think when they have no choice but to listen. ;)
Mark, the America we live in at present will not be the same post-convention, and the last thing the USSC will do is take an amendment coming out of our first federal convention, one that has overwhelming and popular support, and attempt to upend it.
It matters very much what the amendment says. If it is clear in letter and spirit, there’s not much they can do about it. We just have to reach the point where we can begin formally discussing it.
Are you saying that it wasn’t the Supreme Court ruling that the Convention call was a political question rather than mandatory, but that the Article V call didn’t yet have overwhelming popular support and hadn’t reached the tipping point?
While it is true that the Supreme Court usually does go along with overwhelming popular opinion, usually 50 to 100 years later, they don’t always do so and are not required to do so.
Your assumptions and beliefs as to what the Supreme Court would or would not do, appear to conflict with the facts of what they have done in the past, including the recent past, such as with Citizens United, and the more distant past like their ruling about the obligation of Congress to do what Article V appears to mandate.
I agree, John, that if an Article V Convention had overwhelming popular support, and if people could set aside their pet amendments and agree on one, and if that amendment was passed and ratified, the Supreme Court might not want to upend it in an obvious way.
They could still upend in in a more subtle way, of course.
But with several “ifs,” a “maybe,” a lot of hurdles, and a lengthy process, it could prove difficult to convince people to devote themselves to Article V as being the most efficient and effective way to bring about change.
Asking or even demanding that those politicians who benefit most from the status quo, help constituents bring about changes that would hurt both the politicians and their big donors, rarely seems to accomplish anything.
If it did, voters wouldn’t be so concerned about elections because they’d be able to influence, bring pressure to bear on, and hold accountable the people already in office.
We don’t need overwhelming support for a convention, we only need a tipping-point. Two different things. You need overwhelming support to ratify an amendment (and the only one with a chance is some type of electoral reform).
The reason it hasn’t been called is not because the USSC said Congress doesn’t have to, it’s because Americans, for generations, have misunderstood what it is, and they haven’t wanted it; which means Congress has been able to ignore it (and if someone presses them on it, as Walker did in his suits, they hold up the Coleman ruling).
Once enough want it, it will be called–all the actions by Congress over the past couple of years–including the CRS paper which specifically tells members of Congress that in this social media day and age, if enough Americans want it, they will have to call it–clearly indicate that.
Once it’s called it’s not a lot of ifs, it starts off a natural progression of events that leads to the inevitable conclusion–delegates formally deliberating over amendment language.
And because the status quo will have been utterly destroyed by these events, the USSC, nor the other two branches, are going to be able to begin to corrupt things for quite some time–in fact maybe never again if we solve the problem of money and elections with an amendment (which of course could be done easily with one that publicly funds all state and federal elections).
I have 2 questions: When did SCOTUS give Congress permission whether to call or not call an Article V Convention… before or after Congress proposed the 17th amendment? and, does Congress count convention calls by issue or not? And by what authority does it do whatever it does?
Paul,
From my research, the Supreme Court (SC) has never interpreted the meaning of Article V definitively. In key cases where the S.C. has been involved with Article V issues – Dodge v. Woolsey 1855; Hawke v. Smith 1920; Dillion v. Gloss 1921; U.S. v. Sprague 1931; Coleman v. Miller 1939, and later cases – I’ve haven’t seen any SC ruling or interpretation that gives the Congress specific permission To Call or Not to Call an Article V Convention. It’s also my understanding that because of the “political question doctrine” and SC’s ruling in Coleman v. Miller, it is still now an open question whether federal courts could assert jurisdiction over a legal challenge to Congress, if Congress were to refuse to call a convention.
According to the majority of legal experts, including the much respected James Kenneth Rogers of the Harvard Journal of Public Law, “The text and history of the Article V Convention Clause demonstrate that Congress is obligated to call a Convention when two/thirds of the States have applied for one, and Congress has no discretion in this matter.” (Other experts like Michael B. Rappaport, Prof. of Law at San Diego University think the opposite). I’m of the view what Mr. Rogers says becomes more legally credible if two-thirds of the state legislatures calling for a Convention all closely use the exact same amendment language as Prof. Rappaport recommends.
But I must say I’m having increasing reservations an Article V Convention amendment approach on the Citizens United issue is achievable given current political environment of conservative control of all three branches of government. And then there’s those open questions that exist about the use of this amendment process e.g., limits on scope or subject matter, tallying of subject matter separately or cumulatively regardless of subject matter, selection of Convention delegates, coordination among states, etc. For example, it will be very difficult if the two-thirds of the States States don’t coordinate their call applications so that they are for all intents and purposes nearly identical.
Retired esteemed Constitutional Law Prof. Rob Natelson is considered to be the most active scholar on the Amendment process. He is Senior Fellow in Constitutional Jurisprudence at the Independence Institute In Denver. He heads up the Institute’s Article V Information Center.
I think an exchange with Mr. Natelson might be most helpful regarding your questions, Paul.
Frank, I’m not questioning Prof. Natelson’s credentials or expertise, but the Independence Institute is a Libertarian think tank, not an accredited academic institution. They support charter schools, gun rights, privatizing the Post Office, and apparently an Article V convention, while they oppose taxes, teacher tenure, and Obamacare.
Since the experts appear to differ, I still think the final interpretation would be up to the Supreme Court, and their decision would depend upon who happens to be on the Supreme Court at the time, not on any universal principles, although I’m sure they would try to frame it that way.
We are still a nation women and men, not a nation of laws. Laws are subject to interpretation and that is done by people.
People who have risen to positions of power in this system, like Members of Congress and Supreme Court Justices, might not wish to open the door to anything that could potentially change the status quo in ways that might diminish or relieve them of their power. If an Article V Convention could change the status quo, they’re likely to oppose it, and if it couldn’t, why bother?
Mark,
Thanks, Mark. So the Professor is most likely an anti-government ideologue who would have a very narrow self-government vision on the application of an Article V Convention.
You could be right, Frank. Not having read the Professor’s work, I wouldn’t know, but I’ve found Libertarian views to depend on the individual Libertarian (which is probably as it should be!).
One of the good things about the US, is that we often take what we want from various cultures, ideologies, or philosophies, without having to strictly adhere to a particular dogma.
If the Democrats have a good idea, I support it. If the Republicans have a good idea, I support it. If the Libertarians have a good idea, I support it. But I don’t identify with any of them, so I wouldn’t describe myself as a Democrat, a Republican, or a Libertarian. That’s because, in my personal opinion, they all sometimes also have very bad ideas. Maybe I’m a Situationist? Unfortunately, they don’t seem to have a political party. ;)
In a situation with a problematic status quo, which many people seem to feel is the situation we’re in, I believe that any document or system that was designed to perpetuate the status quo, is unlikely to be useful in changing the status quo.
Parents and teachers with kids pestering them for something, but who need to get other things done, sometimes assign “busy work,” to occupy the kids’ attention. The busy work may appear to be meaningful, and the completion of busy work will usually benefit the kids because they are being obedient, but the purpose is to buy time for the parents and teachers to get other things done.
If I had to venture a guess, I’d say that the framers may have inserted Article V into the Constitution as a form of busy work. They foresaw that there would be times when the mob and rabble would be pestering them, so they created a diversion to ensure that those in power would still be able to get things done. Article V seems to say that if and when there is enough popular demand, Congress shall decide whether to begin a lengthy process within which the issue may be formally discussed and decided, and that decision, barring a Supreme Court decision interpreting it as unconstitutional or invalid due to some technical fault in the procedure, would become part of the Constitution where, like everything else in the Constitution, it would be subject to Supreme Court interpretation along with enforcement or lack of enforcement on the part of those in power.
Many of the “pet amendments” that John De Herrera refers to, seem to be instances where Congress, which is sworn to uphold the Constitution, isn’t. That usually refers to things already in the Constitution that somehow aren’t being enforced. For example, since Article IV of the Constitution already protects us against unreasonable searches, things like NSA surveillance, FISA, no-knock raids at wrong addresses, etc., shouldn’t be happening. But they are. Is the solution to get an amendment to say that Article IV must be enforced? Maybe we need an amendment to say that those sworn to uphold the Constitution must uphold the Constitution? If we could get it formally discussed, proposed, adopted, and ratified, what’s the chance that it would be enforced?
Ooops, NOT Article IV, I meant to refer to the Fourth Amendment. Sorry.
The history of Article V is found in Madison’s notes for the 1787 Federal Convention, where George Mason said allowing Congress as the only option for amendment is a mistake because it may become the problem and fail to propose needed amendments. The convention clause was passed unanimously, and when the Federalist Papers went into circulation, the final rebuttal to Anti-Conventionists was Federalist 85, saying that if what they were planning to adopt ever failed, the states had the option to call a convention. So no, your conclusion as to its origins is incorrect.
We are not going to come out of our first federal convention on authority of Article V, and have legislators thumbing their noses at the people. No, post-convention legislators and government officials will be standing at attention like a private at boot camp. Why? Because by that time it will be clear who actually runs the show here in the USA.
Right, John. You just keep asking Congress to call an Article V Convention to prove that the people, not Congress, really run the show here.
If the people want Congress to allow them to have an Article V Convention, Congress has to do it, or else the people might do it themselves. Congress certainly doesn’t want that to happen. Once you give people a taste of power, they can become addicted to it. Nobody knows that better than legislators and government officials.
We can force legislators and government officials to obey the will of the people by demanding that they allow us to have a Convention where we could pass an amendment requiring that they obey the will of the people. Or that Citizens United be overturned and the country returns to the previous system of money influencing politics less openly and more surreptitiously. That’ll do it.
John: First, I want to thank you for taking the time to write a detailed response.
But you didn’t explain what you mean by an “astroturf” organization.
In general, you seem to be saying that Congress can do what it wants until they get called out on it, and if enough people yell loud enough they will do something. You are accepting that. But that is not representative government and I do not accept it.
Given my view that the election that just occurred is a knee-jerk reaction to pressure to change our selfish ways. And the forces that want to undo the progress that has already been achieved are getting their way, I think an Article V convention with an open agenda is extremely risky for anyone wanting to see more change. You say that is the only way an Article V Convention can be called.
I’m not convinced, so I still plan to read some other views of how the agenda of an Article V Convention can be limited.
I have contacted Rob Natelson and asked him this question, “I am seeking to learn if an Article V Convention on a single issue is possible?” This is his answer: “Yes. Historically, in fact, most state legislative applications have recited only a single issue.”
With the understanding that Mr. Natelson’s views may be biased in favor of his personal political persuasion, I will continue to read and/or reach out for more opinions on this question, although his answer is quite matter of fact.
Here is Bill Walker’s response to Natelson’s views: http://www.foavc.org/reference/file3.pdf
Thank you John. I’ll take a look.
John,
A key legal principle, among others, that Bill Walker cites corresponds closely with what James Kenneth Rogers of the Harvard Journal of Public Law concluded, namely, “Congress’s obligation to CALL a convention upon the application of two-thirds of the States’ legislatures is mandatory. Congress is obligated to CALL the convention requested by the States.”
Walter’s truly related provocative legal conclusion is that by allowing Congress to veto already submitted applications, the States have de facto accepted the Congress\s “instructions thereby setting the precedent Congress whereby does not have to obey the Constitution regarding the Article V convention. As he says, “If Congress can veto all previous applications, Congress can veto any new applications as well!” So Congress is the principle “runaway” culprit or control force on calling conventions and not the States.
Walter’s article is anoteher ‘brain opener.’ At this moment, I haven’t time to review carefully his conclusions and solution and to compare same to James Rogers’ paper (“The Other Way To Amend the Constitution: Article V Constitutional Convention Amendment Process”) and Michael Rappaport’s paper (“Renewing Federalism by Reforming Article V”) but am looking forward to doing so.
Thank you Frank. Meanwhile I’ll read some of the other material you posted.
Frank, I’ve been involved in legal and political activism for the Article V Convention since a few days after 9/11. Some on this thread seem to think I’m espousing my personal opinions, but I’m not. As you go deeper into the subject you’ll find what Walker has said repeatedly for over a decade is still just as true today.
If Congress can veto Article V, why is it counting applications? Why did the CRS reports never mention Coleman? Things to consider.
Walker’s response to Natelson: http://www.foavc.org/reference/file3.pdf