The Article V
Constitutional Convention being voted on in the States is an existential threat
to our liberty. See article below: Gambling with our
Constitution, by Helen Norton and David Super, 4/20/18, Denver Post
Today, no one can deny the
disturbing influence of money in politics. We can see it at the federal level;
we can see it in the states. We can see it in what gets done and in what does
not. Money’s influence in politics was pervasive long before the Supreme
Court decided Citizens
United, but that decision opened the door to even greater political power for
well-financed special interests.
Recognizing the problems
created by free-flowing campaign cash, however, is quite
different from having a viable solution. The Colorado legislature is currently
considering legislation (House Joint Resolution
1015 and Senate Joint Memorial 005) to address this problem, but unfortunately this legislation
would likely make the problem even worse.
This legislation proposes
that Colorado ask Congress to call a convention to propose new amendments to
the U.S. Constitution. The legislation’s advocates envision a narrow
constitutional convention that would consider only an amendment to
overrule Citizens United and allow Congress to enact more effective
campaign finance legislation. We share these proponents’ interest in meaningful
campaign finance reform, but this is not the way to go about it.
Recall that Article V of the
Constitution identifies two methods of enacting constitutional
amendments. First, Congress may — by a two-thirds vote in each chamber —
propose a specific amendment, and the Constitution is amended if at least
three-fourths (38) of the states then ratify that amendment. Alternatively, if
at least two-thirds (34) of the states ask Congress to form a constitutional
convention to propose and consider amendments, then Congress must call such a
convention.
But nothing in the
Constitution limits such a convention to the issue or issues for which it was
called. In other words, anything and everything could be on the table,
including fundamental constitutional rights. Nor are there any guarantees about
who would participate or under what rules. Indeed, for these reasons, no
constitutional convention has been called since the first in 1787.
First, a convention could
write its own rules. Indeed, because the Constitution provides no guidance
whatsoever on the ground rules for a constitutional convention,
fundamental questions (like how the delegates would be chosen, how many
delegates each state would have, and whether a supermajority vote would be
required to approve amendments) would be left wide open to political pressures
and deal-making. To illustrate the importance of these issues, if those
participating in the convention decided that every state will have one vote in
the convention and that the convention could approve amendments with a simple
majority vote, then the 26 least populous states — which contain less than 18
percent of the nation’s people — could approve an amendment for ratification.
Indeed, in such a highly
contentious political environment, delegates could cut deals resulting in
amendments covering multiple topics. Although most constitutional amendments
have addressed only a single issue, nothing in Article V requires
this. Provisions considered radical or damaging, at least in some states,
could be attached to highly popular proposals in a single amendment, making
their passage more likely.
Second, the
Constitution does not give anyone outside of the convention any authority to
check or regulate it: The Constitution confines Congress’s role in this process
simply to calling the convention and specifying how states will ratify any
resulting amendments, and it does not empower Congress to disband a convention
that strays from its mandate. The Supreme Court, in turn, has declared that the
process of amending the Constitution is a “political question” into which
federal courts may not intervene. There is thus no way to predict what
constitutional amendments the delegates to a convention might adopt.
Finally, a convention
could set its own agenda, possibly influenced by powerful interest
groups. In short, once a convention is called, everything in our
Constitution would become immediately vulnerable. Wealthy and powerful interest
groups would surely see a constitutional convention as an opportunity to enact
major policy changes, and are particularly well-equipped to influence the
process and press for changes to the agenda. Indeed, some claim already to
have 28 of the 34 state resolutions necessary to force Congress to call a
convention.
As former Chief Justice
Burger wrote, a “Constitutional Convention today would be a free-for-all for
special interest groups.” It is precisely because of money’s pernicious
influence that Colorado should not call for an Article V constitutional
convention. At constitutional roulette, everyone loses — except
well-financed special interests.
Helen Norton is Professor
and Ira C. Rothgerber, Jr. Chair in Constitutional Law at the University of Colorado.
David Super teaches law at Georgetown University.
Norb Leahy, Dunwoody
GA Tea Party Leader
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