Features » March 14, 2016
Corporate America Is Just 6 States Short of a Constitutional Convention
If ALEC succeeds in rewriting the constitution to mandate a balanced budget, we’ll be stuck with supply-side economics for at least a generation.
What would stop this constitutional convention from turning out like the Philadelphia Convention of 1787, which led to the scrapping of the Articles of Confederation and the drafting of an entirely new U.S. Constitution?
In February, Republican presidential hopeful Sen. Ted Cruz (Texas) signed on to a call for a constitutional convention to help defeat “the Washington cartel [that] has put special interest spending ahead of the American people.”
Cruz, along with fellow Republican presidential aspirants Sen. Marco Rubio (Fla.) and Gov. John Kasich (Ohio), has endorsed an old conservative goal of a Constitutional amendment to mandate a balanced federal budget. The idea sounds fanciful, but free-market ideologues associated with the American Legislative Exchange Council (ALEC), a secretive group of right-wing legislators and their corporate allies, are close to pulling off a coup that could devastate the economy, which is just emerging from a recession. Their scheme could leave Americans reeling for generations. A balanced budget amendment would prevent the federal government from following the Keynesian strategy of stimulating the economy during an economic depression by increasing the national debt. (Since 1970, the United States has had a balanced budget in only four years: 1998, 1999, 2000 and 2001.)
Article V of the Constitution lays out two routes for changing the law of the land: An amendment can be proposed by Congress or by a constitutional convention that is convened by two-thirds of the states (34). Either way, three-fourths of the states (38) have to ratify it. Previously, changes to the country’s founding document have been achieved by the first process. But as of today, 28 states—six shy of the two-thirds threshold required by Article V—have passed resolutions calling for a constitutional convention to consider a balanced budget amendment.
The ALEC-affiliated Balanced Budget Amendment Task Force (BBATF), which proffered the pledge signed by Cruz, is hoping to meet that 34-state threshold by July 4. BBATF is one player in an astroturf movement backed by the billionaire Koch brothers and embraced by right-wing state legislators.
A balanced budget amendment has long been a holy grail for the Right since the 1930s. In the 1980s, conservatives made a push for a balanced budget constitutional convention and, 20 years later, the idea was resurrected as part of the Tea Party platform. That’s when BBATF was formed to carry the movement forward. With 16 resolutions held over from the previous wave of conservative activism, BBATF has since passed resolutions in Alabama (2011), New Hampshire (2012), Ohio (2013), Georgia, Tennessee, Florida, Michigan, Louisiana (2014), South Dakota, North Dakota, Utah (2015) and West Virginia (2016), bringing the total to 28. This year, BBATF is targeting 13 states: Arizona, Idaho, Kentucky, Maine, Minnesota, Montana, Oklahoma, South Carolina, Virginia, Washington, West Virginia, Wisconsin and Wyoming. In six of these states Republicans control both legislative bodies and the governorship, making passage a real possibility and leaving BBATF one state shy of the magic 34.
While the BBATF’s 27 resolutions are tied specifically to the balanced budget amendment, a group called Citizens for Self-Governance launched a project called Convention of States, whose proposal for a constitutional convention has also been adopted by ALEC as a model policy. Convention of States has passed resolutions calling for a convention in Florida, Georgia (2014), Alabama, Arkansas (2015) and Tennessee (2016). Convention of States advocates a constitutional convention to not only pass a balanced budget amendment, but also to curtail the “power and jurisdiction of the federal government.” What precisely this means and how it would be accomplished is not clear. This uncertainty at once whets the appetite of anti-government zealots while raising serious concerns about a “runaway” convention that could make drastic changes to the Constitution.
Both BBATF and Convention of States have struggled to address worries of a runaway convention. What would stop it from turning out like the Philadelphia Convention of 1787, which led to the scrapping of the Articles of Confederation and the drafting of an entirely new U.S. Constitution?
To address these concerns, a group called Compact for America, which has passed resolutions in Alaska, Georgia, Mississippi and North Dakota, has proposed that states combine their calls for a constitutional convention with the final ratification process. This would mean states attending the convention would propose the amendment and ratify it in one fell swoop, which would require the 38 states needed for ratification under Article V, not just the 34 needed to call a convention.
Convention of States and BBATF have tried to quell fears of a runaway convention by saying the convention would be bound by the subject matter of the resolutions, and that the convention only has the power to propose amendments, which then must be ratified by the required 38 states.
That the subject matter of the resolutions will prevent a runaway convention may make sense in reference to the BBATF, whose resolutions focus specifically on the balanced budget amendment, but when applied to the Convention of States’ agenda, the argument fails, as the subject of their resolutions includes broad language to curb the power and jurisdiction of the federal government. Convention of States spokesman Michael Farris has written that, “It is relatively certain that there would be at least a few amendments proposed, perhaps as many as 10 to 12.” In other words, if Convention of States has its way, there could well be a runaway convention.
Within striking distance
Arn Pearson at the Center for Media and Democracy, a watchdog group based in Madison, Wisc., is closely tracking the movement. He describes the campaign for a constitutional convention as “a very live threat.” “If between the groups they get to 34 states,” he says, “there is really nothing preventing them from aggregating those calls even if they’re not identical, and pushing for a convention.”
Another uncertainty, Pearson notes, is the controversy over whether the 16 resolutions left over from the effort in the 1980s can still be counted. There is no precedent to lean on. Pro-convention advocates maintain that Congress, which is tasked with processing the states’ applications, may not meddle with the process. If a state doesn’t want a convention, they argue, it can rescind its application. Pearson suspects the Supreme Court would get involved.
“There are a lot of different parts of the Koch machine pulling on this oar,” says Pearson, “from their think tanks up through their elected officials, they’re pushing on it. They’re pushing on it hard.” And, given how red BBATF’s 2016 target states are, says Pearson, “it’s within striking distance. If [ALEC and the Koch brothers] get a convention,” says Pearson, “they get to lock in their conservative supply-side policies for the next generation or more. That’s where they’re going.”
The Kochs and company, with their gridlock of Washington, have bred a type of discontent that has made once unimaginable change possible.
Tugging on citizen discontent, Convention of States’ propaganda highlights the 2013 government shutdown, creeping NSA surveillance, Gallup polls showing Americans’ dissatisfaction with “government” and tales of federal bureaucratic waste.
But such a convention is not the tonic to satiate this discontent. Democratic control is what the American people yearn for, but that is not what the convention would offer.
Maybe the alternative is the revolution Bernie Sanders is envisioning: Electing insurgent candidates to Congress, state and local office; strengthening and expanding direct democratic institutions like the ballot initiative process; making constitutional changes that elevate democratic decisions above corporate personhood; and building a movement that engages the thousands of communities where democratic governance has been all but quashed by ALEC-endorsed legal doctrine and legislation.
Editor's note: This story was updated after West Virginia passed a resolution on March 12.
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Simon Davis-Cohen writes and makes films about criminal justice, local democracy, and the law. He does research and communications for the Community Environmental Legal Defense Fund. You can sign up for his nationwide “Ear to the Ground” newsletter— cataloging state legislation, grassroots news, legal developments, and local media—at: patreon.com/eartotheground.
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