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.

Simon Davis-Cohen March 14, 2016

(Rachel K. Dooley)

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.”

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?

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.

Domi­no effect

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

Simon is a writer, film­mak­er, and works part time for the Com­mu­ni­ty Envi­ron­men­tal Legal Defense Fund. He edits the Ear to the Ground newslet­ter and can be found on Twit­ter @SimonDavisCohen

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