Right Opinion

A New Strategy for the Article V Convention of States Movement

Guest Commentary · Feb. 21, 2020

By Paul S. Gardiner

Where are matters today with the Article V (AV) Convention of States (COS) movement to propose urgently needed amendments to the U.S. Constitution? Millions of Americans heartily support the convening of a COS due to, among other things, deeply troubling concerns about the future actions of a far-left, socialist-controlled federal government, perhaps as early as 2025. Due to the slow progress in convening a COS, however, some people wonder whether it is realistic for a COS to ever be held.

Hence, the purpose of this article is threefold: 1) briefly review the current status of the AV COS movement (now mainly consisting of four citizen volunteer AV organizations); 2) review recent COS application aggregation studies; and 3) suggest a new strategy oriented toward year 2022. Hopefully, the ideas presented herein will serve as a basis for meaningful discussions and cooperation among the various AV groups to enable a COS to be conducted not later than 2022. (This article is a condensation of a more in-depth discussion of the COS movement, aggregation studies, and future at https://huntforliberty.com/a-convention-strategy/.)

The importance of conducting a COS to propose urgently needed amendments to the U.S. Constitution cannot be overemphasized. The overreach of the federal government (including Congress and various regulatory agencies and executive departments) into the everyday lives of American citizens is legendary. Additionally, the recent impeachment and trial (acquittal) of President Donald Trump exemplifies the dysfunction of much of the federal government — dysfunction that certain amendments could help to correct.

One AV organization, COS Project, limits and categorizes needed amendments into three broad subject areas: limiting the power/jurisdiction of the federal government; limiting the terms of office for its officials; and imposing fiscal restraints on the federal government. The other three primary AV organizations strive to have Congress call a COS that limits the delegates to only proposing a single, specific amendment. The objective of all four AV groups is for Congress to call and sanction what is termed a “limited” COS.

To date, there has been little, if any, cooperation among the four primary AV citizen volunteer groups attempting to reach the required threshold of 34 state-legislature applications. And, as discussed herein, the AV COS movement overall has slowed to such an extent that, realistically, the current disjointed strategy to convene a COS may be “a bridge too far.”

As part of the suggested new strategy, this article argues that it is truly time to put aside differences and strive for strong unity of effort among the different AV groups. In order for this to happen, one of the four AV groups (or perhaps a completely new entrant) has to come forth to provide the foresight, strategic leadership, and courage to make it happen.

For discussion purposes, it is useful to define the terms “limited,” “general,” and “plenary” as they pertain to a COS. A limited COS (open to all 50 state legislatures) intends to limit delegates to only proposing, debating, and voting upon specific amendments or amendments dealing with specific subject areas. A general COS (open to all 50 state legislatures) allows delegates to propose, debate, and vote upon any and all amendments subject to convention rules adopted by the delegates themselves. The term “plenary” in this context refers to COS delegates having full power and authority to convene and conduct a general COS. Delegates are accountable to their sponsoring state legislatures and can be subject to immediate recall and/or possible civil penalties for abusing their delegated authorities.

Ratification. Recent conversations with various AV group volunteers indicates that some lack a complete understanding of how the amendment ratification process works. It is generally understood that the legislatures in at least 38 states must ratify an amendment in order for it to become part of the Constitution and law of the land. In some people’s minds, this equates to a total of 38 votes.

What is not often understood is that America’s 50 state governments consist of 99 individual legislative chambers: 49 states have both House and Senate chambers, whereas Nebraska only has one legislative chamber. Both House and Senate chambers in each state must vote to ratify an amendment.

Thus, in order for an amendment to be successfully ratified by state legislatures, the amendment must receive not just 38 votes but a total of 76 votes for ratification (75 if Nebraska’s legislature is involved). Because the 99 legislative chambers are a mix of Democrat- and Republican-controlled chambers, this ongoing dichotomy functions as the ultimate “safety valve” against a rogue-type amendment (proposed by a COS or Congress) being successfully ratified.

The above is a very important fact to remember when discussing the prospect of a general COS taking place where any and all amendments could be offered, debated, and perhaps voted out and sent to the state legislatures for ratification. Additionally, some constitutional scholars believe that even in a so-called limited COS, nothing (except the COS rules established by the delegates themselves) will prevent amendments being proposed and voted upon that are outside the limitations stated in COS applications.

COS Status Report. In his January 2020 “Article V Convention Legislative Progress Report,” Georgia Attorney David F. Guldenschuh states that “The last half of the past decade saw the Article V movement peak, but the last two years have seen a plateauing of our efforts. We are now down to four major groups: the Center for State-led National Debt Solutions (CSNDS; the 501(c)(3) arm of the BBA Task Force); U.S. Term Limits; WolfPAC/Free & Fair Elections; and the Convention of States Project.”

Guldenschuh goes on to say: “No matter your politics, Washington’s dysfunction has never shown so brightly as it presently burns.  I am convinced that our only hope to keep this Thelma and Louise convertible called our federal government from driving off the cliff is the work all of you are doing to promote the Article V movement.  As the documentary "Unrepresented” points out, there are now many movements — right, left and center — to rein in the excesses of Washington, and many of them rest their hopes in the Article V movement.“

In terms of numbers of state legislatures that have passed the different COS applications, the report indicates the following as of January 2020:

  • CSNDS/BBA Task Force application: passed in 28 states

  • COS Project application: passed in 15 states

  • WolfPAC Free & Fair Elections application: passed in 5 states

  • US Term Limits application: passed in 3 states

One of the major takeaways from the above report is that 2018 and 2019 experienced a "plateauing” of effort by the various AV groups in securing the required 34 COS applications.

Unless there is a significant change in strategy, this article argues that not much will improve during 2020 and beyond. In fact, efforts to rescind COS applications might very well increase in different states due to the growing presence of leftist, socialist politicians in state legislatures. This is a risk factor that must be taken into account when considering future COS strategy and timing.

COS Application Aggregation Studies. Two extensive COS application aggregation studies were completed in 2018. Both studies rely on the writings and findings of several noted constitutional scholars including Michael Stokes Paulsen, Robert G.Natelson, Professor Akhil Amar, Charles L. Black, Jr, James Kenneth Rogers, David C. Huckabee, Thomas M. Durbin, Walter E, Dillenger, and Russell Caplan. Both studies concluded that there are at least 34 valid, qualifying COS applications to require Congress to call a general COS. Further information about these two studies can be found at https://huntforliberty.com/a-convention-strategy/.

COS Considerations. Given the relatively slow progress by the different AV groups to reach the threshold of 34 COS applications, it does not appear likely that any of the four primary groups will reach the 34-application threshold anytime soon. Among considerations for future actions are reports from some AV group volunteers that many state legislators have “had their fill” of COS talk and activities and are increasingly reluctant to press on for a COS in the near term.

A second important consideration is the probability of various COS applications being rescinded through the efforts of a growing number of leftist, socialist state legislators. This is a valid risk factor that is unquantifiable at present, but nonetheless is ever present.

A third important consideration is the overall deep negative feeling that millions of Americans have over the tremendous dysfunction and corruption displayed by various members of the United States Congress and numerous federal government agencies and departments. These Americans are absolutely disgusted with the situation. As a consequence, many more citizens could be persuaded that the state governments need to take control of the situation as soon as possible via a COS where numerous important amendments would be proposed intended to reinstate the state governments as a creditable “check and balance” on the actions of an overreaching, corrupt, all-too-powerful federal government.

Finally, another important consideration in determining a strategic direction for the AV COS movement are the opinions of several constitution scholars (Paulsen, Black, Dellinger, Caplan, et al.) that Congress lacks authority to call and sanction a limited COS. There is the possibility that opponents of a COS will ask the U.S. Supreme Court (SCOTUS) to rule on the matter, and an originalist majority could decide in favor of the opponents.

Conclusions.

1) In concert with the axiom that “timing is everything,” and in view of the increasing risk of COS application rescission efforts in different states, it would be a very wise action to have a COS successfully convened and conducted no later than end of year 2022.

2) In concert with the axiom “a bird in the hand is worth two in the bush,” it makes good sense to use whatever qualifying COS applications are available to have a COS convened as soon as possible.

3) Two creditable COS application aggregation studies find that at least 34 valid, qualifying applications currently exist to enable a call for a general COS to be presented to Congress.

4) Convening a general COS overcomes the risk of SCOTUS ruling against the legitimacy of Congress having authority to call and sanction a limited COS.

Recommendations.

1) The leaders of the different AV COS groups need to begin serious, realistic discussions concerning the future of the COS movement overall including the significance of the two aggregation studies described herein; the leaders need to begin cooperating and developing a unified approach toward convening a general COS by end of 2022.

2) Absent the above, a new COS entrant such as the American Constitution Foundation (ACF), Campaign Constitution, or Acts 2 Reform needs to take the lead and coordinate efforts among the different AV groups.

3) The comprehensive COS strategy of ACF (or similar strategy) needs to be seriously considered and funded in planning to make application to Congress to call a general COS.

Paul S. Gardiner served as Georgia Coalitions Director and National Veterans Coalitions Director for COS Project. He is a retired Army officer, Vietnam veteran, and graduate of the University of North Carolina at Chapel Hill, University of Alabama, and United States Army War College.

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