It's time to reboot the political system (cont'd)

The growth of government has accelerated under the current president, but this trend began long before he took office and it isn’t likely to abate as a result of normal ebb and flow of the electoral process. So what can/should be done?

We reported last week on a Convention of States (COS) project to organize an Article V convention charged with amending the US Constitution so as to rein in the federal government. Most conservatives agree the big government express is out of control, although opinions differ as to whether an Article V convention would help to stop it.

Now let’s get down to brass tacks. (A) What constitutional amendments are envisioned, and would they indeed have a constructive effect? (B) Is it likely that an Article V convention would succeed? (C) Are there alternative ways to rein in the government that would be quicker and/or more certain? (D) Should SAFE support the COS project?

The discussion will reflect, among other things, points made in several fascinating but lengthy debates between Michael Farris (one of the
COS leaders) and conservative critics of this project.

• Michael Farris [joined by Oklahoma Senator Rob Standridge] debates leaders of John Birch Society in Oklahoma, video (1 hour, 44 minutes),
April 2014.

•Michael Farris debates Andrew Schlafly [son of Phyllis Schlafly] in New Jersey, video (1 hour, 24 minutes),
May 2014.

•Michael Farris debates [Virginia] Delegate Bob Marshall, video (1 hour, 53 minutes),
September 2014.

A. What amendments – There are many ideas about how the Constitution should be amended, and convening a convention with an open-ended charter could have unpredictable consequences. On the other hand, it would be very difficult to achieve a pre-convention consensus in favor of any specific suite of amendments. See, e.g., The Liberty Amendments, 3/31/14 (part B).

The COS team has adopted an intermediate approach: urge the states to request a convention that would take up a subject dear to conservative hearts – limiting the power of the federal government – but defer discussion of specific amendments until the convention. Here’s the relevant language from the COS resolution adopted by Indiana (6th state to sign up) in
March 2016, which other states will presumably track.

The legislature of the State of Indiana hereby applies to Congress, under the provisions of Article V of the Constitution of the United States, for the calling of a convention of the states limited to proposing amendments to the Constitution of the United States that impose fiscal restraints of the federal government, limit the power and jurisdiction of the federal government, and limit the terms of office for its officials and for members of Congress.

Hmm, sounds like a balanced budget amendment, a restrictive interpretation of the commerce and general welfare powers of Congress, and term limits. In principle, these ideas seem promising. And for present purposes (the point will be revisited under the next heading), let’s assume that the amendments adopted at the convention would put meat on the bones in a constructive fashion.

Still, some may rightly ask this question: Why should it be assumed that the nation’s political leaders would heed the new amendments when they have managed to ignore or evade so many provisions of the existing Constitution?

Here’s a two-fold answer. First, the new amendments would be observed at the outset because the intent underlying them would be fresh in everyone’s mind. And if there was backsliding later, it would always be possible to convene another Article V convention. Second, profiting from experience since 1789, the new amendments would be drafted in terms that couldn’t be readily misinterpreted.

It would be a mistake to adopt a balanced budget amendment, for example, which could be construed as a mandate for raising taxes versus controlling spending. To prevent this, Michael Farris has suggested, the amendment could define budget balance as limiting expenditures to actual revenue in the preceding fiscal year. As some readers may recall, this harmonizes with SAFE member Dick Timberlake’s proposal of a budget red line for the federal government. All in favor of responsible budgeting, say aye,
1/4/16.

Here’s another example. Congress is authorized to impose taxes and use the revenue “to provide for . . . the general welfare of the United States.” Over the years, this power has been interpreted as covering spending for almost any purpose including matters that were initially envisioned to fall in the state versus federal ambit. See, e.g., Assessing the GovCare decision (which upheld a
federal law requiring Americans to obtain healthcare insurance), 7/9/12. To restore the status quo ante, suggests Farris, “general welfare of the United States” should be defined as excluding any matters falling within recognized areas of state authority (education, healthcare, relief of poverty, etc.)

Term limits should apply for judges as well as members of Congress, by the way. And as a further check on judicial activism, why not provide that Supreme Court decisions could be overridden by a 2/3 vote of Congress?

B. Viability – As COS proponents (ably represented by Michael Farris) paint the picture, an Article V convention would be a relatively harmonious and businesslike proceeding. Conservative critics disagree, contending that all kinds of things could and probably would go wrong. A recap of key arguments follows in point/counterpoint style.

OBJECTION: The federal government is malfunctioning, no doubt about that, but the basic problem is not the Constitution – the basic problem is people. Thus, there is no need for congressional term limits because corrupt or ineffective leadership can be cured by “voting the rascals out.”

RESPONSE: We agree that electing good leaders is important, but it’s also important to foster good performance. This can be done by providing a structure that requires constructive practices (such as balancing budgets) and thereby “makes it easy to be good.”

OBJECTION: There have been 27 amendments to the Constitution since it was adopted, all of which were proposed by Congress. The convention of the states approach has never been used, and there’s no reason to experiment with it now.

RESPONSE: Don’t expect the members of Congress to vote (by a 2/3 margin in both houses) for reductions in federal (and their own) power. The chance of this happening is zero. That’s why George Mason, who feared the federal government would eventually seek too much power, proposed the convention of the states alternative in Article V.

OBJECTION: If the legislatures of 2/3 (34) of the state request a convention of the states, Article V provides that the convention shall be called by Congress. That role would be used as leverage to set the ground rules for what was to take place. If there is zero chance that Congress will vote to limit federal power directly, in other words, there is also zero chance that Congress will vote to do so indirectly.

RESPONSE: Nothing in Article V indicates that calling for a convention would be anything other than a ministerial act. Congress would specify the starting date and place; the states would do everything else.

OBJECTION: Suppose the convention scrapped the Constitution and replaced it with a new one, which is what the constitutional convention did in 1787. The successful outcome in that case was something of a miracle, and it would be unwise to count on another miracle now.

RESPONSE: We’re not proposing a constitutional convention, only a convention of states to consider amendments that would rein in the power of the federal government. Most likely the delegates would proceed accordingly, so concerns about a “runaway convention” seem overblown. Moreover, none of the proposed amendments could go into effect unless ratified by three-fourths (38) of the states.

OBJECTION: Congress would have to certify the amendments for ratification, as indicated by its role in deciding whether ratification would be by state legislatures (the norm) or state conventions (used for the repeal of prohibition), which implies some responsibility for the content thereof.

RESPONSE: Again, the role of Congress would be ministerial. The decision to ratify or reject the proposed amendments would be up to the states.

OBJECTION: There has been a lot of discussion over the years about federal ground rules for an Article V convention. Although opinions vary, it has generally been assumed that Congress would have an important role to play. The Article V convention to propose constitutional amendments: Contemporary issues for Congress, Thomas Neale, Congressional Research Service,
3/7/14.

. . . Congress has historically interpreted the language authorizing it to “call” an Article V Convention as providing a broad mandate to establish standards and procedures for such an assembly. This viewpoint evolved during the 1970s and 1980s as Congress considered legislation to establish procedures for an Article V Convention: by the mid-1980s, these bills generally included quite specific standards for state petitions, delegate apportionment formulas and delegate qualifications, convention procedures and funding, specific limits for the life of a convention, ratification procedures, and judicial review.

See also Failed Republicans want to rewrite the Constitution, Phyllis Schlafly, Townhall.com, 5/24/16.

States can send petitions asking Congress to call a convention, but only Congress can decide what petitions are effective to trigger calling a convention. Only Congress can decide how delegates would be elected or selected, how the voting power would be apportioned among the states, what rules would govern the convention, who would preside, and who would pay all the costs.

RESPONSE: The ground rules for a convention of the states aren’t specified in Article V, but can be inferred from precedents and practices that were known to the delegates in 1787. Basically, they are pretty straightforward. Each state would select and instruct its delegates to the convention. A presiding office would be elected at the convention, and the order of business established. Decisions would be on a one vote per state basis, with delegates from each state caucusing as necessary to determine how their state’s vote should be cast. Proportional voting, which could result in the big states dominating the proceedings, is not prescribed in Article V and would not apply. [The question of who would pay the bills for the convention wasn’t addressed.]

OBJECTION: One vote per state, giving small states like Delaware as much say as California, you can’t be serious! And you seem to assume the convention would be a relatively small, collegial affair, when there would actually be hundreds of delegates involved. Take a look at what it says in the CRS study (a 40-page booklet).

. . . the most widely discussed model would establish a convention including 535 (or 538, depending on whether the District of Columbia is included) delegates, allocated to each state according to the size of its electoral college delegation, that is, the combined total of each state’s House of Representatives and Senate delegations. *** contemporary democratic practice might argue that the convention’s size or vote allocation formula should more accurately reflect the great variations in state population than does the electoral vote delegate allocation model. Expanding the number of convention delegates beyond the 535 or 538 previously contemplated would be one response to such concerns; another might be weighted voting, with the votes assigned to each state’s delegation adjusted to reflect the population differential, regardless of the number of convention delegates.

RESPONSE: Present day speculation like this is all very interesting, but basically irrelevant. The issue is what the drafters of the Constitution meant.

OBJECTION: In 1787, the delegates to the constitutional convention were able to meet behind closed doors without much public scrutiny. Nobody was sure what they were up to until the final product was unveiled. With 21st Century technology and a 24-hour news cycle, this wouldn’t be possible. Every significant development at the convention would be publicized, and the delegates would be receiving constant feedback from political leaders, media outlets, and the general public.

RESPONSE: [We don’t recall this point being rebutted.]

C. Alternatives – The strongest point in the COS argument seems be that conservative critics have failed to offer any workable alternatives. In effect, the primary suggestion of the critics is that conservatives should “try harder.”

#Forget a 2/3 vote of both houses of Congress to propose constitutional amendments that conservatives would favor. As Michael Farris says, it’s not going to happen.

#Nullification of objectionable federal policies has been suggested, but such a strategy is likely to backfire unless the dissidents are so insignificant that it isn’t worth the government’s time and effort to pursue the matter.

First, this tactic isn’t applicable in many situations, e.g., how could one “nullify” deficit spending or a decision to send troops into battle without a congressional declaration of war?

Second, challenging government policies in court is a lengthy, costly and uncertain proposition. Federal agencies take advantage of this fact by dragging things out until the aggrieved parties give up, and they generally get away with it. For a rare exception, see the decision just handed down by the Supreme Court in US Corps of Engineers v. Hawkes. PLF’s Supreme Court victory in Hawkes,
5/31/16.

Third, open defiance is likely to escalate into a conflict that state actors or private citizens can’t hope to win. Here’s an instructive example: Oregon militia members could face decades in prison over new charges, theguardian.com,
3/9/16.

#Another strategy might be to seek to achieve desired ends by statute versus by constitutional amendments. Two creative suggestions follow, which might work from a technical standpoint but don’t strike us as appealing.

•Let’s say the objective was to block judicial action on a given social issue, e.g., definition of the institution of marriage and claims related thereto. Under Article III of the Constitution, Congress has the power to regulate the appellate jurisdiction of the Supreme Court and lesser courts in most cases, with the exceptions being “cases affecting ambassadors, other public ministers and counsels, and those in which a state shall be a party.” So why couldn’t Congress pass a law abolishing federal appellate jurisdiction in nontraditional marriage cases, etc. instead of proposing constitutional amendments that could act as a check on the judiciary?

•It’s been held that Congress lacks power to impose term limits on the members of Congress, hence a constitutional amendment would be required for this purpose, but Congress does have the power to set the pension benefits for government employees. Suppose that a progressive reduction was provided for pension benefits of members of Congress who continued serving as such for more than 12 years.

D. Assessment – The real argument should be between conservatives who believe the US political system is foundering, count us in, and big government fans whose mantra has been “move America forward, never back.” (That was the Democratic Party slogan in 2012; we don’t recall it being used lately.)

A schism exists among conservatives, however, re the path forward. Should they push for an Article V convention to amend the Constitution or limp along with the current Constitution, which has been much altered over the years (primarily by interpretation versus amendments) and hope it has some continuing vitality?

SAFE members may be more receptive to an Article V convention now than several years ago, but they remain conflicted on this issue. Compare the comments on this subject in 2009 (repeated in section C of last week’s entry) to current reader feedback (scroll to the end). It’s time to reboot the political system,
5/30/16.

Uncertainties abound about how an Article V convention would work, and there can be no assurance that such a proceeding would achieve constructive results versus degenerating into a shouting match or, heaven forbid, being hijacked by liberals.

On the other hand, conservatives need a target to shoot for – and “try harder” doesn’t seem very inspiring. The COS goals are constructive, the proposal has been lucidly explained, and efforts to build support seem well organized. Even if an Article V convention doesn’t wind up being requested by 34 states, the effort to win approval could help to publicize conservative concerns about the current situation.

Our inclination is to endorse the COS project. As the saying goes, “nothing ventured, nothing gained.” What do you readers think?
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