A Constitutional Convention is closer than you think
The first and only Constitutional Convention, convened in 1787, created the framework for the United States Constitution and the government we know today. To ensure a balance of power, the framers included Article V of the Constitution, which outlines mechanisms for future constitutional amendments.
Article V contains two ways to amend the United States Constitution:
- Congress can propose amendments
- States can call for a Constitutional Convention (Article V Convention)
Two Paths Forward
Under Article V, Congress has the authority to propose Constitutional amendments. Any amendment proposed must pass through each chamber of Congress by a two-thirds majority and then be ratified by three-fourths (or 38) of the 50 states. Alternatively, Article V allows the states to call a Constitutional Convention if two-thirds (or 34) of 50 states submit a resolution proposing an amendment on one or many topics (or just a general call for convention without proposing a specific topic). Amendments proposed during a Constitutional Convention must also be ratified by three-fourths of the states. Since the first Constitutional Convention, Congress has proposed 33 constitutional amendments and 27 have been ratified.
There has never been a Constitutional Convention called by the states. However, many states have made efforts to call a convention. Estimates show state legislatures have passed hundreds of resolutions calling for an Article V Constitutional Convention in the last 200 years. Today, 42 states have at least one Article V resolution pending.
Article V Efforts
Nationally, several efforts are underway to call a Constitutional Convention. Interest in a convention spans the political spectrum with support and opposition coming from both Democrats and Republicans. Some focus on a single topic, while others have multiple amendments based on broader topics. Of all the applications, a federal balanced budget amendment has gained the most traction, making it the most likely candidate to convene an Article V Constitutional Convention.
The Balanced Budget Amendment Task Force (BBATF), one of the primary groups working towards a balanced budget amendment, began in 1957 when Indiana passed the first Article V resolution on this topic. Today, 28 states – including Colorado – have passed resolutions calling for a convention to discuss a balanced budget amendment. That means if six more states call for a balanced budget amendment, a constitutional convention could be convened. Idaho, Kentucky, Minnesota, Montana, South Carolina, Virginia, and Washington have all been targeted by BBATF.
Another effort led by the Convention of States (COS) is working on a convening based on three topics: limiting the federal government’s powers, restraining fiscal spending, and establishing term limits for members of Congress and other federal elected officials. According to The Economist, COS passed its first resolution in 2014 and has since passed resolutions in 12 states. While COS has passed fewer resolutions than the Balanced Budget Amendment Task Force, the group is deemed to be better funded than BBATF and boasts 3 million volunteers nationally.
A third effort is from a group known as Wolf PAC, whose interest in a Constitutional Convention is centered around campaign finance. Wolf PAC’s resolution, Free & Fair Elections, would attempt to overturn the U.S. Supreme Court’s decision in Citizens United v. FEC. To date, Wolf PAC’s resolution has passed in five states.
Most leading campaign finance reform organizations oppose the use of an Article V convention to overturn Citizens United. They warn the lack of rules to govern the process mean every Americans’ constitutional rights may be subject to change in an Article V convention. Notable campaign finance and democracy reform organizations that oppose the use of an Article V convention to deal with campaign finance include: the Brennan Center for Justice, the Campaign Legal Center, the Center for Popular Democracy, Citizens for Responsibility and Ethics in Washington, Common Cause, Democracy 21, Democracy for America, Every Voice, the Fair Elections Legal Network, the League of Women Voters, the NAACP, People For the American Way, and the Voting Rights Institute.
Colorado
In Colorado, the first Article V Constitutional Convention resolution was submitted near the turn of the 20th century. Since then, Colorado has submitted two resolutions, one of which was a balanced budget amendment. Most recently, the Wolf PAC’s resolution was introduced in Colorado during the 2018 legislative session but did not pass out of committee.
Cause for Concern
- Lack of Concrete Rules – A lack of concrete rules could lead to a ‘runaway’ convention where, once convened, any amendment could be proposed. This would put many of our most fundamental and cherished Constitutional and human rights at risk – everything from unreasonable search and seizure to the right to keep and bear arms. Additionally, because there was not a formal count of the states calling for a convention until only recently, there exists some “fuzzy math” on how close we are to meeting the two-thirds threshold. This concern, based largely on an aggregation of non-issue-specific calls for a constitutional convention, including some that go back to the nineteenth century, has been raised by several Colorado-based groups.
- Unequal Representation – The Constitution does not contain guidelines for how each state would be represented. For example, state representation could be one delegate per state, based on population, or a combination of the two.
- Influence of Special Interests – Groups with the most funding, the best connections, or the most resources could impact the outcome of the convention for their own interests, rather than the best interest of the people.
- Uncertain Ratification Guidelines – Opinions differ on the criteria for approving amendments.
Where are we going?
In addition to potentially dangerous questions and concerns regarding fundamental values like human rights, there is also substantial uncertainty as to how an Article V Constitutional Convention could be convened fairly. Without concrete rules, a convention could put at risk many of the Constitutional rights held dear by those living in the United States. The number of balanced budget amendments inching towards two-thirds majority, along with novel attempts to call a convention using unrelated applications, increases the urgency for ensuring states and people know about the uncertainty and the potential harm an unrestricted convention could cause.
There are ways to address money in politics, government accountability and other important issues without opening up the Constitution to other major changes.States can protect constitutional rights by rescinding their applications for an Article V convention. Given how close we are to wealthy special interests calling a convention, rescinding a state’s convention application is more important now than ever.
By rescinding previous Article V convention applications, some of which were passed decades ago, legislators are making a commonsense update to where the state stands. That’s why so many rescission resolutions in states across the country have passed with bipartisan support.
Legal and constitutional scholars from both sides of the political spectrum agree that legislatures have the power to rescind their previous applications for an Article V convention, which means they will no longer be counted towards any calls for a convention.
