The U.S. Constitution, signed in Philadelphia in 1787. (U.S. Air Force illustration/James Borland)
This afternoon, a committee of the Wisconsin State Senate is considering a joint resolution in favor of a very bad idea: Amending the U.S. Constitution, through a Convention of the States, to achieve some ill-defined conservative goals.
This is a new national effort led by none other than Eric O’Keefe, who used to run Wisconsin Club for Growth and was embroiled in the John Doe II investigation. That investigation, you’ll remember, was looking into whether then-Gov. Scott Walker violated our campaign finance law by coordinating with Wisconsin Club for Growth.
O’Keefe’s new group, calling itself Convention of States (conventionofstates.com), is peddling a version of an idea that’s been circulating in rightwing backwaters for a while now. That is to amend the Constitution not by going through Congress and then having the states ratify any amendments, but by calling another Constitutional Convention. This route is called the “Article V” route, after the section of the Constitution that describes the amendment processes.
A few years ago, conservatives were pushing an Article V convention to pass a balanced budget amendment and it got a lot of support, even here. In 2017, the Wisconsin legislature passed bills, signed by then-Gov. Scott Walker, in favor of a Convention of the States, in order to pass that balanced budget. All told, 27 states signed on, seven short of what’s necessary to call such a convention.
This new effort is vaguer and broader and more dangerous than the previous one. Ostensibly, it’s to impose “fiscal restraints” and “term limits,” which are undefined. But it’s also designed to “limit the power and jurisdiction of the federal government,” which is about as sweeping as you can get.
It would open up the door of any Convention of the States even faster and wider for a wholesale rewrite of our founding document, thus jeopardizing our fundamental rights.
This concern for protecting our cherished rights that are enshrined in the Constitution is why one of the most conservative U.S. Supreme Court Justices of the last century, Antonin Scalia, opposed the Article V route. Here’s what he said in 2014: “I certainly would not want a Constitutional Convention. Whoa! Who knows what would come out of it? … A Constitutional Convention is a horrible idea.”
It’s surprising that so many conservatives are ignoring the prudent advice of one of their patron saints. But they are. O’Keefe is chairman of the Convention of the States. Mark Meckler, a former Tea Party leader, is president. Former senators Jim DeMint and Tom Coburn are listed as senior advisers. Endorsers include mainstream Republicans like Jeb Bush and Marco Rubio and our own Ron Johnson, and far-righties like Pete Coors, James Dobson, David Horowitz, Mike Huckabee, Mark Levin, and Sarah Palin.
This legislation to amend the Constitution has passed in 15 states so far.
Here in Wisconsin, it’s called Senate Joint Resolution 57, and it’s sponsored by Senators Tom Tiffany, Kathy Bernier, Andre Jacque, Steve Nass, Duey Stroebel and Howard Marklein, and it’s co-sponsored by 27 Assembly Republicans.
The vagueness, and the broadness, of Senate Joint Resolution 57 is obvious in the following places:
At the very top, it says “Relating to: convention of the States for one or more Constitutional amendments.”
“One or more”? We don’t even know how many amendments the convention would be considering!
In the “whereas” section, it says, “Whereas, the federal government has ceased to live under a proper interpretation of the Constitution of the United States.” What exactly is the “proper interpretation”? It’s not spelled out.
And the last whereas clause says the purpose of the Convention of the States is for “restraining these and related abuses of power.” What “these abuses” are is unclear, except for a reference to the size of the national debt and to “unfunded mandates”—and what the “related abuses of power” are is anybody’s guess.
Then in the “Resolved” section of the Joint Resolution, it says the purpose of such a Convention of the States is to “impose fiscal restraints on the federal government, limit the power and jurisdiction of the federal government, and limit the terms of office.”
All three of those are vague:
What would those “fiscal restraints” be?
How would it “limit the power and jurisdiction of the federal government”?
And what would the term limits be?
The second question really lets the horses out of the barn door. By calling a Convention of the States to “limit the power and jurisdiction of the federal government,” they’ve invited a top-to-bottom redrafting of our Constitution because the entire Constitution deals with the power and jurisdiction of the federal government.
No one should pretend that this Convention of the States would somehow be self-limiting.
As to the proposed purpose to “impose fiscal restraints on the federal government,” this economic foolishness: Any fiscal handcuffing would risk imperiling our economy in times of a downturn. The only reliable medicine for bringing large economies like ours out of a recession is deficit spending. It’s like the economy has cancer and you won’t give it radiation or chemotherapy. It’s like the economy has diabetes, and you won’t give it insulin. You’ll just let the economy die.
Had “fiscal restraints” been in place in 1933, we would never have gotten out of the Great Depression or been able to win World War II. Had they been in place in 2009, we may never have gotten out of the Great Recession, which would have turned into another Great Depression, with millions more lives ruined.
I’m not categorically opposed to amending the Constitution. In fact, we strongly favor a constitutional amendment that would say, “Corporations aren’t persons, and money isn’t speech.” But I believe the Article V route for amending the Constitution is reckless. I believe the Constitution should be amended the old-fashioned way, by having Congress pass, by a two-thirds margin in the House and the Senate, any legislation to amend it, and that three-quarters of the state legislatures must approve it.
This is a cleaner, safer way to go about the amendment process.
The public hearing on Senate Joint Resolution 57 will be held today (Thursday, Oct. 3) at 1:01 p.m. in 411 South in the State Capitol. The Committee on Insurance, Financial Services, Government Oversight, and Courts, is conducting the hearing.
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