State Assembly pushes to amend the U.S. Constitution

Could an attempt to balance the federal budget and impose term limits throw the whole Constitution open to a radical rewrite?

Scene at the Signing of the Constitution of the United States, by Howard Chandler Christy (1940)
Scene at the Signing of the Constitution of the United States, by Howard Chandler Christy via Wikipedia

In 2017, the Wisconsin Legislature passed a resolution calling for a constitutional convention of the states for the purpose of amending the U.S. Constitution to require a balanced federal budget. On Tuesday, the Assembly took up a similar — but more expansive–resolution on an Article V Convention. Both supporters and detractors alike cited their respect for the Constitution to bolster their argument.

And that’s where the agreement ended.

“Someone said this is about cleaning up the swamp? No, this is the swamp,” said Rep. Chris Taylor (D-Madison). “You have millionaires and billionaires pushing this on the people. … This could radically alter our federal government, not for the people, but for profit.”

Rep. Chris Taylor speaks against a Constitutional Convention of the States on the floor of the Assembly
Rep. Chris Taylor speaks against a Constitutional Convention of the States 2/18/20 via Wisconsin Eye

Responding to her on the Assembly floor — and claiming that listening to Taylor makes his head hurt — Speaker Robin Vos (R-Rochester) said her opposition only made his “yes” vote stronger and offered this rebuttal: “The federal government is broken. They are spending us into oblivion. I don’t know how this can be all that controversial unless you are afraid of democracy.”

AJR-77 would put Wisconsin on record as requesting Congress call a convention targeting three items: implementing spending restraints, limiting federal powers and imposing term limits on federal officials, including members of Congress.

Taylor — who became a member of the conservative American Legislative Exchange Committee (ALEC) to attend its conferences despite being a staunch progressive — said she first saw an “almost verbatim” draft of this model legislation at an ALEC conference in 2013.

Speaker Robin Vos speaks against a Constitutional Convention of the States 2/18/20 via Wisconsin Eye
Speaker Robin Vos speaks against a Constitutional Convention of the States 2/18/20 via Wisconsin Eye

There are two ways to enact federal constitutional amendments. One is that the U.S. House and Senate propose an amendment and it passes with at least a two-thirds vote. If three-fourths — or 38 — of the states ratify it, the Constitution is amended. 

The second way to amend the U.S. Constitution is what Wisconsin Republicans are endorsing, which is that two-thirds of the states — or 34 — call on Congress to form a convention of the states to propose amendments. Those amendments would need to be ratified by at least 38 states.

Outside takes

Republican supporters said they hear about this issue regularly, not only at ALEC conferences but also from their constituents. Rep. John Nygren (R-Marinette) said he has had more contacts supporting a constitutional convention than on budget, opioids and water quality — three other issues he works on — combined. Rep. Rick Gundrum (R-Slinger) said he had 161 contacts from constituents on the issue, while only seven have opposed it. 

“I always thought of our founding fathers as pretty smart cookies,” said Rep. Shae Sortwell (R-Two Rivers), opining that they added the states’ ability to call for a convention for a reason. “Now our only option is to bypass the corrupt federal government.”

Former Wisconsin Gov. Scott Walker became the national honorary chairman of the Center for State-led National Debt Solutions to push for a convention of the states a year ago, marking a return to public life after losing the race for governor. His group has been pushing for a convention on the more limited scope of balancing the federal budget.

Former Wisconsin Gov. Scott Walker

Currently 28 states out of the required 34 states have passed a request for a convention to balance the budget. And 15 states have passed the request for the more expansive convention that the Assembly approved Tuesday. The Convention of States Action group lists another 21 states, including Wisconsin, that are moving in that direction. 

In January, Walker and former Arkansas Gov. Mike Huckabee visited Columbia, South Carolina, to lobby the legislature for a constitutional convention on a balanced budget — the previous version Wisconsin has already requested.

Walker told The Courier Post it should matter to all voters regardless of party.

 “You’ve heard generals, admirals and other military leaders overwhelmingly say the number one threat to national security going forward is the federal debt growing out of control. There are plenty of other concerns across the world. I would say a Democrat lawmaker or voter, you should be just as concerned as a Republican because we get to that death spiral, and suddenly there’s automatic reduction in Social Security, Medicare or Medicaid, so this is an issue that matters to everyone.”Groups in Wisconsin that have spoken out against the measure include the ACLU of Wisconsin, the League of Women Voters and the Wisconsin Democracy Campaign (WDC).

WDC has regularly testified against an Article V convention in both forms the legislature has proposed, labeling the current version even worse.

image of the U.S. Constitution with the words "We the People"
The U.S. Constitution, signed in Philadelphia in 1787. (U.S. Air Force illustration/James Borland)

 

“This joint resolution is much vaguer and broader, and 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,” testified Matt Rothschild, WDC’s executive director. 

He added that WDC is not opposed to amending the constitution — in fact it would favor an amendment stating that “Corporations aren’t persons, and money isn’t speech.” But, he added, “We believe the Constitution should be amended the old-fashioned way,” with two-thirds approval in the House and the Senate, and then three-quarters of the state legislatures approving it. “This is a cleaner, safer way to go about the amendment process,” Rothschild said.

The Center on Budget and Policy Priorities (CBPP) is a staunch national foe of the measure. It warned in a 2017 report that calling any Constitutional Convention — whatever the scope — could likely spin out of control in terms of topics to be addressed. 

“State lawmakers considering such resolutions should be skeptical of claims being made by groups promoting the resolutions (such as the American Legislative Exchange Council, or ALEC) that states could control the actions or outcomes of a constitutional convention,” wrote CBPP’s Michael Leachman and David Super. “A convention likely would be extremely contentious and highly politicized, and its results impossible to predict. A number of prominent jurists and legal scholars have warned that a constitutional convention could open up the Constitution to radical and harmful changes.”

National groups pushing for a constitutional convention include ALEC, which offers its model legislation for the more expansive convention on its site, along with a handbook for state lawmakers on how to amend the U.S. Constitution with this rationale: 

“Americans realize that the nation is on the wrong path and that Congress lacks the political courage to address our challenges. Therefore, the time is right for the states to exert the constitutional authority provided to them by the Constitution’s framers and to propose amendments that could set us on the right path again. For there is far more to fear from state inaction against a dysfunctional and overreaching federal government than there is to fear from states banding together to address some of America’s most pressing problems.”

After the Assembly approved the measure Tuesday on a vote of 60-38 — with Rep. John Macco (R-Ledgeview) not voting and Reps. Amy Loudenbeck (R-Clinton) and David Murphy (R-Greenville) joining all Democrats in voting no — spectators in the legislative gallery burst into applause.

The resolution still needs Senate approval, but it does not need the governor’s approval because it is not a law.