Could an Article V convention fix Congress? Maybe
Article V is the provision of the U.S. Constitution that grants Congress the power to amend the document. But more obscure is the article’s second clause, which stipulates that:
…on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
In modern English: if 34 state legislatures agree that amendments to the Constitution are needed, they can convene and propose said amendments, which must then be ratified by 38 state legislatures.
In plainer English: if Congress isn’t doing its job, the states can step in and try to fix it.
As dysfunction of Washington grows increasingly blatant, groups on the left and right have started pushing for an Article V convention. The motivations vary. For example, liberal law professor and former presidential candidate Lawrence Lessig has proposed an Article V convention to tackle the issue of campaign finance reform. Meanwhile, the right – led by the group Compact for America, as well as the American Legislative Exchange Council – is pushing for a Balanced Budget Amendment (earlier this month, Oklahoma joined five other states in passing a resolution calling for a Balanced Budget Amendment convention).
But clearly, there is bipartisan interest in an Article V convention and the premise has merit. It’s clear Congress isn’t working and that something must be done about it. According to the latest Gallup polls, just 16 percent of the American public approves of the way Congress is handling its job. (With a $19 trillion debt and constant partisan bickering, it’s hard to imagine why!) In comparison, the other branches of government see somewhat higher approval ratings: 45 percent approve of the way the Supreme Court is handling its job and 53 percent approve of President Barack Obama’s work.
Still, the road to an Article V convention will be a long and winding one. Proponents of an Article V convention will face obstacles in coming months, but being armed with the facts is always a help. Below are some common misconceptions about an Article V convention.
It can’t happen because there’s a lack of precedent.
- Claim: To date, there has not been an Article V convention of state legislatures, so there is no clear understanding of how this convention would come to fruition, logistically and procedurally.
- Reality: There’s a first time for everything. The Founding Fathers didn’t write Article V as a suggestion. It’s a requirement: if Congress is recalcitrant, we must act through our state legislatures to make sure the job gets done.
Legal scholars can’t agree on what an Article V convention should look like.
- Claim: Article V does not explain the role or procedures for a convention for proposing constitutional amendments, and there’s no clear consensus on what it should look like.
- Reality: We know from the Supreme Court’s 1831 decision in Smith v. Union Bank that “a convention of the states under constitutional sanction” long has been regarded by U.S. legal scholars as a possibility. The most common legal interpretation of a convention “of the states” is one composed of delegations chosen by the state legislatures. These delegations would set the agenda for a convention.
It’s a partisan issue, and a conservative one, at that.
- Claim: Right now, Republicans control both legislative houses in 30 states. They control at least one legislative chamber in another seven. They enjoy the largest majority they’ve held in the House of Representatives since the New Deal. As a result, conservative scholars, pundits and organizations are at the forefront of the Article V fight. This is a partisan effort, and Democratic allies will have their own agendas ignored.
- Reality: Conservative advocates for Article V enjoy authentic relationships with allies across the aisle who also want to end dysfunction in Washington in the way in which our Founding Fathers intended.
The entire Constitution could be rewritten.
- Claim: An Article V convention would be an unmitigated disaster that leads to an upheaval of the Constitution as we know it.
- Reality: An Article V convention would allow state legislatures to propose constitutional amendments which would later have to be ratified by the states. It would not allow changes to the Constitution automatically.
Other hurdles to achieving an Article V convention remain. National “mood swings” based on current events, presidential campaigns and national or international tragedies easily could affect the politics surrounding Article V, preventing efforts from moving forward. For instance, a mass gun shooting might affect how states feel about the Second Amendment.
Still, a convention of state legislatures remains a viable, reasonable solution to the current congressional dysfunction and efforts should be made to advance that cause.
