Bypassing the Roadblock to an Article V Convention

Records of the Philadelphia Convention (1787) show that the Article V alternative was deliberately placed in the Constitution as a check to an intransigent or unresponsive Congress.

In 2016 the Congressional Research Service stated:

“Renewed interest in the Article V Convention alternative has arguably been driven by public perceptions of policy deadlock on the national level and discontent with the nation’s direction. One political analyst recently argued that the nation is in a period of unusual political volatility, reflected in part by “eleven straight years in wrong track pessimism in national polling. This is the longest period of pessimism ever measured.” In late 2014, moreover, the Pew Research Center found that 81% of respondents expected political divisions to grow deeper and to continue. Eighty-six percent of respondents believed the nation would experience continuing partisan gridlock, but only 20% believed that there would be progress on the most important national problems in the near future.  Critics might argue that, notwithstanding these conditions, the convention movement, in its present incarnation, has yet to attract widespread support among the general public or to influence action on this issue by more than a few state legislatures.” 

National polling has not changed significantly over the past four years.  That’s 15 years of dissatisfaction and a public perception of policy gridlock. 

Appropriate legislation follows a robust public debate on the issues.  That’s what’s missing.  In Congress, partisan bickering has replaced useful public debates. 

Article V allows the states to hold an Article V convention after 34 submit applications.   That has never happened in our country’s history.  Current conditions show a need, but apparently there is a roadblock.

The question becomes; is the bar too high or are we not properly prepared to clear the bar?    Since lowering the bar is not an option (that would need an amendment to the Constitution) we need additional preparation to clear the bar, even if that lengthens the approach and adds a step to the process.  And we should not look for help from the federal government.  An A-5 convention puts the states in a potentially adversarial position with Congress because the amendments could reduce the power of Congress. 

The roadblock was not envisioned by the Founders.  Conventions were more commonly accepted in the late 1800’s.  Delegates got together and discussed the issues.  The number of issues that could be discussed at the convention was not a primary concern.  This is called a general (plenary) convention.  Applications to an Article V convention were mostly for a general convention during the next 100 years.  The states held little fear that by holding an A-5 convention we would destroy our government.  

The concept of a ‘limited’ convention arose in the 20th century.  A ‘limited’ convention may be held specifically to discuss the one or more issues listed on the state’s application.   This provides a reasonable assumption that other issues would not be vetted and passed at the A-5 convention (that would be a ‘runaway’ convention).  On the surface, the concept of a ‘limited’ convention appears reasonable.  But in actual practice it creates a major roadblock. 

Instead of getting together to discuss the pressing issues of the day, the states must agree on one topic of discussion. But there is no venue where the states may gather to achieve agreement on the topic.  The prospective meeting takes place AFTER there is agreement.  It is possible for a ‘prairie fire’ topic to achieve 34 similar state applications but this does not reconcile with the current need based on 15 years of dissatisfaction with Congress. 

Some argue that any A-5 convention could pass amendments that deal with differing subjects.  But numerous legal opinions contend that Congress need not submit these prospective amendments for ratification by 38 states if the language of all 34 states in their applications does not coincide with the amendment.  If it’s a convention called by 34 applications for a general convention, then all amendments would be submitted to the states for ratification.  Gathering applications for each potential topic from all 34 states is a giant problem when each state submits applications for a ‘limited’ convention.  This is the roadblock that was not created by our Founders.

An A-5 convention may deal with many issues.  Some may involve congressional oversight.  Some may deal with Supreme Court rulings that satisfy the personal interest of Congress but not satisfy the general public.  Both Congress and the Supreme Court may be negatively affected by the proposed amendments and therefore may have a propensity to put up roadblocks. Advancing negative comments (propaganda?) about a possible ‘runaway convention’ may influence the possibility of success.   

The current approach to getting over the bar has been thwarted by the lack of a robust public debate.  The power lies with the states.  But governments tend to be reactive rather than proactive. 

Single issues are promoted by private groups.  They lobby states to present an application to an Article V convention for the purpose of passing a constitutional amendment that favors their cause.  These groups tend to lobby for a ‘limited’ convention.  The groups are often fueled by passion and partisanship.  Partisanship damages any realistic chance of getting 38 states to support that issue.  And grass roots passion can be associated with direct democracy rather than the deliberate reasoning of elected representatives.  State government reaction to pressure by these private groups may not be the best way to proceed.  It tends to bypass robust public debate on all of the issues of the day. 

And the lobbying may be ineffective because state legislators may not be up to speed on the issue or the process needed to amend the Constitution.  State legislators may also not be prone to jump onto a bandwagon because the recent historical success rate of these lobbying groups has been zero. 

It seems nearly impossible to have a ‘limited’ convention and deal with all of the important topics that cause a low congressional approval rating.  And if we try to deal with one issue at a time we risk the possibility of many conventions.  Letting private organizations take the lead may not be the best course of action. 

The Constitution describes the gathering as ‘a convention for proposing amendments’ not a limited convention for proposing one amendment.  In essence attempts at having an Article V convention have been blocked by the awkwardness of the conflict between the ‘general convention’ and a ‘limited convention’. 

The Constitution clearly gives power to hold an A-5 convention to the states.  With or without help from private organizations, the states need to take assertive action to open the doors of the convention.  The federal government cannot dictate the method(s) used to achieve the objective.  Current reactive approaches have failed. 

A robust debate over the domestic issues that face our country is a reasonable objective.  That can be achieved at a ‘general’ convention of states.  The gathering must be perceived as indispensable to the process of amending the Constitution.  States have the power.  The gathering becomes indispensable when the states say that it is indispensable. 

The Pre-Convention

This gathering may be thought of as the first half of an Article V convention.  Major debate takes place in the pre-convention and final wording of the Amendment takes place in the formal A-5 convention.  The formal A-5 convention will be ‘limited’ to the topics that are vetted and approved at the pre-convention. 

The process of passing laws has many steps including introduction of the measure into committee, consideration by the entire legislative body, and reconciliation between legislative bodies.  Each of the steps is a part of the process.  The pre-convention and formal A-5 convention are each indispensable parts of the process and may be compared to committees advancing legislation.  Sending delegate approved legislation back to the states for state approval (that approval is shown by submitting an application to the A-5 convention) is part of the legislative process. 

States governments tend to be reactive.  Success of the pre-convention and subsequent A-5 convention will be dependent on proactive action by state government. They must seize the opportunity to act in the spirit of federalism.

Initiation of actions to hold a pre-convention will come from state leaders including state legislators.  Each must fully understand the process and the parameters of the actual convention. 

The function of the state legislators will be improved.  Existing attempts by states to amend the constitution place individual legislators in an undesirable position.  They are asked to support an idea.  The request is typically made by a private, possibly partisan, group.  The legislator’s knowledge of the process is relatively limited and the legislator often has little knowledge of the difference between and the consequences of a plenary convention and a limited convention.  And the idea has not been fully vetted by public opinion.  

The new path puts the state legislator in a better position.  The legislator need not have good knowledge about the process or any individual issue.  They can easily understand that their function is to assist in the selection of delegates to a convention where the state’s best interest will be represented.  If and when an issue comes back for approval, it will have been fully vetted and a rough draft of the proposal will be available, not just a concept.  In addition, the state delegates will have reported their position on the issue.

The function of private groups will be relegated to an inferior position.  They may contact state legislators to promote calling a pre-convention and subsequently may show support for a fully vetted proposal.  This streamlines the contacts with state legislators. 

The plenary pre-convention will deal with issues that may not have been flashy enough to attract the attention of private groups.  That’s a plus for representative democracy.

A vote in favor of a proposal by state delegates at the pre-convention sends the message that it is likely that their state legislature will vote to support the measure with an application to the Article V convention. 

There is a distinct and important possibility that after the pre-conference is held and the process is completed, the states will change their views and hold the next conventions as plenary A-5 conventions. (All of the applications would be plenary.) This is an important talking point be used to convince everyone that the pre-conference is a result of the cumbersome nature of existing protocols.  We can’t change the protocols and the current distrust surrounding an A-5 convention so it is necessary to take a longer path at this time.  The landscape may or may not be different for future conventions. 

Once a quorum of states has agreed to attend the convention, the others will fear losing their vote and being left out.  A plenary convention is more likely to achieve a higher attendance.  With a limited convention some states may not show up because they oppose the single (possibly partisan) proposal.  A plenary convention allows each state to bring its own proposals to be vetted. 

Pre-A-5 would develop a rough draft or clearly stated intentions on fully vetted subject but would not develop final amendment language.  Clearly, the pre-A-5 is not a lawmaking body but fully developed intentions may streamline the A-5 application process.   

The pre-convention may set procedural and rules precedent for the first A-5 convention. 

Dale Leitzke