Today’s Best Opportunity to Amend the Constitution of the United States

By swearing and oath to the US Constitution, state representatives become obligated to serve the interests of the whole country, not just their state.  Part of that obligation is to pursue oversight/reform of the US government per Article V. 

This has never been done.  Thus far, all amendments to our Constitution have had the full approval of the United States Congress.  But in the last decade congressional approval ratings have been very low.  No new amendments to our Constitution have been adopted in the last half century.  What should the nation do about dissatisfaction over congressional action or inaction? 

In 1973 the Bar Association stated, in reference to an Article V convention, “if the process were resorted to, it is likely would be against the backdrop of some dissatisfaction with prior congressional performance” 

Careful analysis of available data suggests that an open convention is not likely to occur.  All of the 34 state applications to an Article V convention would need to state that their intention was to have an open convention.  Few such applications have occurred in the last half century.  Therefore it is highly likely that the Article V convention would be a limited convention. 

And even if we get approval from 34 states; that only allows one issue to be valid at the A-5 convention.  Legal opinions from the Justice Department show that only that issue could be advanced to the states for ratification.  That would dampen the overall level of enthusiasm by the public, the press, and those states that have limited interest in supporting an issue that may have been initiated by the opposing faction.  A plenary convention is only possible if 34 states apply for a plenary convention in their applications.  But the public favors change and the timing for amending our Constitution is upon us.  Perhaps we should walk down a different path. 

It may be helpful to translate the opportunities that lie in front of us into terminology that is consistent with the operation of government.  An Article V convention is akin to a committee of the legislative branch of our federal government.  Each state legislature essentially has one committee member.

Legal restrictions have indirectly limited open discussion in this committee. Committee members are geographically separated.  Since the committee has never been called to order, full knowledge of the process, by state legislators, is lacking.  Actions by the committee may have legal challenges.  Recent history has shown that the overall challenge is too big.  The task is too onerous.  When we look at the sentiments of the nation we find several topics of concern.  Dealing with each topic with one A-5 convention at a time is not realistic because of the logistics of setting up and executing the details.

Facing a difficult challenge it is often necessary to break down the problem into smaller components or smaller tasks.  Procuring 34 similar applications prior to the A-5 convention may be too big of a hurdle.  Our Founders may not have fully perceived the difficulty of the process.  Or they may have just left it up to our generation to sort out the problem. 

Whether it is a state legislature or a legislative branch of the federal government, by the time the measure gets to the floor for debate, most of the work has been completed.  When a committee sends the measure to the floor for a vote, and the large majority of the committee favors the measure, the measure is often approved.  Approval is even more likely if the committee has had extensive communications with the rest of the legislative body during the process of developing the details of the measure.  Much of the hard work is done in committee. 

We should not expect that most of the hard work at an A-5 convention should be done on the convention floor.  The convention floor should be used for refining the measure and voting on it, just like the floor of other legislative bodies.  So our problem is what path should be taken to get multiple potential measures, mostly completed, to the floor of the A-5 convention.  Individual organizations do not have that capability and are generally concerned with only one potentially partisan measure.  Individual States lack the appropriate level of communication with other States.  Their applications are not properly refined. 

If we compare this process to a typical legislative process, we find a missing step.  Individual states are effectively members of a government reform committee. Individual organizations lobby just one member of that committee and typically deal with just one issue.  Successfully lobbying 34 committee members on multiple issues, while the members are widely separated geographically, is a daunting task.  The task for individual organizations, in spite of widespread public support for the issue, is too great. 

Individual states are not equipped to act as an effective government reform committee.  Since the committee has never been called to order, individual members of state legislatures may be oblivious to the existence and function of this committee.  And communication with other legislatures (committee members) is not part of their anticipated job description.  The Constitution is requiring states to approve a measure or multiple measures without a mechanism for proper vetting.  The missing step is the mechanism for proper issues vetting prior to the filing of an application to an A-5 convention. 

When a task is daunting, it is often necessary to break down the task into smaller components.  One large component, an A-5 convention, may not be adequate to get over the high bar. 

A three step process is suggested here.  The objective is to produce well vetted measures for the floor debate at the A-5 convention.  The convention is step three.  Step two is approval by 34 State legislatures.  Step one is calling the government reform committee (pre-convention) to order. 

Calling the committee to order is not an A-5 convention.  But it is part of the legislative process needed to amend the Constitution.  Realistically it is the part where the hard work is accomplished.  Vetting of issues occurs at this sub-committee meeting.  It is a pre-convention meeting but that label undersells the function of the gathering.  It may be the best path to successful government reform/oversight. 

The government reform committee functions in a plenary manner.  Constitutional restrictions on an A-5 Convention do not apply.  Discussion of multiple issues is at the option of the state delegates.  Operation of the committee may be similar to any other committee in any branch of state or national legislature. 

Those issues that come out of committee go to the state legislatures for approval which in this case is an application to an A-5 convention.  Therefore is would be prudent for each delegation from each state to fully communicate with their respective legislative leaders prior to casting votes in committee.  The process of vetting proposals and communicating with state leader may be lengthy but this is the hard work required to achieve success. 

With prudent action by individual state delegations, approval by 34 delegations will result in 34 state applications for an A-5 convention.  The number of approved issues is at the discretion of the committee.  (Obviously, existing relevant applications will count toward 34 needed.)

We may expect that the duration of an A-5 convention to be shorter than the time needed to do the legwork needed by the government reform committee meeting.  Actions at the A-5 Convention may be limited to refining the final language of proposals that already have approval of a super-majority of state delegations. 

The concept of doing the hard work at the government reform committee (pre-convention) must be fully understood by each state legislature.  The Founders did not give us a 50 state path to amend the Constitution and bypass Congress.  They trusted that when public sentiment favored reform, we would find our own way. 

It is not a trial run.  The government reform committee will be vetting amendments to the Constitution.  All States should want to participate so that their vote will be counted.  If a state opposes the process or a specific amendment, then let them vote their intentions rather than boycott the process.  Not showing up for this gathering is akin to not sending your Senators to Washington D.C.  It’s all part of the same process. 

What is truly needed is an organized robust debate in a setting that has constitutional implications.  

To add full legitimacy to the process, the pre-convention should be opened by the Vice-President of the United States. 

No partisanship

No appearance of impropriety

No heavy handed actions

Maximize transparency

This is representative democracy in action.