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State lawmakers and other delegates from across the country are gathering in Phoenix this week, at the invitation of the state of Arizona, to set a course for enshrining a conservative wish list into the U.S. Constitution.
It is the latest development in a billionaire-backed rightwing “movement” that is dangerously close to succeeding in calling for a Constitutional Convention.
If realized, it would be the first convention since the 1787 Philadelphia Convention, which replaced the Articles of Confederation with the U.S. Constitution.
Twenty-seven states have active resolutions calling for a convention, just seven shy of the requisite thirty-four states (two-thirds of the total). If called, the convention would be tasked with proposing amendments to the Constitution. Under Article V, which lays out the ways the Constitution can be amended, any amendments proposed would need to be ratified by thirty-eight (three-fourths) of the states.
This week’s “planning” meeting was proposed at the November 2016 meeting of the American Legislative Exchange Council (ALEC), a conservative group that promotes model legislation for states to adopt. Originally, Tennessee was tasked with sending out the invitations and hosting. But that plan (and Tennessee’s effort to pass a resolution in favor of the convention) was nixed after Tennesseans mounted a successful campaign against both.
Indeed, where the Constitutional Convention initiative gains attention, it struggles. For example, despite Republican control over both legislative chambers and the governor's office in Kentucky, the group Kentuckians For the Commonwealth was able to fend off a resolution earlier this year by highlighting the numerous uncertainties and dangers associated with the convention. Arizona and Wyoming passed new resolutions this year, while Maryland, New Mexico, and Nevada rescinded resolutions—bringing the current total down to 27. Wisconsin, whose state assembly approved the measure in June, is on track to become the 28th state.
This week’s planning meeting is meant to build some consensus for the rules of procedure for an eventual convention. ALEC, however, likes to play it up as “a formal, national convention of the states.”
The rhetoric advanced by convention supporters should not be taken lightly. They speak in terms of revolution and deep, structural change. Much of the energy has been focused on a prized “Balanced Budget Amendment” that would force Congress to balance the federal budget every year. Such a mandate would gut federal capacity to stimulate the economy and create jobs with federal dollars, and likely lead to permanent cuts and a harsh austerity regime.
But conservatives are reaching far beyond a Balanced Budget Amendment. A lead campaigner for Convention of States, a major pro-convention group, wants the convention to include a national voter ID amendment and new restraints on the federal government’s jurisdiction.
One proposed amendment agreed to at a 2016 Convention of States conference says if one-fourth of either the House or Senate opposes an existing or proposed “federal administrative regulation,” then it must be put to a full vote. This amendment is strikingly similar to the Regulations from the Executive in Need of Scrutiny (REINS) Act of 2017 (H.R 26), which passed the House of Representatives this January. The act would require Congress to approve all new significant regulations within 70 legislative days of being proposed, an idea ALEC introduced five years ago.
But the convention is a means, not an end. Proponents are using the idea of a Constitutional Convention as an organizing strategy to win support for their platform. Thanks in part to the pressure applied by the movement for a convention, the concept of a Balanced Budget Amendment is gaining traction in Congress.
In addition to ALEC, proponents include the National Federation of Independent Business, elements of the influential Federalist Society, powerful billionaire donor Robert Mercer, and politicians such as Texas Senator Ted Cruz, Ohio Governor John Kasich, Texas Governor Greg Abbott, Secretary of Housing and Urban Development Ben Carson, and former GOP presidential candidate Jeb Bush.
Crucially, the Republican Party controls thirty-two state legislatures and thirty-three governorships, including twenty-six "trifectas," where they have majorities in both state legislative chambers and the governorship (compared to the Democratic Party’s six).
Convention supporters are not only targeting federal government but also the powers of local governments.
In recent years, an ALEC-backed wave of “state preemption” has successfully undermined core powers of municipalities across the nation. Though Convention of States claims to “firmly believe that decisions are best made as close to home as possible,” ALEC’s reforms have gutted local governments’ powers to increase protections for workers, renters and ecosystems.
A broad coalition of civil rights and pro-democracy groups, including chapters of the American Civil Liberties Union and the AFL-CIO, came out in opposition to the convention this spring. But the pro-convention movement continues to gain ground, backed by such rightwing outlets as Breitbart News. And the Constitutional Convention was featured heavily at ALEC’s annual meeting in Denver, where Colorado Congressman Ken Buck called it the “best hope for ‘draining the swamp.’”
Simon Davis-Cohen is editor of the Ear to the Ground newsletter, an exclusive “civic intelligence” service that mines local newspapers and state legislatures from across the country.