Web Only / Features » January 13, 2017
Corporate America is Inching Even Closer to a Constitutional Convention
In statehouses across the country, ALEC-backed legislators are pushing for a balanced-budget amendment, a repeal of the federal income tax and more.
Right-wing organizations—and their billionaire funders—have been working feverishly for decades to get state legislatures to call for such a convention, with the explicit aim of limiting the powers of the federal government
During a Colorado Springs rally on Oct. 18, 2016, then-candidate Donald Trump announced, “The time for congressional term limits has finally arrived.” For many, it was one of Trump’s more moderate proclamations. Term limits don’t sound like such a bad idea.
But it’s possible this comment signaled support for a broader, more partisan agenda. Term limits are a central demand for a growing movement of states-rights activists focused on weakening the federal government—and they are dangerously close to convening the first state constitutional convention in U.S. history.
According to Article V of the U.S. Constitution, the states can convene a constitutional convention without the federal government’s go-ahead if two-thirds (34) of them pass a resolution in favor. Right-wing organizations—and their billionaire funders—have been working feverishly for decades to get state legislatures to call for such a convention, with the explicit aim of limiting the powers of the federal government.
And now, they may be closer to their goal than ever. They have already passed resolutions in 28 states, and after November’s elections, Republicans will hold control of both chambers in 32 states, up from 30 before the election. Conservatives also dominate in Nebraska’s officially nonpartisan, single-chamber legislature, giving them 33. This puts them “just one state shy of the 34 needed to propose an Article V convention and permanently take back our government,” Daniel Horowitz wrote in the Conservative Review one week after the election.
Republicans also hold 34 governorships and increased the states where they hold a trifecta (governor and both chambers) from 23 to 25, according to Ballotpedia. (This number includes Nebraska.) In Kentucky, where Republicans won a trifecta, and Minnesota, where they gained control over both legislative chambers, the movement may push for a pro-convention resolution. Nevada, on the other hand—which had previously passed a resolution but whose House and Senate flipped to the Democrats—could present an opportunity for progressives to rescind its resolution.
If the convention gets triggered, state legislators from across the country will convene to propose amendments, which would then need ratification by three-fourths (38) of the states, either through the state legislatures, with governors having power to break a tie, or through state ratification conventions.
While term limits are one demand of the movement, its galvanizing issue has been a “balanced budget amendment” to force the federal government to balance its finances every year. This would hamstring the federal government and prevent it from stimulating the economy and undertaking robust public programs—effectively institutionalizing austerity.
But that’s not how the convention is being sold. “[We need a] long-term firewall in the states for when Democrats win back control of the federal government,” Horowitz writes.
This September, the group Convention of States convened what it claimed was the first simulated constitutional convention in the nation’s history. 137 state legislators representing all 50 states attended. This “dry run,” held in Williamsburg, Va., produced drafts of six different proposed amendments. One would effectively require a balanced budget by mandating a congressional supermajority in order to increase the national debt; one would establish congressional term limits; another would abolish the federal income tax and require a supermajority for other federal taxes; one would vastly curtail federal legislative and executive jurisdiction by reining in the commerce clause; one would allow three-fifths of the states to nullify a federal law; and one would allow congressional override of regulations.
There are concerns however, even within the movement, that a real convention could go beyond its stated goals, drafting amendments above and beyond the six above. To address fears of a “runaway convention,” Convention of States has claimed that the convention will be bound by the subject matter of the resolutions: limiting the federal government.
Convention of States’ volunteer arm “Citizens For Self-Governance” claims to be recruiting “the largest grassroots army in the history of the United States.” According to their count, they have more than 51,000 volunteers and 2,050 state house district “captains,” with the goal of having one in each of the country’s 5,000 districts. And their “Self-Governance Investment Fund” gives out not-so-modest grants of $10,000 to locals willing to take up the fight. “Localism,” Horowitz declares, “is the right approach to governance.”
“Brush past your Trump drunk,” one Convention of States spokesman said in a November 10 video address to the group’s million or so Facebook followers. “If you look at demographics it doesn’t look good for us,” he continued. “So what we need to do is make the structural changes we can, by calling a convention of states.”
Now, they believe, is white America's last best chance to safeguard its power from what it sees as an impending “demographic time bomb.” Somehow, that means crippling the world’s most powerful government’s ability to intervene in the private economy. A deeper look at the billionaires who have been pushing the idea behind the scenes makes it no surprise that extreme free market policies would be sold as a salve for white fear.
A balanced budget amendment has been a priority of a corporate juggernaut called the American Legislative Exchange Council (ALEC) for decades. ALEC, whose funders include Exxon Mobil, has poured untold sums of money into state legislative races.
At ALEC’s 2016 annual meeting in July, the convention of states was made a top priority. ALEC has adopted model rules for an Article V convention and offers its members model language for a resolution to call for a convention. The “State Legislators Article V Caucus” of the Balanced Budget Amendment Task Force (BBATF) is dominated by ALEC legislators, and pro-convention advocacy groups including BBATF and Convention of States are part of ALEC.
But ALEC doesn’t just fight for states’ rights over the federal government. It fights for states’ rights over everything else, including local governments. After focusing on state legislatures for decades, they now hold decisive control in states across the country, which they have used to stalemate state budgets, and push an avalanche of “state preemption” laws to entrench state control over local towns, villages, cities and counties.
This is no fringe, unrealistic movement. They came close to calling a convention in the 1980s, and in the 1990s Congress came one senate vote away from passing a balanced budget amendment. The congressional mobilization is said to have placed political pressure on Bill Clinton to balance the federal budget.
And they have done a brilliant job of using state races and mid-term elections as a sort of referendum on Obama’s national government. Since 2008, Democrats have lost control of 958 state legislative seats, according to Ballotpedia.
Winning the White House has only emboldened the movement. “Trump … can't take on the Washington establishment alone,” Convention of States wrote in an email to its followers. “It is clear,” Horowitz wrote, “from the lackluster Republicans in Washington and Trump’s unreliable views, in conjunction with a tenuous hold on presidential elections, that the only way for conservatives to create enduring victories is to fight back in the states. …
“The deep sea of red on the electoral map is perhaps the greatest omen of our time calling for the people to rise up and truly make these United States great again,” Horowitz went on. But there is nothing inherently American or pro-states about constitutionally binding the powers of elected governments. Look to the European Union, which imposes massive budgetary restraints on all its members, or the Brazilian conservative government, which just passed extraordinary budget restraints on itself.
We need more local democracy. Millions of Americans of all stripes are fighting for local self-determination over education, anti-discrimination protections, corporate projects, employment laws and basic protections for health, safety and welfare. But the movement for a convention of states twists this demand into a gift for the rich. It also serves to divide those who want greater local democracy along race lines, advocating for local government in the same breath as it complains about changing demographics.
In the meantime, many states have already begun their legislative sessions. Starting January 20, they may have an ally in the White House.
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Simon Davis-Cohen writes and makes films about criminal justice, local democracy, and the law. He does research and communications for the Community Environmental Legal Defense Fund. You can sign up for his nationwide “Ear to the Ground” newsletter— cataloging state legislation, grassroots news, legal developments, and local media—at: patreon.com/eartotheground.
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