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Minnesotans: Beware the Convention of States resolution

REUTERS/Kevin Lamarque
A constitutional convention could easily become a free-for-all for delegates to essentially rewrite our governing document.

An out-of-state wealthy special interest group is coming into Minnesota today to push for dangerous legislation that could put our civil rights and liberties on the chopping block, threaten the strength of our republic, and silence everyday people’s voice in government.

Annastacia Belladonna-Carrera

Minnesotans should be wary of the Convention of States group that is holding a rally in the statehouse today to lobby for their resolution to call a new federal constitutional convention. Far-right political activist Mark Meckler and Fox News host Pete Hegseth hope to “fill the rotunda” of the Capitol in support of this bad idea.

Under Article V of the U.S. Constitution, two-thirds of the states, or 34 out of 50, can apply to call a convention to propose constitutional amendments. The Constitution, however, does not offer any details about how a convention would work or what rules would be in place. The delegate selection process, how the American people would be represented in a convention, or what ethics and campaign finance rules would be applied to convention delegates remain unanswered questions.

No limits

Most concerning is that there is no language in the U.S. Constitution that limits an Article V convention to one issue. That means that a constitutional convention could easily become a free-for-all for delegates to essentially rewrite our governing document. The right to vote, right to free speech, freedom of assembly, or any other policy issues or constitutional protection could be subject to change.

Ultimately, an Article V convention would create a constitutional crisis at time when the country is already facing enormous legal, political, and constitutional questions in the White House, Congress, courts, and state legislatures across the country.

Just as wealthy special interests inject their influence in our current democratic process to bend it to their needs, this too will be subject to their interests drowning out the voices of Minnesotans.

The threat of a runaway convention has led to legal scholars, legislators, and advocacy groups from across the political spectrum to oppose this dangerous idea. And while there are some groups who want to call an Article V convention for a good reason, such as proposing an amendment to overturn Citizens United, the risks involved with a constitutional convention at this time are just too high.

Passed in 12 other states

The Convention of States resolution that is being proposed in Minnesota has already passed in 12 other states. In fact, it wasn’t even really drafted by Minnesota legislators. The language of the resolution (HF 2690) is nearly identical to a “model” bill produced by the American Legislative Exchange Council (ALEC), a national secretive corporate lobbying group that has close ties with the Koch brothers.

Another ALEC-backed effort to call a constitutional convention to enact a federal balanced budget amendment (BBA) has passed in 28 states, just 6 states short of reaching the 34 states required to call a convention. Minnesota is one in six GOP-controlled state legislatures that does not have an Article V BBA convention application on the books.

Since these are resolutions, the governor is not involved. That means Gov. Mark Dayton would not be able to sign or veto any Article V convention application passed by the Minnesota Legislature.

Would lead to constitutional chaos

Regardless of what issue is the focus of an Article V convention application, there is no tangible way to limit the scope or impose rules for a convention. There is also no way to limit the power of special interest money and influence in a convention process. In the end, it would lead to constitutional chaos.

At a time of constitutional uncertainty and unlimited money in politics, a convention is a serious threat to all Minnesotans’ constitutional rights. Minnesota legislators need to focus on their constituents. Therefore, they must reject this dangerous bill coming from out-of-state lobbying groups in order to protect our republic and everyone’s civil rights and liberties.

Annastacia Belladonna-Carrera is the executive director of Common Cause Minnesota, a nonpartisan grassroots organization dedicated to upholding the core values of American democracy. 

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Comments (20)

Speaking from the right, this

Speaking from the right, this idea is ridiculous. I cannot think of a better way to heat up the cold civil war being waged in this country today.

Thankfully, as we see here, the left is just as opposed as the right. Not gonna happen.

Agreed, ridiculous.

There are certainly amendments that various interests would like to see added but that bar is, and should be, very high.

Will be interesting to see which legislators get burned by taking up the torch on this one.

Terrible idea

As a life long DFLer, I think the two legislators who propose this are nothing but water boys for ALEC funders.
I agree not going to pass here in MN.
As to wanting a balanced budget for the Feds... not going to happen. Any Congress can just expense the next war off budget.
Or they can do the smoke and mirrors tricks like a former MN budget that was a disaster.

Article 5 Convention

Some on the left think the threat of an Article 5 Convention will scare Congress into proposing a desired Amendment. This is like the child that tries to make a parent give in by saying, “I’ll hold my breath.” Don’t use a potentially self destructive idea as a threat.

A Very Bad Idea

A constitution should be amended only after careful thought and debate. Conventions--especially a free-for-all, anything goes convention, aren't exactly conducive to thorough deliberation.

Mr. Senker is absolutely correct about the divisive effect a convention would have. I don't know if there ever would have been a good time in our history to have a convention like this. In the relatively harmonious times, the "need" would not have been perceived, and the Constitution would have been amended as it was, by amendments proposed by Congress and ratified by the states. It is a system that has worked well, or well enough. Why abandon it now?

I just wish I could be as sanguine that this will never happen.

"I just wish I could be as sanguine that this will never happen"

Oh, I'm not saying a convention couldn't be called. They are pretty darned close right now. I'm saying that a convention would never come to a peaceful close.

I agree 100% with the premise of the people behind the Convention of States movement. The federal government has far exceeded the boundaries set for it within the Constitution. We have a national debt that will never, ever stop growing much less get paid, as long as Congress has the power to simply raise the debt ceiling and the Fed Reserve can print more cash. Mandating term limits, slapping some mandatory fiduciary responsibility an Congress and rolling back federal mandates are much needed.

It's just that there is no way to keep the port side from taking after the Constitution with a blow torch short of deploying a posse comitatus.

Best to leave it as it is, and let the fight develop more thoughtfully.

Constitutional Convention

According to Fox News, May 15, 2017, here is what the right wingers pushing this want:

"With Republicans in full control of 32 state houses, supporters believe a convention is within reach. They say its agenda would form around a set of core principles. Among them:

*requiring a balanced budget

*reducing the federal regulatory burden on the states

*restoring state sovereignty by eliminating federal mandates and grants

*and allowing a two-thirds majority of the states to override Supreme Court decisions, federal laws and regulations."

Is it your experience, Ms.

Is it your experience, Ms. Pernu, that FOX News is always correct in its reporting?

Did I miss something, though,

Did I miss something, though, here? The Republicans have controlled all of the states they currently do for at least a year, many of the states they've controlled since 2010. I have been hearing about a Balanced Budget Amdt. since the 80's. How "within reach" are they really, if they haven't gotten beyond the point they are now in 30 years? Do we think that Republicans are likely to take over more statehouses in 2019? Because that would defy basically every polling trend line. It also means they're even less close to 38 states, which are needed to ratify whatever hyper-partisan country-reimagining Amendment they came up with here.

We have Constitutional tools for a reason. A convention is a wonderful tool to get change, whenever the problem itself is Congress (like now). And the threshold is so super high for an Amendment via Convention that it has never happened yet, and that only extremely beneficial policy proposals have a chance to succeed. Let's not close off potential avenues toward change just because we don't happen to like Republican ideas for change. Let's ....oppose those ideas. Not the process. I'd LOVE a convention geared toward campaign finance reform, for example, something Congress is NEVER going to do on their own.

re: Did I miss something, though

I wonder if those are the same polling trend lines that guaranteed a Clinton landslide? I also wonder how you conceive that term limits, fiscal responsibility, and the limited federal powers the Founders designed are "hyper-partisan country-reimagining..."

Fight the issue not the Constitution.

Annastacia Belladonna-Carrera and Common Causes' anti convention rhetoric is hyper-partisan and false. They have no basis or real scholarly work to back up their claims. Instead they use statements like; "dangerous legislation that could put our civil rights and liberties on the chopping block, threaten the strength of our republic, and silence everyday people’s voice in government." Yet she can't prove this to be true. It's like saying don't go camping in your living because you might get eaten by a lion.

The Department of Justice, The American Bar Assoc., and the Congressional Research Service have all come out to say that a convention call could and would be a limited one. If it wasn't then the dozens upon dozens of calls that have been made would have pushed Congress to call the convention. Instead Congress waits for 34 contiguous calls. As far as rules and etc... for holding a convention and how delegates can be called, Congress can decide that and or the states can determine how delegates are selected in the resolutions. You want a model on how this is done - look at the Electoral College. Delegates from each state sent to a convention to decide on the election of a President. As for delegates being bought and influenced. How? That's called bribery and it's illegal.

Rewriting the Constitution claims are more fear mongering by Common Cause. Article V says Congress and the Convention can propose amendments, they have no further power when it comes to ratification. Three fourths of the States, currently 38 states would be needed to ratify any amendment that is proposed. So let's say some amendment was proposed that was way too partisan it would be impossible to get it ratified, you only need 13 states to say no to such an amendment. Also anyone one who goes off topic could be censured by the State that sent them to the convention. It's really just not true and Common Cause needs to prove their statements, really they can't.

If the issues that the COS or the Balanced Budget groups have are so bad, then explain to the American people why their issues are bad for our society. Instead you attack the constitution and take one the checks and balances that the founders put in the constitution and throw it out the window serve your partisan ideology. Common Cause please stop attacking the Constitution, your fear mongering is hurting America not helping us.

Unfounded fears

With all due respect, there is no reason to believe that a convention does anything outside of "propose amendments," which is its only power according to the Constitution. The DOJ authored a memo in 1987 (Google DOJ Article V Convention Memo 1987) that concluded that limited conventions would have a number of political, legal and constitutional protections against proposing off topic amendments, or rewriting the Constitution. Chief among these is that, even if enough delegates at the convention decided to rewrite the governing document, it would have to be ratified by 38 states. Congress would have to distribute the product of the convention to the states, and would have the power to decide whether the final result of the amendment concurred with the consensus among the states that led to the convention in the first place. Congress and the states have already proven that the convention must be called ONLY AFTER a consensus is reached, otherwise we would have had a number of conventions already, as 49 states have called for them at various times (counts vary from 100-300 "live" calls for a convention). If the convention could propose any subject, what's the point of a consensus? Additionally, the delegates themselves would be tasked with a duty, and whatever people think of human nature, people generally rise to the challenge or abdicate, meaning all delegates would be serious about the issue for which they were summoned. Plus, there have been at least four SCOTUS cases that prove that judicial review applies to amendment issues. Thus, if the convention went off-topic, then their product would be subject to review as to whether they adhered to their mandate.

Moreover, a plain reading of Article V breaks the process of an amendment into three steps: determination of a need, formulation of an amendment, and ratification of that amendment. If the amendment is only formulated after the determination of a need, why wouldn't it be incumbent upon the convention, like Congress, to adhere to that determination? Would we believe that Congress could draft a new Constitution if they decided there was a need for term limits? Why do we think that the convention would be allowed to do so?

If we believe that the convention can do whatever it wants when it is only empowered to "propose amendments," then can the president abolish Congress? It doesn't say that he can't. The fact is that there are scholars who have said that the convention is dangerous, but as the DOJ memo points out, their arguments are without merit. In fact, a quote by Justice Scalia, used by both Common Cause and the John Birch Society, gives his legal analysis as, "Whoa! What would come out of that?" However, in 1979, he spoke to AEI in favor of a convention limited to an single subject to propose an amendment. In fact, the quotes that are used to portray him as against an amendment are taken out of context, as he follows up "Whoa!" with:

“I certainly would not want a constitutional convention. I mean, whoa, who knows what would come out of that, but if there were a targeted amendment that were adopted by the states, I think the only provision I would amend is the amendment provision. I figured out at one time what percentage of the populace could prevent an amendment to the constitution and if you take a bare majority in the smallest states by population I think something less than 2% of the people can prevent a constitutional amendment. It oughta be hard, but it shouldn’t be that hard.”

So Scalia supported amendments, by convention or Congress, and he also considered Article V too safe, not too dangerous. Scalia equated the term "constitutional convention" with an open convention to revise the entire document, as in 1787. But he supported a "targeted amendment...adopted by the states," as provided in Article V. Technically, according to Black's law dictionary, both a general framing convention and a limited amendment convention are "constitutional conventions" (technically, every time Congress meets to consider an amendment, it is also fits that definition). But their purposes are vastly different, and should be treated as such given the powers under which they are called.

Conventions can be called for a number of reasons. The Annapolis Convention was called to address trade issues (they found the Articles of Confederation intractable and petitioned Congress for a general convention). The 1787 Convention was called to make "revisions" to the Articles, and they did, resulting in the Constitution. And the Electoral College has never proposed a revision of the Constitution despite the fact that it, too, is a convention. And an Article V convention, called under the authority of the Constitution which empowers it to propose amendments when called upon consensus of 2/3 of the states to consider amendments that conform to the determined need and nothing else, would propose an amendment that concurs with the purpose for which it was called by 34 states, and nothing else.

If opponents of the convention are worried about it "shredding" their constitutional rights and negating the founding document of this country, then your rights aren't worth the paper the Constitution is printed on, because it has already been negated. The Constitution means something, and we should take it seriously. This article does not take the Constitution seriously, as it claims that the Founders left a time bomb in it knowing that it would destroy itself.

It is the Right that shuts

It is the Right that shuts down the process rather than fighting on the issues. It shouldn't be a Leftwing group advocating this. There's nothing wrong with a Convention just like there's nothing wrong with Congressional Amendments or with voting itself. Let them propose what they want, then fight them on the merits of that proposal. "We must oppose this COS thing because that could theoretically open the door to MN getting a Balanced Budget amendment call, which could open the door to it getting magically to 34 states, even though they've been pushing it for years (is it predicted to a Red Wave this year in the states, or a Blue Wave?), which could then be hijacked by Bogey Men...," it all just sounds like "We have no defense for these proposals, we can't rebut them, let's just panic and lock the doors to the stadium so that we don't have to play any defense on the field." Here is how a Balanced Budget Amendment is going to play to the American people: about as well as tax reform does. Republicans are losing [Trump +20] districts because of it.

We need to get campaign finance reform. We NEED it. We will not survive as a species for another 100 years without it. Congress is never going to address it, the SCOTUS is not (foreseeably) going to address it, and half-measures continue to get crushed while the Plutocrats in charge giggle at the attempts. The Constitution allows for states to take the initiative on issues where the federal government is worthless. That's a godsend for us, we should be using it, not sounding like doomsday preachers because "the other side can also advocate for things." I look at Common Cause's website. Every topic is full of optimism and the desire to get change and work with allies and etc. I get to this issue and it's "ZOMG--FEAR!!! DANGEROUS PATH--CONSTITUTION IN DANGER!!! CRISIS!!! CHAOS!!! HERE'S EVERY POSSIBLE WORST CASE SCENARIO SO YOU CAN PANIC!!!" For something that has 12 states out of 34? We have a president that is seriously considering disbanding courts and suing journalists and summary executions, and Common Cause isn't panicking about that reality like they are about this. Any group interested in getting real change shouldn't be putting all of their efforts into preventing change. Simply say "The COS proposal is a bad proposal" and fight that way. Because then you can say "Hey, looky there, Campaign Finance Reform is a GOOD proposal, and we should fight FOR that one and not look like total hypocrites."

This group is in EVERY state

It isn't interlopers in Minnesota; it is a group of your own citizens with a show of support from Mark & Pete! There is nothing to be afraid of with a Convention of the States. The delegate(s) can consider proposing amendments pertaining to only these three items (nothing happens to the 1st or 2nd -or any-amendments): (1) imposing term limits, (2) imposing fiscal responsibility, and (3) limiting the power and jurisdiction of the federal government (the language is the same in all states to LIMIT to purpose of the convention).

The state legislatures decide who attends and states are also passing a law directing how the delegate(s) must act and vote. If the delegate(s) fail to meet the legislature's requirements, they can be immediately recalled, replaced and their vote nullified. Texas has even added criminal penalties for delegates that vary from legislature requirements. The states' proposals are all limiting their resolutions to the same exact 3 items above.

Congress HAS NO PART in the convention except to call for the date and place to be held. We need citizen engagement with their state legislatures to make sure they know we are watching them. And remember 38 states must ratify any proposed amendment(s) - it only takes 13 states to kill any amendment (that's a pretty HIGH BAR). Many here have complained about representatives, but probably not a single one has gone to personally speak to their rep - frequently. We must all remain engaged. Who decides? We the people decide - via our state legislatures! Be informed; don't assume that what you read in comments section is accurate - go to Convention of states website!

Let's discuss why this article is wrong on almost every point

The biggest error Ms. Belladonna-Carrera would perpetuate starts with an accurate statement: "The Constitution, however, does not offer any details about how a convention would work or what rules would be in place."

She clearly does not know WHY the Constitution doesn't stipulate these things. She, and everyone else who has bought into the Runaway Convention myth (Eagle Forum, John Birch, Joanna Scutari, Kris-Anne Hall to name a few), has forgotten what the Constitution IS and what it IS NOT.

It IS a blueprint for the structure of and powers granted TO (not BY) the federal government BY (not TO) the States, and the People. It is NOT a rulebook for telling the sovereign States how to conduct their business. And conventions between the States are State business. So how do we know what the process is?

We look to the history of conventions between the States. And contrary to popular belief, there is a 300-year common-law history of conventions between the States, and colonies before that. And they've all worked essentially the same way. I'm no Constitutional lawyer - rather, I'm a public historian specializing in the Founding Era - but even I know that a non-existent Supreme Court-blessed precedent cannot trump 300 years of common-law precedent. The last one was not 1787 as the unaware would have us believe. Seven have been held more recently, including an annual one beginning in 1892 and held every year since, except 1945. It's called the Uniform Law Commission. Would anyone like a list of the others?

The fact that the subject of one called under Article V would be the Constitution and not some other matter doesn't morph a well-established procedure into an amorphous monster hiding in the closet in the dark.

Can they be limited? Of course! Not only CAN they be limited, they've ALWAYS BEEN limited to the scope of the call. Not ONE has ever "run away." Not even, as we are frequently told, in 1787. The delegates did exactly as they were instructed. I can prove that by showing you their instructions.

Ms. Belladonna-Carrera also has no idea why the States' resolutions calling for this convention are identical in the "operative language" section. (The rest of Minnesota's resolution is entirely written by Minnesota.) Take a look, for example, at the push for an Article V convention to propose a Balanced Budget Amendment. It's been around for at least 50 years and hovers right now around 30 passed States. But every State's resolution on the subject is different. As others have explained, when 2/3rds of the States submit applications ON THE SAME TOPIC, Congress is obligated to call the convention. But with every BBA application being different from and in some cases contradictory to the others', Congress can argue word games and delay the convention indefinitely. Not so if all the applications are identical. And incidentally, Ms. Belladonna-Carrera: ALEC didn't write it. Citizens For Self-Governance wrote it. And then we educated ALEC about it.

You know what's funny? The left swears up and down that the Convention of States Project is funded by the Koch brothers. The right swears up and down it's funded by Soros. They're BOTH wrong. But what can you do? You show them 100% of your funding sources and they say, "You haven't shown us 100% of your funding sources." Can anyone familiar with the tenets of logic please explain how it's not possible to prove a negative? Something tells me no one will accept my word on that...

A very real concern.

The big money from the right wants nothing more than to corrupt our constitution to favor thier agendas. There is no limit to the damage that could be done, and the infringement on our rights that could occur. Resist this 100%. It is not a benign operation. Average Americans are the ones that will loose if they get their grubby fingers into the infrastructure of the constitution.

re: a very real concern

Hi, Jim. How do term limits, fiscal restraints, and limited government infringe on the Bill of Rights? What damage would they do? More damage than the exponentially-growing $21,000,000,000,000 debt? More damage than the Constitutional crisis we're already experiencing? Let's talk...

The facts which the author misses

The author misinforms people as to basic facts. The fact is Minnesota has already applied for a "convention of states." See: http://www.foa5c.org/01page/Amendments/CRH_H176_Yr_2016_MN.jpg. Why COS itself has not recognized this remains for COS to explain.

More to the point as with all opponents to an Article V Convention the true goal of the author is to urge the overthrow of the Constitution despite all her words to the contrary. She wants this Constitution destroyed because she does not support its provisions. Her arguments, if for no other reason, should be rejected. How do I know this to be true? Because the author never mentions the fact the states have already reached the two thirds mark required for a convention call 11 separate times. See: http://www.foavc.org/StateApplications/Numeric.htm.

As to her assertions the Constitution provides no "rules" this is simply not true. The Supreme Court as well as Congress have already either made rulings or enacted laws regarding the convention. Primarily a convention is elected by the people. COS wants control by a few select politicians and exclusion of the American people from the convention process. See: www.foavc.org/Pages/Page_Five_B.htm While this cannot be condoned rejection of the Constitution as the author urges so much more dangerous than holding the eleven constitutionally mandated conventions there simply is no excuse for not doing so.

re: The facts which the author misses

Now, Mr. Walker, you're a very competent researcher. You should've worked JUST A LITTLE before posting this:

"The fact is Minnesota has already applied for a 'convention of states.' See: http://www.foa5c.org/01page/Amendments/CRH_H176_Yr_2016_MN.jpg. Why COS itself has not recognized this remains for COS to explain."

As you should know, a "Memorial of the Legislature" is only a method for a State to address Congress. The only thing the snippet you presented shows, is that the resolution was introduced in 2016. Until that resolution passes a committee in each house, and both houses, the State has not "applied." Read it again. The Memorial was referred to a committee, which is the first step in its journey to Congress. There is no mystery here.

Constitutional Convention VS. Income Tax Amendment

If people sincerely want to limit the power of the Federal Government to something more like it was in the Nineteenth Century, there is a much simpler way than a Constitutional Convention. Simply elect to Congress people who would support sending an amendment to the states to repeal the Income Tax Amendment which was enacted 100 years ago. This is the main source of the Federal Government's domestic power in the 20th Century and now. That is where Washington gets the money to dangle grants with strings attached before the states to coerce them to do what it wants them to do. For example: age 21 for alcohol consumption, 90% payment for building the Interstate highway system to Federal specs, 55 mph speed limit in the 70s, Workers Compensation, Unemployment Insurance, Medicaid, etc.etc. were all enacted by the states to Federal specs via financial incentives and penalties to the states. The states in turn have rolled over to get the money just about every time, even if they didn't like the policies and projects.

Such an income tax repeal would probably be very popular with the voters for these candidates. Of course it would gut the Federal Government's ability to function in the modern world, which is why even federal power and taxes-hating conservatives don't propose it, even though it would get them much of what they want, especially states' rights restoration.

Ironically, the provisions of the recent federal Income Tax law changes may have the unintended consequence of empowering and encouraging high tax and service states like California, Minnesota, Illinois, New York, etc. to go their own way by increasing their tax revenue with the increased federal savings their people and businesses will have in their pockets. Those states will be able to spend more on education, infrastructure, health care, etc. thereby accelerating their economic wealth and growth differential even more. Meanwhile, Federal revenues will be too constrained to offer the grants with strings as much as in the past. (Witness Trump's diminutive road and infrastructure proposals.) The resulting decrease in federal financial transfers from richer to poorer states will also exacerbate the latter's plight, but they are the home to the voters who favor less federal power so they may still welcome this outcome.