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Fixing our system: Would another constitutional convention do the trick?

It’s been attempted, but a never done successfully.

"Washington as Statesman at the Constitutional Convention"
Junius Brutus Stearns

One in a series of articles. You can read the whole series here.

As I mentioned in the previous installment, the constitutional amendment process has been used a few (but very few, OK three) times to overturn a U.S. Supreme Court ruling with which a supermajority of the Congress and the states disagreed.

In every Congress, there are amendments introduced or carried over that would have this effect. Some get a little attention, others do not. Occasionally, one of them comes to a vote on the floor of either house. None of the perennially-proposed amendments has, in recent decades, come near the two-thirds majority in both houses that is necessary for an amendment to be referred to the states.

Still, members of Congress sponsor constitutional amendments, although they know they have little chance of ending up in the Constitution.

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Al Franken, Minnesota’s junior senator, signed on a year ago to an amendment that would basically overrule the Supreme Court’s decision in Citizens United, the ruling that established the current anything-goes-if-you-know-the-loopholes system of campaign finance regulation.

To oversimplify a bit, the Supreme Court decided that the ability to contribute money to political causes is fundamental to the First Amendment right of free speech, so much so that almost anything effective that Congress might do to limit campaign finance is unconstitutional. The court also ruled that  corporations, labor unions and other collective organizations are endowed with similar rights, so much so that Congress can’t restrict their right to free-speech-through-campaign-spending either, which struck down the long-standing ban on contributions direct from corporate treasuries.

The brief and simple proposed amendment that Franken co-sponsored basically just says that Congress is empowered to regulate contributions to federal elections (and state legislatures can do so in state elections). If adopted, it would become part of the Constitution and therefore would trump the Supreme Court’s ruling that the Constitution doesn’t permit such regulation.  The text and list of sponsors is here.  

Leaving the merits aside for the moment, undoing the new SuperPACification of campaign spending is viewed as something that would disadvantage Republicans, so that party has little interest such an amendment. Not coincidentally, all 26 co-sponsors of the amendment are Democrats. If we are dealing with a climate in which everything that one party likes, the other party fears and blocks, there is little hope of achieving a two-thirds majority of both houses.

Imperfect Union: The Constitutional roots of the mess we're inBecause Democrats control the Senate, the anti-Citizens United amendment did get a hearing in the Constitution subcommittee of the Senate Judiciary Committee. (The hearing was very neutrally titled: “Taking Back Our Democracy: Responding to Citizens United and the Rise of Super PACs.”) But for the moment (and for a quite a large number of moments into the foreseeable future) the amendment has no chance of passage.

Franken was under no illusions. When I asked whether he thought the amendment had a chance of passing the many hurdles required by the Constitution, he answered “not really.”

It should be a high hurdle to amend the Constitution, Franken said. When I asked what the point was of cosponsoring an amendment, he said you never know when an amendment might actually go through. But the proposed amendment is also a part of the long-term work of “building a groundswell” to do something about unregulated campaign spending. Franken thinks the public is “repulsed” by the current state of campaign finance. The push for a constitutional amendment is one more way to galvanize that public revulsion, which then loops back and creates more pressure for change on Congress and even on the Supreme Court.

“Eventually, the Supreme Court will change,” Franken said. “It always does.” And even though the unelected justices are sheltered from direct public pressure, the court is aware of public opinion and takes it into account, he said.

It works both ways

Of course, Citizens United happens to be a Supreme Court decision that Democrats dislike. There are many that cut the other way. Some have generated proposed constitutional amendments to reverse what Republicans consider to be incorrect Supreme Court rulings.

Roe v. Wade, the most controversial ruling of the modern era and the one most disliked by social conservatives, has been targeted for overrule by at least seven different proposed amendment since the early 1970s. Some of the proposals would constitutionally define life as beginning at conception (which would extend constitutional protections to a fetus — including the Fifth Amendment guarantee not to be deprived of life, without due process of law). Other repeal-Roe proposals focused on giving states the power to regulate or ban abortion within their own borders, which was the state of play before the Roe decision.

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The most recent Republican platform did not call for such an amendment, but it did endorse two constitutional amendments: one to require a supermajority vote in Congress to raise taxes and one to ban same-sex marriage.

In most recent congressional sessions, conservatives have proposed amendments to overturn liberal rulings of the Warren Court of the 1950s and 60s, such as amendments to permit prayer in public school classrooms and/or to allow religious symbols on public property. Also on the conservative wish list over recent decades have been amendments to require a balanced federal budget (except in time of war) and to impose term limits on members of Congress.

There is another way

As you may know, there is a way to amend that Constitution that doesn’t require congressional approval. Article V of the Constitution says that if two-thirds of all state legislatures petition Congress to do so, Congress must call for a convention to propose amendments to the Constitution after which, whether Congress likes them or not, the proposed amendments would be referred to the states for ratification. (As with any amendments, ratification requires the agreement of three-fourths of the states.)

The first thing you should know is that this has never been done successfully. But it has often been tried. Especially during the 20th century, many amendments gathered significant support from state legislatures petitioning Congress to either pass a certain amendment or call a convention to do so.

(In fact, New Jersey recently became the ninth state legislature to officially call for a constitutional amendment to overturn Citizens United. At least some of them have done so in the form of calling for a constitutional convention, if necessary, to get such an amendment constitutionally proposed.)

In almost all of those historical cases, the legislatures calling for a constitutional convention had in mind a specific amendment. But, if you look at the language of Article V, it really isn’t even vaguely clear whether such a convention would be limited to the amendments for which it had been called into session, or whether the convention would be free to propose any amendments it liked.

If you think back about 99 installments, you will recall that the first Constitutional Convention – the 1787 Big One – had not been assembled for the purpose of writing whole new constitution but had been asked by the Congress to recommend a few amendments to the Articles of Confederation. It’s fairly clear that Washington, Madison and the guys exceeded their mandate, but got away with it when all of the states eventually ratified the new document. In fact, in several of the historical instances in which a state-based push for a convention was gathering steam, Congress has avoided the issue by passing the amendment that the states were demanding.

The funniest case is the back-story of the 17th Amendment, which required that U.S. senators be chosen by popular vote. As I mentioned in the previous installment, the original plan called for senators to be appoint by the state legislatures. This was part of the Framers’ general nervousness about too much democracy and their preference for indirect democracy in which the will of the people would pass through an intermediary of relatively elite decision-makers, like the state legislators. By the latter 19th century, the country had moved on from that idea and was ready to subject the Senate to direct election. An amendment to that effect had been proposed several times, and here’s the funny part. It kept passing in the House and dying in the U.S. Senate.

The individual states were free to allow the people to vote for senate candidates, and many states had done so, with the understanding that the legislature would appoint the winner of the election.

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But by 1900, some legislatures still elected senators based only on a vote of the legislators. So, in the early 20th century, states began petitioning for a constitutional convention that would propose an amendment for election of senators. As the number of states started approaching the two-thirds necessary to force Congress to call a convention, the Senate finally relented in 1912 rather than face the potential chaos of a new constitutional convention that might run wild and propose any number of changes. The  17th Amendment was ratified in 1913.