January 2017 Newsletter

This month…

  • Tennessee to Call an Official Meeting of States
  • Utah Valley University Offers Federalism Course
  • What Did Antonin Scalia Really Believe About Article V?
  • ASL Fall Meeting Was Short of a Quorum
  • Press Coverage of Article V is Increasing
  • CoSP Movement Expects Substantial Progress in 2017
  • ALEC Leader Calls on Trump to Focus on Federalism
  • SC Senate Drops ‘Minority Report’ Rule
  • Senator Cruz to Introduce Term Limits Measure
  • New Reports Highlight Need for Federal Budget Restraint

Tennessee to Call an Official Meeting of States –
Anticipating that the necessary 34-state threshold to convene a convention for proposing a Balanced Budget Amendment pursuant to Article V will be reached as soon as April of 2017, states are beginning to formally plan for the convention.

During the American Legislative Exchange (ALEC) convention in late November, the leadership of the Tennessee legislature announced that at its earliest convenience in January of 2017 when it convenes, the Tennessee General Assembly will approve a resolution which they said “will respectfully call a convention of the states (“planning convention”), consisting of commissioners duly chosen and authorized in such manner as their respective state legislatures determine, to convene at noon, July 11, 2017 in Nashville, Tennessee.

They announced that the convention will be “for the limited purposes of (1) planning for, and recommending rules and procedures to, the prospective convention for proposing a balanced budget amendment to the United States Constitution, and (2) recommending to Congress the initial date and location of a convention for proposing a balanced budget amendment.

As a “formal” convention of states, state legislatures will have to officially select a delegation in order to be seated.  While several groups have attempted to develop suggested rules for an Article V convention, the Nashville BBA Planning Convention will be the first gathering of legislature-appointed state officials to do so.

During and after the founding era states discussed regional and national problems by means of conventions.  A common problem would be identified, and a legislature would take the initiative and “call a convention” to deal with that issue.  After a call was issued, legislatures from other states would send delegations to the convention.

The last national convention of the states was called by Virginia in 1861 for the sole purpose of recommending an amendment regarding slavery.  More than 30 interstate (or inter-colony) conventions were held during and after the founding era.
     BBA Delegate Selection/Instruction ResolutionIn addition to the Nashville BBA Planning Convention, state legislatures are expected to begin passing resolutions which select their delegations to the Article V Balanced Budget Amendment Convention (BBA Convention). The Balanced Budget Amendment Convention Delegate Selection Resolution (CLICK HERE for a model resolution) determines the number of commissioners, and typically requires an oath to be taken which prohibits commissioners from discussion of any amendment subject other than a BBA.

The model resolution instructs commissioners to vote for rules which provide for a one-state, one-vote rule and specifies quorum requirements and voting rules that are designed to prevent a minority from controlling convention procedure or output through absence or obstruction.  It is considered important for states which end their legislative session by June to pass the BBA Delegate Selection/Instruction Resolution during their regular session in 2017.

Should the 34-state threshold for an Article V convention be achieved by late spring, Congress could very well begin hearings to approve a “convening resolution” shortly thereafter.  It is the goal of the BBA Task Force and many other BBA advocates that the Article V BBA Amendment Convention be convened in November of 2017.  Holding the convention in 2018 is problematic, considering that is an election year.  States which fail to select their delegation while in general session in 2017 will have to go through the laborious process of convening a special session of the legislature.

The delegation selected through the BBA Delegate Selection Resolution will be additionally authorized to attend the Nashville BBA Planning Convention.  Should a state not pass the model resolution (or a similar one), it will have to approve a separate resolution if it wished to send a delegation to Nashville.

It is believed that the 2017 (or 2018) BBA-focused Article V convention will help pave the way for future Article V conventions to consider such subjects as the Congressional term limits proposal of US Term Limits (USTL), the multiple-subject proposals of the Convention of States Project (CoSP), the Countermand Amendment proposal of Citizen Initiatives (CI), the Single Subject Amendment proposal (SSA)… and maybe even the Compact for America (CfA) and Free and Fair Elections (anti-Citizens United) proposals (WolfPAC).

Utah Valley University Offers Federalism Course –
The Utah State Legislature commissioned the Utah Valley University (UVU) to create a Federalism Curriculum as a way to educate legislators and attorneys about the American form of federalism.

Utah Rep. Ken Ivory, chairman of the Utah Commission on Federalism, notes that like the two pillars that support the Golden Gate Bridge, Separation of Powers and Federalism are the two structural pillars of the American Constitutional system.  While the concept of Separation of Powers is regularly taught in schools, the nature and importance of Federalism is generally not taught.  Ivory served as chairman of the recent CoSP-sponsored simulated Article V convention.

The UVU course consists of six 10-minute video modules (followed by a quiz) taught by top federalism scholars.  The free course is available to all legislators, attorneys and the general public by clicking on the “Federalism Curriculum” tab at www.uvu.edu/ccs.

During their 2017 session the Utah legislature will be considering a bill that will require all Utah legislators to take the course.   For more information, Rep. Ivory can be reached HERE.

What Did Antonin Scalia Really Believe About Article V? –
In support of their position, various Article V opponents repeatedly proclaim that former Supreme Court Justice Antonin Scalia thought an Article V convention would be dangerous.  They take one of his quotes and twist it to support their position.

In 2014 Scalia and Justice Ginsberg were interviewed by Marvin Kalb on the Kalb Report.  The first hour of that interview dealt with the structure of the American government, freedom of the press and the Bill of Rights.  Once the first hour was completed for network TV, another 15 minutes of discussions were continued on C-Span.

Then at about 1 hour and 6 minutes in the record of that interview, while posing questions submitted by others, Kalb asked, “If you could amend the Constitution in one way, what would it be and why?”  Scalia responded, “I certainly would not want a Constitutional convention.  I mean Wow!  Who knows what would come out of that.”  Then he went on to say “But if there were a targeted amendment that were (sic) adopted by the states…” and he went on to use an example of such an amendment he would support.  His suggestion was an amendment that would make the amendment process easier.  Watch that interview HERE.

It is the above interview that opponents of Article V point to as seeming evidence that the respected jurist opposed the use of Article V.  Note that Scalia expressed opposition to a “Constitutional convention”, a convention for writing or rewriting the constitution.  That is not what an Article V convention is about.  That entire Article is limited to setting forth ways to “propose amendments”.  Scalia’s follow-up remarks actually were in support of “targeted amendments… adopted (or proposed) by the states”.  That is what the second option in Article V provides for.

Well before Scalia was a Supreme Court Justice he set forth his views on the Article V provisions for a state-led convention for proposing amendments.  In a forum conducted by the American Enterprise Institute (AEI) for Public Policy Research held on May 23, 1979, Scalia acknowledged the theoretical possibility that an Article V convention could propose an extreme or unpalatable amendment, but he noted that the fear of that possibility could equally be employed as a reason against convening Congress.  He suggested that the right question to ask is “how high we think the risk is and how necessary we think the convention is.”

He went on to say, “The founders inserted this alternative method of obtaining constitutional amendments because they knew the Congress would be unwilling to give attention to many issues the people are concerned with, particularly those involving restrictions on the federal government’s own power.  The founders foresaw that and they provided the convention as a remedy.  If the only way to get that convention is to take this minimal risk, then it is a reasonable one.”  See the transcript if that forum HERE.

During that forum Scalia also made two other relevant points.  As far as risk is concerned, he reminded listeners, “Three-quarters of the states would have to ratify whatever came out of the convention; therefore, I don’t worry about it too much.”  Then he said, “There is no reason not to interpret it to allow a limited call, if that is what the states desire.”  The research behind this story was produced by Constitutional scholar/attorney Mike Stern.

ASL Fall Meeting Was Short of a Quorum –
The Assembly of State Legislatures (ASL) held its fall meeting at the Capitol Building in Washington, DC, on December 2.  The group’s leaders had planned to use their fall meeting to adopt a proposed model resolution for states to use for endorsing ASL-proposed Article V convention rules and to elect new ASL officers.

ASL was formed at a December 7, 2013 meeting at George Washington’s Mount Vernon home.  The group has since met periodically, culmination in a June 2016 meeting were it adopted a set of proposed rules for an Article Vconvention.  Most Article V groups saw some of those proposed rules as highly inappropriate.

Since the recent meeting failed to muster a quorum, there was no election of officers and no actions were taken.

Press Coverage of Article V is Increasing –
Most Article V activists agree that higher levels of awareness and understanding of Article V and the various efforts to use it are essential if the Constitution’s state-driven amendment provisions are to be successfully used.

Over the years the meager media coverage of Article V has been predominantly negative and/or misinforming.  That seems to be changing.  Just during December some two dozen news media Article V stories appeared across the country.  While some were still negative and some continued to mislabel an Article V convention as a “constitutional convention”… an increasing number of reports were positive and educational.

Samples of recent stories:
The Wall Street Journal carried an op-ed by Jeb Bush supporting budget balancing and term limiting amendments via state-led conventions.  In late December USA Today carried an op-ed written by former Oklahoma US Senator Tom Corbin, saying that Article V is the only way to bring back balanced power in American government.  The Conservative Review re-reported Bush’s views.  US News & World Report (link no longer working) carried a story headlined “Trust States With the Constitution”.  A reasonably accurate Associated Press article was widely published in early December.

Local and regional news outlets from such diverse areas as Madison Wisconsin, Providence Rhode Island, Exeter New Hampshire, Danville Kentucky, Casper Wyoming, Chicago, Illinois, Fort Worth and Temple Texas, Washington DC, and Wilson County North Carolina carried stories about ArticleV and current efforts to use its provisions.

Excellent editorials appeared in the Chicago Tribune (and re-published in the Omaha World-Herald) and in the Tyler (Texas) Morning Telegraph… and an op-ed was carried in the Washington Examiner.

Coverage of the Convention of States Project (CoSP) was published in Georgia, Nebraska, KansasTexas (and another Texas) story)… along with an excellent article by Constitutional lawyer Rita Dunaway at Daily Caller.com and another in late December article entitled “The Next Step in Restraining the Federal Beast” carried both at Chronlaw and Christian web site WND.com.

2017 is shaping up to be a banner year for Article V.

CoSP Movement Expects Substantial Progress in 2017 –
The Convention of States Project (CoSP) began in August of 2013.  Since then eight states have fully adopted its multi-subject Article V convention application.  The group has seen victories in 18 state House chambers, 11 state Senate chambers and legislative committee triumphs in 24 states,  So far their resolution has been introduced in 44 states.  They expect their resolution to be introduced in at least 40 states during the 2017 legislative sessions.

CoSP has developed an extensive citizen-based network.  They report that their grassroots effort has now collected petitions of support from residents in every state House district in the nation.  Their Facebook page has reached over one million “likes”.

ALEC Leader Calls on Trump to Focus on Federalism –
Shortly after the November 8 election, the Washington Examiner carried an op-ed by ALEC CEO Lisa Nelson entitled, “Dear Trump: Blow up the system with a focus on federalism”.

She suggested, “President-elect Trump and the incoming executive branch need look no further than the states for many examples of what to do, how to cut taxes, reduce spending, decrease regulation and increase opportunity.

Nelson went on to say, “The Trump administration has a chance to roll back the bureaucracy and red tape that has strangled businesses, people and organizations for years — even if that means limiting opportunities to work in the administration.  The president-elect can create something different, unique and successful.

Read her piece HERE.

SC Senate Drops ‘Minority Report’ Rule –
The South Carolina Senate has had a peculiar rule which tended to block consideration of Article V-related bills.  Called the “Minority Report” rule, it allowed a single Senator to put a bill on hold, effectively killing it

The December 6 rule change was approved by a 28-18 vote.  The change was reportedly a priority for Senate Majority Leader Shane Massey.

Article V-supportive SC legislators believe the rule change will enhance the possibility that one or more Article V bills will be adopted by their legislature during their 2017 session.  Read the story, written by South Carolina State Representative John Steinberger, HERE.

Senator Cruz to Introduce Term Limits Measure –
Texas Senator Ted Cruz, joined by Florida US Rep. Ron DeSantis, has announced plans to introduce a proposed Constitutional amendment in Congress that would limit Congressional terms.  The proposal would limit members of the Senate to two terms, while members of the House would be limited to three terms in office.

Cruz and DeSantis stated that term limits would “change the calculus” of those who serve in Congress, and said it would open more roles in leadership and break up the “permanent political class” on Capitol Hill.

Supporters of Congressional term limits see zero chance that the Cruz-DeSantis proposal will go anywhere in Congress.  They point to the US Term Limits Article V movement as the likely way such a plan can gain traction.

Read about the Cruz-DeSantis announcement HERE.

New Reports Highlight Need for Federal Budget Restraint –
During December the Peter G. Peterson Foundation posted two new reports on their web site that relate to the US national debt.

One report was produced by the George W. Bush Institute, highlighting the economic competitiveness and strength of North America, and warning that fiscal policy in the United States poses a challenge to growth.

That report, called “Investing in North American Competitiveness” says the United States “must put its long-term fiscal and monetary trajectory on a sustainable course.”  It reports that “The US ratio of government debt to GDP is currently 77 percent, a historically high level for the United States, and is projected to climb to 141 percent of GDP in 2046”.

The full report can be read HERE.

The second new Peterson Foundation posting warns about the impact of rising interest rates on the federal budget.

The report says, “Ballooning interest costs threaten to crowd out important public investments that can fuel economic growth in the future.  In its most recent long-term budget report, CBO estimates that by 2046, interest costs are projected to be more than double what the federal government has historically spent on R&D, nondefense infrastructure, and education, combined.”

It further says, “The long-term fiscal challenges facing the United States are serious.  Even though our current deficits are lower than they used to be, we are still adding an average of more than one billion dollars to our national debt load every day.”

Read this report HERE.

Who Said It?

“Maintaining the status quo is not an option.  Creditors will not lend to a government whose debt, relative to national income, is rising without limit.”

Federal Reserve Chairman Ben Bernake, in a 2011 speech
As reported in a 12/19/16 Wall Street Journal article by David Schoenbrod

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