October 2016 Newsletter

  • CoS Simulated Convention Draws 137 Commissioners 
  •      Comments by Participants and Observers
  •      The Proposals Adopted at the Simulated Convention
  •      Article V Activist Disparages the Simulated Convention
  • Tenth Amendment Center Releases New Video
  • Dr. Poulson Proposes Federal Fiscal Rules Working Group
  • Constitution Day Celebrated in South Carolina
  • Nebraska Senator is Stumping for a CoS Resolution
  • Strange Survey Question Leads to Wrong Conclusions


CoS Simulated Convention Draws 137 Commissioners –
Some of the comments heard after the first-ever simulated convention of states: “A Complete Success.”  “Amazing Experience.”  “It will be remembered as a turning point in history.”  “The verdict is in: the process works.”  “First Class.”

Reportedly 137 delegates (or “commissioners”) from all 50 states participated in the September 21 through 23 simulation of an Article V convention of states, held at the Williamsburg Inn in Colonial Williamsburg, Virginia.  The event was hosted by The Convention of States Project (CoS).

Leading up to the event, CoS citizen supporters were invited to vote for their favorite amendment proposals from a list created by CoS leader Michael Farris.  Respondents were also invited to submit their own proposals.

Also prior to the event invited “commissioners” were asked to choose which committee they wished to serve on, selecting from the three topics of the CoS proposal for which the organization is seeking state legislative resolutions calling for a real convention of states.  The committee topics were: (1) fiscal restraints, (2) limiting federal legislative and executive power, and (3) term limits plus limiting federal judicial power.  About 28 related proposals were divided between the three committees.

In Williamsburg, each state was represented by up to 3 commissioners.  Most were Republicans, but a handful of Democrat legislators also participated.  Reportedly about 90% of the commissioners were state lawmakers, but some delegations included non-legislators.  For example, California was represented by John Eastman, a well-known constitutional law professor and former candidate for state attorney general.

After the opening ceremony an election was held for a President to preside over the Convention.  Ten commissioners had previously submitted their names to be considered as candidates for the position.  Through a voting process, Utah State Rep. Ken Ivory was elected, and he did an admirable job.  Then the commissioners adjourned into their various committees to review, debate and select the top three proposed amendments (from each committee) to take back to the Convention when it reconvened on Friday.

Although Citizens for Self-Governance organized and hosted the event, once the simulation was underway, the attending commissioners had complete control of the process.

CoS head Michael Farris, Article V scholar Rob Natelson and Georgetown University Law Center Professor Randy Barnett were on hand as advisors, each attending sessions of one of the committees.  They were only involved if called upon by the commissioners.  Reportedly they all were very “hands-off”; however there were many conversations between them and various commissioners; mainly for clarification or asking how proposed amendment language could potentially damage the integrity of the proposed amendment.  Most of those conversations were side-bars and were not part of the actual convention process.  For the final session of the convention (Friday), only commissioners were allowed to speak during deliberations.

The committees ultimately sent 8 amendments to the full convention.  The Friday session included robust discussion and debate on the 8 proposals, including last minute amendments.  Ultimately 6 proposals were adopted. One participant observed, “I cringed as the poor Parliamentarian and convention President had to sort out layers upon layers of motions to amend the amended amendments.  But it was all done with style and grace.”  The adopted proposals are shown below.

At the conclusion of the simulated Article V convention its participants adopted the following statement:
“The Convention respectfully submits these proposals to the American people with the conviction that they are a sound beginning to a critically-needed national discussion about restoring the balance of power between the federal government and the states.

Further, it is the conviction of this body that the states must deliberate and adopt appropriate proposals for a balanced budget amendment and an amendment to provide the states a means to serve as a check on judicial overreach by the federal judiciary of the United States.”

Those who did not watch the nearly 7 hours of live streaming of the simulated convention’s last day may do so HERE.

Comments by Participants and Observers –
“It went terrific,” said Alabama State Senator Clay Scofield. “We learned that an Article V convention is very possible and attainable to do.  I think if the federal government continues to get out of control, it will probably happen.”

NM State Rep Yvette Herrell reported, “What I found amazing about the simulated convention was the commissioner’s dedication to the process.  It was remarkable to witness the level of participation and the various conversations happening throughout the convention floor.   We took our responsibilities as commissioners seriously, as if to collectively exhibit to the nation that Liberty is alive and well, that through the Article V process, state legislators can succeed in amending the Constitution in a way that is safe and meaningful.   Above all else, we exemplified that fears of a runaway convention can finally be abandoned.”  

“The inspiration of the founders really was invoked in a way that brought focus and energy to the conference,” said Sam Waltz, a Delaware resident and one of the non-legislators participating in the convention.

Colorado State Senator Kevin Lundberg, who served as chair of the Fiscal Limitations Committee at the event said, “(Article V expert) Rob Natelson was assigned to my committee and we used his counsel generously, which I found invaluable to our deliberations.  The notion that the convention should be sequestered away from outside counsel would, in my opinion, hinder the process.  It should be open and available to all to watch and respond.”

Gary Porter, a reporter for the Fairfax Free Citizen (Fairfax County, Virginia)… who sat in the Williamsburg Public Library to watch the live streaming of concluding day events observed, “A convention of the states, conducted under the auspices of Article V, will likely be a controlled, measured, ruled, even sometimes boring affair.  Certainly no ‘running away’ or even running around was in evidence.  Instead, the commissioners from 50 states crafted eight well-thought-out changes to our Constitution that would either impose long overdue fiscal restraints on the federal government, reduce the enormous power and horizon-to-horizon jurisdiction of the federal government, or impose limits on the terms of some of its ‘serving essentially for life’ officials—the three criteria which would have been found in the applications of 34 states who insisted Congress call such a convention and, presumably, in the instructions the commissioners carried.”

The Proposals Adopted at the Simulated Convention –
Readers should note that the 137 participants in this simulated convention only had about 48 hours (including sleep time) to work through proposals and their language to come up with sample proposed Constitutional amendments.  In a “real” Article V convention the commissioners likely would have invested weeks in crafting proposed amendments to send back to the states seeking ratification by at least 38 of them.

Notice that some of the proposals dealt with topics also addressed by other (non-CoS) Article V campaigns.  Proposals 1 and 5 deal in part with the subject matter in the BBA Task Force campaign.  Proposal 3 deals in part with the subject matter of the US Term Limits campaign.  Proposal 4 deals in part with the subject matter of the Countermand Amendment campaign.

Here are the six proposals adopted at the simulation, in the order they were adopted:

1 – Fiscal Restraints Proposal:
SECTION 1. The public debt shall not be increased except upon a recorded vote of two-thirds of each house of Congress, and only for a period not to exceed one year.

SECTION 2. No state or any subdivision thereof shall be compelled or coerced by Congress or the President to appropriate money.

SECTION 3. The provisions of the first section of this amendment shall take effect 3 years after ratification.

2 – Federal Legislative & Executive Jurisdiction Proposal:
SECTION 1. The power of Congress to regulate commerce among the several states shall be limited to the regulation of the sale, shipment, transportation, or other movement of goods, articles or persons.  Congress may not regulate activity solely because it affects commerce among the several states.

SECTION 2. The power of Congress to make all laws that are necessary and proper to regulate commerce among the several states, or with foreign nations, shall not be construed to include the power to regulate or prohibit any activity that is confined within a single state regardless of its effects outside the state, whether it employs instrumentalities therefrom, or whether its regulation or prohibition is part of a comprehensive regulatory scheme; but Congress shall have power to define and provide for punishment of offenses constituting acts of war or violent insurrection against the United States.

SECTION 3. The Legislatures of the States shall have standing to file any claim alleging violation of this article.  Nothing in this article shall be construed to limit standing that may otherwise exist for a person.

SECTION 4. This article shall become effective five years from the date of its ratification.

3 – Federal Term Limits & Judicial Jurisdiction Proposal:
No person shall be elected to more than six full terms in the House of Representatives.  No person shall be elected to more than two full terms in the Senate.  These limits shall include the time served prior to the enactment of this Article.

4 – Federal Legislative & Executive Jurisdiction – Second Proposal:
SECTION 1. The Legislatures of the States shall have authority to abrogate any provision of federal law issued by the Congress, President, or Administrative Agencies of the United States, whether in the form of a statute, decree, order, regulation, rule, opinion, decision, or other form.

SECTION 2. Such abrogation shall be effective when the Legislatures of three-fifths of the States approve a resolution declaring the same provision or provisions of federal law to be abrogated.  This abrogation authority may also be applied to provisions of federal law existing at the time this amendment is ratified.

SECTION 3. No government entity or official may take any action to enforce a provision of federal law after it is abrogated according to this Amendment.  Any action to enforce a provision of abrogated federal law may be enjoined by a federal or state court of general jurisdiction in the state where the enforcement action occurs, and costs and attorney fees of such injunction shall be awarded against the entity or official attempting to enforce the abrogated provision.

SECTION 4. No provision of federal law abrogated pursuant to this amendment may be reenacted or reissued for six years from the date of the abrogation.

5 -Fiscal Restraints – Second Proposal:
SECTION 1. Congress shall not impose taxes or other exactions upon incomes, gifts, or estates.

SECTION 2. Congress shall not impose or increase any tax, duty, impost or excise without the approval of three-fifths of the House of Representatives and three-fifths of the Senate, and shall separately present such to the President.

SECTION 3. This Article shall be effective five years from the date of its ratification, at which time the Sixteenth Article of amendment is repealed.

6 – Federal Legislative & Executive Jurisdiction – Third Proposal:
Whenever one quarter of the members of the United States House of Representatives or the United States Senate transmits to the President their written declaration of opposition to any proposed or existing federal administrative regulation, in whole or in part, it shall require a majority vote of the House of Representatives and Senate to adopt or affirm that regulation.  Upon the transmittal of opposition, if Congress shall fail to vote within 180 days, such regulation shall be vacated.  No proposed regulation challenged under the terms of this Article shall go into effect without the approval of Congress.  Congressional approval or rejection of a rule or regulation is not subject to Presidential veto under Article 1, Section 7 of the U.S. Constitution.

Also see the proposals HERE.

Article V Activist Disparages the Simulated Convention –
A few days after the CoS simulated convention concluded; Bill Walker (proprietor of the Friends of Article V web site) issued a criticism of the proposals adopted at the event.  Walker is a long-time Article V activist but is not affiliated with any of the current Article V campaigns.

He started by stating incorrectly that “The political organization Convention of States (CoS) today published five amendment proposals which the organization believes should be added to the Constitution.”  Actually, CoS published all six of the proposals adopted at the simulated convention, but never said that the organization believed that any of those proposals were ready for inclusion in the Constitution.

Then Walker said, “As history has shown the chances of getting a single amendment into the Constitution is low, proposing five simultaneously, in the end, may be viewed as the political death knell for CoS.”  Maybe Walker is forgetting the first ten amendments.

Walker asks, “A question not answered (or avoided) by CoS is whether these ‘commissioners’ in fact actually held a convention with the authority to propose an amendment.”  Of course the commissioners at the simulated convention DID NOT have authority to actually propose amendments.  The event was billed as a “dress rehearsal” for a future legitimate state-led convention to propose amendments.  No one involved in the CoS event expressed belief that they were actually proposing amendments that would be submitted to the states for ratification.

Walker’s full comments can be read HERE.

Tenth Amendment Center Releases New Video –
The Tenth Amendment Center, the 10-year-old organization that works “to bring those principles of limited, constitutional government back to the public sphere”, has released a new 2-minute video seeking to educate citizens about the real meaning of the General Welfare Clause in the US Constitution.

View the brief video HERE.

Poulson Announces New Federal Fiscal Rules Working Group –
Dr. Barry Poulson, retired University of Colorado Economics Professor and co-founder of the BBA Task Force has issued a call for the formation of a working group “to lay the ground work for designing and enacting new federal fiscal rules.”

Poulson suggests that knowledgeable economists join in crafting a Handbook on recommended new fiscal rules for the US government, to be shared with policy leaders and ultimately with the delegates to a BBA-focused Article V convention.  He says, “The Handbook would be a layman’s version of the best ideas in designing and enacting new federal fiscal rules.  It should address the following: Why are new federal fiscal rules needed?  What should be the design components of proposed new federal fiscal rules?  How would the proposed federal fiscal rules impact the budget and the economy?  How could the proposed federal fiscal rules be enacted as statutory or constitutional measures?”

For more information about Dr. Poulson’s proposed Working Group, write to: poulson@colorado.edu

Constitution Day Celebrated in South Carolina –
Our Constitution, Our Voice, a celebration of the US Constitution was held on Saturday, September 10 at the South Carolina State Museum in Columbia, SC.   Among the several speakers was David Guldenschuh.  He is a constitutional attorney, policy advisor for the Heartland Institute and Co-Founder of the Balanced Budget Amendment Task Force. He practices law in Rome Georgia, handling a variety of case-work.

Guldenschuh used the event to stress the history of the fifth Article in the Constitution and why its powers need to be used.  He suggested that Thomas Jefferson effectively issued the first call for a BBA in 1798 when he wrote, “I wish it were possible to obtain a single amendment … taking from the Federal Government the power of borrowing.”

Nebraska Senator is Stumping for a CoS Resolution – 
According to the Hastings Tribune, “If state Sen. Laura Ebke has her way, the Nebraska CoS Resolution LR 35 will be the first bill up for consideration when the Legislature reconvenes in 2017.”

Essentially identical to similar legislation passed in eight other states, the bill aims to curb perceived federal government overreach in three ways: Impose fiscal constraints; limit its power and jurisdiction; and term limits.

She told a recent audience that restrictions over such minute details as which light bulbs his stores could use prompted one owner of several chain stores in Nebraska to tell Ebke he felt “under siege” from government regulations.

She described the process of attaching federal mandates to assorted grants as “congressional attacks on state sovereignty,” whereby Congress turns “state legislatures into their regional agencies rather than truly independent republican government.”  Unless states become proactive about “taking the power back,” Ebke said the current path will bring the nation to financial ruin for generations to come, regardless of which party is in power.

Ebke hopes to add 25 or more bill co-sponsors in the coming months to ensure it gets a fair shake during the next legislative session.  The bill stalled in committee in 2016 and never reached the floor for debate.

To read the entire Hastings Tribune article, click HERE.

Strange Survey Question Leads to Wrong Conclusions –
Under the headline “Impulse to conserve the Constitution could block Texas’ call for a convention”, a story distributed on September 22 by the Texas Politics Project reported on a poll it conducted in June in conjunction with the University of Texas.

According to the story the poll asked Texans: “Would you say the United States Constitution has held up well as the basis for our government and laws and is in little need of change, or would you say that we should hold a new constitutional convention to update the Constitution?”

The question was somewhat akin to asking “Have you stopped beating your wife?”  Unless you have been beating your wife… or unless you have no opinion on the efficacy of the federal government, you really can’t answer either question with a simple yes or no.

The question also posed a false narrative, suggesting that “a new constitutional convention” is the only answer to federal governmental shortcomings.

Yet the group used its polling results to conclude that “Overall, 55 percent of Texans said the Constitution has held up well, compared to only 26 percent who said we should hold a new constitutional convention.  More interesting still, 68 percent of self-identified conservatives said the constitution has held up well, compared to only 49 percent of self-identified liberals. And on the other side, only 20 percent of conservatives said we should hold a new constitutional convention, compared to 37 percent of liberals.”

Read the article HERE.

Who Said It?

 “I do not think we are more inspired, have more wisdom,
or possess more virtue, than those who will come after us.
The power under the Constitution will always be in the People.”
George Washington, November 10, 1787
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