July 2024 Newsletter

by | Jul 2, 2024 | AVC Newsletter | 0 comments

A Circular Firing Squad Won’t Help Any of Us

By Vickie Deppe  

DC Journal published an opinion piece by Federal Fiscal Sustainability Foundation board members David Walker (former US Comptroller General) and Ken Cuccinelli (former Virginia Attorney General) in which they attempt to rally BBA and Convention of States Project supporters to shift their allegiance to HCR 24, a resolution requiring Congress to call an Article V Convention based on the 34 or more applications for a balanced budget amendment in force from 1979 through 2021 (unless the Clerk can prove otherwise). Unfortunately, the piece is fraught with substantive errors; but worse, it relies on tearing down other Article V advocates to prop up the FFSF effort.

The authors claim that the BBA Task Force seeks to get 33 applications for a BBA and then stop, hoping the threat of a 34th, convention-triggering application will hang like the sword of Damocles over Congress, prodding the members to at last propose an amendment and send it to the states for ratification. This is inaccurate. The BBA Task Force was founded by Bill Fruth to get an Article V Convention to propose a BBA, not use the accumulation of convention applications to pressure Congress to do so.

The BBA Task Force was so committed to an Article V Convention that it was instrumental—in the face of strong, active opposition from the Convention of States Project—in convening the 2017 Phoenix Planning Convention to draft a convention rules proposal. It was the first nationwide interstate convention to be held in the US since 1861, and gave rise to the Phoenix Correspondence Commission, an official and still-functioning government entity facilitating communication between the states, Congress, and the people regarding Article V and other issues related to federalism.

Even as they mischaracterize the work of the BBA Task Force, Walker and Cuccinelli also omit the fact that many of the applications they are aggregating in HJR 24 exist thanks to the efforts of the BBA Task Force. Though it has been inactive for some time—probably due to pressure from the Convention of States Project—Bill Fruth and his colleagues don’t deserve to have their accomplishments minimized and co-opted in this manner.

Walker and Cuccinelli also have misinformation to share about the Convention of States Project (CoSP), insisting that it “will not be successful…because it might run away.” They maintain that this is true because the application calls for “three amendments” instead of just one. This, too, is factually incorrect: the CoSP application calls for a convention to propose one or more amendments that limit the power and jurisdiction of the federal government and establish spending controls and term limits on its officials. Any number of amendments may be proposed at such a convention so long as they address one or more of these topics.

The reason Americans can be confident that an Article V Convention won’t “run away” is not a function of how much or how little is up for discussion. It is because we’ve had dozens of interstate conventions over the years, none of which “ran away.” It is because the Supreme Court ruled 9-0 in Chiafolo v. Washington that states could control their delegates. It is because states are passing delegate oversight statutes, all of which provide for recall and replacement of rogue delegates. Some will even face felony charges (spelling the end of their political career) when they get home. It is because of the high bar of ratification set in the Constitution: three-fourths (38) of the states must endorse any proposal that emanates from an Article V Convention. The idea that Congress would submit an illegitimate amendment to the states for ratification and that Republicans and Democrats would then come together to ratify it strains credulity.

It’s particularly ironic—not to mention short-sighted—that the authors chose to attack the Convention of States Project: the fiscal responsibility amendment they seek would be on the table if CoSP gets its convention. The Federal Fiscal Sustainability Foundation would be well-served to instead figure out a way to leverage—if not partner with—CoSP and its SuperPAC, seven-figure budget, and massive grassroots following (over 4 million social media followers), rather than engage in a futile attempt to co-opt its supporters. CoSP advocates are nothing if not convinced of the rightness of their cause.

The only things Walker and Cuccinelli have likely managed to accomplish with this piece have been to put themselves in Mark Meckler’s crosshairs, and worse, hand ammunition to Article V opponents: “See?! Even the FFSF people admit that the convention can run away!” We all need to holster our weapons and find more and better ways to collaborate. Rest assured that our opponents aren’t tearing each other down like this.

Article V News 

The first reports have emerged from the simulated convention for proposing amendments hosted by the Sandra Day O’Connor College of Law at Arizona State University. JP Leskovich, Managing Editor of JURIST News and 3rd year law student at the University of Pittsburgh, shared observations as a participant on both the first and second days of the simulation. The students were serious and engaged, but like the Convention of States Project’s simulations, much of the agenda was pre-scripted with no apparent thought given to prioritizing amendments according to their prospects for ratification. Leskovich notes, “The fact that we need to call ‘division’ [a motion for a roll call vote instead of a voice vote] so many times showed how contentious many of these amendments were and how difficult it can be to reach a consensus.” It’s also disappointing that one of the proposals, citizenship for residents of US territories, was based on the fallacy that these residents are subjected to “taxation without representation,” when, in fact, residents of territories are not taxed by the federal government unless they are US citizens. The ASU simulation has served an important role in exposing these shortcomings—both of which may be addressed by convention rules that require supermajority votes—so missteps such as these may be avoided when a bona fide Article V Convention takes place. 


The Phoenix Correspondence Commission 

In March, the PCC hosted former Governor Mike Huckabee for a wide-ranging conversation about federalism. Find out why Governor Huckabee thinks air conditioning was one of the worst things to happen to American governance by listening to his interview here. Q&A from PCC delegates is available here. The next meeting of the PCC will take place on June 14 at 9 am Pacific/12 pm Eastern with keynote speaker Dr. David Primo. Dr. Primo is the Ani & Mark Gabrellian Professor of Political Science and Business Administration at the University of Rochester. His testimony to the House Judiciary Committee regarding a fiscal control amendment may be viewed here. To RSVP, find out whether your state is represented, or learn more about becoming a delegate, please contact Executive Director W. Bruce Lee.  


Article V Legislative Activity 

“If students thrown together under challenging, time-constrained conditions can rise to the occasion, maybe we should not count the adults out yet.” Rick La Rue covers the simulated convention for proposing amendments hosted by the Sandra Day O’Connor College of Law at Arizona State University in The Fulcrum. ASU’s Dolores Tropiano described the event as “civil, respectful, and productive.” The event was funded by Democracy Restated, a low-profile organization that wants to amend Article V itself. Interestingly, the ASU event doesn’t seem to have inspired the same backlash as the Convention of States Foundation’s event last fall.

Article V Legislative Activity

Most state legislatures have adjourned for the summer, but in New Jersey, S 3445, delegate selection and oversight legislation has been introduced and assigned to committee. In Delaware, the Convention of States Project application failed in the Senate.

Senators Ben Cardin (D-MD) and Lisa Murkowski (R-AK) and Congresswoman Jackie Speier (D-CA and Congressman Tom Reed (R-NY) have released a joint statement announcing they have filed legislation to declare that the Equal Rights Amendment has been ratified. Though 38 states have ratified the ERA, they did not do so prior to the sunset clause taking effect. For commentary on the constitutionality of sunset clauses with respect to the ratification of constitutional amendments, please see this article from Columbia Law School.



The Los Angeles Times marked the upcoming anniversary of the passage of SJR 7, an application for a convention to propose a series of gun control measures, by noting that nearly a year later, no other state has joined California in passing an application of its own. Undaunted by the slow start and unfavorable legislative landscape, Governor Gavin Newsom plans to train and mobilize 10,000 volunteers to secure 37 additional applications once the November election is in the rearview mirror.

The Times attempts to console readers—and perhaps itself—regarding SJR 7’s failure to gain traction by falsely asserting similar results for Gov. Greg Abbott’s 2016 “Texas Plan,” a package of amendments designed to restore constitutional checks and balances that have been eroded over the centuries. All are germane under the Convention of States Project’s model application, passed by the Texas legislature the following year. Claiming that “not much happened after that,” the author quotes Professor Sanford Levinson of University of Texas Law School: “He [Abbott] obviously thought that it might give him some political mileage,” Levinson said. “And it clearly didn’t.” Apparently, neither Prof. Levinson nor the author have been paying very careful attention: the Convention of States Project has over 4 million followers on social media and has passed its application in 19 states.


Constitution Boot Camp  

This month, we begin The President: Term, Election, Qualifications, Oath as we move to Article II, Section 1 beginning on page 15.


Who Said It? 

Action is the antidote to despair.

Joan Baez