Lawmakers call for federal constitutional convention

Legislation calling for an Article V convention to amend the U.S. Constitution has been gaining traction lately. An Article V convention has never happened before, and the U.S. Constitution contains no rules for how it would operate.

Should any of this legislation pass and a convention be called, anything will be possible at that convention – including a complete rewrite of the Constitution and the elimination of our constitutional rights.

In addition, there are no real protections at the state level in any of the proposed bills. There is no method for public input into either the selection of delegates or the convention process – in fact, the public is excluded by design and the control of the entire process centered on legislative leaders.

Below is an overview of the two constitutional convention bills currently moving through the legislative process.
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H.3125 – Constitutional convention to cut spending, limit power, and term-limit Congress; public excluded from delegate selection process

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H.3125 (and its companion bill S.112) calls for convention in order to pass term limits, “fiscal restraints” and to limit federal jurisdiction and power. This bill also lays out a delegate process that deliberately excludes the public at every step. Instead, lawmakers – specifically, legislative leadership – would control every aspect of delegate selection.

The General Assembly would elect the delegates (the ones who would amend/rewrite the Constitution), but the bill leaves out who would make the initial nominations – which means it would most likely be legislative leadership.

As a rule, whenever the legislature controls the appointment selection process for boards and commissions, it is the legislative leadership that nominates candidates.

For instance, the Public Service Commission is elected by the General Assembly, but the candidates are screened and selected by a ten-member committee chosen by two legislative leaders. Judicial selection works the same way: Lawmakers as a whole elect judges, but only after the candidates are handpicked by another ten-member board chosen by three legislative leaders.

These are only a couple of examples of a consistent pattern: by either statute or rule, nominations are controlled by the legislative leadership when the General Assembly is in charge of an election or appointment.

When the nominating process is spelled out in law, it usually includes the criteria that must be applied when evaluating potential candidates. This bill, however, does not. Not only is the public not told who would be nominating delegate candidates – it’s also not told what criteria whoever nominates would be looking for.

The bill lists only the most basic qualifications (delegates must be at least 21, a resident of SC, etc.), but otherwise, citizens would have no idea what lawmakers are looking for when choosing delegates to amend (or rewrite) the U.S. Constitution. And the public itself has no input whatever into that process.

Once the delegates are nominated, here’s how they would be officially selected:
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  1. The House would elect three delegates, and the Senate would elect two. Specifically, these five delegates may also be public officials (as long as they are not sitting members of Congress).
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  2. Those five delegates would then nominate (not appoint) five more individuals who are not state lawmakers. The bill’s implication here is that the initial five delegates will be state lawmakers.
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  3. From those five nominees, the House speaker and the Senate president would each select one to be an official delegate. The remaining three would be alternates.
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Not only would the public be allowed zero input into delegate selection, citizens would have no way to hold their delegates accountable under this bill. If, during the convention, the delegates representing South Carolina exceed their authorized scope, they would be “policed” by the same people who picked them – their fellow lawmakers.

There is no mechanism in this bill for the citizens to force a recall of rogue delegates.

Truthfully, there is no way for anyone to effectively control delegates once they leave the state, but the “controls” this bill would put in place are vague, nearly impossible to enforce – and completely centered  on legislative leadership with no way for the public to have any input whatsoever.
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Here’s the bill’s process for “controlling” delegates:

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If a delegate goes off-script and violates his/her instructions at the convention, the other delegates (most of whom will be lawmakers, based on the bill’s implication) must tell the House speaker and the Senate president. This is the only mechanism for keeping anyone back home informed of what is going on in the hallways and backrooms of the constitutional convention. In other words, any delegate “accountability” will be based entirely on what the delegates themselves choose to tell – not the public, but the legislative leaders.

If the legislature is in session:
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  1. A lawmaker would have to introduce a joint resolution to recall the rogue delegate. This resolution would have to go through the entire legislative process – committee hearing(s), debate and possible amendments, and three readings in both chambers – all while the rogue delegate is working on or voting for constitutional amendments that he/she was not authorized to consider.
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  2. Only if a majority in both houses votes to recall a delegate – who most likely would be a fellow lawmaker, based on the bill’s implications – would that delegate be stripped of his/her authorization.

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If the legislature is NOT in session:
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  1. If notified that a delegate has violated their instructions, the House speaker or Senate president must call an emergency meeting of a joint committee. This joint committee would be composed of four House members and four Senators. The bill doesn’t say who would appoint them, so that would likely be determined by House/Senate rules – which means that the four House members would be appointed by the House speaker. The four Senators would be chosen by the Senate Judiciary Committee.
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  2. The joint committee would need to adopt a joint resolution recalling the delegate and choosing the alternate to replace him/her. This meeting could happen over the telephone or even over email or “other forms of electronic communication.” There is no mechanism to notify the public as quickly as possible and provide for public input. Since the meeting would be an “emergency,” it would be exempt from the law requiring the 24-hour public notice of scheduled meetings.

This bill does not require that the public be told that their delegates have violated their instructions.

Citizens will only know what lawmakers choose to tell them – or what they hear about on the news.

Instead, legislative leaders will be told, and only if a fellow delegate decides to blow the whistle.

The only “accountability” for delegates who have stepped outside their authorization will rest with the same lawmakers who appointed them in the first place.

In reality, there is no way to effectively oversee or control the delegates once they have left South Carolina for the constitutional convention – nor will anyone in South Carolina know what is going on behind closed doors except what the delegates (most of whom would likely be state lawmakers) choose to tell us.

Moreover, this bill specifically states that this process is how any constitutional conventions will work for South Carolina going forward.

Finally, the legislation attempts to make its application conditional upon Congress and the other states agreeing to South Carolina’s rules – such as Congress not determining convention rules, and no amendment to the Bill of Rights being authorized for consideration.

Of course, lawmakers cannot do this. As Article V of the U.S. Constitution requires Congress to call the convention once two-thirds of the states have applied for one, it is highly doubtful that South Carolina could invalidate its own resolution after the convention has been called.

And while this bill attempts to limit the subject of the convention to fiscal and jurisdictional restraints and term limits, the U.S. Constitution simply provides no way to do that. There are no rules and no precedent for a constitutional convention under Article V, so anything could happen at a convention – regardless of the South Carolina resolution’s attempts to impose rules on the convention. The bill acknowledges this by authorizing the General Assembly to change delegates’ instructions (including topics they may vote on) at any point, and even to authorize instructions that conflict with the “conditions” and delegate instructions in this resolution.

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S.125 – Constitutional convention to cut spending

This resolution (and its companion resolution H.3017) calls for an Article V convention of states to propose a balanced budget amendment, along with any “related and appropriate fiscal restraints” (which are not defined).

Again, however, nothing in the US Constitution limits (or provides a way to limit) what can be discussed in the constitutional convention, so that language would be useless once the constitutional convention began.

Unlike the previous resolution, S.125 does not spell out the process of selecting delegates, leaving it up to lawmakers to decide once the convention process was in motion.

If passed, this call for a constitutional convention would exist continually until two-thirds of the states have also called for a convention on the same subject, at which point Congress would have to call the convention.

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Remaining Article V resolutions:
  • H.3166 – This resolution calls for a constitutional convention to propose a congressional term limits amendment. It does not spell out the process of selecting delegates, leaving it up to lawmakers to decide once the convention process was in motion.
  • H.5262 – This resolution calls for a constitutional convention to propose a balanced budget amendment. It also does not spell out the delegate selection process, leaving it up to lawmakers to decide after the convention has been called.
  • S.28 – This resolution calls for a constitutional convention for amendments imposing fiscal restraints (undefined), limiting the federal government’s power and jurisdiction (also undefined),  and enacting term limits for both Congress and for federal officials. No delegate selection process is defined, so it would be up to state lawmakers.
  • S.192 – Unlike the rest of the resolutions, this one calls for a constitutional convention to propose campaign finance reform amendments, although that term is not defined.

    And here it should be noted that reining in the federal government is not the only motive behind calls for a constitutional convention. There is also a convention push for progressive constitutional amendments as well – and should a convention be called, both sides would be present and vying for their respective agendas.

    This resolution does not specify how delegates would be selected, leaving it up to state lawmakers.
  • S.663 – This resolution calls for a convention to propose a congressional term limits amendment. It also “insists” that Congress to pass a law imposing criminal penalties on anyone who goes beyond that scope. As there is absolutely no way for state lawmakers to force the U.S. Congress to do anything, this provision is useless.

    This resolution does not specify how delegates would be selected, leaving it up to state lawmakers.
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