A recent episode of WBOI Presents featured IPFW historian Jeffrey Malanson and political scientist Mike Wolf discussing the two ways the United States Constitution can be amended according to Article V. One of the methods has been used 27 times. The other has never been used.
There is a group known as the Assembly of State Legislatures (formerly known as the Mount Vernon Assembly) that is taking the road not traveled. On June 12th and 13th, the state legislators who make up the Assembly got together in Indianapolis for a second meeting to discuss calling a convention of the states for the purpose of proposing amendments to the Constitution.
I attended the meeting. There were legislators from 30 states, but not many other people. If you exclude people who traveled with legislators, the media, and a few state government employees, there were fewer than 30 people who attended, and many of them were there to protest. There was limited room for an audience in the chamber and meeting rooms, but there was plenty of room in the public viewing area of the Statehouse.
The meeting began on Thursday with a fair amount of rhetoric about the merits of their cause. One of the more memorable comments came from Chris Kapenga (R-WI) who, after making glowing comments about George Washington and equally critical comments about the current elected officials in Washington, D.C., asked those in attendance which Washington they wanted to emulate.
Not all of the comments in the opening session were laudatory and 100% supportive.
One legislator suggested that they might want to focus on the more common method for amending the Constitution to address their concerns. He added that the Assembly might want to refer to the Federalist Papers with a little less reverence thereby challenging one of the sources that comes up when discussing a convention of the states.
Another legislator asked how the Assembly would address the lack of trust the public has in Congress and other elected officials. She pointed out that the lack of trust could undermine their efforts because, after all, they are elected officials.
The opening session also revealed some disagreements among the legislators about how to proceed. Some legislators came with a much more aggressive agenda than others. One legislator said he thought they were there to draft the rules for a convention of the states, not to talk about planning another meeting where the rules might get drafted. He went on to say that if they were not there to take action, they should get “out of the weeds” because they were sounding like, “… a bunch of high school students at the Model UN."
Thursday afternoon, the legislators broke into three committees - one discussed logistical issues such as whether a convention would be open or closed to the public and criteria for where future meetings would be held; one discussed rules and procedures for a convention of the states; one discussed some of the many legal issues surrounding a constitutional convention.
I attended the rules committee and got to witness one of the basic tensions that will be present throughout this process. The group was trying to establish some basic rules by which a convention would operate and that included instructions to states about delegates. It makes sense that there might be rules developed for this given that this process has never been used before. The tension came from the fact that many of the legislators who were present have been critical of the federal government for imposing its will on states, and the Assembly was on the verge of doing the same thing.
All of the committees issued reports on Friday morning. The planning committee accomplished most, if not all, of the items they hoped to accomplish. The story was different for the other committees. The rules and judiciary committees decided to break into subcommittees that were charged with finishing work before the next meeting. Given the magnitude of the work both of these committees had to do, it is not surprising that the final decision was to break into subcommittees.
The work of the committees is intertwined, but this may be easiest to see in a unanimous non-binding vote from the rules committee that each state would have one vote at a convention. Traditionally, small states favor this approach, while large states would rather have votes based on size. This is a discussion that goes back over 225 years and there is a good chance that this matter will be the subject of a legal debate.
The work if the Assembly ended with the adoption of a resolution that continues to move their work forward. In a demonstration that this group is subject to some of the same dynamics that every group encounters, the Assembly spent more time wordsmithing the resolution than it spent listening to the reports and clarifying points in the reports. This demonstrates something we know and that is that many people are more comfortable working with a specific document than an abstract concept.
Successfully amending the Constitution through a convention is a longshot at best for several reasons.
Representative Kapenga said that he was talking with a congressional staffer one day about a convention called by the states and the staffer began describing all of the things Congress would do. Kapenga told the staffer that Congress has only the duty of calling the convention, in other words, naming the date, time, and place. The staffer replied that Congress will do whatever it wants to do. This is an example of one place that will generate legal challenges.
If a convention actually takes place, there will be participants who attempt to obstruct the process at every step. Others will try to bring up amendments that the Assembly does not want to discuss.
Even if a convention is able to pass one or more amendments, three-quarters of the states still will need to ratify the amendments. There is no guarantee that any amendments passed by a convention, even those passed with the support of three-quarters of the states at the convention, will be ratified.
Another problem this effort has right now is that the group lacks diversity. Of the approximately 100 legislators who were present, over 90 percent were white males and close to 95 percent were Republicans. A number of the legislators who were present made calls for increasing the diversity of the people involved because this effort will need much broader support if it is to move forward and succeed.
There is no doubt that the Assembly knows that this will be difficult, but even if this effort fails, it might put pressure on Congress and the White House to work together on some things.
The Assembly of State Legislatures will be meeting again in December of 2014. Who knows if the subcommittees will complete their work by then. If they do not, it could begin to sound the death knell for this process. If they do, we may see this very long process take another step forward.
Andrew Downs is Director of the Mike Downs Center for Indiana Politics at IPFW.
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