Balanced budget convention gains steam as congressman calls for official evaluation

The Washington Times ^ | Tuesday, April 1, 2014 | By Stephen Dinan

[vg0va3]

Rep. Duncan Hunter on Tuesday asked Congress to evaluate whether enough states have officially called for a constitutional convention to propose a balanced budget amendment — marking the next step toward what could be an historic gathering. Mr. Hunter, California Republican, said Congress should take stock of where things stand after Michigan last week approved an official call for a balanced budget amendment convention. According to some analysts, Michigan’s move makes it the 34th state to request a convention.

[vg0va3]

COS NEWS

[grobdriver]

I don't know... Art. 5 could be a bad idea.
Anyone think they're going to abide by a new amendment any more than they abide by the 2nd?

[Texas Eagle]

Being a Californian, Duncan Hunter should know better. We've had a BBA here in Cali for 20+ years.

We've NEVER had a balanced budget. In fact, we are hundreds of billions of dollars in debt.

[vg0va3]

No offense, but I will take James Madison’s opinion of if it working. He seemed to think enough of the process to put it in the Constitution.

Is your way to continue using elections? Elections have produced what we have today so why not try both? Get the states re-engaged and hold the politicians accountable at the polls.

[nathanbedford]

The purpose of this reply is to consider potential objections which a prudent conservative would anticipate will be interposed by Congress to evade its constitutional duty to "call" a convention upon the request of 34 states. For this purpose, and for all my purposes, it is considered that it is urgently in the interests of the conservative movement and likely indispensable for the survival of the Republic as a civil society grounded in the rule of law and the Constitution to proceed with an Article V convention.

Prudent conservatives should anticipate recalcitrance by Congress in performing its constitutional duty to call a convention because the entire purpose of the provisions of Article V is to circumscribe federal power. It is considered to be beyond argument, at least on these threads, that Congress feeds off the engrossment of federal power and it is in their selfish personal interests to protect both their power and their rice bowls. Moreover, history has demonstrated a repeated pattern of outright obstructionism by Congress in declining to call such conventions even in the face of application by the required number of states.

Nor is there any reason to believe that Republicans will be less obstructive than Democrats. We should anticipate rather that they will be passive aggressive and surreptitious in their obstruction much like Mitch McConnell behaves in sabotaging efforts to defund Obamacare or reduce spending by voting for cloture but against the final bill when his vote doesn't matter.

Historically, Congress has frustrated calls for Article V convention by finding discrepancies in the applications. Therefore, I think the conservative states' legislatures should coordinate the applications with identical wording. We have seen Congress simply delay the matter to death without calling a convention and therefore I believe the conservative states' applications should contain specifications as to date and place, also identically worded.

No doubt Harry Reid will decline to bring the matter before the Senate and if he retains control of the Senate he will no doubt let the matter languish in his desk drawer. The state applications should therefore contain identical wording stating an intention to proceed with the convention at the given time and place if either house of Congress fails to bring the matter to the floor.

Since it is likely that Congress will attempt to regulate the procedures of the convention as well is the subject matter, I recommend that the applications in identical wording make provisions for these subjects. This is especially critical as we will expect there to be challenges in Congress as well as Article III challenges demanding that the state be represented according to population and that the vote of the states in convention be made not on each state casting one ballot but on each delegate voting. Such a provision would wreck all conservative chances of restoring the Constitution to its original purpose.

No doubt others can contribute other provisions and cause this list to grow, I just wanted to suggest this possibility, concededly belatedly, in the hope to avoid obstructionism in Congress from both left and right.

[stremba]

It doesn’t matter if it’s a good idea or a bad one, politically speaking. Do we not believe in Constitutional government? If the appropriate number of states request a convention to propose amendments, it is Constitutionally mandated that the convention be called by Congress. Or do we only believe in Constitutional government when we think it’s beneficial to us?

[grobdriver]

As long as the rules are followed... would be OK with it.
When was the last time that happened?

Who was it that said our country would last as long as it was led by honorable men? What would they think of our current leadership and would they approve of and support seeking a con con?
I'd have to think "No".

Sure - if the requisite number of states call for it, then we have a lift off. Hope Conservatives aren't later looking for a parachute...

[Blood of Tyrants]

Don’t be so fearful. The states still have to ratify any proposed amendments.

[grobdriver]

The states still have to ratify any proposed amendments

Well... 38 of them, anyway.
How many states went to Obama?

[Blood of Tyrants]

Way less than 38.

[Jacquerie]

Article V ping!

[vg0va3]

This is not a Con Con. This is a convention of States. There is a difference and to understand the difference could calm your concerns.

People follow rules every day.

[grobdriver]

People follow rules every day

People do - high levels of our government, not so much.
Or rather, maybe I should say they twist "rules" to match their desired behavior.

I shall research more.

[Jacquerie]

Yes, there are uncharted waters ahead.

Hmm, the Archivist of the United States collects state electoral college votes. I wonder if this is the office that keeps track of state convention applications.

The source said twelve states rescinded their balanced budget applications, and wondered if that was legal. I don't see why not.

In any event, there appears to be a building groundswell of disgust with, and resistance to, oppression.

[stremba]

It’s not a constitutional convention. It’s a convention of the states called for the purpose of proposing amendments. As for what the Founding Fathers would have thought, they put it in the Constitution, so I’d guess they would be all for it. Article 5 gives two ways to propose amendments; namely a vote of 2/3 of both houses of Congress or a convention called for that purpose by request of the states.

Until now, all amendments have been proposed by 2/3 vote of both houses of Congress. However, the other procedure is in place specifically because the Founders wanted to have an alternative procedure in case Congress usurped its powers. It would be unlikely that such a power-usurping Congress would vote to propose amendments limiting its power. That’s why we have an alternate procedure that bypasses Congress. Amendments so proposed would still have to go through the same ratification procedure as Congressionally-proposed amendments do.

In short, despite the way lefties portray it, the Article 5 convention is not some radical overhaul of our government. It’s simply a way for states to reign in Federal power.

[Da Bilge Troll]

Historically, Congress has frustrated calls for Article V convention by finding discrepancies in the applications.

Of course. That is why they have coordinated their applications. Please read up on this. Try http://www.conventionofstates.com/

No doubt Harry Reid will decline to bring the matter before the Senate

It is possible that it could end up in the courts. This could be a long fight. That is not a reason to avouid fighting it.

Since it is likely that Congress will attempt to regulate the procedures ...

There is much historical precident for the convention process and proceedures. Again, the courts may see some lawsuits.

[Publius]

I'll add my usual pedantic boilerplate to the mix.

***

The amendatory process under Article V consists of three steps: Proposal, Disposal, and Ratification.

Proposal:

There are two ways to propose an amendment to the Constitution.

• The Congressional Method requires the House and Senate to pass an amendment by a two-thirds majority.
• The Amendments Convention Method requires the legislatures of two-thirds of the states to petition Congress to call a Convention for Proposing Amendments. The states may request a single-subject convention or a general convention open to all subjects. Once the two-thirds threshold is reached, Congress is required to set a time and place for the convention.

Article V gives Congress and an Amendments Convention exactly the same power to propose amendments, no more and no less.

Disposal:

Once Congress, or an Amendments Convention, proposes amendments, Congress must decide whether the states will ratify by the:

• State Legislature Method, or the
• State Ratifying Convention Method.

The State Ratifying Convention Method has only been used twice: once to ratify the Constitution, and once to ratify the 21st Amendment repealing Prohibition.

Ratification:

Depending upon which ratification method is chosen by Congress, either the state legislatures vote up-or-down on the proposed amendment, or the voters elect a state ratifying convention to vote up-or-down. If three-quarters of the states vote to ratify, the amendment becomes part of the Constitution.

Forbidden Subjects:

Article V contains two explicitly forbidden subjects and one implicitly forbidden subject.

Explicitly forbidden:

• No amendment may be added to the Constitution concerning slavery or capitation taxes until 1808. We’re past that deadline.
• No amendment may be added to the Constitution to change the principle of equal representation in the Senate. So if California wants five senators, every state must have five senators. To permit this principle to be violated, this provision in Article V would first have to be amended; it would be a two-step process.

Implicitly forbidden:

• The Constitution of 1787 may not be abrogated and replaced with a new document. Article V only authorizes “a convention for proposing amendments to this Constitution”; therefore, the Constitution of 1787 is locked in place forever. Congress and an Amendments Convention have exactly the same Proposal power; therefore, neither Congress nor an Amendments Convention can start over. Both bodies can only propose amendments. To permit the drafting of a new constitution, this provision in Article V would first have to be repealed; it would be a two-step process.

I have two reference works for those interested.

The first is from the American Legislative Exchange Council, a conservative pro-business group. This document has been sent to every state legislator in the country.

Proposing Constitutional Amendments by a Convention of the States: A Handbook for State Lawmakers

The second is a 1973 report from the American Bar Association attempting to identify gray areas in the amendatory process to include an Amendments Convention. It represents the view of the ruling class of 40 years ago. While I dislike some of their conclusions, they have laid out the precedents that may justify those conclusions. What I respect is the comprehensive job they did in locating all the gray areas. They went so far as to identify a gray area that didn't pop up until the Equal Rights Amendment crashed and burned a decade later. Even if you find yourself in disagreement with their vision, it's worth reading to see the view of the ruling class toward the process.

Report of the ABA Special Constitutional Convention Study Committee

[nathanbedford]

Historically, Congress has frustrated calls for Article V convention by finding discrepancies in the applications.

Of course. That is why they have coordinated their applications. Please read up on this. Try http://www.conventionofstates.com/

( I was and am familiar with the contents of that website. They have coordinated but not to the degree that I recommend)

No doubt Harry Reid will decline to bring the matter before the Senate It is possible that it could end up in the courts. ( I said that ) could be a long fight. That is not a reason to avouid fighting it. ( I said that too)

Since it is likely that Congress will attempt to regulate the procedures ...

There is much historical precident for the convention process and proceedures. ( I said that three) Again, the courts may see some lawsuits.

[nathanbedford]

The source said twelve states rescinded their balanced budget applications, and wondered if that was legal. I don't see why not.

I agree with you. In any event, those who make the call will find it's so.

[Publius]

If you've printed off and read the ALEC document and the ABA document, you'll see that the two documents view the recission (shorthand for “retrocession”) of Amendment Convention petitions from two completely different angles.

Dr. Natelson at ALEC believes that petitions, like ratifications, are forever. In this, he follows the logic of how the 27th Amendment was ratified 203 years after Madison got it through Congress by the necessary two-thirds votes. Ratification is a federal duty that can be accomplished only once, and the federal courts have agreed. There was a chance to reconsider this when the Equal Rights Amendment crashed and burned in 1982, but by the time the case got to the Supreme Court, it was moot, in that both the seven year and (questionable) ten year ratification windows had expired.

The ABA views it differently, believing that ratifications are apples and Amendment Convention petitions are oranges. According to the ABA, states can rescind petitions for a convention, and more importantly, petitions can be held to a standard of contemporaneousness by Congress under both the Dillon and Coleman decisions from the Supreme Court. The ABA recommended in 1973 that Congress finally write the Single Subject Standard and the Contemporaneousness Standard into law, but Congress has refused to do so because it would give litigants, i.e., the states, the ability to get a reading from the federal courts that might not be to Congress’ advantage.

There is another complicating factor. After Congress was blind-sided by the 27th Amendment, a new law was enacted in 1992 reforming the amendatory process. One source at FR said that the law was so poorly written that it would make further use of the amendatory process difficult. For one thing, I believe that law took the Archivist of the United States out of the loop. As a result, I don’t know who is responsible for tabulating Amendment Convention petitions, but it is probably somebody in Congress. There is also the question as to whether that law discharged all petitions for an Amendments Convention generated between 1789 and 1992, and whether that was even legal.

How many of those 34 petitions for an Amendments Convention to address a balanced budget amendment are valid?

Some petitions were rescinded. Some were rescinded, but re-petitioned by a later legislature. Some have been out there since the Eighties. This whole issue would first have to be untangled by the person whom Congress has authorized to tabulate the petitions to see just how many petitions are truly out there. Congress could then decide validity as to whether petitions are forever, whether petitions are contemporaneous, whether petitions were legally discharged by Congress in 1992, and whether recission is legally permissible. That would get litigated by the states in federal court. This is an open issue.

Do any petitions have a Discharge Clause where the state says the petition is moot if Congress sends its own Balanced Budget Amendment to the states for ratification?

In 1913, this is how the 17th Amendment was enacted. Enough petitions for an Amendments Convention to consider direct election of senators contained a Discharge Clause so that Congress could rule them moot, thus bringing the number of petitions below the two-thirds window, thus permitting Congress not to call an Amendments Convention to consider the topic.

Is the language within the petitions sufficiently identical to indicate common intent?

This is why the ABA suggests that when a state submits a petition for an Amendments Convention, it lists all the states that have previously submitted similar petitions. This is to protect the states by requiring Congress to tabulate all such petitions in the same column and not use specious excuses about wording to tabulate petitions in different columns.

If there are 34 valid petitions, will Congress do its duty?

I have posted in previous threads about the Powell decision, the willingness of the Supreme Court to order Congress about, the willingness of the Court to order a convention on its own authority, and whether the Court would consider this a “political question” to be decided in future elections for Congress.

Will Congress try to pass rules to determine how the states select delegates and how the Convention does business?

In previous threads, I’ve noted how the ALEC and ABA documents differ drastically on this. ALEC says that an Amendments Convention is the property of the states, and Congress has no authority whatsoever. ABA says that the Dillon and Coleman precedents give Congress wide latitude in regulating the amendatory process, provided such regulation does not contravene the plain language of Article V. Would there be enough votes in Congress to set down the rules for a convention and would that bill be signed into law? Would it survive a challenge in the federal courts? This is an open issue.

If Congress makes a hash of things, could the states ignore Congress and hold their own convention?

The answer to that is No. An Amendments Convention not called by Congress under the rubrics of Article V – an “outlaw convention” – would not be valid, and Congress would be free to ignore the products of such a convention. Congress would be free to ignore ratifications of any amendments generated by an outlaw convention. The procedures contained within Article V must be followed to the letter. As to just how much authority Congress possesses to regulate the amendatory process would certainly end up at the Supreme Court.

If we can get a convention to consider a balanced budget amendment, we could get all these gray areas defined and set in precedent once and for all so that when an Amendments Convention for Mark Levin’s topics, a convention with a much larger purview, gets the requisite number of petitions, we would already know what the procedures are. The successful conclusion of a smaller convention would reassure people that the Amendments Convention process is safe and cannot get out of control. That puts Congress and the political parties on notice that the people have found a way to bypass them.