PROPOSED CONVENTION RULES (Article V)

Convention of States Project ^ | September 2015 | Convention of States

[Hostage]

In July 2015, Professor Rob Natelson, one of the nation’s leading Article V experts, crafted an initial draft of rules for a Convention of the States along with Convention of States Project co-founder, Michael Farris. Since then, members of the Convention of States Caucus -- a group of 200+ state legislators from 40 states, all united in their support of an Article V Convention of States -- have been invited to review Natelson’s rules and provide input. The following is the latest iteration of those rules as of September 2015. When a Convention of States is called, these rules will be available for official debate and adoption.

Convention for Proposing Amendments -- Proposed Rules (1) Rule 1. Questions not governed by these rules shall be governed by the latest published edition of Mason’s Manual of Legislative Procedure, except where the rule in that manual can be applied only to a state legislature rather than a convention; in which case the matter shall be determined by parliamentary common law. (2)

Rule 2. Officers

(a) The officers of the convention shall consist of a president and vice president, who shall be elected from among the commissioners; and the following, who shall be elected from among persons not commissioners: secretary, sergeant-at-arms, parliamentarian, and assistant parliamentarian. (3) All officers shall be on oath to carry out their duties faithfully and in accordance with lawful authority.

(b) The temporary convention president shall be appointed from among the commissioners from the state that was the first to enact the application that led to the calling of this convention. The temporary president shall be selected by a majority vote of that state’s delegation. The temporary president’s sole duty shall be to preside over the election of the convention president and he or she shall be ineligible to be the permanent president.

Rule 3. The sergeant-at-arms is empowered, under direction of the president, to secure the good order of the house. Orders issued by the president to the sergeant-of-arms shall be appealable, as in the case of other rulings of the chair. (4)

Rule 4. The members of this convention are the committees (delegations) appointed by their respective states. (5) All votes shall be taken by states, with each state having one vote. (6) In roll call votes, states shall declare their votes in alphabetical order. (7)

Rule 5. Irrespective of how many commissioners a state includes within its delegation, no more than five commissioners from any one state shall be on the floor at the same time. (8) On every vote, the state's vote shall be announced by the chair of the state delegation or his or her designee. Every delegation shall canvass each commissioner on each vote in a manner to be prescribed by the commissioning state or, in default of a prescribed manner, by the delegation. Each state delegation's vote shall be determined in accordance with the rule prescribed by the commissioning state.

Rule 6. A quorum to do business shall consist of the commissioners empowered to cast the votes of not less than 26 member states; and all questions shall be decided by the greater number of those which be fully represented; but a lower number than 26 may adjourn from day to day. (9)

Rule 7. The order of business shall be as follows: (10)

(1) call to order, (2) roll call, (3) invocation, (4) pledge of allegiance, (5) reading and approval by the clerk of the minutes of the previous day, (6) reports of standing committees, (7) reports of special or select committees, (8) special orders, (9) unfinished business, (10) introduction and first reading of proposals, (11) consideration of daily calendar, (12) announcement of committee meetings, and (13) recess for the day (adjournment). (11)

Rule 8. Every commissioner, rising to speak, shall address the president; and while he or she shall be speaking no one shall pass between them or read any written matter not immediately germane to the question under consideration. (12)

Rule 9. Of two commissioners rising to speak at the same time, the president shall name the one who shall first be heard. (13)

Rule 10. A commissioner shall not speak more often than twice, without special leave upon the same question; and not a second time before every other who had been silent but shall choose to speak on the subject shall have been heard. [The commissioners from any one state committee shall not speak more often than ten times without special leave upon the same question; and not more than five times before every other who had been silent but shall choose to speak on the subject shall have been heard.] (14)

Rule 11. No commissioner shall, without leave of the convention, speak more than 10 minutes at any one time. (15)

Rule 12. A motion made and seconded, shall be repeated; and if written, as it shall be when any member shall so require, shall be read aloud by the secretary or transmitted to each commissioner’s pre-designated electronic device before it shall be debated. (16) No motion, other than a procedural motion, shall be in order unless germane to both the subject matter specified in the state applications on which Congress called the convention and to the subject matter specified in the convention call. (17)

Rule 13. A motion may be withdrawn at any time before the vote upon it shall have been declared. (18)

Rule 14. When a debate shall arise upon a question, no motion, other than to amend the question, to commit it, or to postpone the debate, shall be received. (19)

Rule 15. A question that consists of one or more propositions shall, at the request of any commissioner, be divided and put separately as to each proposition. (20)

Rule 16. No substantive question or committee recommendation shall be decided the day on which it is introduced or first debated, if any five states request that the decision be postponed to another day. (21)

Rule 17. A motion to reconsider a matter that has been determined by a majority may be made, with leave unanimously given, on the same day on which the vote passed; but otherwise not without one day’s previous notice; in which last case, if the convention agree to the reconsideration, the convention or, by the convention’s leave, the president shall assign a future day for the purpose. (22)

Rule 18. A commissioner may be called to order by another commissioner, as well as by the president, and may be allowed to explain his or her conduct or any expressions supposed to be reprehensible. (23)

Rule 19. All questions of order shall be decided by the president, subject to appeal to the convention, but without debate. (24)

Rule 20. Upon a question to recess for the day, (25) which may be made at any time, if it be seconded, the question shall be put without debate. (26)

[Rule 21. When the convention shall recess, every commissioner shall stand in his or her place until the president pass.] (27)

Rule 22. No commissioner shall be absent from the convention, so as to interrupt the representation of his or her state, without leave. (28)

Rule 23. Committees—generally applicable provisions

(1) The standing committees shall include rules, credentials, administration, fiscal restraints, federal jurisdiction, and term limits. (29) The convention may create ad hoc committees.

(2) The membership of the rules, credentials, and administration committees shall be elected by a plurality vote of the states, voting by secret ballot. The membership of ad hoc committees shall be appointed by the president, unless the convention shall prescribe another method. (30) The membership of the fiscal restraints, federal jurisdiction, and term limits committees shall be selected by the method designated in Rule 24.

(3) Each committee may by majority vote create subcommittees for issues germane to the committee’s assigned task.

(4) Committees and subcommittees shall not sit while the convention shall be or ought to be sitting, without leave of the convention. (31)

Rule 24. Fiscal restraints, federal jurisdiction, and term limits committees. (32)

(1) The fiscal restraints committee, federal jurisdiction committee, and term limits committee each has [exclusive] (33) responsibility for developing proposals within the corresponding subject matter of the state applications for the convention.

(2) Each of these three committees shall consist of one member from each state delegation, selected as determined by such delegation; provided however, that no person shall serve on more than one of those three committees.

(3) Any proposal approved by a subcommittee of any of these three committees shall be referred to its committee chairman, who shall schedule it for hearing within five days of its referral from the subcommittee. The committee shall vote on any proposal endorsed by at least five committee members within 24 hours after the hearing (weekends and holidays excluded). Approval shall be by a simple majority of committee members present and voting.

(4) Every proposal reported from the fiscal restraints, federal jurisdiction, or term limits committee shall be scheduled for debate and a vote on the floor of the convention; the presiding officer of the convention shall have no authority to refuse to schedule debate or a vote on any such proposal, and no formal rule shall be required to schedule any such proposal for debate or a vote. No motion to adjourn sine die shall be in order so long as any such proposal remains without a convention vote to pass, reject, or table.

[Jacquerie]

Federalist #85 was the wrap up to an immense effort.

Hamilton therefore touched on many items in summary fashion.

<>Nor however difficult it may be supposed to unite two thirds or three fourths of the State legislatures, in amendments which may affect local interests, can there be any room to apprehend any such difficulty in a union on points which are merely relative to the general liberty or security of the people. We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority.<>

I believe he was carefully addressing a major problem with the Articles of Confederation, which were in force when Hamilton wrote #85, and was a major impetus to the 1787 federal convention in Philly, that being Article XIII which required thee consent of all states to amend the rules of the confederacy.

Twice, Rhode Island alone prevented amendments which would have allowed minimal taxation of imports for a period of years to pay down the enormous debts run up during the Revolution. IOW, as Hamilton lamented, Rhode Island's local interests trumped the national interest.

In the sentence before those you quoted, Hamilton wrote: “And of consequence all the declamation about the disinclination to a change vanishes in the air.” NY and VA had not yet ratified the constitution, and Anti-Federalists were making a major fuss over not only an imperfect constitution, but on that would be un-amendable. They were wrong until 1913.

[Hostage]

It’s not the lawyers that are holding things up, it’s the state legislatures.

If 34 of those legislatures pressed forward together, they could press Congress to call a Convention but they’re not doing that because they have 37 states who would rather work with the COS Project rules.

Congress won’t call it because the applications have streamed in so slowly on so many subjects expiring or never renewed that they are not compelled and more importantly the states today do not want a COS without rules and restrictions

[Jacquerie]

<>I just want to know where the requirement to agree on the amendments beforehand originated.<>

Crickets.

[Political Junkie Too]

But Hamilton still was not ruling out the idea of "local interest" amendments? He was just suggesting that it would be harder to get support from three-fourths of the states?

-PJ

[Jacquerie]

You are probably correct.

It wasn’t supposed to be too difficult to convene the states. Two thirds is high but not too high when there is general agreement the government needs fixing.

[Political Junkie Too]

Then the concept of "local interest" amendments goes against the idea of "same-subject" applications.

I wish more was written about Article 5 in the Federalist Papers. Perhaps there is more in the ratifying debates?

-PJ

[betty boop]

Article V is merely the acknowledgment of the right of the Sovereign People to continually correct any errors of any kind....

Absolutely TRUE; but to me, this truthful observation seems qualified by two things: (1) the Sovereign People do not act directly, but through the mediation of their States; (2) They cannot act at all, if their States do not make application to Congress for an Article V COS for the Purpose of Proposing Amendments to the U.S. Constitution. Article V elucidates the constitutional manner in which this must be done. Absent the congressional CALL, it isn't going to get done.

You wrote,

IMHO, and with history as our guide, congress WILL NEVER CALL A CONVENTION.... It is therefore the duty of the states to just do it. Exercise a societal and constitutional responsibility; meet in convention to turn back tyranny.

Well, certainly Congress has never issued an Article V COS CALL, at least not so far.

Meanwhile, we have Michael Farris pointing out that, so far in our history, there have been over 400 State Applications to Congress to CALL an Article V COS. These Applications have been all over the "subject matter" of the sovereign people's concerns, which have varied over time. The evident fact remains that State applications on different subject matter will not be aggregated for the purpose of establishing the 34-state threshold necessary to force Congress into issuing the CALL, without which any contemplated convention would have zero constitutional basis, standing, or effect.

"Aggregation" rules are not part of the facial text of Article V. But it seems to me the need for same is implied, and essential, on logical and common-sense grounds. In what other way can we find out whether the 34-state threshold has been met?

I propose a thought experiment, actually two.

The first would be something along the lines that you might warm to: Get 34 States to "call on" Congress to issue its congressional CALL to convene an Article V COS for the purpose of proposing amendments on the basis that this convention as contemplated would be a wide-ranging, general-purpose convention not limited to any particular subject matter going in. It seems to me they still have to get over the aggregation bar in some way. Maybe they could do that, by adopting virtually identical language in their Applications. Maybe something like, "This State is applying for an open COS not limited as to subject matter." If 34 States all said the same thing in their Applications, even if the Clerk of Congress and National Archivist are total morons, assuming they can read, they must recognize that identical language is identical language. If 34 States are using identical language, then how can Congress fail to aggregate them? Upshot: Congress "shall" issue its CALL. Possibly, this could work.

Or second, how about lobbying, urging our state representatives to make Application to Congress for a COS dedicated to the single topic of repealing the Seventeenth Amendment? That situation is a lot more limited and straightforward than a "general purpose" convention. Get 34 States to apply specifically on the the narrow-focus matter of repeal of the Seventeenth, using same language, and Congress must issue its CALL. "Same language" should ensure that all such Applications qualify for aggregation. The language of any State's Application itself might specify that its application shall be aggregated with the applications of all other States on the topic of repeal of the Seventeenth.

What would happen, under these two scenarios? It would be gratifying to find out.

In conclusion, though Article V does not require a COS to confine its scope to a "single topic," there has to be some commonality of interest of the States that goes beyond purely regional or local problems, and it is in their Applications that the States make this known.

Just some thoughts, FWTW. I'm struggling through this the same as you are, dear Jacquerie. Thank you ever so much for sharing your thoughts.

[Political Junkie Too]

Or second, how about lobbying, urging our state representatives to make Application to Congress for a COS dedicated to the single topic of repealing the Seventeenth Amendment?

Let's go back to my hypothetical posted earlier.

Back in 1800, the states would not have needed Congress to call for a single-subject CoS; they would simply have instructed their Senators to introduce a bill in Congress to propose the amendment. The other states would then have supported the bill or not.

Your "common sense" aggregation of single-subject amendments is really the other half of Article V's amendment process; single-subject amendments introduced by Congress.

The fact that today's post-17th amendment Congress has gone rogue doesn't change the original intent of the proposing convention: proposing amendments, not an amendment.

-PJ

[betty boop]

P.S. To All:

It does absolutely no good to complain about the (implicit) aggregation rule.

The real challenge here is to make the aggregation rule work for US — We the People of the United States of America, who on fundamental constitutional questions MUST act through our respective States.

[Political Junkie Too]

It does no good to complain about the treaty clause, either, or the spending origination power, or the budget requirement, or the uniform rules of naturalization, and so on. What other Constitutional power should we surrender?

-PJ

[betty boop]

Back in 1800, the states would not have needed Congress to call for a single-subject CoS; they would simply have instructed their Senators to introduce a bill in Congress to propose the amendment. The other states would then have supported the bill or not.

Ah! But there's the "rub": The original constitutional "architecture" that recognized such powers of the Senate was utterly destroyed by the Seventeenth Amendment. THAT order is completely gone, owing to a frenzy of populist reaction to the public corruption of the times.

These "progressive" populists evidently thought that a one-man-one-vote per citizen regime on any and all public questions was superior to the Constitution's plan, which called for institutions designed to mediate the effects of transitory public faction and frenzy. Such as the Senate — designed not to represent the people directly, but the several States, the ratifying parties of the Constitution.

The Seventeenth Amendment took a wrecking ball to the very foundation of the Constitutional vertical separation of powers as between the national government and the several sovereign States, by denying the States representation in Congress.

I think the Seventeenth is due for repeal. We have all seen its pernicious effects....

[betty boop]

What other Constitutional power should we surrender?

I don't know about you; but I'm not "surrendering" any. And I continue to find the U.S. Constitution a helpful and trustworthy guide in such matters.

[Repeal The 17th]

“...I think the Seventeenth is due for repeal...”
-
Amen.

[Jacquerie]

Hmmm. If I read your post correctly, We The Sovereign People have the right to frame, adjust, and otherwise amend our governmental structure as we see fit via our states as long as we get permission from Congress?

[trisham]

The Seventeenth Amendment took a wrecking ball to the very foundation of the Constitutional vertical separation of powers as between the national government and the several sovereign States, by denying the States representation in Congress.

I think the Seventeenth is due for repeal. We have all seen its pernicious effects....

***************************

Excellent post, betty boop. It seems that even back in the day William Randolph Hearst was using his newspapers to influence politics, and this was one of his interests.

[Political Junkie Too]

The Senate still retains its powers, it's just the controlling link to the state legislatures that is broken. That's why Senators no longer fear losing their seats and are free to go against the interests of their constituents.

That's why I say that the idea that Congress can thwart a convention of states by holding some sort of implied "same-subject" requirement over the states is just another surrender of power - this time it's the states' power to compel a proposing convention.

The 17th amendment changed the nature of Congress, but it didn't change the plain language of Article V, calling a Convention for proposing Amendments - plural.

Demanding a same-subject requirement just hands Congress a weapon to use against the states to prevent them from organizing, when no such requirement seems to exist in the Constitution or in the Federalist Papers writings.

-PJ

[Jacquerie]

The 1942 Supreme Court also found a non-existing implicit power for congress to regulate that which affects interstate commerce.

[Political Junkie Too]

At least they found the proper grammar when they ruled against Obama regarding recess appointments, when they held that "during the Recess of the Senate" meant the break between Congresses and not anytime they went home for the holidays.

Maybe they would do the same regarding a convention for proposing plural amendments?

-PJ

[betty boop]

We The Sovereign People have the right to frame, adjust, and otherwise amend our governmental structure as we see fit via our states as long as we get permission from Congress?

Oh for heaven's sake, Jacquerie, I said no such thing. Nor do I think such a thing.

Congress is subject to the same Constitution that the States are. It is not a question of congressional supremacy vis-a-vis the States. Both must respect and adhere to what the Constitution requires.

[betty boop]

The Senate still retains its powers, it's just the controlling link to the state legislatures that is broken.

But absent the controlling link to the state legislatures, what powers does the Senate legitimately exercise under the Constitution? The Seventeenth Amendment absolutely extinguished the entire raison d'être for the Senate as envisioned by the Framers of the Constitution — that the Senate is the representative body of the States in Congress.

And it's all been downhill from there.... Now it seems that the only people Senators "represent" is — themselves.