PROPOSED CONVENTION RULES (Article V)

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)

(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)

(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)

(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.

Dear PJ, I realized that my last to you was probably not very enlightening. I think you and I are having some difficulty understanding each other's view of Article V. So, thinking it through, I'd like to try a different tack.

The text of Article V is merely the tip of the iceberg. If you want to know what Article V requires, then you have to look below the surface language. In other words, discern the context in which Article V arises, its function in our constitutional scheme, and what is the foundation of its authority.

By way of deep background, it may helpful to understand the fundamental form or most basic structure of the U.S. Constitution. Although the deliberations of the Philadelphia Convention of 1789 were conducted in utmost secrecy, we know from reliable sources (and subsequent publication) that the debate was often quite heated. Often disputes devolved on the issue of whether the proposed constitution would establish a “national” government, or a “federal” government.

As Madison defined these terms in Federalist 39:

...the federal form ... regards the Union as a Confederacy of sovereign states; instead of ... a national government, which regards the Union as a consolidation of the States.

On first appearance, that might sound like hair-splitting. But it was vitally important to the success of the proposed constitution that both views be accommodated, and compromise achieved between them. The genius of the Framers was to produce a constitution wherein it wasn’t merely a true–false case of an “either/or” situation WRT a choice of “national model” or a “federal model”; it was a matter of both being valid. Which of the two characters would be ascendent at any particular time is invoked by its relevance to the particular case under scrutiny, and the warrants granted to the national government under the Constitution. Thus the Framers gave us a “mixed constitution” — one that is both national and federal in character, constantly seeking the balance between the two.

But on my reading so far, I think the Constitution gives a bit more weight on the balance scale to the federalist view. Which is right and proper, since the States are effectively the creatures of the people residing within them. And the ultimate sovereign authority of the U.S. Constitution resides with We the People, as a national body.

On the other hand notice that, other than the direct election of U.S. Representatives to the Legislature in Congress, the Constitution takes great pains to interpose mediating bodies between direct expressions of popular will and electoral success of candidates for office. The idea here is to prevent electoral minorities from being abused by electoral majorities. A great example of this is the Electoral College. Although the President is elected to office by the vote of the whole people in its national capacity, the people do not elect the president directly. The Electoral College — a creature of the several States — does.

Madison directly addresses the constitutional amending process later in Federalist 39. Possibly it would be unintelligible to the modern reader, absent the above backgrounder:

If we try the Constitution by its last relation to the authority by which amendments are to be made, we find it neither wholly national nor wholly federal. Were it wholly national, the supreme and ultimate authority would reside in the majority of the people of the Union; and this authority would be competent at all times, like that of a majority of every national society to alter or abolish its established government. Were it wholly federal, the concurrence of each State in the Union would be essential to every alteration that would be binding on all. The mode provided by the plan of the convention [ultimately resulting in Article V] is not founded on either of these principles. In requiring more than a majority, and particularly the proportion by States, not by citizens, it departs from the national and advances toward the federal character; in rendering the concurrence of less than the whole number of States sufficient, it loses again the federal and partakes of the national character.

The proposed Constitution, therefore, even when tested by the rules laid down by its antagonists, is, in strictness, neither a national nor a federal constitution, but a composition of both. In its foundation, it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national.

Given this background, I can understand why the piling up of more than 400 State applications for Congress to CALL an Article V COS for the Purpose of Proposing Amendments has not yet resulted in a Congressional CALL for same. You don’t need all the States to propose amendments. You only need 34 of them. But if you are speaking of amending the Constitution, then it stands to reason that those 34 States would have a common interest in the matters such a convention would be tasked, and authorized, to address. Thus the importance of a clear call from the States as to the subject matter of such Article V COS.

We ultimately must rely on precedent to guide us here. The best precedent, and the best evidence, was cited by Madison, in Federalist No. 40: It is the Philadelphia Convention of 1789 itself.

This Convention had very clear subject matter.

“Whereas there is a provision in the articles of Confederation and Perpetual Union for making alterations therein, by the assent of a Congress of the United States and of the legislatures of the several States; and whereas experience hath evinced that there are defects in the present Confederation; as a means to remedy which, several of the States, and particularly the State of New York, by express instructions to their delegates in Congress, have suggested a convention for the purposes expressed in the following resolution: and such convention appearing to be the most probably mean of establishing a firm national government:

“Resolved — That…a convention of delegates, who shall have been appointed by the several States, be held at Philadelphia for the sole and exclusive purpose of revising the Articles of Confederation and reporting to Congress and the several legislatures such alterations and provisions therein as shall, when agreed to in Congress and confirmed by the States, render the federal Constitution adequate to the exigencies of government and the preservation of the Union.”

If you could get 34 States to simply recapitulate this formula today, or some other more or less similar text that could reflect their common concern, it is my firm belief that Congress could NOT evade its constitutional duty, under Article V, to issue a CALL for a COS.

Just one thought to leave with you, before I sign off for now: Never forget that Article V itself was the product of a constitutional convention.

If the states of their own volition met in convention tomorrow, and submitted amendments to their state legislatures the next day, who in turn held elections for delegates to state conventions, and over three-fourths of the conventions ratified a set of amendments, should the nation accept them as part of the Constitution?

Probably not.

For the question next becomes: What constitutional or legal basis do States think they have, who meet "of their own volition," and possibly may think that they might, by submitting their complaints to their respective State legislatures, get around federal, constitutionally grounded proscriptions against such a "populist" reconstruction of the ground of Authority of the American rule of law:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Maybe you don't see the problem the same way I do. S'okay.

But what are you proposing? That the States should do an end run around history and precedent? How many States can you get on-board, who agree with one another as to the purpose of the convention?

Anyhoot, to finally answer your question, above: I do not believe, on the state of the evidence I've seen so far, that the output of such a purely state-invoked convention could compel a Congressional CALL. For simple lack of standing, it having been produced by the States alone, not in collaboration with Congress — as Article V seems to require.

JMHO FWTW. (I am not a lawyer....)

<> What constitutional or legal basis do States think they have, who meet "of their own volition,"<>
<>For simple lack of standing . . . <>

It is time to de-lawyer yourself.

Our constitutional house is burning down. Congress, Scotus, Obama are not only incapable of assisting in its salvation but purposely work to its demise. Can the victim really expect sympathy or assistance from his mugger? Since Congress has proved itself unwilling to call a convention in the past, it is wise to assume it will not do so in the future.

Return to first principles.

The Constitution does not prevent the states from convening. The 9th and 10th Amendments recognize just the opposite.

The people and the states are the component members of the American republic. Congress, President, Scotus are not; they are mere artifacts; they are the products of and servants of the people. When the servants cease to do their duty, it is not only the right, but the duty of the component members of the American republic to do their duty, which is to reframe the government of their creation such that it serves the general happiness and prosperity of the nation.

If the Constitution was the actual Supreme Law of the Land, there wouldn’t be any need today for the sovereign people via their states to appeal to higher law, that of the Laws of Nature and Nature’s God. No inferior power like Washington DC can alter, limit or diminish federal or popular state conventions that take their authority from the Law of Nature to define their government.

Its right there in our Declaration of Independence.

1. Congress calls the Convention, not the states. So, even if 34 states call for an Article V Convention, Congress is under no compulsion to accede.

You are leaving out the practical point of what is needed to invoke a constitutionally valid Congressional CALL — which, under Article V, is mandatory upon the due Applications of 34 States.

So, we have a 34-state criterion that has to be met, before Congress is mandated to act. What is that criterion?

It seems there are two ways to look at this problem.

The first is to say that, once 34 states have applied for an Article V COS on any subject matter whatsoever, that Congress must call the COS.

By that criterion, Congress would have been constitutionally compelled to call a COS back in the 1970s, there having been 34 State applications by that time.

The question then becomes, does Congress have a duty to respect a simple numerical tally of States making Applications — a simple arithmetic, mathematically linear tally of States — "1 + 1 + 1 ... + 1, + 1, + 1," until you get to = 34?

Or is it reasonable for Congress to "aggregate" State Applications by a reasonably-close-subject-matter criterion, which goes beyond simple arithmetic? Just as human life, and the American polity, are not reducible to simple arithmetic?

Anyhoot, the above seems to be the root of the main dispute here at FR about the Article V COS, which I desperately desire to see CALLED. Having said that, I hold to the latter view of the matter, for the reasons given here, and in other recent posts.

I agree with your observation and conclusion at (2): State conventions are not directly accountable to State legislatures.

And certainly, I DO agree with you that "No delegate (commissioner) may be a state employee nor hold any elected or appointed office."

Thank you so much for writing, NTHockey!

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