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.

You seem to be fearful of a convention.

I am not fearful of an Article V COS. Indeed, I deeply, deeply desire one.

What I AM fearful of is Congress finding reasons not to CALL one. And the easiest excuse for them not to do so is to declare that there are not 34 state applications that can be aggregated together to reach the Article V threshold of 34 states on the basis of similar or identical subject matter.

Here's an historical list of Article V petitions from the states, for the calling of a COS by subject matter, in historical order. As to subject matter, these petitions are all over the lot. I haven't been through the entire list; but suspect there are not 34 petitions sufficiently "alike" as to subject matter to be recognized by Congress as "aggregatable" for the purpose of establishing the 34-state threshold — without which Congress will not issue a CALL.

Even though Article V is silent about the details of the qualification criteria of state applications, there is ample historical and legal precedent WRT the aggregation rule. It also conforms with plain common sense.

You ask, "why must applications be single topic?" A single topic can be remarkably broad in its effect. For instance, the "single topic," "Recovering and Strengthening the Tenth Amendment Powers of the Several States" would cover most if not all of Mark Levin's list of amendment desiderata in one swell foop. Each of Levin's items would be completely valid at the COS, because each is within the meaning and scope of the controlling "single topic." Each would be referred to the relevant committee for debate, to be voted on separately in that committee by a simple majority of that committee's commissioners. If passed out of committee, then each state delegation, each having one vote, yea or nay, will vote the measure. If it passes, it is eligible as a stand-alone proposed Amendment that can then be submitted for ratification.

So, a "single topic" doesn't necessarily mean only a single amendment can result. A "single topic" can result in multiple proposed Amendments, each of which would be subject to ratification separately.

If you want to call a convention just for the purpose of having one, without any structure or common purpose, you will likely end up with a three-ring circus that produces nothing. But Congress would likely never CALL such a convention. We need to be realistic about our prospects, which, as a practical matter, means never letting Congress use the excuse that the 34-state threshold has not been met. If there were 34 state applications using more or less identical language, Congress MUST aggregate them, and therefore could not find any constitutional or legal pretext to refuse to CALL the Article V COS.

The best idea I heard today was from the link that Hostage gave in his last to me. I do not have the name of the person who proposed this, but he said that what was needed is a "pre-convention of the States" to flesh out the issues, define the mission, and try to get everybody on the same page. Indeed, the ALEC Conference which developed proposed COS rules was actually a kind of "pre-convention convention" already. What ALEC did (so brilliantly, IMHO) with the rules should be the model of another "pre-convention convention," convened to flesh out the question, "What will be the subject matter of the COS?" and to articulate the state applications language in as uniform language as possible.

Then, I do believe, we will have our best chance to convene an Article V COS.

Just some thoughts, FWTW.

Thanks so much for writing, Jacquerie!

One minor quibble, although I am in agreement with your post and Hostage's. You used the term "petitions" with respect to communications from state legislatures to Congress requesting a Convention of the States to address a particular topic. A petition is sent from a subordinate entity to a superior entity. The states are not subordinate entities, but equal, in this situation. The term "application" is more correct than "petition."

The second thing is that there are now 4 states applying for a convention to address Mark Levin's and ALEC's concerns. Georgia was the first to apply, and the other three states have copied Georgia's language. Research Georgia's language to see how the states are framing their applications.

The third thing is that the ALEC-sponsored pre-conventions are doing precisely what you wish with respect to agreeing on application language and internal rules of procedure. This is to occupy legal ground before Congress can claim it and try to impose its own rules.

Everybody in the ALEC effort is doing his part to set up the precedents that will apply not only for the first convention, but for all subsequent conventions. It's a way of finessing Congress, the political parties and the Beltway power brokers. This effort is cautious and careful in defining the legal playing field.

<>If you want to call a convention just for the purpose of having one, without any structure or common purpose, you will likely end up with a three-ring circus that produces nothing.<>

Delegates will be strictly controlled by state commissions. If a majority can't be found to agree on one or more amendments to send home, the convention will adjourn. No problem, right? But with our country headed into the arms of a police state, I doubt that would happen.

Avoid static analysis. What is all-important is the change in national attitudes a convention will bring about. The mindset of the nation will change, knowing that a regular convention of the sovereign states on behalf of the people exists to look over the shoulders of the Uniparty. Knowing that a periodic convention will be held will lift the morale of the American people, as well as serve as a warning to all statists in DC.

If Article V truly represents a societal right of the nation, (it does) there should be no reluctance to conduct annual conventions.

The American people will not sell themselves into slavery.

A petition is sent from a subordinate entity to a superior entity. The states are not subordinate entities, but equal, in this situation. The term "application" is more correct than "petition."

I stand GLADLY CORRECTED by you in this matter of "petition" vs. "application." The states cannot appear to be going to Congress hat-in-hand, as if begging the "master" for some crumbs from his table. As you wrote, "The states are not subordinate entities, but equal, in this situation." That is, WRT an Article V COS. Thank you for pointing this out, Publius!

As to the Georgia language: Is this found at the entry POM–285, of the Congressional Record — Senate, dated July 9, 2014? Just read it. This application gives as its subject matter:

That the General Assembly of the State of Georgia hereby applies to Congress, under the provisions of Article V of the Constitution of the United States, for the calling of a convention of the states limited to proposing amendments to the United States Constitution that impose fiscal restraints on the federal government, limit the power and jurisdiction of the federal government, and limit the terms of office for its officials and for members of Congress....

Then it had the good sense to provide an "anti-aging" mechanism, and frankly states it is (wants to be) subject to aggregation with other states' applications that bear on the same subject matter.

On a quick review, I see that the Georgia language is virtually identical to the applications language of Alaska and Florida. Other recent applications — Louisiana, Michigan, Tennessee — seem to limit their scope to a balanced budget amendment. That's only one of the items in the Georgia et al. applications. That being the case, I wonder whether Congress would aggregate all six. What do you think, Publius?

I thought this was a simply brilliant insight:

...the ALEC-sponsored pre-conventions are doing precisely what you wish with respect to agreeing on application language and internal rules of procedure. This is to occupy legal ground before Congress can claim it and try to impose its own rules. [added itals]

And indeed, I found Natelson's draft of proposed convention rules cautious, careful, and pro-active in defining the legal playing field, with an especial view to warding off potential congressional and/or court challenges, down the road.

Thank you so very much, Publius, for your highly instructive essay/post!

Delegates will be strictly controlled by state commissions.

I would prefer to see Delegates (a/k/a Commissioners) controlled by convention RULES that all state delegations (a/k/a state commissions) have sworn to uphold and submit to. Or is that a minor quibble?

You wrote:

Avoid static analysis. What is all-important is the change in national attitudes a convention will bring about. The mindset of the nation will change, knowing that a regular convention of the sovereign states on behalf of the people exists to look over the shoulders of the Uniparty.

I rarely do "static analysis," for the world is ever dynamically on the move, and thus refuses to reduce to "static analysis" for its full description. It is always more than what "static analysis" can describe.

I very strongly empathize with your sentiment that American society/citizen psychology would get a remarkable boost from a successful Article V COS. Just let's not get too far ahead of ourselves: FIRST we have to have a FIRST successful COS. That done, we know how to have another.

But again, FIRST you need a FIRST one. I would urge all those who care about their constitutional liberties to concentrate their efforts on forcing the necessary constitutional CALL, which comes only though Congress.

To do everything that can be done with that result clearly in view.

Subsequently, if we learn that the People of the Several States want to hold an annual COS, "to look over the shoulders of the Uniparty," well by then they will have learned how to successfully call one. So if they want one, they'll know how to get one.

At present, there are four applications (GA, FL, AL, AK) for Mark Levin's and ALEC's effort. That means there are 30 to go to hit the two thirds threshold.

When it comes to applications for a convention to address a balanced budget amendment alone, it gets a little more complicated.

For decades, Congress has passed the duty of tabulating applications to the Office of the Archivist of the United States. Likewise, the Archivist has been in charge of tabulating ratifications of constitutional amendments. Recently, thanks to the work of Rep. Stivers, the Clerk of the House of Representatives is now also in the loop regarding applications for an Article V Convention. This came about for two reasons. First was Mark Levin's effort. The second was the confusion over the applications for a convention to consider a balanced budget amendment alone.

Last year, a preliminary count from the Archivist showed that we had reached the magic number of 34 for a Convention of the States to consider a balanced budget amendment. However, a goodly number of states later rescinded their applications, and after that, a number of states that had rescinded later went and issued new applications. The Speaker of the House sent a letter to the Archivist asking for an audit of applications with the assistance of House legal counsel.

The audit showed that there were actually 26 valid, current applications from the states for a convention to consider a balanced budget amendment. This year, two more states piled on, increasing that number to 28. There are 6 to go to reach the two thirds threshold.

The 4 applications for the Levin/ALEC effort are not being aggregated with the 28 applications for a convention for a balanced budget amendment, even though there is a certain commonality of language. The Archivist is tabulating these two efforts in two separate columns.

The good news is that if the Levin/ALEC effort eventually gets 34 states to apply, the resulting convention would be authorized to discuss a balanced budget amendment as part of the "fiscal restraint" clause of the Georgia application. The "power and jurisdiction" clause would open up amendments to establish a procedure for state nullification, trim the ability of unelected bureaucrats and judges to write law, and remove the 17th Amendment. The "term limits" clause speaks for itself.

This is sound legal language to establish the convention's purview that leaves the states a lot of options to put the federal entity back into the constitutional prison that Madison designed for it. It's better and more inclusive than the simple language for a balanced budget amendment to which many states have already signed on.

The 4 applications for the Levin/ALEC effort are not being aggregated with the 28 applications for a convention for a balanced budget amendment, even though there is a certain commonality of language. The Archivist is tabulating these two efforts in two separate columns.

Whatta surprise.

But I am very heartened by this:

The good news is that if the Levin/ALEC effort eventually gets 34 states to apply, the resulting convention would be authorized to discuss a balanced budget amendment as part of the "fiscal restraint" clause of the Georgia application. The "power and jurisdiction" clause would open up amendments to establish a procedure for state nullification, trim the ability of unelected bureaucrats and judges to write law, and remove the 17th Amendment. The "term limits" clause speaks for itself.

Well, it seems to me all those states applying for a COS geared toward proposing a balanced-budget amendment might do best by rescinding their narrowly-focused original applications, and get on-board with the Levin/ALEC effort. The latter, if successful, would certainly address their balanced-budget concerns.

Plus it would give them the chance to weigh in on the other principal matters of the Levin/ALEC proposal: (1) remediating profound distortions in the distribution of "power and jurisdiction" of the federal v. state governments (definitely including the courts), so drastically departed from the Framers' Constitution; (2) term limits of federal office-holders, whether elected or appointed; (3) repeal of the Seventeenth Amendment, which relates to (1).

Thank you ever so much, dear Publius, for yet another illuminating essay/post!

Concerning those 28 applications for a convention to consider a balanced budget amendment: It does no harm for them to sit out there. It does not preclude a state from applying for a convention using Georgia's language.

Well I hope the states will consider doing so. I'm all in favor of a balanced-budget amendment. BUT — a BBA, if ratified, would not reach to my main concern, which is the vertical distribution of powers as between the national government and the States, thus the people thereof.

The federal leviathan has invaded and usurped the Tenth Amendment RETAINED powers of the states. Our system of self-government requires, demands, the restoration of the original federal–state power distribution contemplated by the Framers. The federal government has a relatively few grants of power that are clearly specified in the Constitution. All other powers are retained by the states and the people.

To abandon this principle puts us in a topsy-turvy world in which absurdities are routinely spawned. Such as, for instance, the absurdity of five black-robed lawyers unilaterally imposing, against all reason and precedent, their preferential view of the "social welfare" on 320 million Americans, without their consent.

The "Georgia model application" for an Article V COS, while dealing with BBA matters, goes straight to stipulating the means and measures to restore and protect the Tenth Amendment powers of the states and the people.

I fervently hope and pray that an Article V COS will be convened soonest, around the subject matter of the Georgia model.

I would be excited if they just came up with an amendment requiring an annual budget; better a balanced one, but I’ll even settle for the existence of a budget requirement.

Well, that might "buy us some time." Certainly if we do not rein in runaway federal spending, leading to unconscionable federal debts so vast that already it would take several generations of future taxpayers — our children and grandchildren at the very least —to pay down. But then Washington continues to pile onto the existing national debt load each and every year, like clockwork.

If this situation is not corrected, then America is going to fall into a Black Hole from which it CANNOT extricate itself. It's just a matter of time. Then we will witness a national "fire sale," total societal breakdown and social chaos.

So a Balanced Budget Amendment is urgently needed, since Congress evidently cannot discipline itself.

But to me, a BBA is just a "finger in the dike," an attempt to forestall an impending disaster for yet a little while longer. What a BBA does not reach to, is the roots of the disorder that is setting up the disaster.

To get to the roots of that disorder, I truly believe that constitutional amendments strengthening States' Tenth Amendment powers are most urgently needed.

Just some thoughts, dear brother in Christ. FWTW

That basically says they can spend what they appropriate and they have to keep a ledger.

Now, the Founders didn’t really imagine run away deficit spending. Not in my mind did they imagine anyone irresponsible enough to do that.

I do wish we had a balanced budget requirement in the constitution, but IIRC, last year was the first in 7 or 8 that they even put forward a budget at all.

As Betty Boop points out in #56, disaster is going to happen if we don’t come up with a requirement to balance the budget. We cannot forever continue to spend more than our income. All that said, I’m fairly certain that the initial effort by the financiers, once that amendment is in place, will be to extract the same amount of obeisance by forcing interest rates up so that payments on the national debt will bankrupt us.

Short of ‘shoot all the lawyers’, I’m not sure how to fix that. :>)

The interest payment on the debt is about a sixth of the budget, iirc. At the rate of 500 billion to a trillion in deficit spending per year, assuming this insanely low interest rate continues, the interest-only payment will match the amount of national income in roughly 2040.

Every dollar taken in by taxes, fees, tariffs, etc. will be spent simply to service the debt.

That leaves nothing to spend on any part of a national budget. THE ENTIRETY of that budget would have to be borrowed. Who would loan to such a spend-drunk sailor?

And that assumes these insanely low interest rates.

At that point, lenders would have zero expectation of ever getting their loaned money back, but more troubling, they’d have zero chance to get their interest money on those new loans. The answers for the nation at that point will be militarism: take the money from the lenders; confiscation: take the money from the people; printing: hyper-inflation; or bankruptcy and depression: probably the best route.

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