Only a few years ago, experts laughed at the possibility of a constitutional convention, an assembly without historic precedent governed by no established rules.
No one’s laughing now.
In recent months, prospects for such a convention have started to look very real. Wedded to a movement to rein in profligate federal spending with a balanced budget amendment to the Constitution, what was once a vision of the fringe right has been embraced by conservative hardliners as well as moderate Republicans like Ohio Gov. John Kasich and former Florida Gov. Jeb Bush.
Pushed for years by a network of determined, well-funded special interests, the movement to rewrite the Constitution with a process that circumvents the federal government is gaining approval in several statehouses.
“I think it’s got at least a 50-50 chance of happening,” said Georgetown University law professor David Super, who has recently embarked on an effort to bring attention to the movement.
If he’s right, a narrow band of special interests could soon succeed in forcing a constitutional convention where more than 200 years of legal precedent that has formed the definition of civil rights in America could be under review by delegates selected by state lawmakers.
Fears that the convention would veer away from addressing just a balanced budget amendment have prompted three states — Maryland, Delaware and New Mexico — to rescind applications passed during a previous pro-convention movement.
But while the recent push-back to a constitutional convention (#ConCon to the social media crowd) has slowed the momentum, proponents are still making gains.
This year, Wyoming and Arizona passed measures calling for a convention to address the nation’s debt, bringing to 14 the number that have passed such petitions since 2010.
And while there are objections, proponents argue that petitions passed — and never rescinded — by 14 states in the 1970s and ‘80s are good in perpetuity, and there’s no legal ruling to prove them wrong.
That adds up to 28 of the 34 state legislatures needed to call for the convention. At least two states — South Carolina and Virginia — have bills on the table. And according to Common Cause, a liberal-leaning group that has been organizing opposition to a convention, Republicans now control seven state legislatures that don’t have an existing application for a balanced budget convention: Idaho, Montana, Minnesota, Wisconsin, Kentucky, Virginia, and South Carolina. And pro-convention efforts are focused on bringing those states into the fold.
Wisconsin Sen. Chris Kapenga, R-Delafield, has introduced legislation that would make Wisconsin the 29th state on the list to issue a call for a convention under Article 5 of the U.S. Constitution to address the federal government’s skyrocketing debt, currently at nearly $20 trillion. Kapenga says that debt poses an existential threat to the nation.
“We have no plan on how we’re going to get it back down and it’s continually increasing,” he said. “We started going into dangerous levels to GDP when President Obama got into office.”
The Constitution provides two avenues for ratifying amendments. One, which has been the route taken 27 times before, requires a two-thirds vote by both the U.S. House and Senate before being sent to the states for ratification by their legislatures.
The second, which has never been invoked, allows two-thirds of the states to initiate a convention, with ratification of an amendment requiring approval by three-fourths of the states, or 38. The key characteristic of this approach is it allows states to sidestep the federal government, which Kapenga said can’t be trusted to put its own fiscal house in order.
“The founding fathers put this vehicle in place specifically to protect the people of the United States,” he said. “And I and a significant number of others across the country are concerned about our national debt.”
Two sessions ago Kapenga introduced the same legislation, which won passage in the Assembly with unanimous Republican support. But it stalled in the Senate. This time around the proposal has the support of Assembly Speaker Robin Vos, but Senate Majority Leader Scott Fitzgerald again is not so sure, saying senators are not “up to speed on implications,” and that he’d see “if there is momentum” for the them.
Kapenga thinks the momentum is there, and he plans to appeal to the party’s caucus.
“This is a discussion that’s going to take some time to explain,” he said.
He shrugs off concerns that the convention could turn into a free-for-all, or runaway convention, in which all manner of amendments could be inserted into the process.
“It would be illegal for them to vote on anything that’s outside of the authority of the call,” he said. “If you look at the bills we’re passing, they would be breaking state law by doing that.”
Other proponents like the Balanced Budget Task Force, the Heartland Institute and the Citizens for Self-Governance dismiss the threat of a runaway convention as a liberal doomsday fantasy.
“I won’t give credence to those fear-mongering claims of a possible runaway convention that for decades have been used as a fundraising tool for some organizations,” Thomas Llewellyn of the Balanced Budget Task Force told the Senate Federalism, Interstate Relations & Constitution Committee, which passed Kapenga’s proposals earlier this month.
But many judges and scholars maintain that once such a convention is convened, all bets are off.
“Neither Congress nor the president nor the Supreme Court would have any say,” said Super.
As momentum for a convention surges, more people are asking a crucial question: Did the founding fathers, those masters of checks and balances, inadvertently leave in their masterpiece an avenue for the ultimate unchecked power?
Super’s not the only expert who thinks so. In fact, it’s becoming something of a consensus.
“The danger is that a true Article 5 convention arguably has no limits,” said UW-Madison political science professor Howard Schweber. “We’re in very uncharted territory here. It’s not at all clear there’s any way to call such a convention and limit its mandate to considering questions of debt. Once such a convention is called, it’s very plausibly argued that it can do anything. The outcome could be quite radical.”
Schweber rates the likelihood of such a convention as low.
“There’s a lot of risk here,” he said. “And the closer this thing comes to being real, the more people will back away from it.”
But a broad array of legal experts and partisans from both the left and the right aren’t so sure.
The Founding Fathers weren’t unaware of the possibility of a government takeover by one political faction. That’s why they inserted the three-fourths rule. But, as many insist, under a true Article 5 convention, there are no rules.
The John Birch Society, a far-right champion of limited government, has been down this road before, successfully lobbying several states to rescind earlier petitions.
Larry Greenley, a John Birch official, noted that there has been one precedent. At this month's state Senate committee hearing he pointed out that the 1787 Constitutional Convention wasn’t convened with the intention of scrapping the Articles of Confederation. But delegates not only threw out the document they came to fix, they changed the ratification process so that the new Constitution they crafted would pass.
“A runaway Article V convention could replace the three-fourths of the states ratification requirement with a simple majority of the states, even a simple majority of the voters,” he said.
During the earlier push for a constitutional convention in the 1980s, then U.S. Supreme Court Chief Justice Warren Burger warned that it could turn into a “free-for-all” for special interests.
“A new Convention could plunge our Nation into constitutional confusion and confrontation at every turn,” he wrote, “with no assurance that focus would be on the subjects needing attention.”
The late Justice Antonin Scalia, declared that a convention would be a “horrible idea.”
“This is not a good century to write a Constitution,” he said at a 2015 Federalist Society event.
And Georgetown’s Super isn’t optimistic that tinkering with the Constitution at this point in time will reflect a national vision.
“I’m very anxious that in a very angry period, a period when so many people completely disregard the views of others, that that’s not the time to be writing a Constitution,” he said. “You can imagine some moments in U.S. history when we really did have a strong sense of the nation and of working together, but this is not one of those times.”
One of Kapenga’s three proposals would allow the state seven delegates -- three appointed by the Assembly speaker, three appointed by the Senate president and one appointed by the governor, setting up the potential for a solidly Republican delegation.
Wisconsin’s is one of 32 state legislatures dominated by Republicans, only two away from a two-thirds majority of all states. If Kapenga’s proposal for delegation makeup were adopted by all of them, that would give Republicans a 244-106 — or 70-30 percent — advantage, well above a two-thirds threshold in terms of delegates.
“At this point in the nation, it would not have to be a bipartisan discussion,” Super said. “There’s no reason to believe it would be.”
The behind-the-scenes push for a convention is quickly emerging as a topic of public debate as it lurches toward possible fruition. But it’s hardly a mass movement. In fact, it’s being propelled by a handful of anti-tax, small-government groups with ties to billionaires Charles and David Koch. The Koch brothers have spent hundreds of millions to advance their libertarian views, with remarkable success. And their money is intertwined with every level of the convention push.
To lobby state legislatures, a group called Citizens for Self-Governance established a lobbying arm called Convention of States Action, which is active in several states. The group registered as a lobbying interest in Wisconsin in December.
Citizens for Self-Governance includes on its leadership team Mark Meckler, founder of Tea Party Patriots, and Eric O’Keefe, a longtime friend and ally of David Koch who worked on Koch’s 1979 vice presidential bid on the libertarian ticket. The group has worked closely with the Koch-backed American Legislative Exchange Council (ALEC) in crafting model legislation for states to call for a convention.
O’Keefe is a familiar name in Wisconsin. He heads up Wisconsin Club for Growth, a Koch-supported group that prosecutors accused of illegally coordinating with Gov. Scott Walker’s recall campaign.
Another group, the Balanced Budget Task Force, has been actively engaged in devising state-specific strategies to push the call for a convention through state legislatures.
Loren Enns, the director of state campaigns for the Balanced Budget Amendment Task Force, is also connected to the Heartland Institute, an influential pro-business group with strong ties to the Kochs. He’s also listed on the website I Am American, whose goals include the balanced budget amendment, a fair tax amendment and term limits. The website blames many of the nation’s problems on the 17th Amendment, adopted in 1913, which the group contends concentrated power in Washington by taking away state legislatures’ right to appoint U.S. senators.
The Balanced Budget Amendment Task Force lists as “partner organizations” ALEC, the National Federation of Independent Business and the Heartland Institute, all of which receive key funding from the Kochs.
Riding a wave of conservative victories, for which they can take a large share of the credit, the Kochs are in a good position to leave an indelible imprint on the nation’s guiding document.
But they won’t do it without competing influences.
“That doesn’t mean that you won’t have other moneyed interests with particular agendas trying to influence the delegates and offering huge campaign contributions once the delegates are chosen,” said Super, the Georgetown law professor. “One can only imagine how much they would spend on influencing the delegates to this convention who realistically would be state legislators, many of whom with political ambitions that they would need funding to support.”
Should delegates adhere to the stated purpose of the constitutional convention and pass a balanced budget amendment, some experts argue that would be enough to plunge the nation into economic chaos and shred the social safety net.
“The effect on the economy would be catastrophic,” reads a 2011 blog post from conservative-leaning consulting firm Macroeconomic Advisers, which supports reducing the deficit and had advised both the Ronald Reagan and George W. Bush administrations.
The firm warned that a balanced budget amendment would cause recessions to be “deeper and longer” by hampering the federal government’s ability to counter the effects of an economic downturn.
Steven Durlauf, a University of Wisconsin-Madison economics professor, called the balanced budget amendment “an extraordinarily bad piece of policy for the country.”
It makes no sense to hamstring the government, he said, which needs to run deficits during economic downturns to keep the economy afloat.
Part of the government’s function is to offset the business cycle, Durlauf said. During good times, the government spends less. During recessions, it stimulates the economy by spending more. And that’s the way it’s been for many decades.
A balanced budget amendment would give the government two options to deal with an economic downturn: raise taxes or cut spending.
“And given the nature of the political process, there’s no chance that taxes are going to go up,” he said. “Now identify which areas of government spending are ones which will get cut and you’ll have a laundry list of types of spending that conservatives don’t favor.”
Durlauf suggested that policy makers refocus their efforts.
“Serious policy making needs to focus on the fact that the political system is simply dysfunctional,” he said. “(A balanced budget amendment) is like giving up.”
Kapenga said concerns about potential fallout from barring the government from deficit spending were “putting the cart in front of the horse.”
“The first step that we’re doing right now is we have to get the vehicle to have that conversation,” he said. “Once we get the vehicle set up to have that conversation, the delegates will talk through those things.”
Another group supporting a convention is the Assembly of State Legislatures, a group of state lawmakers who have so far met five times to hammer out rules for a hypothetical convention.
Kapenga serves as co-president of the group, and his proposed legislation would throw Wisconsin support behind procedural rules ASL established. He said the group is not affiliated with any other group or political party.
“One of our cornerstones was we will not accept any input, engagement-wise, or money from any outside organizations, because we have to keep this politically pure,” he said.
Asked how ASL is funded, Kapenga said: “Everyone who showed up would come and they’d bring 100 bucks and they put it in their dues and that covered all the costs.”
He said the group kept costs down by meeting at statehouses in various states, free of charge. Only one meeting, he said, involved a fee.
But he has not escaped criticism that his efforts are tied to big business.
Kapenga's first attempt at a bill calling for a constitutional convention coincided with efforts by ALEC, which in 2012 proposed model legislation on the issue. Kapenga, who is an ALEC member, denies ALEC’s influence.
“That’s kind of guilt by association,” he said.
State Rep. Chris Taylor, D-Madison, also belongs to ALEC, an affiliation she characterizes as opposition research. She said that in 2013, she and Kapenga attended one of the group’s workshops on strategies for getting a petition for a convention through a state legislature. It was only a short time later that he made his first attempt to pass pro-convention legislation.
“It’s just unbelievable he would say it’s not at all tied,” she said. “I was sitting right there in the same workshop he was in when we were all instructed to go back to our states and try to pass these resolutions. Then three months later he introduced a resolution. So that’s a great coincidence.”
Taylor said the effort to pass a balanced budget amendment is a creature of big business. Of the “thousands” of doors she’s knocked on, she said, “no person has ever brought up that we need to amend the federal Constitution.”
“The people really pushing for this are corporations,” she said. “Because they don’t like the EPA, they don’t want to be regulated at all. They’re opposed to a lot of the social safety net. They’re opposed to Social Security and Medicaid.”
While none of that comes as a surprise, she said, the once-remote possibility that pro-business, anti-government groups might achieve their aims through a constitutional convention is now a matter of concern.
“When I was there in 2013 and they launched this effort, it sounded so crazy to me,” she said. “I never thought they’d get 34 states. But they’re getting close. I’ve learned to never say never when I look at the right wing.”