A Backdoor Approach To Calling An Article 5 Convention

     Proponents of calling an Article V convention for sure take keep striking a fossil oil stretch.  In 2017, the most prominent of these groups, the Balanced Budget Amendment (BBA) Task Force, secured 3 novel province resolutions quest Congress to telephone outcry upwards a convention nether Article V, precisely 3 other states rescinded quondam resolutions seeking a convention.  In 2018, neither the BBA Task Force nor the Convention of U.S. Project (COSP) secured a unmarried novel province resolution calling for an Article V convention.  Several states amongst Republican majorities inward both chambers of their legislatures buried or voted downward convention resolutions. 

     In addition, a 3rd grouping seeking an Article V convention to trim down federal powers, the Compact for America, released a legal analysis showing that many of the province resolutions from the 1970s too 1980s, which the Task Force includes inward its optimistic count of states, take keep divergent too oft inconsistent linguistic communication from the BBA Task Force’s newer resolutions.  The American Legislative Exchange Council (ALEC), which has heavily supported the BBA Task Force too COSP, ejected the Compact from its meetings, precisely amongst a pro-convention grouping admitting the validity of arguments that liberal too conservative Article V opponents take keep long made, the BBA Task Force’s claims are increasingly hard to defend to serious observers. 

     One mightiness imagine that this would crusade funders to flee too leaders of these groups to engage inward some introspection.  Instead, the pro-Article V groups are responding to these setbacks past times trying to motion the goalposts.  This suggests that, if side past times side week’s elections yield pro-Article V majorities inward both houses, nosotros could easily consider an Article V convention without Article V’s prerequisites existence met. 

     Former police delineate professor Rob Natelson, a long-time spokesperson for those advocating an Article V convention to bound federal powers, wrote for the Federalist Society this Spring claiming that the BBA Task Force has understated the number of resolutions inward force.  Offering piffling explanation for why he has non made this claim over the many years he has been working amongst the BBA Task Force, Prof. Natelson identified some quondam province resolutions seeking an Article V convention too argued that, because he believes they are non facially inconsistent amongst considering a balanced budget amendment, they should hold out aggregated amongst the quondam too novel BBA resolutions that the Task Force has been counting. 

     This methodology led Professor Natelson to conclude that 33 states take keep active resolutions, ane brusk of the 34 that would trigger the calling of a convention.  This creates the prospect that if a unmarried additional province passes an Article V resolution, the BBA Task Force volition need that its allies inward Congress convene an Article V convention.  Given the BBA Task Force’s potent ties to ALEC too major Republican donors, Republican senators too representatives would let on these demands would hard to brush aside.  Although a few Republicans – notably Arizona Rep. Andy Biggs, ane of the most conservative inward Congress – staunchly oppose calling an Article V convention, proponents would exclusively take keep to selection upwards a handful of naïve Democrats to opened upwards up the Constitution to moneyed exceptional involvement groups’ wildest fantasies.  Even if Democrats retake ane or both chambers of Congress on Tuesday, a coalition of pro-convention Democrats too Republicans could select a resolution to telephone outcry upwards an Article V convention to the flooring amongst a discharge petition. 

     Professor Natelson’s thought for adding v states to the Article V correspond without whatsoever province legislative activity would hold out alarming plenty past times itself, precisely it turned out that he was non finished.  A few months, later, he went farther too claimed that several states’ rescissions of previous Article V resolutions are non valid.  He disagrees amongst statements made inward the preambles to the rescissions too suggests that these “errors” mightiness homecoming the resolutions invalid on the grounds of “mistake.”  He urges Congress “to weigh whether or non to count purported rescissions flawed past times cloth mistakes.” 

     It appears that inward Prof. Natelson’s view, a province legislature commits a fault almost whatsoever fourth dimension it departs from Article V advocates’ talking points.  For example, he criticizes half-dozen states for referring to an Article V convention equally a “constitutional convention”.  Article V advocates prefer the euphemistic “convention of the states”.  Neither term is inward Article V, precisely equally “constitutional” is an describing word defined as “of or relating to the constitution,” it is hard to consider why a convention whose line of piece of job organization is changing the Constitution is non a “constitutional convention”.  He similarly faults v states for preambles expressing concern that an Article V convention could stray to topics far-removed from those motivating states to inquire that it could hold out called.  Article V advocates strenuously insist that such a “runaway” convention would non occur, precisely zero inward the Constitution imposes whatsoever limits on such a convention too it is believed that the taxation cuts would pay for themselves too non add together to the deficit.  Congress for sure operated nether plenty of misconceptions when it passed the USA PATRIOT Act; create those mistakes homecoming that legislation invalid? 

     Prof. Natelson manifestly sees no irony inward claiming to champion returning ability to the states piece suggesting that Congress may disregard province legislatures’ actions when it regards those legislatures equally misinformed.  If Congress was empowered to “correct” province legislatures’ discharge of matters clearly inside their purview, states would no longer hold out sovereign. 

     It would hold out tardily to dismiss Prof. Natelson were he non too then fundamental to the efforts of both the BBA Task Force too COSP equally good equally the enormously powerful ALEC.  It seems unlikely that he would hold out undermining his credibility amongst these extreme positions were those groups non seriously contemplating an endeavor to teach Congress to construct an destination run to a greater extent than or less province legislatures without the required 34 valid resolutions.  None of these groups appears to take keep made whatsoever elbow grease to distance themselves from Prof. Natelson’s views. 

     This equally good puts to rest, ane time too for all, the notion that advocates of an Article V convention somehow stand upwards for a principled difference from politics equally usual.  If they are opened upwards to disregarding the constitutional prerequisite of 34 province resolutions prior to the calling of an Article V convention, no ane should aspect that they volition honor Article V’s requirement that 38 states ratify whatsoever proposed constitutional amendments earlier they accept effect.  And they for sure volition non honor province resolutions purporting to command convention delegates or their ain promises almost limiting the compass of an Article V convention. 

     The elbow grease to telephone outcry upwards an Article V convention is non almost aspirations for a improve country.  Instead, it is really much an extension of the single-minded, bare-knuckles, construct of interest-group politics that has dominated inward recent years.  The exclusively difference is that the stakes are fifty-fifty greater.