Yesterday I
suggested that progressives should reconsider the wisdom of increasing the
weight and impact of decisions made in the current political environment. Although supported by only a small minority
of progressives, efforts to call an Article V convention are the most dramatic
efforts to raise the stakes. They also
are the most irresponsible.
Progressive
proponents of an Article V convention initially insisted that a convention was essential
to campaign finance reform. This did not
make much sense for several reasons, including the relative unpopularity of
their vision of such reform with the public and the difficulty of devising politically
plausible reforms that corporations and the ultra-rich could not readily evade.
Most
significantly, a progressive outcome from an Article V convention is
effectively precluded by the solid majority that the American Legislative
Exchange Council (ALEC) and its allies would hold in such a convention. The Center for Media and Democracy surveyed
all fifty states’ laws and found
that Republicans would have complete control over twenty-eight state
delegations, Democrats would have complete control over eighteen, and four delegations
would likely require both Republican and Democratic assent for their
selection. (Those states might prove
unable to choose any delegates.) Only one
state – Rhode Island – provides for popular election of delegates. We therefore would get a convention
completely controlled by whomever the Republican legislative leaders of the
various red states sought to send (most likely themselves) with no need to
compromise, trade votes, or otherwise give progressives the time of day. Even a blue wave election in November will
not give Democrats a majority of the states and is highly unlikely to deprive
Republicans of their majority.
Not surprisingly,
then, the progressive Article V convention effort championed by WolfPAC has run
aground. It peaked in 2016 with just
five states – all of them deep blue – and is now down to two states with active
Article V applications.
Many progressives sensibly
abandoned the project. Those that
continued to support a convention found themselves in a bit of a jam. One response has been, in essence, “trust
me”: proponents insisting that they are
confident that Republican domination of a prospective convention can somehow be
overcome while not offering the barest hint of how that might occur. With laws on delegate selection on the books
and ALEC-aligned Republican majorities having no conceivable reason to change
them, something more than “trust me” seems in order before the country takes to
colossal gamble of opening up its fundamental document to amendment by moneyed
interests.
Indeed, even if
all the ALEC-aligned legislatures miraculously saw the light and amended their
laws to allow popular election of delegates, it is far from clear that
progressives would prevail. The
twenty-sixth-most-liberal state is probably North Carolina, which has a solidly
Republican legislature and Republicans winning most state elections. Several more-liberal states (such as Arizona,
Georgia, New Hampshire, and Wisconsin) also have Republican legislatures while
still more (such as Maine, Michigan, Minnesota, Nevada, and Pennsylvania)
remain very competitive for Republicans.
Progressives would have to run the table of these states’ delegations
unless they could turn one or more even more conservative states, such as
Florida or Iowa. A convention would be a
progressives’ nightmare. (Many progressives
sensibly oppose one-state-one-vote rules for a convention, but those rules
benefit many more states than they hurt.
Some progressives hope that the convention will agree to require a
supermajority to act without offering any plausible reason why Republican
legislators would voluntarily surrender control, least of all in today’s
bare-knuckled political environment.)
Perhaps
recognizing the implausibility of the “trust me” approach, progressive
convention proponents are increasingly declaring that an Article V convention
is inevitable so progressives might as well accept that and start preparing for
it: “the convention is likely coming
regardless and disengagement only guarantees progressives have no voice in the
process”. Both halves of this claim
are problematic. It is far from clear
what “preparation” progressives could do now that would meaningfully affect
what an ALEC-controlled convention might do.
I have heard no concrete suggestions.
And ALEC’s ability
to trigger a convention without progressive collaboration is highly
dubious. To be sure, it has been spending
prodigious sums promoting an Article V convention for many years. (The figures below include various groups
promoting a convention for a balanced budget amendment, groups affiliated with
the Convention of States Project (CoSP), and those promoting a convention to
enact congressional term limits. They do
not include any additional funds that ALEC may be spending directly.)
Yet despite all
that spending, the ALEC-aligned groups have stalled at 28 states, six short of
the constitutional two-thirds threshold.
Over the past decade or so, ALEC-aligned groups claim to have secured Article
V applications from all but three red states, but convention opponents have rescinded
applications in every blue one. With the
purple states more or less evenly split, it is difficult to see a path for
ALEC-aligned groups to get to 34 states honestly even under generous counting
rules. (The tallies presented here
accept proponents’ calculations at face value; the continued viability of
applications passed over four decades ago, and some state-specific aggregation
and interpretation issues, will be for Congress to resolve if proponents start
to move a resolution to call a convention.
The designation of states below as “purple” is admittedly subjective, relying
primarily on elections for state offices.)
ALEC’s allies
began reaching a similar conclusion around 2017 as the last of the blue state
applications from the 1970s and 1980s were being rescinded. They therefore started developing
increasingly far-fetched versions of “fuzzy math” to reach the threshold. They tried arbitrarily designating
applications passed over a century ago for entirely different purposes as
“plenary”, supposedly seeking a convention on any topic. They claimed to have six such ancient
applications in states that had rejected their proposals. Five of those six have now been
rescinded.
One prominent
voice in the ALEC-aligned world argued that Congress should disregard states’
rescissions of Article V applications under the doctrine of “mistake”. He argued that states acted in response to
what he regards as misconceptions about Article V, such as concern about a
“runaway convention.” Few others
embraced this idea, perhaps recognizing what a Democratic Congress might do
with the power to override state legislation on the grounds of “mistake” (e.g.,
force Medicaid expansion under the Affordable Care Act).
ALEC’s allies then
insisted that all Article V applications should be counted, regardless of their
purpose. This would reverse Congress’s
longstanding policy of counting applications together only when they specified
the same purpose for a convention. Had
Congress followed the “all applications count” principle, we would have had an
Article V convention in 1907 and every year since until 2025. Over a century of wildly different Congresses
rejecting this theory, and of states acting on the assumption that applications
could only be aggregated if their purposes matched, casts this theory’s legitimacy
into great doubt. Nonetheless, several progressive
states have responded by rescinding old, dusty applications. At this writing, more than one-third of the
states have no active Article V applications at all.
The ALEC-aligned
groups now seem to have settled on the “time machine” theory. Recognizing that they do not have the
requisite two-thirds of the states today, they insist that, by retroactively
applying their “fuzzy math” theories, they can say their forebears reached this
threshold in 1979. On this theory,
numerous Congresses, including those led by ardent ALEC allies and ones with
majority support for a Balanced Budget Amendment, have been asleep at the
switch for almost half a century. Of
course, this means that the ALEC-aligned advocacy groups were also asleep at
the switch for most of this time and that all their fundraising appeals to help
them get the remaining states they need were, well, unfounded.
Supporters of an
Article V convention to promulgate a balanced budget amendment, congressional
term limits, or limitations on federal powers – the three core principles found
in ALEC-aligned Article V applications – have filed litigation seeking to
compel Congress to call an Article V convention on the “time machine” theory,
to no avail. They reportedly are
preparing new litigation to the same effect.
How they will avoid the Political Question Doctrine, or
establish that a federal court can order Congress to exercise its
constitutional powers, is difficult to see.
And even if they could get heard on the merits, they have little basis
for saying that Congress has been wrong for over a century in how it has
counted Article V applications.
With its path to
34 states largely blocked and little prospect of prevailing in court, ALEC’s
remaining hope depends on winning over just enough gullible progressives. Progressive Article V groups have begun to
work with ALEC-supported ones on the state level. For example, they introduced a resolution in
Maine that would apply for an Article V convention for both term limits and
campaign finance reform. A few years
ago, a Democratic state senator gave ALEC a tie on an Article V application in
Montana.
U.S. House Budget
Committee Chairman Jodey Arrington has repeatedly introduced concurrent resolutions
to call an Article V convention on the “time machine” theory. Republicans lack the votes to move such a
resolution on their own – one prominent House conservative wrote a book
entitled The Con
of the Con-Con – but might prevail if progressive proponents persuade a
few Democrats that an Article V convention could be a good thing.
The cynicism of
the ALEC-aligned convention supporters is difficult to overstate. They insist that the risk of a runaway
convention has been “debunked” and that a convention would somehow be confined
to the purposes specified in states’ applications. (They do not explain who would enforce these
limits or on what authority.) Yet they
now propose to count together all applications for all purposes, including some
that conservatives would loathe. If the
convention is allowed to consider any topic in a state application then world
federal government is on the table. Their mock conventions and fundraising appeals
promote constitutional changes having nothing to do with fiscal responsibility,
limiting federal powers, or term limits – such as capping the Supreme Court at
nine justices or eliminating birthright citizenship.
Moreover, at the
same time they insist that the ratification process will protect us against
untoward amendments ALEC-aligned proponents seem to have settled on public
referenda as their preferred ratification process. This is not one of the options Article V
provides, but apparently they envision the referenda being accompanied by the election
of slates of state ratification convention delegates who would be legally bound
to follow the results of the referendum, much as voters invisibly choose
presidential electors. ALEC’s ability to
package superficially attractive but meaningless “progressive” provisions with
core parts of its agenda, and the ability of its ultra-rich backers to flood
the airwaves in advance of such referenda, should not be minimized. I have yet to see progressive Article V
convention supporters engage seriously with this threat.
In short, the
long, difficult, exhausting effort to prevent ALEC from triggering an Article V
convention that it would control has accomplished a great deal. ALEC does not have a path to a convention that
does not involve picking up almost all the purple states or securing Democratic
defections in Congress. If progressives
recognize this threat for what it is, ALEC cannot prevail. But if progressives wish-cast a convention as
the solution to what ails us, they could mislead just enough state or federal
Democratic legislators to bring this disaster down upon our already-reeling
nation.
@DavidASuper1
@DavidASuper.bsky.social