State Leaders Float The Idea Of A Constitutional Convention

Some state Republicans who are frustrated by a lack of action on their priorities are eying a never-before-used constitutional provision to bypass Congress: A constitutional convention.

RACHEL MARTIN, HOST:

Their party may be in the driver's seat in Washington now, but some state Republicans are frustrated by a lack of action on their priorities. So they're thinking about a constitutional provision to bypass Congress that's never been used before, a constitutional convention. Josh James with member station WUKY explains.

JOSH JAMES, BYLINE: It may not be trending in your newsfeed just yet, but hop on over to YouTube, type in Article V convention, and you'll discover a debate raging over reopening the nation's defining document.

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UNIDENTIFIED MAN: The United States Constitution gives we the people the power to put the federal government back in its constitutional box.

JAMES: If all this sounds a little arcane, bear in mind that the last time such a gathering took place was in 1787, when the Founding Fathers scrapped the Articles of Confederation in favor of our modern Constitution. Since then, amendments have taken the same route to becoming law - passage in Congress and ratification by the states. But as Western Kentucky Representative Jim DeCesare explained in a state House committee recently, there is another option.

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JIM DECESARE: It takes 34 states to submit an application on the same issue to have that convention of states.

JAMES: Thirty-four, that's the magic number. And by some counts, the country is surprisingly close.

JASON BAILEY: It's no longer, you know, a fringe idea or a longshot chance. It's an actual chance of happening.

JAMES: Jason Bailey with the left-leaning Kentucky Center for Economic Policy says more generous estimates put the current total at 29 states, generous because tallying the numbers is tricky. State resolutions call for different things - a balanced budget amendment, term limits or other items typically aimed at reining in the federal government.

So why the push and why now? Proponents seem to be drawing upon the same well of voter discontent that fueled the Tea Party movement and Donald Trump's no-holds-barred campaign. Representative Tim Moore.

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TIM MOORE: We as a commonwealth have an expectation that has not always been met by our federal government, no matter who's in power, which party, which individual legislators. And so that's why this whole dynamic has initiated itself.

JAMES: After holding a hearing on the issue recently, Kentucky lawmakers decided not to hold a vote on a convention. But resolutions are either still active or stalled in four other states. The question that looms largest in those committee hearings - can states limit what amendments the convention considers?

Legal experts are split. Republican senator and attorney Wil Schroder calls the issue problematic but points to firewalls preventing something, quote, "crazy" from making its way into the Constitution. First, states could recall delegates, he says. And secondly...

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WIL SCHRODER: If the delegates are elected officials, they're going to have to answer to the people even if they're doing something outside of their normal legislative capacity. Thirdly, and probably most importantly is that there's going to be a ratification process.

JAMES: But skeptics liken the idea to opening Pandora's box, potentially placing the Constitution into the hands of a small group of likely powerful interests with no supervising authority. Again, Jason Bailey.

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BAILEY: Anything and everything that we hold dear in terms of our protections and freedoms, the Bill of Rights, the basic balance of powers that was written in the Constitution, all that could be changed. And it's a very risky and dangerous proposition that - especially at this time when the nation is so divided.

JAMES: For now, it's unclear whether a movement which gained traction under President Obama will maintain momentum under President Trump. But events like the recent failed attempt to repeal the Affordable Care Act could reinforce convention backers' belief that their only hope lies in uncharted constitutional waters. For NPR News, I'm Josh James in Lexington, Ky.

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