Federalism

Creating Rules of Procedure to Govern a Convention for Proposing Amendments Pursuant to Article V of the U.S. Constitution Director of the ALEC Task Force on Federalism and International Relations, Karla Jones, was invited to discuss proposed rules to govern an amendments convention pursuant to Article V of the U.S. Constitution before the Tennessee Senate Judiciary Committee. The official comments appear below.

Testimony before the Tennessee Senate Judiciary Committee

Prepared by Karla Jones

Director of the Task Force on International Relations and Federalism

American Legislative Exchange Council

September 11, 2017

Good afternoon, Members of the Tennessee Senate Judiciary Committee, and thank you for the opportunity to present today. I’m honored by the invitation. I also trust that you are in touch with others who have expertise in this area.

My name is Karla Jones and I am the Director of the Task Force on International Relations and Federalism at the American Legislative Exchange Council (ALEC). ALEC is a non-profit, non-partisan voluntary membership organization of state legislators dedicated to the principles of limited government, free markets and federalism. Comprised of nearly one-quarter of the country’s state legislators and stakeholders from across the policy spectrum, ALEC members represent more than 60 million Americans and provide jobs to more than 30 million people in the United States. I am also proud to say ALEC has a strong history of leadership, with more than 200 state legislator members holding leadership positions within their legislatures. More than 80 members of Congress are alumni of ALEC, as are seven sitting governors.

ALEC has long been a thought leader on Article V as a method for the states to propose amendments to the U.S. Constitution. ALEC adopted model policy on Article V as a means for the states to propose amendments to the U.S. Constitution almost 30 years ago first published the Article V Handbook to help guide state lawmakers through the Article V process and to dispel myths surround a convention for proposing amendments pursuant to Article V. This Handbook was updated just a year ago, and many of the leaders in the Article V movement count themselves as members of the American Legislative Exchange Council, including some of the committee members here today. I have copies of the Handbook with me for those who might want one.

The Constitutional Framers included a method for the states to propose constitutional amendments for a time such as this when Congressional dysfunction had reached a point where the national government was failing to govern effectively. Gallup recently released the results of a poll putting Congressional approval among Americans at just 16 percent suggesting that the time for the states to exert leadership on some of the more vexing challenges facing the nation has come. To that end, a number of groups are currently pursuing a wide array of initiatives employing the Article V process, and some of these initiatives are closing in on the 34-state threshold that would compel Congress to call an amendments convention making it a good time to develop rules for an amendments convention. Exercises such as simulated conventions as Convention of States held last autumn and a rules making convention such as the one that the Balanced Budget Amendment Task Force is holding tomorrow in Phoenix, Arizona are good preparation for an actual convention for proposing amendments and should help to allay the fears that many Americans have about a “runaway convention” that they worry could result in a complete rewrite of the U.S. Constitution.

Keep It Simple

With respect to the rules governing an Article V convention for proposing amendments, the most important advice I can offer is to keep them simple. ALEC model policy on “Rules” is a single-page, and the longest rules written for a convention of states was roughly 600 words and this was for the Washington Convention of 1861 which was an attempt at avoiding the Civil War. Where precedent is lacking, drawing on Mason’s Manual of Legislative Procedure is a wise option. Mason’s Manual is used in 70 of America’s 99 state legislative chambers so it is familiar and regularly updated.

Follow Established Conventions

While there is no historical memory of previous conventions of states, there is quite a bit of historical precedent upon which to draw. In the 200 years leading up to the Civil War, the colonies and then the states averaged one convention every five years. Sometimes these conventions of states were regional to discuss issues specific to just a few states, and sometimes they were general to address national issues. Since 1861, only one convention of states has been held in the United States. It was a regional convention in the 1940s – the Colorado River Basin Compact.

Conventions historically have followed an established pattern. First a limited issue is identified, and state commissioners are selected in a manner determined by state legislatures. An agreed upon location and date are chosen and once assembled, the commissioners elect officers. Precedent, protocol and common sense hold that each state should have one vote. Attempts at imposing alternate voting structures at previous conventions failed. For example, commissioners wrangled for an entire day to adopt a weighted voting structure and ended up at the end sticking with one state/one vote. Additionally, adopting rules requiring supermajorities should be rejected. The calling of the convention itself is the result of a 34-state supermajority, and ultimate ratification of any amendments coming from the convention will need a 38-state supermajority to be ratified. A supermajority at the convention is unnecessary and in effect makes the hurdle for states to propose constitutional amendments higher than that for Congress which was the opposite of what the constitutional Framers intended. James Madison observed that state conventions are the “federal” alternative to the “national” or congressional method of proposing amendments, so requiring a supermajority at the convention would needlessly disadvantage states in proposing amendments.

Another historically accepted protocol at conventions of the states is that the scope of the convention is limited to the subject of the applications that resulted in the call of the convention. One of the most important rules for the commissioners to determine is penalties for commissioners who violate this rule.

Once a proposal or proposals are adopted by the convention, the convention is adjourned permanently not setting a date to reconvene. This is because conventions are temporary bodies – once they have adjourned, they cease to exist. This is how the Founding Fathers envisioned the unfolding of a convention – a process that was very familiar to them.

ALEC Model Policy

ALEC adopted model policy on the rules for an Article V Convention for proposing amendments in January of 2016. This model policy is consistent with the understanding of ALEC members of the protocol that Framers of the U.S. Constitution expected to govern a convention of the states. ALEC model policy is a single-page and focuses on what ALEC members deemed the most important points to make.

ALEC model policy emphasizes the importance of limiting the scope of the amendments convention to the subject of the applications leading to the convention’s call. While the model policy does not specifically suggest penalties for violating the scope rule, it underscores the importance of establishing some type of disciplinary action for commissioners or delegations that raise amendment subjects for discussion that lie outside the subject of the “Call of the Convention.”

The ALEC model policy also defines a “quorum” as the “majority of the states attending the convention or serving as members of the relevant committee.” This prevents states from scuttling the convention by simply not showing up.

ALEC model policy supports “each State having one vote without apportionment or division.” This is how the Framers envisioned voting to take place and the method that has the most legitimacy. The model policy also reaffirms a simple majority vote on issues before the Convention.

While not specifically referenced in ALEC model policy but is important nonetheless is what to call representatives at a convention for proposing amendments. Delegates and commissioners are the two most common terms used, and I would offer that “commissioner” is preferable. The dictionary definition of delegate “a person sent or authorized to represent others, in particular an elected representative sent to a conference” accurately describes the role. However, in popular parlance “delegate” conjures up images of thousands of delegates at political party conventions. Fear of a “runaway convention” are common, and calling the representatives “delegates” reinforces those concerns. Commissioners was used in the founding era at the most recent regional state convention, and a vision of a diplomatic meeting is a more accurate representation of what an amendments convention would resemble.

Establishing rules for a convention for proposing amendments is a useful exercise. Much like the simulated convention held last year by Convention of States, it should help to demonstrate that if a genuine Article V amendments convention were to occur, it would be an organized, sober consideration of the topic of the 34 applications that resulted in the convention’s call. I have available the full text of the ALEC model policy “Rules for an Article V Convention for Proposing Amendments”, which can also be found at alec.org. Thank you, and I look forward to answering any questions you might have about my presentation.