Unraveling part of a new Constitution convention riddle

A House representative from California wants Congress to investigate claims that 34 states have asked for a second constitutional convention. But even verifying that those states have asked for such a meeting seems problematic.

Representative Duncan Hunter said last week in a letter to House leader John Boehner that Michigan’s action on March 26 should trigger a move in Congress to figure out if 34 states have now asked for a constitutional convention.

The topic of the convention would be narrow. Representatives for all 50 states would draft a proposed amendment to be ratified by at least 38 states and the amendment would require the federal government to balance its budget.

That is the simple part of the story. It gets much more complicated explaining how Michigan’s move and Hunter’s request relate to one of the more interesting constitutional topics in recent years: the mechanics of calling a constitutional convention.

As you’ll recall, there was a constitutional convention back in 1787 in Philadelphia that resulted in a Constitution that replaced the Articles of Confederation. And Article V of our current Constitution lays out to ways to amend the Constitution.

One way has been used 17 times since the 10 amendments in the Bill of Rights were ratified in 1791. So far, amendments have originated in Congress and been sent to the states for approval. Once three-quarters of the individual states ratify an amendment, it becomes the law.

The second method has never been used. It involves petitions from at least 34 states to call a constitutional convention, where one or several amendments are proposed. The amendment or amendments are then sent on to the states, where 38 states are needed for ratification.

If you are really interested in the constitutional convention (or ConCon) controversy, there is an excellent overview available from Thomas Neale at the Congressional Research Service. It discusses the background of the Article V debate and some current movements underway to bring some issues to national prominence using Article V.

In the case of Michigan and Hunter, the issue at hand is if there really is a quorum of 34 states, since some states rescinded their balanced budget petitions after a 1980s balanced budget movement led to an initial wave of petitions.

Neale points out that in 2013, Ohio approved its balanced budget amendment petition to Congress, which surfaced problems that would be triggered if another state made a similar move.

“Depending on the observer’s position on the questions of timeliness and rescission, Ohio could be the 33rd state to apply for an Article V Convention to propose a balanced budget amendment, or it could be the 27th, or the fourth, or conceivably only the first,” Neale said in his report.

Since 1982, when 32 states had filed petitions focused on a balanced budget amendment, nine states rescinded their petitions. But then three states changed their minds and sent new petitions to Congress. So that would put the theoretical number of states with potentially active petitions at 28 states – if there isn’t an expiration period for the petitions.

“With the recent decision by Michigan lawmakers, it is important that the House – and those of us who support a balanced budget amendment — determine whether the necessary number of states have acted and the appropriate role of Congress should this be the case,” Hunter asked in his letter to Boehner.

Gregory Watson, the Texas official who led the drive to get the 27th Amendment ratified in the 1990s, told the Washington Times that it is an open question about the number of states that have active petitions.

“There is a disagreement among scholars as to whether a state that has approved an application may later rescind that application,” Watson said. “If it is ultimately adjudicated that a state may not rescind a prior application, then Ohio’s 2013 application for a Balanced Budget Amendment convention would be the 33rd and Michigan’s 2014 application would be the 34th on that topic.”

We also spoke with Nick Dranias from the Goldwater Institute, who is spearheading a separate effort to get the balanced budget amendment in front of the states in the form of an Article V convention.

“The move to count balanced budget amendment applications is well-intentioned but could easily backfire disastrously. If Congress presumes to aggregate both vaguely similar and rescinded applications in calling a convention for proposing amendments under Article V, it would thereby claim the power to call a convention for which two thirds of the states have not, in fact, applied,” he said.

Dranias believes such an act would expand congressional power in the Article V process, when the Founding Fathers wanted a second way to amend the Constitution that belonged to the states.

“If Congress were to set a precedent for disregarding the expressed intentions of the states in mixing and matching non-identical and rescinded Article V applications, this would be a huge usurpation and consolidation of power in Congress over the Article V amendment process,” he said.

And the Congressional Research Service report also talks about an important procedural point: Congress might not know how many petitions it actually has on record.

A group called the Friends of the Article V Convention (FOAVC) maintains what it says is a mostly complete online archive of petitions dating back to 1899.

The House and Senate keep separate records of petitions during a session of Congress and then send them to the National Archives.

“There does not, however, appear to be a central repository where these documents are retained for the historical record. According to the National Archives, state applications are scattered through the center’s various congressional document holdings. Given this finding, and the fact that no single legislative branch officer or entity currently is tasked with recording and retaining all state applications for an Article V Convention, no definitive official list of such calls exists,” Neale said in his CRS report.

Hopefully, in the case of the Balanced Budget Amendment, the list of recent petitions should be available to researchers. But the issue is symbolic of a complex constitutional task that would face considerable challenges, especially if Congress was under public pressure to call for a constitutional convention.

Scott Bomboy is the editor in chief of the National Constitution Center.

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