Article V Litigation: Skeptics’ Top 2 Reservations

Federal Fiscal Sustainability Foundation, our board, and our activist volunteers throughout the country have benefited from thousands of conversations with decision makers and close influentials as to the pros and cons of state litigation to compel Congress to call the convention to propose a fiscal responsibility amendment (FRA).

Some predicates. Economists and finance captains routinely warn that we are close to the day when the global bond market will choke on our trillions in new and refinanced federal debt, driving punishing spikes in interest rates and inflation. State leaders increasingly recognize that their dependency on federal revenues to the tune of 25-50% of their budgets puts the states at extreme risk of sudden fiscal shock. Thought leaders from right to center left now accept the reality that Congress is addicted to debt and must be restrained by constitutional amendment.

Litigation skeptics, please reflect carefully on this:

Two persons among those most intimately knowledgeable about the inner workings of national budget making -- no less than House Speaker Mike Johnson and House Budget Committee Chair Jodey Arrington -- have acknowledged that Congress is unable to restrain its addiction to debt. Both have advocated that the states sue Congress to enforce state Article V power to propose the needed FRA.

By far, the top two remaining objections to Article V litigation are (1) the hypothetical runaway convention, and (2) whether litigation has a credible path to succeed at the Supreme Court. Addressing both in turn:

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38 states must ratify

The operative words in Article V are “… a Convention for proposing Amendments … which … shall be valid … as Part of this Constitution … when ratified by … three fourths of the several States.” Translation for the benefit of John Birch Society and Common Cause, the primary disseminators of the runaway convention theory: an amending convention has no power whatsoever to alter the Constitution in any way. Any proposed amendment must be ratified by the very high bar of 38 states, meaning that 13 states have absolute power to “veto” any proposed amendment. Proposed amendments not supported by broad and cross-ideological majorities stand no chance.

One-state-one-vote

All multi-state conventions without exception -- both before and after ratification of the U.S. Constitution -- have been operated under a one-state-one-vote procedure. This is because the fifty individual and equally empowered sovereign states comprise the amendment proposing convention. California has no less and no more power here than does Wyoming. If an Article V convention were to convene today, the 28 states (all Republican lead) having currently active single-subject balanced budget/fiscal responsibility applications will control the convention agenda and promptly vote to rule out of order discussion of any subject other than identified in those applications.

Readers with any doubt about this should cease listening the Birchers and the pro-debt far left and instead talk with randomly chosen legislative leaders from those 28 states.

States control their delegates

The Supreme Court’s unanimous Chiafalo v. Washington decision of 2020 gives the legislatures of those 28 (and all) states unambiguous authority to direct and to replace their convention delegates who may attempt to stray from subjects identified in their state’s relevant application.

States are backstopping these protections

Pro-Article V legislators and organizations have been working for state adoption of additional layers of protections against a runaway convention. I do not know of a single person among those legislators and organizations advocating a breach of either one-state-one-vote or limitation of convention subject matter to that identified in common among at least 34 state applications.

The National Federalism Commission (NFC, formerly the Phoenix Correspondence Commission) has delegates representing 32 red and blue states. NFC has adopted and published draft amending convention rules, addressing most of the procedural questions regarding how a convention for proposing amendments would operate. These rules include runaway protections.

Sixteen states (AZ, AK, AR, GA, FL, IN, LA, MO, ND, OK, SD, TN, TX, UT, WI, WY) have already adopted “faithful delegate” laws, the key provision of these being to limit delegate activity at an amending convention to the subject matter identified in their state’s relevant application. No state has an Article V convention delegate law authorizing delegates to do otherwise. NFC has recently adopted this model state faithful delegate law.

NFC has also just launched its model “Compact for a Safe and Equal Convention for Proposing Amendments”, taking effect once 26 states have adopted it. This compact would bind adopting states to the one-state-one-vote rule and limit discussion to the subject matter identified in the relevant 34 state applications.

Note: “relevant” applications are those identifying the same subject matter in at least 34 applications valid at the moment Congress’ shall call obligation is triggered by that count.

Is the Declaratory Judgement action FFSF is encouraging the states to file a credible case with a better than even prospect of prevailing at the Supreme Court or is it a tilt at windmills and a waste of judicial resources?

Those having doubts about litigation win odds, please consider these two points:

As to the key issues in the DJ needing resolution, likely by the Supreme Court:

• The “political question” doctrine, is Congress’ “shall call” obligation judicially enforceable?

FFSF position: In Powell v. McCormack (1968), the Supreme Court declared that Adam Clayton Powell had the right to be seated in Congress after being elected. The Court was able to interpret the plain text of the Constitution and ruled that Congress had failed to fulfill its ministerial duty to seat a duly elected representative. The simple textual analysis bypassed the need for a political questions analysis. See also Marbury v. Madison (1803), Baker v. Carr (1962), and Zivotofsky v. Clinton (2012).

• Do applications age out?

FFSF position: Any debate about the age of convention applications died with the 27th Amendment which was proposed by Congress in 1789 and not ratified until 1992.

• Can Congress evade its obligation to call by waiting decades for states to rescind?

FFSF position: The convention for proposing amendments under Article V is an agreement among the states. Once the two-thirds (34 state) threshold is reached, the agreement is consummated. Just like any other contract, “once the bell is rung, the obligations triggered cannot be unrung.” Once the right to meet in convention has vested, any subsequent rescissions are irrelevant. FRA application counts remained at 34 or more for over two decades, during the years 1979-2004 and 2016-2017.

• How similar must application language be to be counted together?

FFSF position: Other than applications requiring specific amendment language or applications containing expiration dates prior to the 34-count trigger date, all applications identifying the problem or issue of deficit spending, balanced budgets, or federal fiscal matters must be counted together. Congress may not combine applications identifying only unrelated subject matter, for example term limits and fiscal limits applications. Congress has no other counting discretion.

• Do plenary (no named subject) applications count with single-subject applications?

FFSF position: Yes, consistent with the fundamental legal principle that “the greater includes the lesser.” Plenary applications may be excluded where expressing an intent to remain operative only if a plenary (all subjects) convention is called.

• May the states limit convention deliberation to fiscal responsibility?

FFSF position: Amending convention decisions are made on the basis of one-state-one-vote. State legislatures may and a controlling majority will require their delegates to vote to confine convention deliberations to the fiscal responsibility subject matter identified in the majority of relevant state applications. As noted above, 28 states today have currently valid, unrescinded single subject fiscal responsibility applications.

• What role does Congress play in amending conventions?

FFSF position: No role beyond counting, calling, setting convention date and location, and specifying Mode of Ratification.