'Convention Of States' - From Kakistocracy To Kochistocracy
September 9, 2017

While we suffer hurricanes, heat waves, hacking, and a hairball in the White House, Charles and David Koch tirelessly press on, creating and supporting a diversified portfolio of political initiatives. Among these is Convention of States, which proposes to use a convention of the U.S. States to rewrite the Constitution.

What's the goal of Convention of States? It's succinctly stated on the website:

Citizens concerned for the future of their country, under a federal government that's increasingly bloated, corrupt, reckless and invasive, have a constitutional option. We can call a Convention of States to return the country to its original vision of a limited federal government that is of, by and for the people.

That sounds familiar, right? "...government that is of, by and for the people." Perhaps it's a tip o' the hat to the last clause of the Gettysburg Address: "...that government of the people, by the people, for the people, shall not perish from the earth."

Then again, perhaps it's an entirely different thing - a radical remolding of our government branches and their powers vis-a-vis individual rights, the States, and the private sector. We won't know what a convention of states will do until it's done. (More about that below.)

We do know that Convention of States is a subordinate project of Citizens for Self-Governance (that's what it says on the CSG website). According to the Center for Media and Democracy, Citizens for Self-Governance gets a large stream of funds from the Kochs, among others:


We also know what Convention of States identifies as "the Problem." (It's really a list of four alleged problems, but who's counting?) Here is/are "The Problem"/"problems":

1. The Spending and Debt Crisis
The $19 trillion national debt is staggering, but it only tells a part of the story. Under standard accounting practices, the federal government owes around $100 trillion more in vested Social Security benefits and other programs. This is why the government cannot tax its way out of debt. Even if it confiscated everything, it would not cover the debt.
2. The Regulatory Crisis
The federal bureaucracy has placed a regulatory burden upon businesses that is complex, conflicted, and crushing. Little accountability exists when agencies—rather than Congress—enact the real substance of the law. Research from the American Enterprise Institute shows that since 1949, federal regulations have lowered the real GDP growth by 2% and made America 72% poorer.
3. Congressional Attacks on State Sovereignty
For years, Congress has been using federal grants to keep the states under its control. Combining these grants with federal mandates (which are rarely fully funded), Congress has turned state legislatures into their regional agencies rather than respecting them as truly independent republican governments.
A radical social agenda and an invasion of the rights of the people accompany all of this. While significant efforts have been made to combat this social erosion, these trends defy some of the most important principles.
4. Federal Takeover of the Decision-Making Process
The Founders believed that the structures of a limited government would provide the greatest protection of liberty. Not only were there to be checks and balances between the branches of the federal government, power was to be shared between the states and federal government, with the latter only exercising those powers specifically granted in the Constitution.

The last two - "Congressional Attacks on State Sovereignty" and "Federal Takeover of the Decision-Making Process" - might be dog-whistles to the states'-rights people, the ones for whom The 1861 Slavers' Insurrection will never end. And, "radical social agenda" might likewise be a dog-whistle for the folks who favor religion-based race- and gender-discrimination and oppose the right of women to control their health decisions.

Anyway, according to Convention of States, this double-brace of afflictions is - quoting DeTocqueville here - going to turn us into “a flock of timid and industrious animals, of which the government is the shepherd.”

That quote appears to be a dog-whistle to sheeple-phobes.

Rather than use the existing federal and state political processes to elect more anti-federal-government federal and state officials (which seems to be working rather well for Republicans on the state and federal levels), Convention of States sees the solution as...constitutional amendments: "By calling a convention of the states, we can stop the federal spending and debt spree, the power grabs of the federal courts, and other misuses of federal power."

The amendments on offer from Convention of States are...uh...well, to be accurate, Convention of States is not exactly specific about these amendments. Instead, COS wants the states to call for a convention on "...a particular subject —reducing the power of Washington, D.C. " Then, according to COS, amendments could be considered on these subjects:

  • A balanced budget amendment
  • A redefinition of the General Welfare Clause
  • A redefinition of the Commerce Clause
  • A prohibition of using international treaties and law to govern the domestic law of the United States
  • A limitation on using Executive Orders and federal regulations to enact laws
  • Imposing term limits on Congress and the Supreme Court
  • Placing an upper limit on federal taxation
  • Requiring the sunset of all existing federal taxes and a super-majority vote to replace them with new, fairer taxes.

This agenda is plainly anti-federal-government. More specifically, it's anti-federal-taxation, anti-federal-regulation, anti-federal-spending, and anti-federal-judiciary. It also favors unfettered - or lightly-fettered - domestic and international business.

It's important to note that altering the terms of employment of our federal judiciary and modifying the Commerce Clause would do more than merely promote turnover, enable patronage, and lighten the hand of regulation on business. It's historical fact that the federal courts have been a primary engine of preventing, outlawing, or limiting discrimination in education, housing, jury-selection, legal representation, and innumerable other areas of our society. And, the Commerce Clause has allowed the federal courts to extend the reach of federal regulation and civil rights to activities claimed to be merely "private."

The good news - using this phrase in the loosest possible sense - is that there is nothing on this list about, for example, abridging freedom of speech, destroying the wall between church and state, ending trial by jury, allowing warrantless searches whenever police want to conduct them, requiring self-incrimination, etc., etc.

However, the problem is that once a convention of states begins, any provision of the Constitution or the Bill of Rights might be fair game for revision. Thus, the list of civil and criminal constitutional rights that could be trimmed or even terminated in a convention of states is as long and complex as our history.

This is clear from the text of Article V of the Consitution, the political vehicle for a convention of states:

Article V

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

In other words, per the National Archives,

The Constitution provides that an amendment may be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures....A proposed amendment becomes part of the Constitution as soon as it is ratified by three-fourths of the States (38 of 50 States)...

(NB: I've omitted the administrative management of the amendment between these arithmetic points.)

Nothing on the face of Article V limits the scope of a convention's consideration of proposed amendments. Ratification is done either by their legislatures or a state-level convention, either of which Congress specifies during the process. In fact, it's arguable that a convention might even be able to change - or eliminate - the state-by-state ratification process.

So...34 States for a convention, 38 States for a new amendment or amendments - or larger, more comprehensive change to the Constitution's text. Or maybe more or less than 34 and 38. Who knows?

Assuming 38 States for ratification, that might seem like a high hurdle to Constitutional amendments, but as of now, approximately 28 states have open applications for conventions. As the same author notes, this number is in flux. It could move in either direction: a couple of states have rescinded their applications, and a number of red states have not passed applications.

On the progressive side of the aisle, there has been support for a convention to pass a constitutional amendment to overturn the Citizens United campaign-finance decision. However, if a convention could pose serious risks to other civil liberties, attempting to call a convention for this single purpose, however desirable, seems unwise. Given the rightward drift to conservative Republican control of state government and Congress since 2010, it seems safer to try to move a specific amendment through the existing Congressional process - and no less or more likely to succeed at this time, given Republican control of Congress and the majority of state legislatures.

One recent commentator believes that the risk of a convention is low right now because progressives have become more aware of the dangers a convention might pose to existing constitutional processes and rights. And from the Kochs' point of view (and the POV of their peers, like the Mercers), the demolition of the federal regulatory regime is in high gear. See, for example, the damage already wrought by Scott Pruitt at the U.S. EPA. They might conclude that they don't need a convention of states to achieve their goals.

Regardless, the only sure way to put the idea of a convention to rest is for progressive voters in red states and blue states to elect Senators, Representatives, and and state legislators who understand the threat to civil liberties and progressive policy that a convention could pose.

As is often pointed out in this corner, progressives must vote, register voters, and get them to the polls - for 2017 and 2018 Congressional elections and state elections. If we don't, we could face a wholesale reduction or outright destruction of constitutional rights and duties at the hands of a convention of states directed and dominated by advocates for the Koch brothers and their ilk.

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