This week, Virginia’s General Assembly considered applying under Article V of the U.S. Constitution for a convention to propose amendments to the U.S. Constitution. The final “no” vote from Virginia may seriously take the winds out of the sails of the effort nationwide. Virginia is home turf for both Mark Levin and Michael Farris, key proponents of a “Convention of the States” campaign. However, some have been introducing an Article V Convention year after year in Richmond, so it may very well return next year.
The decision was a highly controversial, high-stakes contest of two completely alternate understandings of what would happen if the States try to propose amendments. But it didn’t have to be this way. It didn’t have to be such a stark “all or nothing” choice. The unfortunate and frustrating part of all of this is that Roman Buhler of the Madison Coalition started out with a brilliant and perfect strategy and plan.
We need to return to Roman Buhler’s original game plan. But when the money started flowing for a “Convention of the States,” Roman Buhler’s original plans got lost in the stampede. Nearly a year ago, I talked personally with Roman about his efforts to raise the necessary funds to carry out his strategy. He wasn’t able to pull together enough resources and interest to do this right.
Roman Buhler’s plan was to start by getting the States to define more precisely just exactly how an Article V Convention would work in State laws and State Constitutions. That would have mostly eliminated the risk and all the controversy. Instead of both sides screaming about what they believe the actual procedures might turn out to be, Roman wanted to actually create those rules and set them in stone ahead of time.
The idea was to set the rules of the game first, before calling for an Article V Convention. Instead what we got was “Fire. Ready. Aim.” In the tea party era, one of conservatives’ biggest errors is a feeling that we don’t have time to do anything the right way. Everything is a crisis. So better to make a mess of things in a hurry than to plan carefully and act methodically to achieve real success.
So rather than fight about the great unknown and uncertainty we face now, Roman Buhler proposed to get at least 14 states to pass laws to define exactly how all of this would work. Or better yet amend their State Constitution. The idea is that because the States must ratify an amendment, the State can define its own process for ratifying or rejecting an amendment. Each State should set the game rules ahead of time for how it is going to decide.
Because a proposed amendment must be ratified by three quarters of the States (38), getting 14 States to erect a fire wall of safeguards and procedures would make it impossible for bad amendments from a “runaway convention” to be ratified. Not only would this help prevent a bad outcome, but it would help discipline an Article V Convention in the first place, knowing that an amendment would have no chance without satisfying certain criteria.
The plan was to get at least 14 States to amend their State constitution or at least pass state laws, so that
- Any delegate to the convention would be bound to vote as instructed by the State
- Any delegate to the convention would be bound to vote against any amendment that was not part of the reason that the Article V Convention was called.
- The State would automatically reject (vote no on) any proposed amendment to the US Constitution unless it meets certain criteria of procedure.
So in addition to passing State laws, an amendment to the State Constitution could say something like:
In the exercise of its authority to either ratify or reject any proposed amendment to the U.S. Constitution, this State hereby rejects any such proposed amendment submitted to it at any time in the future if proposed by a convention called under Article V of the U.S. Constitution and if
(a) the proposed amendment is not on a topic upon which the States called for a convention under Article V,
(b) the Article V convention was not organized so as to represent the States with equal voting power,
(c) the delegates to the Article V convention purporting to represent this State were not chosen by the method determined by the legislature of this State,
(d) votes at the Article V convention were unrecorded voice votes subject to the opinion of its chair,
(e) the delegates to the Article V convention included any currently serving Member of Congress or State legislature, official of the U.S. Government, or sitting judge, or
(f) the Article V Convention attempted to alter the ratification procedure and requirements required by the U.S. Constitution.
Now, it would be better to define these things at the Federal level. But the whole goal here is to force changes upon the U.S. Government that Washington insiders don’t want to accept. So taking actions that would make it easier for the States to force changes on Washington would probably not be embraced by the U.S. Congress. That is why Roman Buhler and the Madison Coalition came up with this brilliant strategy of building a firewall at the State level, to discipline anything that happens in an Article V convention.
There is also a theory that the more real the threat of State action becomes, the greater the pressure on the U.S. Congress to behave. Making an Article V convention more possible may help pressure Washington. Having an unacceptable risk from an Article V convention means that the U.S. Congress can totally dismiss concerns expressed by the States.
Editor’s Note. An Article V Convention has strong proponents and opponents locally and across America, including within conservative circles. Smart, well-intentioned people disagree on such a convention. The Fairfax Free Citizen welcomes both pro and con articles and comments about it. An open and insightful exchange of ideas about a possible Article V Convention will help inform readers and may contribute to building a consensus on this controversial subject.