Infighting, Legal Questions Slow ALEC Push for Second Constitutional Convention

With Republicans in control of 32 state legislatures, the American Legislative Exchange Council (ALEC) has been actively pushing the idea of a second Constitutional Convention to rewrite the U.S. Constitution. The nation's first and only Constitutional Convention took place in Philadelphia in 1787 with George Washington presiding.

ALEC has cheered on the idea of a "Con Con" for years, passing multiple resolutions calling for changes to the constitution, hosting workshops and handbooks and even draft resolutions laying out proposed rules of procedure. Everything has been quite cordial and controlled.

However, documents obtained by the Center for Media and Democracy (CMD) reveal for the first time the backbiting between several competing factions vying for state approval of their convention proposals.

Most significantly, these documents reveal a new legal analysis that casts serious doubt on some proponents' claims that they are within striking distance of calling a convention to propose a balanced budget amendment to the Constitution.

If Congress Won't Act, 34 States Can Trigger a Convention

Under Article V of the Constitution, there are two processes for amending it: amendments may be proposed by Congress, or two-thirds of state legislatures (currently 34 states) may call for a convention for proposing amendments. Using either avenue, any proposed amendments must then be ratified by the legislatures of 3/4 of the states (currently 38 states) before they take effect. Because extreme Republican fiscal austerity advocates have not been able to get a "balanced budget" amendment through Congress, they have been pursuing the state-based avenue for several decades, with little success.

Right-wing convention backers mounted a strong push in this year's legislative season, but came up empty-handed in several of their target states and lost momentum when three states (Maryland, New Mexico, and Nevada) voted to rescind their balanced budget amendment convention calls.

Even Republican legislators are having doubts about the wisdom of launching another Constitutional Convention. Although there have been various proposals considered by states attempting to control the agenda, rules, and participants of any convention, there is nothing in the Constitution that limits what delegates can do once a convention has been called. The danger of a "runaway convention" has prompted right-wing groups and icons, like the John Birch Society and the late U.S. Supreme Court Justice Anthony Scalia, to denounce the idea. Idaho Republicans voted down a Constitutional Convention resolution this year and a convention bill was tabled in Kentucky as well.

But this hasn't dampened ALEC's support for the notion. ALEC is continuing to pursue a highly partisan, highly political agenda to rewrite the Constitution primarily for pursuing a fiscal austerity amendment that would effectuate steep cuts in popular programs such as Social Security, Medicare and Medicaid. ALEC has three model proposals and has held workshops at almost every meeting including its most recent meeting in Denver as Rep. Chris Taylor reported.

Factions Vie over Competing Convention Plans

Three groups are actively peddling the Constitutional Convention idea and competing for the attention of ALEC legislators.

The longest standing campaign is being pushed by the Balanced Budget Amendment Task Force (BBATF), started in 2010 and headed by David Biddulph. The ALEC model resolution "Resolution Calling for a Federal Balanced Budget Amendment" asks Congress, under Article V, to call a Constitutional Convention "for the sole and exclusive purpose" of proposing such an austerity amendment. To bolster its efforts, BBATF aggregates "convention calls" going back decades and claims to have 27 states of the 34 needed to convene a Constitutional Convention. The organization's website lists ALEC and the Heartland Institute among its partner organizations.

Compact for America (CFA) was formed in 2014 and is headed by Nick Dranias, a lawyer and former director of policy development at the Goldwater Institute. Its "Balanced Budget Compact Project" requires 38 state legislatures to join an interstate compact calling for a Constitutional Convention (in Dallas, TX) where each state's governor would serve as a delegate. Signing the compact in theory ratifies rules governing the convention, as well a pre-drafted amendment for a balanced budget and debt ceiling. ALEC's corresponding model bill is called "Compact for America: Balanced Budget Amendment." Currently, CFA claims to have five states of the necessary 38. Compact for America received $678,491 in 2015, up from $235,362 the previous year, the organization's initial year of operation.

Citizens for Self-Governance (CSG) is pushing the broadest of the three Article V applications, with a project called the "Convention of States." Created in 2012 by Tea Party Patriots co-founder Mark Meckler and chaired by Wisconsin's dark-money man Eric O'Keefe, CSG launched its ambitious effort to rewrite the Constitution in 2014. Its plan calls for a broad convention to propose multiple amendments to the Constitution that would give states the power to ignore federal laws and Supreme Court rulings they don't like, slash federal spending, and impose term limits. ALEC has adopted this idea as a model bill called the "Application for a Convention of the States Under Article V of the Constitution of the United States." CSG's budget more than tripled between 2011 and 2015 from $1.8 million in revenue to $5.7 million, and its proposal won passage in four states this year, for a total of 12 states.

Infighting Disclosed in ALEC Documents

At the Denver ALEC meeting, Meckler and former Senator Jim DeMint (who was recently ousted from the Heritage Foundation's Heritage Action) presented on behalf of the Convention of States application. Biddulph was also present, but for the first time in years, Nick Dranias was missing in action.

Now we know why. Documents obtained by CMD via open records disclose behind-the-scenes infighting between the competing campaigns and support the contention of critics that the state "counts" being promoted by proponents stand on shaky legal ground.

A 2016 memo from BBATF's Biddulph to ALEC's board exposes the level of hostility between the groups. Biddulph charges Dranias with launching a "full-on assault of the traditional Article V process" and attacking both BBATF and Convention of States, and formally asks the ALEC Board to revoke CFA's ALEC membership.

"As you know, there has been a long-instituted gentleman's agreement among the Article V campaigns supported by ALEC to refrain from publicly attacking each other or otherwise throwing each others' ALEC model legislation into disrepute. Mr. Dranias' has thoroughly and repeatedly violated that agreement through his multifaceted attacks on the Article V process and specific Article V campaigns. He has aimed these attacks at both state legislators and Congress," wrote Biddulph.

Biddulph details the criticism from Dranias:

"For instance, on January 16th, in an e-mail directed to members of Congress (see attached), Mr. Dranias openly attempts to discredit the 27 active BBA application count and the aggregation of ALEC model legislation with previous BBA applications. He asserts that the BBA Model Policy provisions in the ALEC Article V Handbook passed by 9 states 'don't add up' with the older BBA Resolutions. He will (sic) lobbied members of Congress February 10 and 11 with the message that the BBA only has 10 constitutionally valid applications, not 27…. Further (the Compact's attacks) damage the ability of their fellow Americans to save our great nation from Federal overreach and national bankruptcy."

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Following Biddulph's letter, Mark Meckler of Citizens for Self-Governance also petitioned ALEC to bounce Dranias.

"Mr. Dranias is attacking the legal aggregation of the BBATF's applications, and is making ridiculous claims about the alleged cost of a traditional Article V Convention as proposed by COS," Meckler wrote, and went on to repeat Biddulph's argument about Dranias casting doubt on BBATF's state count. Compact for America had published a paper estimating that the limited convention it advocated would only cost taxpayers $41,000, as compared to $350 million for an unlimited convention along the lines of the Convention of States proposal.

Meckler asked ALEC to punt Dranias' group for undermining the other factions' efforts. "As a member in good standing of an organization to which we are proud to belong," he wrote, "we hereby request that the ALEC Board of Directors… revoke the membership of the Compact for America for attacking and undermining ALEC model Article V policies… Additionally, we request that the Board revoke ALEC's endorsement of the CFA model policy and any other endorsements of CFA."

Rather than backing down, Dranias wrote a vigorous response to ALEC National Chair Leah Vukmir denying any wrongdoing, doubling down on his assessment of the other groups' proposals, and accusing BBATF and Convention of States of being the ones to inappropriately attack his group.

Ultimately, the ALEC board drafted a letter in response to the quarreling groups declining to revoke anyone's membership and chastising them to "behave with civility and professionalism" and "honor their commitments to each other." CMD doesn't know if the draft response was sent to Dranias, but he was conspicuously lacking from the ALEC Annual Meeting in Denver where the other groups once again gave their Constitutional Convention presentations.

"Aggregation" Is a Major Legal Problem, Say Proponents and Experts

In his letter to Vukmir, Dranias notes that Biddulph and BBATF claim to have secured 27 state applications. But a January 2016 Compact for America report by attorney Jeff Kimball questioned this number, concluding that BBATF has at most 11 valid applying resolutions and possibly as few as nine.

"The issue in Kimble's report is whether the BBATF can aggregate 27 applying resolutions," Dranias wrote. "Attorney Kimble's research indicates that no more than 11 can be aggregated (possibly as few as 9). The good news for ALEC is that either count includes the resolutions that mirror ALEC model legislation."

Dranias argued that ALEC encouragement of discussion and debate over the aggregation issue was important and warned of the risk that Congress would disregard some states' resolutions if not addressed. But, Dranias wrote, "If there is no legal theory that can justify BBATF's position, I personally do believe it would be morally wrong to propagate it—especially to the exclusion of other efforts.

Experts agree that there are serious issues with aggregation.

"CFA's analysis flags important differences in the multiple versions of austerity resolutions passed by the states, and calls into serious question how close the Koch machine is to getting a crack at rewriting the Constitution," said Arn Pearson, CMD's General Counsel. "Even if Congress was willing to add them all together, a convention call based on this hodgepodge would be bogged down by court challenges."

An assessment of Constitutional Convention campaigns by the far right Heartland Institute also questioned the aggregation.

"There exists the question of whether these 16 applications passed primarily between 1976 and 1983 will aggregate with each other and with modern-era applications," wrote Heartland's policy advisor David Guldenschuh. "Congress will have the duty of initially making that assessment. To date, we have limited indications of how inclusive Congress will be in its counting of applications."

The overall effort being pushed by the hyper-partisan ALEC and its allies left law school professor David Super of Georgetown University shaking his head. "When you are pushing a narrow, partisan agenda for constitutional change, planning amendments when you can have the most partisan advantage, you do a lot of damage to the Constitution as a unifying force," said Super. "Everyone has things they don't like in the Constitution, but we should all agree that the Constitution is for all of us, bigger than any one political party."

While citing the groups' progress in some states, the Heartland Institute's Guldenschuh posed the hard question: "[C]an leaders within the movement coordinate their efforts and cooperate with each other" to win an Article V convention, "or will the movement devolve into a circular firing squad as unfortunately happens all too often among conservative groups?"

Judging from the ALEC documents obtained by CMD, along so Compact for America's conspicuous absence from this month's ALEC meeting, the answer appears to be "no."


CMD's research team, including Nick Surgey, contributed to this investigation.

Read all of the Article V Documents mentioned in this article, here.

Mary Bottari

Mary Bottari is the Deputy Director of the Center for Media and Democracy (CMD). She helped launch CMD's award-winning ALEC Exposed investigation in 2011 and is a recipient of the Hillman Prize for investigative journalism.

Comments

Stop lying and using scare tactics. A convention to propose amendment(s) is not a "rewrite" of the Constitution. You'd be fine with a convention of states if it included amendments you favored.

Its sooo tedious reading the musings of yet another left-wing loon, in this case Mary Bottari of CMD, beating up on Convention of States and other Article V efforts. Yes, she may be factually correct in the machinations of some of the infighting between these different efforts but so what? What's absolutely insulting and flat out wrong is her complete lack of understanding of what the Constitution calls for in Article V and how its not legally possible to have a "2nd Constitutional Convention." I am so tired of reading the drivel that stems from that falsehood--i.e the idocy about groups wanting to rewrite the Constitution when the plan is to RESTORE the original intent of the document as ratified in 1789. But oh no, Bottari can't accept that premise when she is bound and determined to undermine the single most powerful--and dare I say only--tool available today to citizens to gain control over our out-of-control federal government. Get a clue, we're trying to save our nation.

No where in article 5 does it talk of rewriting the constitution. It does talk of two different ways to propose an amendment to the constitution. If you are advocating that to propose a amendment is same as rewriting the constitution then where are the 27 rewrites to the constitution with the 27 amendments?? If congress can propose amendments then the people should be able to propose amendments. That is all article 5 is about in a nutshell. The proposed amendments would still have to be ratified by 38 states. It would only take 13 states to vote no to kill any crazy ideas in an amendment. The resolution states only a few subjects that are allowed to be considered for amendments. Anything outside of these areas will not be allowed. The rules of process has been practiced for 241 years and has worked in all that time. A mocked convention was done and went very well with various people from different political backgrounds agreeing to amendments. Try to agree in Congress!

The comments section don’t allow adequate responses to the misinformation in this this left wing propaganda piece. It’s full of inflammatory rhetoric and lies, meant to stir up the site's primary readers. The lies include things the article’s focus on a Constitutional Convention rather than an Article V Convention of States (COS), the lie that Scalia was against a COS, and the idea that there is nothing to limit a COS. Like Scalia said, "The founders inserted this alternative method of obtaining constitutional amendments because they knew the Congress would be unwilling to give attention to many issues the people are concerned with...". He also said the idea that an Article V convention could propose an extreme or unpalatable amendment could also be said about convening Congress. Readers should look beyond this nonsense article and research COS on their own. Our current government leaders, judges, and bureaucrats have gone beyond their authority and need reigning in.

Not unlike how the media treats Donald Trump, the author chooses to highlight an insignificant aspect of constitutional attempts to convene a convention of states, mischaracterized by the author as a constitutional convention. The Framers knew, as did Justice Scalia, that governance by men was frought with danger when wealth and power was the reward. Our Federalist system has been under attack for over one hundred years. Now is the time for an Article 5 convention of states to propose amendments that will rein in the scope and power of the Feds to rebalance the power with the States as our Founders intended. Our freedom is at stake.

Excellent article. It looks like Ms. Bottari hit the lemmings' hot button! People won't stop talking about an Article V convention, an amending convention, a constitutional convention, etc. being the same because it's a distinction without a difference. It's loud and clear the Delegates to such a convention, as direct representatives of the People and based on our unalienable right to alter or abolish our Form of Government as expressed in the Declaration of Independence, para 2, would be able to do whatever they decide to do: change the rules; rewrite and replace the Constitution; change the ratification process; whatever. They say the plan isn't to rewrite the Constitution, but to RESTORE the original intent of the document as ratified in 1789. How about enforcing the Constitution we have, using the Federalist papers to interpret it? Instead they are listening to the courts now which are the same courts they'll run to when the federal government ignores their "amendments." Hello?

No it is not loud and clear of anything except you have not read Article V-It states "proposing amendments" and they would once ratified become "part of this Consitution" neither of which is a"rewrite and replace the Constitution" like you suggest. Nor can this process change the method of ratification. Part of enforcing our Constitution is going to require us to propose amendments that do just what you suggested-using the words of the founders (like the Federalist Papers) to undo the damage the Supreme Court has done to the original meaning of what they wrote. The states must be able to correct/overturn their bad rulings and restore the Commerce Clause and the General Welfare Clause to what they meant when written in a clear way in order for us to enforce it without interference from the Supreme Court again.

This piece appears to be more of a hit piece most that a substantive informative post. It is more about selectively attacking individuals and groups. If I understand the sediments of this one, Amendment XVII, would be a result of a Con-Con. Amendment XVII came from the same Article V process that encompasses the Convention of the States. Amendment XVII was from those that wanted to weaken our system of checks and balances. Convention of the States would hope to repeal that "rewriting" of the Constitution. The federal government was intended to have limited power, reserving the majority of power with the states and the people. The federal government has continuously abused that power with impunity.

The conventionofstates.com process is not a constitutional convention, but rather an amending convention with a specific, focused mandate, to reign in the power of the tyrannical federal government.

It is True that delegates to an Article V convention have the "self-evident right" (acknowledged in the 2nd para of our Declaration of Independence) to throw off the Constitution we have and set up a new Constitution which creates a new government. James Madison specifically invoked this right in Federalist Paper No. 40 (15th para) as justification for what they did at the federal "amendments" convention of 1787. Instead of proposing amendments to the Articles of Confederation as they had been instructed to do, they wrote a completely new Constitution which created a new government. That is why Madison "trembled" at the prospect of an Art. V convention; why Alexander Hamilton "dreaded" one; and why 4 Supreme Court Justices (John Jay, Arthur Goldberg, Warren Burger, Antonin Scalia) warned against it. And the central claim of the COS lobby is idiotic! They claim the remedy for a government which IGNORES the Constitution is to AMEND the Constitution. Hello?

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