The Article V question

Because the GOP is now the party in power in Maryland, the biannual conventions will have more cooperation and less acrimony. The Fall Convention (which I did not attend for the first time in eight years) was described as a “love fest,” so I suspect the spring edition coming up next weekend in Ocean City may be more of the same.

But there will be a couple interesting and controversial pieces of business brought before the body, with the resolution in support of an Article V Constitutional convention the one likely to draw the most spirited argument. Lee Havis of Prince George’s County is spearheading the proposal, which reads:

Resolution in Support of an Application by the State of Maryland for a Convention of the States under Article V of the Constitution of the United States

Whereas, the State of Maryland has a duty to protect and defend fundamental rights of life, liberty and equal protection of the laws of its citizens from abusive actions and repression of these rights by unrestrained government, and

Whereas, the current operation of the federal government imperils these basic rights through excessive centralized control and lack of sufficient accountability to restrain its actions to a proper interpretation of the Constitution of the United States, and

Whereas, Article V of the Constitution of the United States provides that the Congress, on the Application of Legislatures of two thirds of the several States, shall call a Convention for the purpose of proposing Amendments to this document, such as to restrain these actions and related abuses of power,

Be it therefore resolved by the Maryland Republican Party that:

The Maryland Republican Party supports the application by the State of Maryland for Congress to call an Article V convention of the states for the purpose of proposing amendments to the US Constitution to impose fiscal restraints on the federal government, limit the power and jurisdiction of the federal government and limit the terms of office for its officials and members of Congress.

On its face, the resolution makes good sense. Because Congress cannot (or will not) place a check on its appetites for spending, regulation, and lifetime tenure, it would have to fall to the people to demand such a change. But opponents argue that there would be no limit on where the convention could go, and fret that regressives on the Left would hijack such a convention to remove the Second Amendment and put onerous restrictions on others in the interest of “fairness” and “equality.” They further argue that the Left is ignoring the Constitution as it is, so why go through the effort.

To buttress the point of opponents, it should be noted that regressives in the Maryland General Assembly introduced their own Article V resolution (SJ2/HJ2), but in their case it was intended to preserve what they consider voting rights and overturn the Citizens United decision:

WHEREAS, The General Assembly of Maryland favors the proposal and ratification of a “Democracy Amendment” to the U.S. Constitution to affirm every citizen’s individual right to vote, reject the doctrine that artificial entities have inalienable political rights, regulate campaign contributions and electioneering expenditures, and restore free and fair elections in America, and desires the convention to be limited to that purpose…

The Senate bill passed the Education, Health, and Environmental Affairs Committee with a 7-4 vote, and it’s passed the Senate by a 29-18 vote. (I don’t have that roll call yet.)

It brings up an interesting legal question as to the specificity of the state’s request for an Article V convention: if Oklahoma passes a call for a convention to deal with the balanced budget amendment, limitation of powers, and term limits while Maryland passes its version, do both states count toward the 2/3 needed? In both instances, the idea is to limit the purpose of the Article V convention but as one opponent pointed out, the idea of the original constitutional convention was to repair the Articles of Confederation, not replace them – instead, we came up with a whole new document.

Regardless, a Washington Times story from yesterday by David Sherfinski highlights a new approach by proponents; in this case Virginia State Senator Richard Black is being targeted for defeat. (In Black’s case, though, it would have to come from an independent candidate as the deadline to contest the GOP primary has passed.)

Presumably Republicans would like to not have regressives like Maryland General Assembly Democrats tinker with the Constitution, yet two Republican Delegates (Susan Aumann and John Cluster) were co-sponsors of HJ2 and Senator Bryan Simonaire voted for SJ2 in committee. It’s possible that other Republicans may have voted for it in the Senate, but as I noted the roll call is not up yet. We have close to four years before the next election, but the proponents (led by Mark Meckler, one of the founders of the Tea Party Patriots) will likely have more than a few Republicans in Maryland to target.

If this state party resolution even makes it to the floor – a dicey prospect at best – I don’t think it will pass. I would tend to agree with the opponents because there’s nothing in Article V that places a restriction on what can be accomplished. I understand Congress isn’t working on the issues conservatives care about, but we run a great risk of losing what freedoms we have should an Article V convention be called.

Will Maryland join a Convention of States or an Article V Convention?

By Cathy Keim

The push for an Article V Convention is growing nationwide, and it is coming from both sides of the political spectrum. The citizens are aware that they are not being heard and they are looking for ways to correct this.

An Article V Convention or Convention of the States is one of two ways to amend the Constitution of the United States. In case you’ve forgotten, here is 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, (emphasis added) 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

All previous amendments have been through Congress. However, the Convention of States method has been utilized to put pressure on Congress to act. For example, the states wanted to have direct election of their senators but Congress would not oblige – so the states began the process of calling for a convention of states. Once they got within one state of achieving the two thirds needed, Congress acted rather than losing its prerogative. (This led to the Seventeenth Amendment.)

Maryland has legislation under consideration now which states:

Applying to the U.S. Congress for an amendments convention called under Article V of the U.S. Constitution, on the application of the legislatures of two-thirds of the several states, to propose an amendment to the U.S. Constitution that affirms every citizen’s freedom to vote and restores free and fair elections in America.

This bill is filed as HJ2 by Delegate Sheila Hixson and is cross-filed with SJ2 by Senator Paul Pinsky. It was introduced last session also, but did not come to the floor for a vote. (Editor’s note: The Senate version from 2014, however, passed committee 9-2 with all three Republicans on the Education, Health, and Environmental Affairs Committee voting yes.)

Reading the bill summary left me perplexed. Who thinks we need an amendment to restore free and fair elections? My mind thought of voter fraud, but who would want to amend the Constitution to fix that issue? After some phone calls to Delegate Hixson and Senator Pinsky’s offices, though, the confusion was cleared up.

This bill is the result of the work of Get Money Out of Maryland (GMOM) and its allies. They claim to be bipartisan, but the groups in the allies list lean distinctly progressive.

The bills have a total of sixty-nine sponsors of which two are Republicans, so I suppose that makes it bipartisan.

GMOM states:

The Citizens United v FEC decision by the Supreme Court opened the floodgates for unlimited campaign expenditures in elections, which corporations and the extremely wealthy have used with devastating impact in the last few elections. This misguided decision reversed decades of campaign finance regulation at the state and federal level, turning our public elections into private auctions. With regard to voting rights, Supreme Court justices in the Bush v Gore decision declared that there is no individual right to vote in the Constitution and in its aftermath, there has been a concerted attack upon the right to vote across the country. These legal travesties require remedy if we are going to preserve representative democracy and create a more perfect union. (Emphasis in original.)

According to Senator Pinsky’s spokesman, the principal point of this amendment is that there is too much money in politics since the Supreme Court ruling in the Citizens United case opened the floodgates. GMOM wants the Citizens United ruling reversed so the only option is to exert pressure on Congress via an Article V Convention to amend the Constitution. Their expectation is that Congress will act if the states approach the two-thirds approval level as happened with the direct election of senators.

GMOM states that Vermont, California, Illinois, and New Jersey have already passed the “Democracy” amendment and several other states, such as Maryland, are considering the bill now.

Working from the opposite side of the political spectrum is the group Citizens for Self-Governance which states:

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.

They also add:

Rather than calling a convention for a specific amendment, Citizens for Self-Governance (CSG) has launched the Convention of the States Project to urge state legislatures to properly use Article V to call a convention for a particular subject—reducing the power of Washington, D.C. It is important to note that a convention for an individual amendment (e.g. a Balanced Budget Amendment) would be limited to that single idea. Requiring a balanced budget is a great idea that CSG fully supports. Congress, however, could comply with a Balanced Budget Amendment by simply raising taxes. We need spending restraints as well. We need restraints on taxation. We need prohibitions against improper federal regulation. We need to stop unfunded mandates.

Both sides of the debate assure their followers that the Article V Convention cannot spiral out of control and rewrite the entire Constitution once they convene. Their main defense against this is that any amendment that comes out of the convention still has to be approved by three quarters of the states, thus giving ample room for rogue amendments to be stopped.

You may want to keep an eye on how Maryland’s effort plays out this legislative session – although from the progressive side, it still illustrates the discontent that is growing as citizens realize that their overlords in DC are not listening to them. It is striking (and terrifying) that the progressives feel that President Obama is not doing enough to reach their goals, while the conservatives feel attacked and denigrated by their weak and ineffective leadership under Speaker Boehner and Senate Leader McConnell.

Perhaps the only people happy with the current system are the politicians that are in power and the wealthy elites and crony capitalists that consort with and fund their campaigns. Outside that narrow group, there is a battle brewing.