Is an Article V constitutional convention a ‘con-con'?

The upcoming Democratic and Republican get-togethers in Chicago and Milwaukee aren’t the only possible conventions that are being planned.

An unprecedented action to amend the U.S. Constitution bypassing the long-established process to add or subtract provisions in one of the nation’s founding documents is underway. It’s supposedly seeking to enact term limits on Congress or other relatively reasonable suggestions, but it’s open to upending the whole document.

Article V of the Constitution says, “The Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which … 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.”

In other words, 34 states could ask Congress to call a convention, and if amendments were eventually approved by that convention, ratifying each would require 38 states to agree. 

Where did this unusual thought come from?

“The Article V Convention is a secretive plot funded by millions in Right-wing dark money,” said the nonpartisan Common Cause organization, “a pet project of a corporate-funded, Right-wing group, the American Legislative Exchange Council (ALEC), funded by Right-wing think tanks and big corporations serving the interests of its wealthy donors. Billionaire Charles Koch is a major benefactor.”

The group Convention of the States (COS) says it seeks to “limit the power and jurisdiction of the federal government, impose fiscal restraints, and place term limits on federal officials.”

That may sound rational, if controversial, but a Right-wing agenda could target the National Labor Relations Act or the Bill of Rights, eliminate federal agencies like the Occupational Safety and Health Administration or the Environmental Protection Agency, or effectively kill U.S. Supreme Court rulings such as Brown v. Board of Education (prohibiting segregated schools).

Reasonable? Just consider the rogue’s gallery of extremists who’ve endorsed the Convention of States: Florida Gov. Ron DeSantis, Texas Gov. Greg Abbott, ex-Wisconsin Gov. Scott Walker, House Speaker Mike Johnson, Fox broadcaster Sean Hannity, Sen. Rand Paul, Heritage Foundation President Kevin Roberts, conservative talk-radio host Mark Levin, televangelist James Dobson, and Sarah Palin.

These are MAGA followers, not members of the pre-Trump Republican Party. Even revered GOP moderates and conservatives would be stunned. For instance, Republican President Dwight D. Eisenhower sent the 101^st Airborne Division to enforce integration and protect the Little Rock Nine trying to attend Central High School; Sen. Barry Goldwater was a member of the NAACP and the Urban League and, as a colonel in the Arizona National Guard, desegregated his unit years before federal desegregation of the armed forces; President Ronald Reagan opposed bussing as a financial burden on schools, but he didn’t support segregation. (In fact, in the 1930s, when Reagan was a sports announcer, he opposed segregation in baseball, and when a local hotel refused to rent rooms to African Americans, the future president invited them into his family home.)

“Why would one do this?” asks Anders Walker, a professor at Saint Louis University, where he teaches constitutional law at SLU Law School. “Sam Moyne at Yale argues that a Constitutional convention could help us rid the document of its anti-democratic elements. The infamous ‘checks’ on democracy that Madison devised, for example, the Electoral College and the Senate.

“Moyne envisions a more European-style parliamentary system that would effectively replace the president with a prime minister and do away with the Senate and the Electoral College,” he tells The Labor Paper.

“I think he would also like to curtail the power of the Judiciary,” he adds.

Such a Convention of the States would have each state get one vote. So Wyoming, population 570,000, would get a voice equal to California, population 39 million. (Actually, Fresno, Calif., has about the same number of people as Wyoming: 540,000).

State legislatures and/or governors would pick delegates, except Rhode Island, where people would be able to vote on the issue, according to a Center for Media and Democracy (CMD) survey of state laws. Probably affected by gerrymandered districts, the GOP controls 31 states, Democrats 15, and 4 are split, CND reported.

Ex-Sen. Rick Santorum, a Pennsylvania Republican and a leader of the COS organization, said, “We have the opportunity as a result of that to have a supermajority, even though ... we may not even be in an absolute majority when it comes to the people who agree with us.”

The notion literally has never been done, so it’s unclear how it could proceed, who’d enforce the call, etc.

“It’s a horrifically anti-majoritarian vehicle for amending the constitution, and hugely imbalanced against one-person, one-vote,” Chicago labor lawyer Thomas Geoghegan tells the Labor Paper.

The author of the award-winning 1991 book “Which Side Are You On? Trying to Be for Labor When It’s Flat on Its Back,” reissued in 2004, Geoghegan adds. “No other democracy would permit such an undemocratic way of amending the constitution.”

Some Article V advocates favor adding a presidential line-item veto, or eliminating any campaign-finance regulations, but delegates arguably could propose any change. Once the delegates convene. an Article V Convention of States could tweak some things or try to reshape the whole document.

It’s beyond theoretical. Dozens of states have already passed resolutions (although some have rescinded previous approvals, such as Illinois, in 2022). Currently, according to Jay Young, Executive Director for Common Cause Illinois, the Convention of States effort has 19 states signed up; the Balanced Budget Amendment ("BBA") campaign has 28 states; and the term limits campaign has 8 states.

In January, DeSantis urged Florida get on board, commenting, “Washington is never going to reform itself. It’s going to be up to us to take power away from D.C.”

There are varied dangers, says Walker, also author of “The Burning House: Jim Crow and the Making of Modern America.”

“The risks involved in such an endeavor would, to my mind, be significant,” he says. “We currently boast the world's oldest living Constitution that has promoted a dynamic, competitive, creative system of free enterprise.  Said system has made America into an economic and cultural leader globally, meanwhile avoiding a descent in authoritarianism.  Importing European-style systems to America will probably fail for cultural reasons.”

And even more drastic, “states’ rights” result could also occur.

“Another idea might be to return to the Articles of Confederation, an arrangement that granted states much more power than they currently wield,” Walker says. “That, ironically, would diminish the power of the federal government and turn us into another version of Europe, a discordant set of sovereign states who cannot agree on a common market and are currently in the middle of a destructive 20^th century-style land war.”

Amendments aren’t necessarily bad, of course. But looking at the 27 constitutional amendments passed since 1788, they’ve often been difficult to ratify. For example, the Equal Rights Amendment, which prohibits discrimination based on gender, was first proposed in the 1920s. The U.S. House OK’d it in 1971, the Senate in 1972, and Congress set a March 22, 1979, deadline for ratification. Thirty-five states did so before conservatives mounted an opposition campaign. Five states then tried to revoke their approval (a disputed action), and the three final approvals came in 2017 (Nevada), 2018 (Illinois) and Virginia (2020). Nevertheless, the ERA is tied up in litigation, and women still aren’t legally affected by the 14th Amendment’s Equal Protection Clause.

“The 14^th Amendment passed only because the South was not voting in any true sense – same with the 13^th.  Otherwise, slavery would still be in the Constitution,” Geoghegan says.

That’s not lost on COS’s Mark Meckler, a co-founder of Tea Party Patriots, who at an ALEC summit in San Diego in 2021 responded to concerns that progressives would be excluded in the new Constitutional Convention by saying that Tories had no role in the crafting of the Constitution and that Confederates had no choice in the adoption of post-Civil War amendments.

Viki Harrison, Director of Common Cause’s Constitutional Convention and Protect Dissent Programs, warned, “This isn’t some far-fetched conspiracy theory. “Experts are calling this the biggest present threat to our democracy.

“Just six states stand between us and a dangerous attempt to radically reshape our Constitution.”