Will Corporations, The Christian Right, and the Tea Party Get to Rewrite the Constitution?

About Peter Montgomery

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This article appears in the Fall 2017 edition of The Public Eye magazine.

Former U.S. Senator Jim DeMint (R-SC), the Tea Party icon who helped bring Ted Cruz (R-TX) and Mike Lee (R-UT) into the Senate, was ousted after four years as president of the Heritage Foundation in May 2017.1 DeMint had thought he would have more influence on policy from his perch at Heritage than he had in the Senate. But as it turned out, there was not only life after Heritage, but the possibility of greater influence still. “I feel like the Lord knows what He’s doing,” DeMint told broadcaster Glenn Beck, because now “I’m in a place where I can make a much bigger difference.”2

The place where DeMint could make a bigger difference than as senator or head of the 800-pound gorilla of right-wing think tanks is Convention of States,3 a group mobilizing an effort to rewrite the U.S. Constitution through a set of amendments that would drastically limit the taxation, regulatory and oversight powers of the federal government and restructure our constitutional order into one focused on states’ rights. DeMint joined the group as a “senior advisor” and sees the project as a new Tea Party mission that’s “much bigger than the Tea Party.”4

Convention of States is a political alliance between elements of the anti-regulatory Corporate Right and the Christian Right, organizing toward a constitutional convention that would destroy the underpinnings of Great Society projects like Medicare and food stamps, and New Deal programs like Social Security. They’re also turning their sights on the progressive gains from the turn of the 20th Century, such as the 16th Amendment, which allows the federal government to collect income taxes and which they believe started the disastrous course toward big government.

This effort, like the older, more focused drive for a convention to advance a balanced budget amendment, is promoted in part by the libertarian Koch brothers’ network—often called the “dark money ATM of the Right”—and the right-wing organizations they fund, like the American Legislative Exchange Council (ALEC).5 And it draws support from Christian Right figures rooted in Reconstructionist theology that believes God reserves tasks like education or caring for the poor for churches and families, not government.

Americans who feared the election of Donald Trump and Republican majorities in Congress would undermine Obama-era victories on healthcare and LGBTQ equality were right, of course. But that’s the tip of the iceberg. These battles represent a tiny piece of the Right’s long-term political vision of dismantling the federal government.

Political Research Associates published significant work in 2013 and 2014 by Frederick Clarkson, Rachel Tabachnick and Frank Cocozzelli on right-wing approaches to limiting or eroding the power of the federal government. These included various proposals for interstate compacts and different convention proposals.6 Also covered were threats of secession and civil war, and arguments for nullification7—the theory, repeatedly rejected by the Supreme Court, that states can ignore or defy federal laws or court rulings they deem unconstitutional. Some segregationists championed nullification as a response to Brown v. Board of Education and some on the Right still call for a nullification strategy to resist developments on immigration,8 abortion rights, and marriage equality.9 All this is part of the political and religious context in which the rise of Convention of States is happening. And it has gone profoundly underreported.

Article V outlines two approaches for altering the Constitution. Every constitutional amendment to date has followed the first: Congress proposes an amendment with a two-thirds vote of both houses; it becomes part of the Constitution if it is ratified by three-quarters of the states. The second approach requires Congress to call a “convention for proposing amendments” when two-thirds of states apply for one via their state legislatures. Any proposed amendments would also require approval by three-quarters of the states before ratification.

Organizers of a convention focused on a balanced budget amendment have 27 of the 34 states required and have identified nine targets to take them toward their goal, which they hope to reach by July 4, 2018.10 The broader anti-federal-government Convention of States proposal has been approved by legislatures in 12 states; in nine more, a call passed one house of the legislature. According to Convention of States, more than 20 states considered legislation in 2017.11

The broader anti-federal-government Convention of States proposal has been approved by legislatures in 12 states. Image: Political Research Associates.

A Solution as Big as the Problem

States have long used the threat of a convention to pressure Congress to propose desired constitutional amendments. In the 1960s, 33 states called for a convention to oppose the Supreme Court’s “one person, one vote” rulings, which some feared would hurt rural interests; momentum faded as concerns about the uncertainties of calling a convention arose and the feared impacts on rural areas failed to materialize.12

Conservatives opposed to government growth and worried about deficit spending have made repeated efforts to get a Balanced Budget Amendment into the Constitution, either via Congress or an Article V convention. After a flurry of organizing and state applications in the 1970s and ‘80s, the effort had gone somewhat fallow. But with a focused effort by the Balanced Budget Amendment Task Force since 201013 and a push from ALEC, proponents of a Balanced Budget Amendment have come within striking distance of the 34 states required to trigger the Article V mechanism. Complicating the picture is an effort led by the Texas-based organization Compact for America, which is promoting a balanced budget amendment through an interstate compact, under which groups of states legally commit themselves to a joint project (usually around regional issues such as water use). Its supporters argue that this “next-generation Article V movement” could lead to a much quicker ratification process once enough states have signed on.14 As of August 2017, Compact for America listed five states as members.15

But even as balanced budget advocates advanced, another right-wing movement, Convention of the States, emerged, pushing states to go bigger and bolder. They want to call a convention to consider amendments in three areas: fiscal restraints on the federal government, including limits on taxation; limiting government power and “restoring the Constitution to its original intent,” which could include restrictively redefining the Constitution’s general welfare and commerce clauses; and imposing term limits on all federal officials, including the judiciary.16 Advocates call their proposal “a constitutional solution that’s as big as the problem.”17

Further muddying the waters is the fact that not every convention advocate is right-wing. Progressive activist and Young Turks host Cenk Uygur started a political action committee, Wolf-PAC, which in 2011 began urging state legislators to call a convention to propose a constitutional amendment to overturn the Supreme Court’s Citizens United decision and empower Congress to limit the role of money in politics.18 The effort has created conflict between Uygur and Common Cause,19,20 a national group focused on the influence of money in politics that supports a constitutional amendment but opposes the convention route.21 In 2016, Rhode Island became the fifth state to approve a convention call to consider an amendment on “free and fair elections.”22

Activists who have been working to sound an alarm about the threat of such conventions say their biggest problem is that people haven’t been aware of the Right’s efforts and what they could mean: that, in the words of Democracy 21’s Fred Werthheimer, “Every constitutional right and protection would be up for grabs.”23

“Every constitutional right and protection would be up for grabs.”

Who’s Behind This?

The campaigns for a balanced budget amendment and larger anti-federal-government convention are promoted and funded by many of the same people who brought the Tea Party to prominence.

ALEC, which hosts conferences to introduce conservative legislators to model bills drafted with corporate lobbyists, has been a key venue for promoting the Balanced Budget Amendment, the Compact of States, and in recent years, the Convention of States, for which it has a model resolution states can use to make the request to Congress.24 ALEC claims membership of “nearly one-third of America’s state elected officials.”25 In July 2017, Jim DeMint discussed Article V at a Denver ALEC meeting, and the need to enlist “the support of state leaders to save the American republic.”26

Gov. John Kasich (R-OH), a high-profile supporter of a Balanced Budget Amendment and an Article V convention to achieve it,27 played a “key role” in getting Wyoming to request a BBA convention in 2017, and has been active in other state campaigns.28

The broader Convention of States is a project of Citizens for Self-Governance. Mark Meckler, a founder of the Tea Party Patriots, launched the group in 2012, and it has participated in ALEC conferences since 2013. Sarah Palin has cut at least two videos promoting it, and encouraged her followers to weigh in on state-level resolutions.29

In April 2017, Fusion reported that Citizens for Self-Governance (CSG) has received millions from Koch-affiliated groups and the Trump-supporting Mercer Family Foundation.30 CSG’s 2015 filing with the IRS reported revenues of $5.7 million, up from just over $1 million in 2010.31 The Center for Media and Democracy documented “a web of Koch-linked groups having provided nearly $5.4 million to CSG from the group’s founding in 2011 through 2015.”32

The chairman of Meckler’s board, Eric O’Keefe, has a long affiliation with the Koch brothers33 and has founded and funded a number of right-wing groups, including the Wisconsin chapter of Club for Growth.34

Former U.S. Sen. Tom Coburn (R-OK), one of the group’s spokespeople, wrote, “Our national soul is being corrupted by Washington’s unhindered and unconstitutional overreach.” He concluded that a convention of states is “a means to smite the federal Leviathan.”25

Former U.S. Sen. Tom Coburn (R-OK), concluded that a convention of states could be “a means to smite the federal Leviathan.”

Coburn’s 2017 book, Smashing the DC Monopoly: Using Article V to Restore Freedom and Stop Runaway Government,36 may be the most unvarnished expression of the ideology behind the movement, arguing that social safety net programs have created “a government-dependent ‘nation of takers.’”37

Coburn complains that progressives put an end to the era of small government at the turn of the 20th Century,38 and that the Great Depression and New Deal “forged an alliance of activist courts and big government.”39 Incredibly, he also cites Jefferson Davis lamenting in his memoirs that the Civil War might have been avoided had a convention of states been assembled “to consider the relations of the various States and the Government of the Union”40—in other words, he believed war could have been avoided if states had approved an amendment preserving chattel slavery in southern states and allowed its expansion in southwestern territories.

Joining secretive dark-money networks and ALEC in support of the Convention of States’ effort are some high-profile Religious Right activists.

Meckler says CSG was originally conceived of by Michael Farris, the founder of Patrick Henry College who in 2017 became CEO of the conservative Christian legal group Alliance Defending Freedom.41 In April 2015, Farris told David Brody of the Christian Broadcasting Network, “When people tell me that it’s impossible to do this I go, ‘Cool. That means it’s going to be a God project not a Mike Farris project.’”42

In September 2014, a group of conservative lawyers and law professors, including Liberty Counsel’s Mat Staver, Catholic neo-conservative strategist and anti-marriage-equality activist Robert P. George, and attorneys John Eastman and Charles Cooper, got together to talk about the Convention of States.43 They came up with “The Jefferson Statement,” which calls an Article V convention the “only constitutionally effective means available to do what is so essential for our nation—restoring robust federalism with genuine checks on the power of the federal government.”44

The website of Citizens for Self-Governance features a link to “The Bible & Politics,” a website that appears to be a partnership between CSG and David Barton’s Wallbuilders.45

Barton’s involvement suggests the degree to which convention advocates’ limited- government approach is informed by Reconstructionist theology that has been adopted widely within the Religious Right.46

Some Christian Right advocates have made explicit calls for an Article V convention. For example, after the Supreme Court’s 2015 marriage equality ruling, Family Research Council President Tony Perkins said he believed a Convention of States should be called to amend the Constitution regarding marriage.47 When Coburn appeared on the American Pastors Network’s “Stand in the Gap” program in June 2017, he declared the Supreme Court “has divided us” by making decisions that should have been left to the states. While there isn’t a major organized push for a convention to deal with amendments on social issues, the Arkansas Senate passed two resolutions in March, one calling for a convention to draft amendments to define marriage as between a man and a woman, and another to declare that life begins at conception.48 Both amendments failed in the state House.49 But regardless of the fate of such specific attempts, the broader Convention of States movement could restrict the federal government’s ability to protect women’s right to choose or equality for LGBTQ people.

How Would a Convention of States Work?

One bracing aspect of all this is that no one knows how a convention would work.

A few basics are relatively uncontested. A convention must be called if Congress determines that there are valid requests from 34 states to deal with the same topic. Given the increasing interest in this subject, since 2015 the House Judiciary Committee has tracked the applications for Article V conventions of any sort.50

Once Congress calls for a convention, state legislatures would determine how to choose their delegates, and what direction to give them. Proponents say each state would get one vote, over-empowering small and rural states. A majority of states could approve proposed amendments, which Congress would then return to the states. If a convention were held, and approved a proposed amendment, Congress would determine whether state legislatures would make the decision on ratification or if state-level conventions would be held.

Common Cause, which has led opposition to convention proposals (and where, in full disclosure, the author worked decades ago), believes “there is too much legal ambiguity that leads to too great a risk that it could be hijacked by wealthy special interests pushing a radical agenda.”51

One scholarly paper laid out the threats a convention could pose, in addition to the economic and social damage,52 by enacting a federal Balanced Budget Amendment. Its authors, the Center on Budget and Policy Priorities’ Michael Leachman and Georgetown University law professor David Super, warned that delegates to such a convention, presumably under pressure from powerful interest groups, could write their own rules, set their own agenda, and declare a new ratification process for proposed amendments.53

The possibility that delegates to a convention called for one purpose—say, to pass a Balanced Budget Amendment—could decide to act on other amendments once they convene is generally referred to as a “runaway” convention. Concern about this possibility has animated opposition from across the political spectrum.

The question of whether a convention could be restricted to dealing with amendments only on certain topics is hotly contested. Some, like Article V proponent Robert Natelson, argue that the threat of a runaway convention is a myth, and portray it as a conspiracy theory promoted by supporters of the status quo.54 But others note that the Constitution itself was written at a convention originally called “for the sole and express purpose of revising the Articles of Confederation.”55 Instead, delegates wrote an entirely new Constitution—and lowered the Articles of Confederation’s requirement that all states consent to amendments to a three-quarters threshold. Says David Super, “It turned out OK—the Articles were replaced with the vastly superior Constitution. But the point is this: No one—not Congress, not the Supreme Court and certainly not the president—has any authority to rein in a runaway constitutional convention.”56

The desire to downplay the risk of a big rewrite explains why proponents resist the use of the shorthand term “Constitutional Convention”—often referred to as “Con Con” by opponents—for describing what they’re trying to do.

Supporters of both major Article V campaigns—the balanced budget and the broader anti-federal-government versions—have sought to allay runaway fears and portray the process as safe and predictable by holding planning meetings and practice gatherings of state legislators.

ALEC staged a “simulated” convention in Williamsburg, Virginia, in September 2016, calling it “an important and reassuring window into the future.”57 The Convention of States organization called it an “amazing” success.58 How reassuring you find it might depend on what you think about the proposed amendments approved at the gathering,59 which would:

  1. Empower states to void any new or existing law, executive order, or regulatory rule issued by Congress, the president or federal regulatory agencies if three-fifths of the state legislatures vote to do so.
  2. Restrict Congress’s power by “returning the Commerce Clause to its original meaning” and forbidding it to “regulate or prohibit any activity that is confined within a single state regardless of its effects outside the state.” Rep. Jamie Raskin (D-MD), a former constitutional law professor, has written that the Commerce Clause may be “the most important constitutional instrument for social progress in our history.” He cited right-wing efforts over the years to use a cramped interpretation of the clause to challenge laws on child labor, civil rights, and health care.60 Currently, the right-wing Pacific Legal Foundation is arguing in federal court that the federal government lacks the authority under the Commerce Clause to protect an endangered species that lives in only one state.61
  3. Forbid the federal government from taxing income, gifts, or estates and require three-fifths vote by the House and Senate to impose or increase any taxes.
  4. Allow one-quarter of the members of either the House or Senate to declare opposition to any new or existing federal regulation. A challenged regulation could not go into effect without majority approval of both House and Senate.
  5. Require a two-thirds vote in both houses of Congress to increase public debt.
  6. Impose term limits on members of Congress.

At the invitation of the Arizona legislature,62 advocates for the Balanced Budget Amendment held their own planning session in Phoenix in September 2017. Twenty-two states sent delegates to the meeting, which was designed to develop rules for an eventual balanced budget amendment convention. “There was a proposal to allow a convention to change its scope with the approval of two-thirds of the states,” according to a news report of the gathering. “It was withdrawn after heated debate.”63

Organizers portray the meeting as providing evidence that “runaway” fears are misplaced. But none of the rules devised at these or other such meetings would be binding on any actual convention.

Convention opponents also note that there are basically no rules about the role of money. The selection and lobbying of delegates would almost certainly become a big-spending free-for-all by the same groups that push for an amendment—as well as wealthy opportunists who get involved once a convention becomes inevitable.

On top of that, say Leachman and Super, “No other body, including the courts, has clear authority over a convention.”64 This may sound like a formula for constitutional crisis, but it’s a selling point for convention advocates. Speaking at an ALEC conference, right-wing pundit and radio personality Mark Levin, who wrote a book promoting a set of constitutional amendments,65 extolled the power that Article V gives to state legislators; in a convention, he said, governors have no role, the president has no role, and Congress’s only role is that it’s required to call a convention when enough state petitions accrue.66

Convention proponents are trying to attract bipartisan support from state legislators by emphasizing their power, and the power they could gain, under an Article V convention. When Convention of States advocate Mark Meckler testified before the California state Assembly’s Judiciary Committee in April 2016, he stroked legislators’ egos, saying the state legislature is where “I place my trust,” rather than Washington, D.C. “It is time for the states to rise up, on an individual and collective basis, to take their power back,” he continued, so that “esteemed members of legislatures like you” can make decisions affecting constituents’ lives.67

At a news conference held at last year’s simulated convention in Williamsburg, Meckler told attendees, “You have the power to bypass the president, Congress, the Supreme Court—to throttle down the federal government to get it out of our lives and to get it back to what the Founders intended. Anything is possible. We are the impossible nation.”68

“You have the power to bypass the president, Congress, the Supreme Court—to throttle down the federal government to get it out of our lives and to get it back to what the Founders intended. Anything is possible.”

And if a Balanced Budget were passed and Congress ignored it, says former Republican Alaska state Senator Fritz Pettyjohn,69 another convention could “propose any number of solutions” to deal with it. “One would be to dissolve Congress and elect a new one. When you’re the sovereign, you can do that.”70

What’s at Stake?

The idea of requiring the federal government to operate within a balanced budget has a gut-level appeal. Citizens must balance household budgets, after all. But even families borrow money to buy cars and houses or pay for education. An amendment that prohibits federal deficit spending or borrowing could make recessions longer and deeper, threaten programs like Social Security, and cast uncertainty “over the economy that could retard economic growth even in normal economic times,” according to Richard Kogan of the Center on Budget and Policy Priorities.71 Kogan noted that in 2011 the prominent economic forecasting firm Macroeconomic Advisers concluded that a Balanced Budget Amendment proposed that year would have had a “catastrophic” effect on the economy, doubling unemployment.72

Of course, the federal budget is a complicated beast and there are many ways to write an amendment. But if you think gridlock makes governing hard now, imagine that the Heartland Institute’s version of the Balanced Budget Amendment gets ratified, and every congressional decision that involves deficit spending or borrowing has to be approved by a majority of states representing a majority of the U.S. population.73

Broader amendments designed to make social welfare programs and much of the regulatory state unconstitutional would create even more havoc.  But for people like Jim DeMint74 or Mark Levin, major constitutional change is the only solution to “an age of post-constitutional soft tyranny.”75

“The COS strategy, if successful,” warns Arn Pearson, “would radically revise the Constitution’s structure of state and federal power sharing in a way that goes to the heart of what it means to be “united states.”76

How Likely Is a Convention?

Common Cause President Karen Hobert Flynn told The Public Eye that the best way she’s found to get people’s attention about the threat of an Article V convention is to “show them the map.”

Thanks to Republican investments in building political infrastructure and state-level power, conservatives have a historic level of control in state legislatures: Republicans control both houses in 32 states and dominate the legally nonpartisan unicameral legislature of Nebraska. With 34 states needed to trigger a convention, it would only take a unified GOP plus “the help of only a few Democrats in a single state to reach the mark,” the Associated Press noted in 2016.77 As Yale University law professor Akhil Reed Amar notes, “The overwhelming success of one political party at the state level is something of real constitutional significance.”78

The Balanced Budget Amendment Task Force says it has 27 of the 34 states needed to call for a convention. Its 2018 targets include Idaho, Kentucky, Minnesota, South Carolina, and Virginia.79 They’d be even closer, but in the last two years, opponents of a convention have convinced legislators in four states—Delaware, New Mexico, Maryland, and Nevada—to rescind their earlier support.

The Convention of States’ proposal has, in a much shorter period, been approved by legislatures in 12 states; in nine more, a call passed one house of the legislature. Another 20 considered legislation in 2017.80 Coburn predicts an additional eight to 10 states will adopt the broader Convention of States’ call next year.81 If he’s right, the Convention of States could be a central part of our national political discussion for the foreseeable future.

Several people familiar with the convention campaigns say there’s bad blood between the two major efforts, which compete for funding, activists, and legislative allies. Coburn told participants at the 2017 ALEC conference that passing a Balanced Budget Amendment addresses the symptom and not the disease, which is the broad authority of the federal government. 82 Conversely, says Common Cause’s Jay Riestenberg, the broad agenda of Convention of States advocates tends to give credence to fears of a runaway gathering rewriting the Constitution—which hurts the balanced budget effort.

Even with these differences, the groups sometimes collaborate. In 2017, the two campaigns joined forces in Nevada83 in a failed effort to stop the resolution that rescinded the state’s call for a balanced budget convention and other requests for an Article V convention dating back to 1903.

The successful campaign to withdraw Nevada’s calls for a convention was a bipartisan effort.84 An activist with Eagle Forum, the group founded by the late Phyllis Schlafly, helped win Republican support.85 Schlafly, one of the most ardent conservative opponents of a constitutional convention, described it as “playing Russian Roulette with the Constitution,”86 and mocked supporters like Mike Huckabee, Marco Rubio and Bobby Jindal, asking why we should expect a bunch of politicians “would do a better job than the most brilliant political thinkers in American history?”87 The John Birch Society has also long opposed convention proposals.

Perhaps in a quiet nod to the appeal of a broader convention and the numerical advantage held by the balanced budget effort, most of the Balanced Budget Amendment resolutions enacted in the last three years, and in ALEC’s model legislation, include an additional clause: “together with any related and appropriate fiscal constraints.”88 That could be a stealthy way to turn a balanced budget convention into something with a broader agenda. ALEC’s handbook says that phrase “enables the convention to consider limits on taxes, spending and the like.”89 Leachman and Super warn that it “opens the door to any constitutional amendments that a convention might decide fit under this broad rubric.”90

What Lies Ahead?

Right-wing efforts to convene an Article V Convention depend on conservative domination of state legislatures. That makes the future of the Constitution itself one of the most important, if underappreciated, stakes in state-level organizing.

Balanced Budget Amendment advocates will make a major push in 2018 to reach the 34-state threshold.91 The Convention of States has more ground to cover, but it also has an aggressive battle plan grounded in grassroots pressure. Meckler claims that the Convention of States Project has “over 2.1 million supporters nationwide and an organized volunteer leadership team in all 50 states, in addition to our national staff and board of renowned legal advisors.”92 He outlined his strategy in 2013:

In roughly 4,000 state legislative districts around the country, you need roughly 100 people in each district to be willing to call their legislative representative and ask for a convention… That’s not a high bar. And I started talking to representatives all over the country and they said, “We don’t get 100 calls on anything. If you can generate a hundred calls then we’re going to be motivated to at least take a serious look.”93

Jim DeMint said that in Texas, which passed a convention call in 2017, it was conservative grassroots power that made the difference.94 That, along with a major push from Texas Gov. Greg Abbott, overcame a lack of support from the public at large, as well as some conservatives’ doubts. A University of Texas/Texas Tribune poll in June 2017 revealed that even among self-described Tea Partiers, given a choice between leaving the Constitution alone and holding a convention of states, the “leave well enough alone” option won 57 to 40 percent. Among all Texans, it won 54 to 28 percent.95 Even so, organizers don’t think they need to increase popular support as long as they can motivate their activist army to push legislators into action.

But opponents have also been organizing, as evidenced by the four states that withdrew their convention calls in the past two years. In April 2017, Common Cause released a letter signed by more than 200 public interest organizations,96 from the AFL-CIO to NAACP to Greenpeace, opposing all calls for an Article V Convention and urging states to rescind previous calls.97

“The implications of a Constitutional Convention are staggering,” said Robert Greenstein, president of the Center on Budget and Policy Priorities, when the letter was released. “Our country faces enough problems and division. We don’t need to add to them and inflame an already toxic political environment by placing at risk the constitutional structure that has served us well for more than two centuries.”98

Convention proponents counter that even if something horrible came out of a convention—depending on your politics, nightmare scenarios include a rewrite of the First or Second Amendments—the 38-state threshold for ratification would serve as a check on dangerous additions to the Constitution. But Common Cause’s Viki Harrison, who worked on the successful effort to get New Mexico to rescind its convention application, said these assurances are “like setting your house on fire and praying the fire department will show up.”99 Ratification battles could “tie the country up in knots,” Wertheimer adds, and would require enormous investments of time, resources and organizing energy—all without any rules about how money would influence the process.100

Wisconsin Democratic state Rep. Chris Taylor noted that the reality that just 13 state legislatures could prevent ratification of a damaging amendment was little comfort. After watching the Bradley Foundation and Koch brothers dismantle her state’s progressive tradition, she said, “I have learned never to underestimate the Right.”101

At its worst, said another Common Cause state leader, Maryland’s Jennifer Bevan-Dangel, a Convention of States threatens to look like redrafting the Constitution “in the age of Twitter.” Issues crucial to the wellbeing of millions of Americans would be hashed out “in a back room with no referee, no clear rules, no guarantee of transparency,” but the almost assured involvement of figures like the Kochs. 102

A return to an earlier constitutional order, in which the federal government’s ability to regulate corporations and protect the public interest is severely constrained, is the end toward which decades of right-wing investments in think tanks, media networks, and legal and political organizations have been directed.

A return to an earlier constitutional order, in which the federal government’s ability to regulate corporations and protect the public interest is severely constrained, is the end toward which decades of right-wing investments have been directed.

Trump’s election was not their purpose, but his presidency can serve their goal of filling the federal courts with judges who share the reactionary view of the Constitution championed by organizations like the Federalist Society and Heritage Foundation, who pre-approved Trump’s list of potential Supreme Court justices. Consolidated right-wing ideological domination of the federal judiciary would be disastrous, but perhaps not as devastating as a far-right rewrite of the Constitution itself.

The stage for an Article V convention that bypasses Congress, the White House, and the Supreme Court has been set by the massive investment in state-level politics by the Koch networks and their allies. The Tea Party election of 2010 gave Republicans a powerful hand in redistricting; partly as a result, Republicans control almost 1,000 more legislative seats now than they did in 2008—the most state legislative seats in the history of the GOP.103

An energized progressive movement focused on reversing right-wing gains at the state level is essential to stopping the momentum of Article V campaigns. There are glimmers of hope in the array of organizing efforts designed to put progressives into state offices. And there have been victories: four wins in September in New Hampshire, Oklahoma and Florida brought the number of Republican-to-Democratic turnovers in contested state House and Senate races in 2017 to eight.104 Those victories put progressives on a positive trajectory but are only a tiny down payment on what’s needed for 2018 and 2020.

 

Endnotes

1 Eliza Collins, “Jim DeMint ousted at Heritage Foundation,” USA Today, May 2, 2017, https://www.usatoday.com/story/news/politics/onpolitics/2017/05/02/jim-demint-ousted-heritage-foundation/101220722/.

2 “Jim DeMint and The Convention of States Project,” The Glenn Beck Program, June 13, 2017, http://www.glennbeck.com/content/audio/61317-jim-demint-and-the-convention-of-states-project/.

3 Fredreka Schouten, “Exclusive: In latest job, Jim DeMint wants to give Tea Party ‘a new mission,’” USA Today, June 12, 2017, https://www.usatoday.com/story/news/politics/2017/06/12/jim-demint-joins-group-that-wants-to-amend-constitution-tea-party/102748540/.

4 Breitbart, “Whatever It Takes,” SoundCloud audio, 15:33, July 28, 2017, https://soundcloud.com/breitbart/whatever-it-takes-fmr-senator-jim-demint-july-28-2017.

5 “Kochs Bankroll Move to Rewrite the Constitution,” PR Watch Editors, March 23, 2017, http://www.prwatch.org/news/2017/03/13229/koch-brothers-bankroll-constitutional-convention.

6 Rachel Tabachnick, “Ted Cruz & ALEC: Seceding from the Union One Law at a Time,” Political Research Associates, February 5, 2014, https://www.politicalresearch.org/2014/02/05/ted-cruz-alec-seceding-from-the-union-one-law-at-a-time/. For further discussion, see Paul Rosenberg, “Tea Party hatches quiet-but-insane plot against democracy: Meet the ’12 Percent Solution’, Salon, January 16, 2014, http://www.salon.com/2014/01/16/the_right%E2%80%99s_quiet_but_insane_plot_against_democracy_the_12_solution/.

7 Rachel Tabachnick and Frank Cocozzelli, “Nullification, Neo-Confederates, and the Revenge of the Old Right,”  The Public Eye, Fall 2013, https://www.politicalresearch.org/2013/11/22/nullification-neo-confederates-and-the-revenge-of-the-old-right/; Frederick Clarkson, “Rumblings of Theocratic Violence,” The Public Eye, Summer 2014, https://www.politicalresearch.org/2014/06/11/rumblings-of-theocratic-violence/.

8 Peter Montgomery, “Bryan Fischer Wants Trump To Defy Federal Judge on Immigration,” People For the American Way’s Right Wing Watch, March 31, 2017, http://www.rightwingwatch.org/post/bryan-fischer-wants-trump-to-defy-federal-judge-on-immigration/.

9 Peter Montgomery, “NC Bill to Defy Supreme Court on Marriage Reflects Broader Right-Wing Nullification Campaign,” People For the American Way’s Right Wing Watch, April 12, 2017, http://www.rightwingwatch.org/post/nc-bill-to-defy-supreme-court-on-marriage-reflects-broader-right-wing-nullification-campaign/.

10 “2017 Campaign Report,” Balanced Budget Amendment Task Force, http://bba4usa.org/report/.

11 Convention of States national update, accessed August 7, 2017, https://www.conventionofstates.com/nu.

12 James Kenneth Rogers, “The Other Way to Amend the Constitution: The Article V Constitutional Convention Amendment Process,” Harvard Journal of Law & Public Policy, Vol 30, No. 3, p 1009, http://www.law.harvard.edu/students/orgs/jlpp/Vol30_No3_Rogersonline.pdf.

13 “BBA Campaign History,” Balanced Budget Amendment Task Force, http://bba4usa.org/campaign/.

14 Nick Dranias, “Introducing Article V 2.0: The Compact for a Balanced Budget,” The Heartland Institute, March 2016, https://www.heartland.org/_template-assets/documents/publications/03-30-16_dranias_update.pdf.

15 “5 Down, 33 to Go!” Compact for America map, http://www.compactforamerica.org/balanced-budget-compact-project.

16 “The Convention of States Article V Application,” Convention of States, February 2, 2017, https://www.conventionofstates.com/cos_application_in_2_minutes.

17 Ibid.

18 The Young Turks, “Cenk Announces Wolf-PAC.com at Occupy Wall Street,”, YouTube video, 2:43, October 19,2011, https://www.youtube.com/watch?v=ykLB0d4KNAc.

19 The Young Turks, “Find Out How Left-Wing Group Betrayed Progressives (Common Cause),” YouTube Video, 18:58, April 6, 2017, https://www.youtube.com/watch?v=CmEpvaL5mKQ.

20 Karen Hobert Flynn, “Young Turks Attack on Common Cause Ignores Danger of New Constitutional Convention,” Common Cause, April 6, 2017, http://www.commoncause.org/press/press-releases/young-turks-attack-on-common.html.

21 “Common Cause Opposes a Constitutional Convention,” Common Cause, http://www.commoncause.org/issues/more-democracy-reforms/constitutional-convention/constitutional-convention-fact-sheet.pdf.

22 Jennifer Bogdan, “At R.I. State House, Wolf PAC lobbyists made late push,” Providence Journal, June 20, 2016, http://www.providencejournal.com/news/20160620/at-ri-state-house-wolf-pac-lobbyists-made-late-push.

23 Fred Wertheimer, interview with author, July 25, 2017.

24 “Application for a Convention of the States Under Article V of the Constitution of the United States,” American Legislative Exchange Council, finalized July 24, 2015 and amended September 4, 2014, https://www.alec.org/model-policy/article-v-convention-of-the-states/.

25 Robert Natelson, “Proposing Constitutional Amendments By a Convention of the States: Article V A Handbook for State Lawmakers,” American Legislative Exchange Council, 2016, https://www.alec.org/app/uploads/2016/06/2016-Article-V_FINAL_WEB.pdf.

26 Karla Jones, “Spotlight on Federalism in Denver,” American Legislative Exchange Council, July 14, 2017, https://www.alec.org/article/spotlight-on-federalism-in-denver/.

27 Dan Tuohy, “GOP’s Kasich explores whether he’s a contender,” New Hampshire Union Leader, March 24, 2015, http://www.unionleader.com/apps/pbcs.dll/article?AID=/20150325/NEWS0605/150329578.

28 “Republican John Kasich leads charge for balanced budget vote,” The Associated Press, March 25, 2017, http://wtop.com/government/2017/03/republican-john-kasich-leads-charge-for-balanced-budget-vote/.

29 Sarah Palin, Facebook post, February 3, 2015, https://www.facebook.com/sarahpalin/videos/vb.24718773587/10153082943858588/ and Convention of States Action, “Sarah Palin says it how it is,” Facebook, April 7, 2016 https://www.facebook.com/COSAction/videos/vb.858690294163657/1155376494495034/.

30 Brendan O’Connor, “Right-Wing Billionaires Are Buying Themselves a New Constitution,” Splinter News, April 4, 2017, http://splinternews.com/right-wing-billionaires-are-buying-themselves-a-new-con-1793960357.

31 “Citizens for Self-Governance,” SourceWatch, The Center for Media and Democracy, http://www.sourcewatch.org/index.php/Citizens_for_Self-Governance.

32 Alex Kotch, “Kochs Bankroll Move to Rewrite the Constitution,” The Center for Media and Democracy’s PR Watch, March 23, 2017, http://www.prwatch.org/news/2017/03/13229/koch-brothers-bankroll-constitutional-convention.

33 Brendan O’Connor, “Right-Wing Billionaires Are Buying Themselves a New Constitution.”

34 “Citizens for Self-Governance,” SourceWatch, The Center for Media and Democracy, http://www.sourcewatch.org/index.php/Citizens_for_Self-Governance.

35 Tom Coburn, “A means to smite the federal Leviathan,” The Washington Times, February 24, 2015, http://www.washingtontimes.com/news/2015/feb/24/tom-coburn-calling-a-convention-of-states/.

36 Tom Coburn, Smashing the DC Monopoly: Using Article V to Restore Freedom and Stop Runaway Government, (Washington, D.C.: WND Books, 2017).

37 Tom Coburn, Smashing the DC Monopoly, Kindle location 860.

38 Tom Coburn, Smashing the DC Monopoly, Kindle location 2822.

39 Tom Coburn, Smashing the DC Monopoly, Kindle location 2840.

40 Tom Coburn, Smashing the DC Monopoly, Kindle location 3056.

41 Brendan O’Connor, “Right-Wing Billionaires Are Buying Themselves a New Constitution.”

42 David Brody, “Enough is Enough: The Case for a Convention of States,” CBN News, April 15, 2015, http://www1.cbn.com/cbnnews/politics/2015/April/Enough-Is-Enough-The-Case-for-a-Convention-of-States.

43 “The Jefferson Statement,” Convention of States, September 11, 2014, https://www.conventionofstates.com/the_jefferson_statement.

44 “The Jefferson Statement,” Convention of States.

45 Bible & Politics, www.bibleandpolitics.com, accessed August 7, 2017.

46 Peter Montgomery, “Biblical Economics: The Divine Laissez-Faire Mandate.”

47 Brian Tashman, “Tony Perkins: Stop Saying ‘God Bless America’ After Gay Marriage Ruling,” Right Wing Watch, July 10, 2015, http://www.rightwingwatch.org/post/tony-perkins-stop-saying-god-bless-america-after-gay-marriage-ruling/.

48 Andrew DeMillo, “Arkansas Senate OKs Bids for Marriage, Abortion Amendments,” Associated Press, February 28, 2017, https://www.usnews.com/news/best-states/arkansas/articles/2017-02-28/arkansas-senate-oks-bids-for-marriage-abortion-amendments.

49 Jacqueline Foelich, “Arkansas’s Call for a Constitutional Convention of States Progresses, Before Failing,” Arkansas Public Media, March 16, 2017. http://ualrpublicradio.org/post/arkansass-call-constitutional-convention-states-progresses-failing#stream/0.

50 “Stivers’ Article V Rule Change Passes on House Floor,” Press Release from office of Rep. Steve Stivers, January 8, 2015, https://stivers.house.gov/news/documentsingle.aspx?DocumentID=398492.

51 “The Dangerous Path: Big Money’s Plan to Shred the Constitution,” Common Cause, May 2016, http://www.commoncause.org/issues/more-democracy-reforms/constitutional-convention/dangerous-path-report.pdf.

52 Richard Kogan, “Constitutional Balanced Budget Amendment Poses Serious Risks: Would Likely Make Recessions Longer and Deeper, Could Harm Social Security and Military and Civil Service Retirement,” Center on Budget and Policy Priorities, updated January 18, 2017, https://www.cbpp.org/research/constitutional-balanced-budget-amendment-poses-serious-risks.

53 Michael Leachman and David Super, “States Likely Could Not Control Constitutional Convention on Balanced Budget Amendment or Other Issues,” Center on Budget and Policy Priorities, January 18, 2017, https://www.cbpp.org/research/states-likely-could-not-control-constitutional-convention-on-balanced-budget-amendment-or.

54 Robert Natelson, “How progressives promoted the ‘runaway convention’ myth to preserve judicial activism,” The Hill, May 7, 2017, http://thehill.com/blogs/pundits-blog/the-judiciary/332172-how-progressives-promoted-the-runaway-convention-myth-to.

55 “Report of Proceedings in Congress, Wednesday, February 21, 1787,” posted by Lillian Goldman Law Library of Yale Law School, http://avalon.law.yale.edu/18th_century/const04.asp.

56 David Super, “A constitutional convention is the last thing America needs,” Los Angeles Times, March 15, 2017, http://www.latimes.com/opinion/op-ed/la-oe-super-constitutional-convention-20170315-story.html.

57 “The Convention of States Article V Application,” Convention of States, February 2, 2017, https://www.conventionofstates.com/cos_application_in_2_minutes.

58 “COS Simulation,” Convention of States, https://www.conventionofstates.com/cossim.

59 “Official Proposals of the Simulated Convention of States,” Convention of States, adopted September 23, 2016, https://d3n8a8pro7vhmx.cloudfront.net/conventionofstates/pages/6429/attachments/original/1474994742/Final_Convention_Report_with_Votes.pdf?1474994742.

60 Jamie Raskin, “The True Spirit of the Union: How the Commerce Clause Helped Build America and Why the Corporate Right Wants to Shrink It Today,” People For the American Way, September 2011, http://www.pfaw.org/report/the-true-spirit-of-the-union-how-the-commerce-clause-helped-build-america.

61 Jason Rylander, “Protecting Endangered Species Under the Commerce Clause: People for the Ethical Treatment of Property Owners v. U.S. Fish and Wildlife Service, ACS Blog, American Constitution Society, September 25, 2015, https://www.acslaw.org/acsblog/all/commerce-clause ; Jonathan Wood, “PLF petitions for rehearing in Utah prairie dog case,” Liberty Blog, Pacific Legal Foundation, May 17, 2017, https://pacificlegal.org/plf-petitions-rehearing-utah-prairie-dog-case/.

62 “Speaker Mesnard Applauds Passage of Legislation Calling for Article V Convention on Balanced Budget Amendment, Arizona Also Calls for Meeting of States to Plan Rules for Convention,” Arizona House Republicans press release, April 3, 2017, https://www.azhouserepublicans.com/single-post/2017/04/03/Speaker-Mesnard-Applauds-Passage-of-Legislation-Calling-for-Article-V-Convention-on-Balanced-Budget-Amendment-Arizona-Also-Calls-for-Meeting-of-States-to-Plan-Rules-for-Convention.

63 Alia Beard Rau, “Phoenix constitutional convention gives ‘rebirth to a new nation,’ planners say,” AZ Central, September 15, 2017. http://www.azcentral.com/story/news/politics/arizona/2017/09/15/phoenix-constitutional-convention-gives-rebirth-new-nation-planners-say/664206001/.

64 Michael Leachman and David Super, “States Likely Could Not Control Constitutional Convention on Balanced Budget Amendment or Other Issues.”

65 Mark Levin, The Liberty Amendments: Restoring the American Republic, (New York: Threshold Editions, 2013).

66 Mark Levin, address to 2014 American Legislative Exchange Council States and Nation Policy Summit

67 Mark Meckler testimony:  “Assembly Standing Committee on Judiciary Hearing of 04-26-2016, video, 42:43, https://test.digitaldemocracy.org/hearing/1042?startTime=84&vid=ce3toY5NtaA.

68 Brendan O’Connor, “Right-Wing Billionaires Are Buying Themselves a New Constitution.”

69 Fritz Pettyjohn, “Arizona Calls the First Convention of States Since 1861,” American Legislative Exchange Council (originally posted at ReaganProject.com), April 3, 2017, https://www.alec.org/article/arizona-calls-the-first-convention-of-states-since-1861/.

70 Fritz Pettyjohn, “Arizona Calls the First Convention of States Since 1861,” American Legislative Exchange Council (originally posted at ReaganProject.com), April 3, 2017, https://www.alec.org/article/arizona-calls-the-first-convention-of-states-since-1861/.

71 Richard Kogan, “Constitutional Balanced Budget Amendment Poses Serious Risks: Would Likely Make Recessions Longer and Deeper, Could Harm Social Security and Military and Civil Service Retirement.”

72 Ibid.

73 Robert Natelson, “A Proposed Balanced Budget Amendment,” Heartland Institute Policy Brief, July 18, 2017, https://www.heartland.org/publications-resources/publications/a-proposed-balanced-budget-amendment.

74 Breitbart, “Whatever it Takes,” SoundCloud audio, 15:33, July 28, 2017, https://soundcloud.com/breitbart/whatever-it-takes-fmr-senator-jim-demint-july-28-2017.

75 “Excerpt: Mark Levin’s ‘The Liberty Amendments,’”  Fox Nation, October 1, 2013, http://nation.foxnews.com/2013/10/01/excerpt-mark-levins-liberty-amendments.

76 Arn Pearson, “Koch Convention to Rewrite Constitution Runs into Roadblocks.”

77 David Lieb, “Will Republicans take religious exemptions law to constitutional convention,” Associated Press, December 5, 2016, https://www.lgbtqnation.com/2016/12/will-republicans-take-religious-exemptions-law-constitutional-convention/.

78 “Republican success opens door to amending U.S. Constitution,” Chicago Tribune, December 5, 2016, http://www.chicagotribune.com/news/nationworld/ct-republican-constitution-amendment-20161205-story.html.

79 “2017 Campaign Report,” Balanced Budget Amendment Task Force.

80 ”COS National Update,” Convention of States, accessed August 7, 2017, https://www.conventionofstates.com/nu.

81 Breitbart, “Breitbart News Daily – Tom Coburn,” SoundCloud audio, 18:16, July 6, 2017, https://soundcloud.com/breitbart/breitbart-news-daily-tom-coburn-july-5-2017.

82 Wisconsin Rep. Chris Taylor , interview with author, August 1, 2017.

83 Letter to activists on Nevada rescission resolution: “Nevada,” Convention of States Action, 2017, https://www.cosaction.com/nevada.

84 Riley Snyder, “Under-the-radar resolution means Nevada backs off from growing constitutional convention movement,” The Nevada Independent, June 13, 2017, https://thenevadaindependent.com/article/under-the-radar-resolution-means-nevada-backs-off-from-growing-constitutional-convention-movement.

85 Jay Riestenberg, email interview with author, July 26, 2017.

86 “Coalition Letter in Support of our U.S. Constitution,” Phyllis Schlafly Eagles, http://www.pseagles.com/Coalition_letter_against_Convention_of_States.

87 Phyllis Schlafly, “Failed Republicans Want to Rewrite the Constitution,” Creators Syndicate, May 24, 2016 https://www.creators.com/read/phyllis-schlafly/05/16/failed-republicans-want-to-rewrite-the-constitution.

88 Michael Leachman and David Super, “States Likely Could Not Control Constitutional Convention on Balanced Budget Amendment or Other Issues.”

89 Robert Natelson, “Proposing Constitutional Amendments By a Convention of the States: Article V A Handbook for State Lawmakers.”

90 Michael Leachman and David Super, “States Likely Could Not Control Constitutional Convention on Balanced Budget Amendment or Other Issues.”

91 “2017 Campaign Report,” Balanced Budget Amendment Task Force.

92 Mark Meckler to Hon. Luke Messer, March 23, 2017, Convention of States, http://www.foavc.org/Pages/COS.pdf.

93 “Citizens for Self Governance’s Mark Meckler makes the case for a Convention of States,” GlennBeck.com,  December 18, 2013,http://www.glennbeck.com/2013/12/18/citizens-for-self-governance%E2%80%99s-mark-meckler-makes-the-case-for-a-convention-of-states/.

94 “Jim DeMint and The Convention of States Project,” The Glenn Beck Program.

95 Ross Ramsey, “UT/TT Poll: Texas voters wary of making changes to the U.S. Constitution,” The Texas Tribune, June 20, 2017, https://www.texastribune.org/2017/06/20/uttt-poll-texas-voters-wary-making-changes-us-constitution/.

96 “Constitutional Rights and Public Interest Groups Oppose Calls for an Article V Constitutional Convention,” Open letter, April 14, 2017, http://www.commoncause.org/issues/more-democracy-reforms/constitutional-convention/constitutional-rights-and.pdf.

97 “More Than 200 Organizations Oppose Calls for New Constitutional Convention, Warn of Dangers,” Common Cause press release, April 14, 2017, https://www.commondreams.org/newswire/2017/04/14/more-200-organizations-oppose-calls-new-constitutional-convention-warn-dangers.

98 “More than 200 Organizations Oppose Calls for New Constitutional Convention, Warn of Dangers,” Common Cause press release.

99 Viki Harrison, interview with author, July 26, 2017.

100 Fred Wertheimer, interview with author, July 25, 2017.

101 Wisconsin Rep. Chris Taylor, interview with author, August 1, 2017.

102 Jennifer Bevan-Dangel, interview with author, July 27, 2017.

103 Reid Wilson, “Dems hit new low in state legislatures,” The Hill, November 18, 2016, http://thehill.com/homenews/campaign/306736-dems-hit-new-low-in-state-legislatures.

104 Rebecca Savransky, “Democrats flip two seats in state special elections,” The Hill, September 27, 2017, http://thehill.com/homenews/campaign/352617-democrats-flip-two-seats-in-state-special-elections.

Peter Montgomery, a Washington, DC-based writer, is an associate editor for Religion Dispatches and a Senior Fellow at People For the American Way. His work focuses on religion, politics, and LGBT issues. Follow him on twitter @petemont.