By Judi Caler
Oh, what a tangled web we weave, when first we practice to deceive! —Walter Scott
Overview
2018 proved to be a horrible legislative year for the convention lobby. It measures its success by the number of State Legislatures it cajoles into passing applications[i] asking Congress to call a constitutional convention (con-con) pursuant to Article V of the US Constitution.
Fear of a “runaway” convention is the biggest obstacle to state legislators’ voting for Article V convention applications. So, in order to get their votes, the convention lobby misled legislators into believing convention Delegates can’t run away and propose “unauthorized” amendments or rewrite our Constitution. They said the convention will be controlled from start to finish by the very legislators whose votes they needed!
Thus, the con-con lobby contrived the false narrative that Congress can’t call a convention until it receives similar or identical applications from 34 states (two-thirds); that the Delegates would be limited to the subject/s listed on the state applications; and that an Article V convention is different than a “constitutional convention,” where our Constitution can be replaced.
To bolster these false claims, front groups for the globalist agenda have been pushing a number of applications on different subjects, as if each special interest group were applying for its own convention, e.g. to propose a balanced budget amendment (BBA); congressional term limits; overturning Citizens United, etc. State legislators, for the most part, believed what the convention lobby told them and voted for their state’s application when they agreed with the subject cited in the application.
But the convention lobby hit a wall in 2018 and failed to convince any new States Legislatures to pass applications.[ii] Article V convention applications now generate massive pushback from the grassroots of both parties, and state legislators are no longer easy targets for what convention operatives are selling. So, some operatives are testing a new strategy. They are ignoring their own deceptive talking points for allaying legislators’ fears of a runaway convention; they are reinventing how Congress should count to 34; and they are saying that enough states have passed applications already to trigger a convention!
The convention lobby is betraying the state legislators who believed them and cast their votes accordingly. Convention proponents now appear to have a multi-pronged approach with contradictory spins, depending upon their audience. They are appealing to Congress to call a general convention based on assorted, existing applications; and to state legislators to pass still more “limited” applications or possibly affirm applications from decades, even centuries ago–whatever works!
Background
Article V provides that when two-thirds of the States (34) ask Congress to call a convention to propose amendments to the Constitution, Congress shall call a convention. The power to “call” the convention is delegated to Congress; and Art. I, §8, last clause, gives to Congress the power to make all laws necessary and proper to carry out that power. The Constitution doesn’t permit States to dictate how Congress goes about “calling” the convention or what Delegates may and may not do at the convention. The only power the States have is to ask Congress to call the convention. See this Chart.
Our only precedent for an “amendments convention” is the Federal Convention of 1787 which was called by the Continental Congress “for the sole and express purpose of revising the Articles of Confederation.” But instead, the Delegates ignored Congress’s limiting instructions (and the limiting instructions from their States) and wrote a new Constitution – the one we have today.
Opponents point out that Delegates to an Article V convention, as sovereign representatives of “We the People,” would have the inherent right to throw off our Form of Government, as expressed in the Declaration of Independence, para 2. And in Federalist No. 40 (15th para), James Madison invoked “the transcendent and precious right of the people to abolish or alter their governments” as justification for writing a new Constitution at the federal convention of 1787.
Moreover, we don’t know who the Delegates would be or how they’d be selected! Why wouldn’t they be susceptible to the same bribes, threats and temptations as members of Congress and State Legislatures? The framers and other wise men have warned that convention Delegates can’t be controlled.[iii] It is because of these acknowledged dangers that the con-con lobby constructed its false narrative.
Major players pushing the con-con
Five groups have had significant success pushing Article V convention applications at State Legislatures in the last five years. Each of these groups claims passage of their legislation in 34 states to be their goal.[iv] They also claim a convention called by Congress on their behalf would necessarily be limited to the subject of their group’s application. The first four groups are from the phony right:
- Convention of States Project (COSP) is the most heavily funded of the groups, with tens of millions of dollars in undisclosed contributions, including major funding by the globalist Koch Brothers[v] of Texas. COSP applications passed in 12 states between 2014 and 2017. But in 2018, COSP’s Article V convention legislation was rejected by at least 18 states[vi] and hasn’t passed in any state since May 12, 2017. COSP’s ostensible purpose is proposed amendments addressing three subjects: fiscal restraints, limiting the power and jurisdiction of the federal government, and congressional term limits.
- Balanced Budget Amendment Task Force (BBATF) claims to have 28 states under its belt. In 2018, BBATF legislation was rejected by at least six states and passed in [vii] BBATF’s ostensible goal is an amendment to the US Constitution requiring a balanced federal budget.
- Compact for America (CFA) proposed its own balanced budget amendment which passed in five states between 2014 and 2017. CFA’s amendment is pre-written, balances the budget by authorizing Congress to impose a national sales tax and a value-added tax, and is pre-ratified by states that choose to join their compact. CFA appears to be losing steam and introduced their legislation in only Oklahoma in 2018 and failed.
- US Term Limits applications ask Congress to call a convention to propose a congressional term limits amendment to the US Constitution. Although this resolution technically passed in three states, the previously-passed COSP applications from those same states incorporate similar language, making all US Term Limits’ successes thus far redundant.[viii]
- And from globalist George Soros[ix] and the radical left comes Wolf-PAC, promoting an Article V convention ostensibly to propose an amendment for “free and fair” elections and overturning the Citizens United decision. Wolf-PAC legislation passed in five states between 2014 and 2016; but was rejected in at least 15 states[x] in 2018 and hasn’t passed in any state since June 17, 2016.
Hundreds of Applications
There have been hundreds of Applications for an Article V convention since our Constitution was ratified in 1788, yet Congress has never called a convention. COSP uses this fact to assure state legislators that Congress counts the applications by subject, and a convention would be limited to the scope of the application. From the COSP website,
“We have never had a Convention because we have never had two-thirds of the States agree on the subject matter. State legislatures control the subject matter. Just as the calling of the Convention is subject to the subject matter limitation, all stages of the Article V process are likewise prohibited from going outside this limitation.”[xi]
But it is up to Congress to decide which applications to count and how to count them. Perhaps Congress never had what they consider “active” applications from two-thirds of the States. Congress didn’t start a formal process for keeping track of Article V convention applications until 2015. Moreover, whatever way Congress chooses to count applications has no bearing on the Delegates’ plenipotentiary powers to throw off the Constitution we have and set up a new one.
Up until 2018, half-truths and misleading arguments, along with a multi-million-dollar propaganda campaign, netted the convention lobby some degree of success. But by January, 2018, their legislation came to a grinding halt at Legislatures nationwide due to grassroots opposition, and convention operatives were forced to rethink their strategy.
Natelson’s new way to count to 34
Enter Rob Natelson, the convention lobby’s go-to guru, who announced in 2010 that the words “constitutional convention” would no longer cross his lips.[xii] Natelson redefined an Article V convention as a “convention of the states,” thus implying that State Legislatures will control the convention and thus can prevent a “runaway” convention.
Similarly, on May 9, 2018, in 9,000 mind-numbing words, Natelson audaciously told Congress how to count to 34.[xiii] If he can no longer convince state legislators to jump aboard a sinking ship, perhaps he can convince Congress that the ship already made it to port!
To wit, Natelson defines “plenary” or “unlimited” applications as those existing applications that don’t mention a subject in their “operative” (Resolved) clauses. Many of these ostensibly unlimited applications are peppered with references to averting the civil war (1861) or the direct election of senators, the latter which Congress addressed with the 17th amendment (ratified 1913). Natelson treats these “plenary” applications as wildcards in a game of rummy and says they should be added to any group’s count. Natelson found 6 wildcards to add to his BBATF count and voila! Natelson declares BBATF 97% of the way to its goal– just one state short of 34.[xiv]
Natelson concludes that Congress should count all “plenary” applications on its way to 34, but that the convention called would be limited to the subject of the narrowest application counted. His scheme would double COSP’s wins, triple that of Wolf-PAC, quadruple CFA’s, and boost US Term Limits by a factor of 8! Natelson gives any new group promoting a con-con on any subject, e.g. the definition of marriage or repeal of the Second Amendment, 15 wildcards right out of the gate –propelling them almost halfway to the finish line!
In fact, Congress can count applications however they like. So Natelson’s method qualifies as one way for Congress to count. What is shameless on Natelson’s part, however, is that his convoluted scheme contradicts the snake oil sold to state legislators to pass pro-convention legislation. For years, COSP and Natelson have been adamant that applications need to be identical or similar to aggregate.
ACF’s inconvenient truth
On the heels of Natelson’s attempt to resuscitate the con-con movement comes a “white paper”[xv] dated June 15, 2018, from the American Constitution Foundation (ACF), a new group that admits they are “focused on a strategy to trigger a Congressional call for an Article V convention…prior to the Nov. 2020 national elections.” ACF appears to be still another group of apologists for the con-con movement with ties to BBATF, COSP and other Koch-funded organizations.[xvi] Or they may be a front group for all major players.
ACF’s white paper is an admission, long asserted by those opposed to a convention, that an Article V convention can’t be limited by subject:
“ACF contends Congress can only call a general convention for proposing amendments, irrespective of the subject or set of subjects specified in applications. This would be a plenary convention by nature…and is commonly referred to as a general convention or a constitutional convention[xvii], [xviii]…”
For purposes of counting applications, ACF counts only applications that don’t specify an exclusive purpose for calling a convention.[xix] Interestingly, ACF counts COSP applications as aggregating for a plenary or general convention, since one of its subjects, the “‘power and jurisdiction’ is what the Constitution is all about”!
Thus, ACF admits that a congressional call can’t limit a convention by subject, and Delegates can’t be limited by the scope of the application. It then follows that any convention called would be a convention for all factions, and Delegates could propose any amendments or write a completely new Constitution.[xx] This clearly puts Soros and the Kochs on the same team.
Conveniently, ACF’s own aggregation study counts 37 states with valid applications and concludes that Congress already has sufficient applications to call the convention. ACF agrees with opponents that convention Delegates can propose any amendments irrespective of the subject of the application. But because ACF fails to consider the Fundamental Act of our Founding, the Declaration of Independence, it denies that a new Constitution could result.[xxi]
ACF says that the limited-by-subject narrative: 1) isn’t supported by evidence; 2) contributed to the convention lobby’s legislative failures; and 3) empowered their opposition.[xxii] That may be, but proponents used that narrative to deceive legislators into thinking they could control Delegates in order to win legislators’ “yes” votes on the applications. And now that con-con applications are failing, ACF, like Natelson, is test-driving an alternative way to get to 34 with already-passed applications.
But ACF realizes that catapulting themselves over the finish line overnight doesn’t fit the old narrative, and it will take some convincing for Congress and state legislators to believe a convention has been triggered already.[xxiii]
A Slippery Slope
Might convention operatives be going down a slippery slope here? They’ve spent 5 years and untold millions of dollars convincing state legislators that an application limited by subject is the first line of defense in preventing a “runaway” convention.
And now, with State Legislatures blocking their applications at every turn, operatives are desperate to trigger a convention any way they can. So, they are contradicting one of their most widely-believed deceptions and admitting that a convention can’t be limited by the scope of the application. This makes hundreds of previously-passed applications available for counting to 34. And there may be as many ways to count as there are applications!
Will this reversal backfire? Might more legislators realize that if the grassroots opposition was correct about Article V conventions being unlimited, they might also be correct about State Legislatures being unable to prevent a runaway convention[xxiv] or Delegates having the inherent right to abolish our Form of Government?!
A Tangled Web
The con-con is on life-support, but convention operatives are cunning, heavily funded, and not about to give up easily. Their massive propaganda machine rolls on to convince legislators that their constituents give a rip about an Article V convention. They work through fake news and, seemingly, anything that money can buy, like a big payroll, pricey software, misleading surveys, petitions,[xxv] endorsements from celebrities with no expertise on our Constitution, former US Senators with a knack for leaning on state legislators, lobbyists, internet trolls, media promotions and appearances, hype, hoopla, and more.
Despite huge losses, convention operatives are doubling down in their fight against truth and logic. They are testing a politically premature victory shout in order to induce Congress to call a constitutional convention before state legislators discover they’ve been duped and rescind applications en masse. The major players, entrenched in falsehoods, are unlikely to embrace a general convention publicly.[xxvi] But it is telling that none have disavowed the new spin either.
We now have some convention proponents and possibly all opponents agreeing that conventions can’t be limited by subject. This alone should be a wake-up call for legislators who have been deceived into supporting Article V applications.
Rescission is the key
It is only because of 2016 and 2017 rescissions of all their previously-passed Article V convention applications that Delaware, Maryland, New Mexico and Nevada are not on anyone’s list of states with valid Article V applications.[xxvii] And know your history! The balanced budget amendment (BBA) movement isn’t new. By 1983, 32 states had passed applications asking Congress to call a convention to propose a BBA. This, too, was a globalist movement to replace our Constitution using a “conservative” issue to snare Republican votes.[xxviii] It was only because 16 State Legislatures rescinded their applications between 1988 and 2010 that the scheme was thwarted for a generation.[xxix]
ACF has gifted us with enough information to expose the real agenda[xxx] and motivate a grassroots rescission effort from both sides of the political aisle in Legislatures across America. If enough Legislatures rescind all their previously-passed Article V convention applications and reject new applications and unfaithful delegate bills,[xxxi] Congress will be left with nothing significant to count. Rescission is the key to saving our Constitution, and State Legislators hold that key. They need to use it while they can.
[Bio: Judi Caler lives in California and is Article V Issues Director for Eagle Forum of California, and President of Citizens Against an Article V Convention.]
© 2018 Judi Caler – All Rights Reserved
E-Mail Judi Caler: judicaler@hotmail.com
Footnotes:
[i] Article V convention applications are passed by State Legislatures as bills or resolutions.
[ii] Except redundant applications. See subheading: Major players pushing the con-con: 4) US Term Limits.
[iii] See Brilliant Men flyer.
[iv] When states pass CFA bills, they are right then and there ratifying the amendment which delegates massive new taxing powers to Congress. So, CFA seeks 38 states, the number of states needed to ratify an amendment.
[v] Nancy Thorner, “Koch Brothers’ Money Funds Pro-Con Con Agenda,” Illinois Review, 19 May 2017
[vi] HI, IA, ID, KS, KY, MD, MN, MS, NC, NE, NH, SC, SD, UT, VT, WA, WV, & WY.
[vii] BBATF passed applications in 16 states between 2010 and 2017 and counts 12 similar applications passed between 1976 and 1983. But in 2018, BBATF applications were rejected by KY, ME, MS, SC, VA & WA.
[viii] US Term Limits (USTL) passed its application in FL (2016), AL (2018) & MO (2018). Those states previously passed COSP applications asking Congress to call a convention to, among other things, limit the terms of office for federal officials and/or members of Congress. USTL failed to pass in at least nine states in 2018: AZ, GA, MD, ME, MS, NH, SC, TN, & VT.
[ix] Bruce Parker, “Soros in Vermont: Leftist billionaire behind state’s call to keep money out of politics,” Watchdog, 6 May 2014.
[x] CO, HI, IA, LA, MA, MD, ME, MO, NE, NM, OK, SC, WA, WI, & WV.
[xi] Michael Farris, “Answers to the 16 toughest Article V questions” COSP website #4a, retrieved 31 Aug. 2018.
[xii] Robert G. Natelson, “The State-Application-And-Convention Method of Amending the Constitution: The Founding Era Vision,” 16 Sept. 2010, 10.
[xiii] Robert G. Natelson, “Counting to Two Thirds…,” Federalist Society Review, 9 May 2018, Vol. 19.
[xiv] In getting to 33, Natelson accepts 27 of BAATF’s count of 28 and adds 6 “wildcard” states that hadn’t already passed a BBA application.
[xv] American Constitution Foundation, “White Paper on an Article V General Convention of States, 15 June 2018, 1.
[xvi] https://www.amconfdn.org/our-team/
[xvii] American Constitution Foundation, White Paper, 1.
[xviii] American Constitution Foundation, White Paper, 2. Unlike Natelson who uses Newspeak, ACF uses the term “Constitutional Convention” for a convention called under Article V.
[xix] Ibid., 1.
[xx] James Madison said it best: Letter to Turberville, 2 Nov. 1788. “…a General Convention…would be courted by the most violent partizans on both sides…[and] would no doubt contain individuals of insidious views who under the mask of seeking alterations…might have a dangerous opportunity of sapping the very foundations of the fabric [of our country].”
[xxi] Declaration of Independence, para 2.
[xxii] American Constitution Foundation, White Paper, 7 (conclusion).
[xxiii] Ibid.
[xxiv] Publius Huldah, “delegate laws cannot control Delegates,” 16 Sept. 2017.
[xxv] Idaho Rep calls COSP petitions “high-tech fraud,” Rep. Priscilla Giddings: Should Idaho Support a constitutional convention?, Gem State Patriot News, 16 Dec 2017.
[xxvi] US Term Limits is the only group to date that publicly acknowledges they could be at 25 states (instead of three) “based on one legal interpretation.”
[xxvii] Although in an Aug. 13, 2018 ARTICLE, Natelson makes a silly case for discarding rescission resolutions from 7 states because their terminology doesn’t conform to the false narrative.
[xxviii] “The Ford Foundation’s Pursuit of Globalism: The Con Con Connection,” Patriot Coalition
[xxix] Larry Greenley, “Save the Constitution by Rescinding Article V Convention Applications” The New American, 12 Jan. 2016.
[xxx] To get a new Constitution, the con-con lobby needs a convention. Which Constitution will be proposed at the convention? George Soros wants a socialist Constitution by 2020; the Koch Brothers appear to want a constitution moving the United States into the North American Union; the Ford Foundation commissioned the Proposed Constitution for the Newstates of America which forms a dictatorship.
[xxxi] Delegates, as Sovereign Representatives of the People, are not answerable to State Legislatures (which are “mere creatures” of the state constitutions) or to Congress (which is a “mere creature” of the federal Constitution). Therefore, delegate laws cannot control Delegates; they are designed to give legislators a false sense of security in voting for Article V convention applications.
