Article V Convention of States: Dangerous and Ineffectual

Update as of 2/17/22: Two resolutions (H.3205 & S.133) calling for an Article V convention of states passed a Senate subcommittee on Wednesday, the former of which passed the full House in 2021. This is the closest South Carolina has been to passing an application for a convention, which needs approval by 34 states. While its goals are commendable, we strongly oppose the convention approach given its unpredictable nature. For a more thorough explanation of the issue, see our analysis published in 2018 below. 

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South Carolina’s convention of states legislation is part of a nationwide movement to rein in a presumed reckless federal government by placing specific restraining mechanisms such as term limits, balanced budget requirements and other fiscal restraints directly within the constitution.

While this is a commendable goal, the convention approach is misguided and risky. The constitution exists to preserve a solid structure of representative government and to protect the inalienable, self-evident rights of a free people. Legislation governing debt and spending levels belongs in the US code of laws after being properly debated by the people’s representatives in Congress.

The convention approach is dangerous.

Article V of the Constitution places no boundaries on the topics that may be discussed, and because there is no precedent for a convention under the provisions of Article V, there is no guarantee that fundamental rights such as free political speech, the bearing of arms and unreasonable search and seizure – just to name a few – would not be rewritten or even struck.  Activists from all points on the political spectrum have pushed for a convention of states for various reasons, and if a convention were called, representatives of all ideologies would participate as selected by the people of each state.

This concern was not lost on the founders. James Madison, regarded as “the father of the Constitution” due to his pivotal role in its creation and adoption, believed that a convention was not the “most convenient or probable channel” for achieving desired change. When asked his opinion on a convention of states movement in 1788, he said:

If a General Convention were to take place for the avowed and sole purpose of revising the Constitution, it would naturally consider itself as having a greater latitude than the Congress appointed to administer and support as well as to amend the system; it would consequently give greater agitation to the public mind; an election into it would be courted by the most violent partizans [sic] on both sides; it [would] probably consist of the most heterogeneous characters; would be the very focus of that flame which has already too much heated men of all parties; would no doubt contain individuals of insidious views, who under the mask of seeking alterations popular in some parts but inadmissible in other parts of the Union might have a dangerous opportunity of sapping the very foundations of the fabric. Under all these circumstances it seems scarcely to be presumable that the deliberations of the body could be conducted in harmony, or terminate in the general good. Having witnessed the difficulties and dangers experienced by the first Convention…I should tremble for the result of a Second, meeting in the present temper of America and under all the disadvantages I have mentioned.

The founding fathers did not intend the convention mechanism to circumvent the constitutional tools for influencing government. Rather, it is a last resort for when all other tools have failed. For example, if the federal government were to take dramatic steps to strip control of government from the citizens – such as removing or suspending congressional elections – a convention would be an appropriate option.

This reflects how the founders handled their own tyrannical government prior to the revolution. As Patrick Henry famously put it, they fought within the existing structure for years – when that existing structure gave them zero mechanisms for changing their government:

“We have petitioned; we have remonstrated; we have supplicated; we have prostrated ourselves before the throne, and have implored its interposition to arrest the tyrannical hands of the ministry and Parliament.

Only when those desperate petitions failed repeatedly did they resort to “[altering] their former systems of government.” The convention of states mechanism should only be used under similar circumstances. It is a last resort intended to prevent a nation stripped of all its constitutional rights from having to revolt again.

The problems we face today are of our own making. Representatives and Senators – the same ones who spend so recklessly – are peacefully re-elected every two and six years, respectively. We elect our president every four years, and the judicial branch is appointed and confirmed by our elected officials, with numerous judicial checks placed directly within the constitution. “Government by the consent of the governed” cannot guarantee wise fiscal policy, or that existing checks and balances will be implemented. It simply means that whatever happens does so with our consent. There is no governmental structure that can make up for the citizens’ failure to hold their government accountable.

The proposed solutions will not achieve the desired results.

Many convention proponents specifically want to amend the constitution to address two main concerns: a balanced budget and term limits. However, in many cases these policies have already been implemented at the state level, and they have not prevented states from incurring significant debt or electing career politicians.

According to the National Association of State Budget Officers, forty-six states have some form of balanced budget requirement, and thirty-two of those states have constitutional amendments requiring balanced budgets. However, this has not stopped states from incurring debt. Every state holds unfunded pension liabilities for a national total of nearly $1 trillion.

According to one report, five of the states with balanced budget requirements – Maryland, Kentucky, Massachusetts, Illinois, and New Jersey – rank as the most fiscally unhealthy states in the nation, due primarily to their large debt obligations and low cash on hand.

In addition, the overall impact of term limits legislation is negligible at best, according to studies of the fifteen states that have implemented limits on legislative time in office. Term limits have not automatically led to a dramatic rise in citizen legislators and a resulting increase in common-sense, responsible policy. Some states have actually seen an increase in career politics as well as in how much time and money lobbyists invest in attempting to sway lawmakers.

South Carolina does not have term limits, but it does have a constitutional requirement to balance the budget, as well as spending limits and debt service ceilings. However, these have not prevented lawmakers from increasing state and agency debt at alarming rates or from creating a massive unfunded pension liability. In this year’s press release from the comptroller general’s office announcing the closure of the books for fiscal year 2016-2017, lawmakers were strongly advised to curtail spending and address the state’s deficits.

The convention process would be dominated by state lawmakers.

While many believe that delegates to a convention of states would be chosen from and comprised of ordinary citizens from each state, this is a false assumption.

There is no delegate selection process currently spelled out in state law for an Article V convention of states in either the South Carolina state constitution or state law, which means it would be entirely up to the discretion of state lawmakers – the same lawmakers and legislative leaders who control the energy monopoly, the infrastructure system, the judicial branch, and spending and procurement. That concentration of power will not suddenly shift into the hands of the people simply because the stakes are higher during a convention of states.

South Carolina’s legislative leaders routinely ignore the state constitution when its provisions hinder their legislative agenda and openly defy elements of state law. The General Assembly’s power monopoly would not dissolve even if the opportunity to rewrite the US constitution were to arise.

While the states would naturally control the actions of their delegates, that control would be exerted by the state’s lawmakers. Simply put, we would be assuming tremendous risk to trust our legislative leaders to control the convention delegates, and we cannot assume that the citizens of South Carolina will exert any more influence over their government then than they do today.

Restraining federal spending starts in the states.

If state lawmakers want to restrain federal spending, they need to start by addressing their own role in that process. The primary beneficiaries of federal spending are the states themselves, and South Carolina ranks as the sixth most federally-dependent state,  receiving $7.87 back from Washington for every $1 its citizens pay in federal tax.  Over one third – $8.6 billion – of our entire state budget comes from federal appropriations, and that amount has risen steadily over the last decade.

Simply put, if the federal government were to curtail its spending, lawmakers in South Carolina would be forced to deal with major budget cuts. Arguing for a convention of states is a relatively painless way for the General Assembly to appear in opposition to irresponsible federal policies.

Furthermore, in order to obtain federal funding, state officials must first implement or promise to implement federal priorities. Those federal dollars influence – in some cases dictate – state policy on education, transportation, second amendment rights, entitlements, and many other areas of policy. Unfortunately, none of those federal dictates is disclosed or debated in the budget process – this despite a law requiring agencies to disclose every federal dollar they want to spend and the strings attached (Section 2-65-20) during the budget process.

The solution to an out-of-control federal government is to begin imposing discipline at home. South Carolinians should demand that their lawmakers disclose exactly how much federal money they accept, what programs those dollars will fund, and what mandates are included. Further, lawmakers should periodically follow up and report on those programs to determine whether or not the state is receiving the promised results.

In any business transaction, the buyer has a legitimate right to know what he is purchasing, what the product is supposed to do or accomplish, and who can be held accountable if the product fails to meet expectations. Imposing a contract-like relationship on the federal funds our state accepts would force lawmakers to be accountable to the people for their own culpability in the reckless federal spending process. Only then can South Carolina begin to decline federal funding.

Conclusion

The convention of states mechanism can be a legitimate tool, but it was never intended to take the place of electing and replacing public officials as needed to enact the will of the people. The purpose of the constitution is to preserve the rule of law and government by the consent of the governed. The specifics of how a free people governs itself belong in state law after debate by elected representatives.

If policy issues can be addressed through our legislative and electoral process, it is inappropriate and dangerous to attempt to change our constitution instead. The only time a convention of states should be called is when every other tool for controlling our government has failed.

There is no shortcut for holding elected officials accountable, and no constitutional structure that will do it for us. As President James A. Garfield said in a speech on July 4, 1876:

“Now more than ever before, the people are responsible for the character of their Congress. If that body be ignorant, reckless, and corrupt, it is because the people tolerate ignorance, recklessness, and corruption. If it be intelligent, brave, and pure, it is because the people demand these high qualities to represent them in the national legislature.”

The only way to change federal policy is to hold both federal and state lawmakers accountable. Then – and only then – will we see a return to responsible policies and citizen representation.