On Friday afternoon, the Washington State Senate committee will hear a bill often dismissed as a potentially disastrous pipe dream. The resolution would ask Congress to convene a "limited" constitutional convention for the purposes of "proposing a free and fair elections amendment," which would effectively overturn Citizens United and end the corrupting influence of money in politics. State Senator Patty Kuderer, who introduced the bill, says she expects the resolution "to receive serious consideration by the committee," arguing that "we can’t go it alone in fixing our elections."
Cenk Uygur, host of the online news show The Young Turks, will travel to Olympia to testify in support of the bill. Over the phone, he claimed a hundred local volunteers from Wolf PAC, a political organization he founded to push for a convention, will join him in the chamber.
Uygur says the group boasts over 33,000 volunteers nationwide, and that he "wouldn't be surprised" if the number of Wolf PAC rose into the thousands in Washington. So far, five state legislatures have passed similar resolutions, and the group is hoping Washington will become the sixth.
Citizens United is one of the worst things to happen to our democracy in a long time. The Supreme Court decision effectively granted corporations personhood, paving the way for them (and billionaire donors, and labor unions) to pour unlimited amounts of money into Super PACs, which can spend as much money as they want on elections so long as they don't coordinate with candidates or parties. Citizens United, along with a few other court decisions, also led to the creation of non-profit groups who can spend tons of money on elections without disclosing their donors. But many argue that a Convention of the States could be much worse than this massive infusion of dark money into politics.
Constitutional Conventions Are Very Scary
The Constitution gives us two ways to make amendments. The normal way is to get two-thirds of the House and two-thirds of the Senate to propose an amendment, and then to get three-quarters of the states to ratify it. That's the way we've been adding amendments since the Philadelphia Convention in 1787, i.e. the first and only constitutional convention we've ever had.
But nobody thinks anybody is going to get two-thirds of anything with our current Congress. This Congress can't even pass a very simple fair elections bill under current leadership, so there's no way they're going to work together to overturn Citizens United et al, especially since so many politicians bank on it.
For that reason, Uygur and his Wolf PAC are taking the other route, which would require two-thirds of the states (34) to ask Congress to form a constitutional convention. In this scenario, states would send some number of delegates to a wood-paneled meeting hall in downtown Philly. There, they'd all don powdered wigs and propose amendments over pints of beer alongside cardboard cut-outs of Henry Clay and Benjamin Franklin. Whatever amendments they proposed during that hot, drunken, powdery session would then have to be ratified by a supermajority (three-fourths) of the states.
The Center on Budget and Policy Priorities, a progressive think tank, is extremely worried about this scenario. The Constitution, they argue, offers "no guidance whatsoever on the ground rules for a convention," so they fear things could get real weird real quick.
The CBPP and a majority of legal scholars argue that constitutional conventions are essentially sovereign. They create their own rules, and "no court or other body" could challenge them.
Since the conventioneers could make their own rules, CBPP and others believe the convention wouldn't follow the states' request and limit itself only to proposing amendments designed to get money out of politics. Freed from all oversight and likely flush with funds from special interest groups, the delegates would start proposing amendments on all kinds of issues.
In any event, this cautionary quote about conventions from former Supreme Court Chief Justice Warren Burger stands out:
[T]here is no way to effectively limit or muzzle the actions of a Constitutional Convention. The Convention could make its own rules and set its own agenda. Congress might try to limit the Convention to one amendment or one issue, but there is no way to assure that the Convention would obey. After a Convention is convened, it will be too late to stop the Convention if we don’t like its agenda.
Chances are progressives will not like that agenda. If every state sent one delegate to the convention as they did back in 1787, the convention would be composed of 18 Democrats and 32 Republicans.
With those numbers, conservatives and small states would run the boards. You'd see amendments that would ban abortion forever, amendments that would make gay people illegal, amendments that would give Wyoming all the money, etc.
Democrats would make proposals of their own, of course. You'd also see amendments that would overturn Citizens United, ensure universal health care access, make abortion legal forever, etc.
The fear is that Republicans have a clear advantage. Conservatives would only have to enlist three liberal delegates in order to ban abortion, for instance, whereas liberals would have to convince a lot more conservative delegates in order to pass one of their amendments.
While any of these amendments would still need to be ratified by three-fourths of the states, the CBPP is certain that the convention could change the rules for the number of states needed for ratification.
For precedent, they look no further than the Philadelphia Convention, which “went far beyond its mandate” and “ignored the ratification process under which it was established, creating a new process that lowered the number of states needed to approve the new Constitution."
Counterpoint: Constitutional Conventions Are Not Very Scary
Uygur doesn't buy any of this. He calls it "fearmongering," and argues that CBPP and other progressive groups are wrong on the history of the Philadelphia Convention.
Though Uygur admits the Constitution is silent on the ground rules for a convention, he argues that the hundreds of constitutional conventions held by individual states have given us plenty of precedent for which rules to set at the federal level.
Uygur also says that Article V of the Constitution is "very clear" about the requirement of having three-quarters of the states ratify any amendment that emerges from such a convention, and he's sure no convention rule could change that. So, even if those Republican delegates did convince a bunch of Democratic delegates to ban abortion, three-quarters of the states would still have to approve of that amendment, which doesn't seem likely.
Pointing to arguments from Harvard Law professor Lawrence Lessig, Uygur says he's not particularly worried about the prospect of a runaway convention, either.
Lessig's reading of the Constitution gives Congress authority to limit the scope of conventions to a single issue. And the fact that a convention hasn't already been called, Uygur says, adds weight to that argument. So far, 38 state legislatures have called for conventions on different topics. Since you only need 34 states to call a convention, Uygur says that Congress has de facto exercised its authority to limit a convention of the states to only proposing amendments on one topic.
But Uygur suggested that a runaway convention might not be such a bad idea. "Even if all their fearmongering were correct, [the members of the Philadelphia Convention] produced what we now all agree is the greatest document known to man. Wow, that’s so scary," he said.
But Is It Worth the Risk?
The fact is that the law isn't settled on what would happen during a constitutional convention. At the end of the day, you either think corporate cash is such a corrupting force in politics that you're willing to risk a complete conservative rewrite of the Constitution in order to banish it from the coffers of politicians forever, or you don't.
Citing a number of conservative groups who have successfully pressed state legislatures to pass resolutions calling for conventions, Uygur thinks that progressives who aren't willing to take the risk are unilaterally disarming in this fight for reasons he doesn't hesitate to point out. "Progressive groups have the same big donors that the elite have," he says. "Unsurprisingly, they have decided they would not like to give their power away."
"But the Founding Fathers were literal revolutionaries, and so they built revolution into the document," Uygur added. "In this generation, moneyed interests corrupted our government and stole our democracy. And it’s gross that progressive groups are fighting to keep money in politics."
That's true, too. But risking a conservative rewrite of the Constitution isn't the only way to get money out of politics. The Wolf PAC and its 33,000 volunteers could aim a little lower and likely have a big impact.
They could, for instance, push for state legislatures to pass strict campaign finance laws at the state level, which would choke off corporate influence and potentially create a farm team of politicians on both sides who wouldn't be as corruptible as current members of Congress. In Washington state, corporations can donate to the Democratic and Republican parties, who can then dish out that money to their respective candidates. Meanwhile, those candidates get to run around and claim that they're not technically accepting corporate donations. That's insane! Corporations can also give an unlimited amount of money to political parties so long as those parties don't spend the money on individual candidates. Push for a law that stops that, Wolf PAC!
Moreover, big corporations had influence over politicians before Citizens United, and they'll probably find some way to assert their influence even if it gets overturned in some convention.
At any rate, you can watch Uygur and his Wolf PAC make their case at 1:30 p.m. on TVW.