When Congress is the Problem

"The hierarchy of power in Washington, D.C. is the special-interest groups [at the top], leadership, rank-and-file members."
                               —U.S. Representative Ken Buck (R-CO)

"That system...makes the members of Congress so sensitive to what the lobbyists want that it's hard for them to see above the water and recognize what the public needs. And that dynamic is the corruption I think of as the swamp."
                               —Lawrence Lessig, Harvard Law School professor

"I think that the greatest challenge we face is not Republicans versus Democrats, it's reformers against those who want to maintain the status quo. And we've got Republicans and Democrats in both groups."
                               —U.S. Representative Matt Gaetz (R-FL)

From the HBO documentary The Swamp

 

The People’s Path to Pursuing a Constitutional Amendment

When Congress fails to represent the people who elected them, the U.S. Constitution provides a path for the people to propose a Constitutional amendment through the states. Article V lays out two equal alternatives:

"The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States..."

Thus there are only two ways to amend the U.S. Constitution:

  • A proposal passed by two-thirds of each chamber of Congress, then ratified by three-quarters of the states

  • A proposal passed by a convention called by two-thirds of the states, then ratified by three-quarters of the states

As former U.S. Supreme Court Justice Antonin Scalia said about this second option: "[When] the Congress is simply unwilling to give attention to many issues which it knows the people are concerned with—and which issues involve restrictions upon the federal government’s own power—I think the founders foresaw that and they provided this method in order to enable a convention to remedy that."*

In a 2016 report, the Congressional Research Service noted that an Article V Convention “was included [in the Constitution] to provide the people, through applications by their state legislatures, with the means to call a convention having the authority to consider and propose changes to the Constitution, particularly if Congress proved incapable of, or unwilling to, initiate amendments on its own."

All 27 Amendments to the Constitution were passed using the first of the two methods: Congress proposed an amendment, then two-thirds of state legislatures ratified it. So why is a convention of states necessary to obtain a 28th Amendment? As George Mason argued when he proposed the convention language: It is necessary when Congress itself is the problem.

The 17th Amendment is the best example of a convention campaign working effectively to add an amendment to the U.S. Constitution. The 17th Amendment, which allows for the popular election of U.S. Senators, came about in reaction to Senators being appointed by state legislatures until the early 1900s. That process was widely recognized as corrupt due to the disproportionate influence of wealthy individuals and special interests. In fact, the Senate became so corrupt that individual senators took nicknames such as the "Coal Senator," the "Bank Senator," and the "Oil Senator."

Citizens responded to this overt venality by using every tool of democracy available including petitions, local legislation, ballot referendums, educational campaigns, resolutions calling on Congress to propose a Constitutional amendment, and finally, after all else failed, applying for an Article V Convention to propose an amendment.

When that movement was just one state shy of the two-thirds needed to force a convention on this topic, Congress reacted by proposing an amendment requiring the direct election of U.S. Senators for the states to ratify—resulting in the 17th Amendment to the U.S. Constitution. The Congressional Research Service has called this technique the "prodding effect." It worked then, and it could work today.


Arguments Against an Article V Convention

Both left- and right-leaning groups—Common Cause and the John Birch Society among them—have argued vehemently against the use of Article V Conventions. They say correctly that such a convention has never been used to amend the Constitution. Never having held an Article V Convention, however, is hardly a reason to avoid one, since the framers provided this Constitutional alternative in anticipation of a time when Congress fails to represent the people. Opponents also fear the prospect of a "runaway" convention, where any topic could be proposed, possibly threatening the process for ratifying amendments or the Constitution itself. See authoritative answers to these arguments below.

 

Experts Respond

The Constitution’s framers foresaw a time—when Congress itself is the problem—for citizens to have the Constitutional authority to pursue an amendment through the states. That time is now: Supreme Court rulings in Citizens United and other cases have created no-holds-barred politics in which Big Money steamrolls the democratic process. A Congress that is the result of this increasingly lawless system can hardly be expected to propose an amendment to dismantle that system without an extraordinary level of public pressure. A citizens’ drive toward a convention of states under Article V would apply such pressure.

Government and legal agencies have responded to critics opposing a convention of states:

  • Criticism: Individual delegates could bring up matters unrelated to those the convention was originally called to address.

    Response #1: For a convention to stray from its original topic, delegates would have to propose topics that were not included in the original resolution approved by their state legislatures. Nine states to date have made it a felony for any delegate to a state-called convention to call for or vote on any topic that was not part of the original convention topic.

    Response #2: The Justice Department concluded in 1987 that Article V Conventions can be called "for limited purposes, and that a variety of practical means to enforce such limitations are available." In addition, "Congress may decline to designate the mode of ratification for those proposed amendments that it determines are outside the scope of the subject matter limitation and therefore beyond the authority of the convention to propose."

    Response #3: The American Bar Association in its 1973 "Report of the ABA Special Constitutional Convention Study Committee" resolved that "Congress has the power to establish procedures limiting a convention to the subject matter which is stated in the applications received from the state legislatures."

  • Criticism: Calls for conventions on unrelated subjects can be combined.

    Response: Several hundred resolutions by 49 different states have called for Article V Conventions on a wide range of topics. One set of resolutions for a balanced-budget amendment succeeded in 28 states. Congress has not called the convention, however, indicating that at a minimum 34 states are required to pass resolutions on the same topic.

  • Criticism: Convening a convention of states could enable changing the rules for ratifying Constitutional amendments, or result in a "runaway" convention.

    Response #1: A Memorandum Opinion for the Attorney General "Constitutional Convention—Limitation of Power to Propose Amendments to the Constitution" stated in 1979: "the constitutionally mandated procedures would operate to deprive the convention of power to make constitutionally viable proposals except with respect to subjects within a predetermined field. That field, however broad or narrow, would be defined by the extraordinary legislative act that initiates the convention process, the application of the legislatures of the States." The Memorandum further observes that, at the close of the convention, "Congress would have no power to provide for the ratification of any proposal propounded by a constitutional convention unless that proposal were responsive to the application that justified the gathering of the convention in the first instance."

    Response #2: In 2016, a Congressional Research Service report "The Article V Convention to Propose Constitutional Amendments: Contemporary Issues for Congress" concluded that a call for a convention can be disapproved by Congress for "not only a departure from the policy issue for which the convention had been called, but also failure to follow procedures prescribed in the authorizing legislation."

    Response #3:  Harvard Law School Professor Lawrence Lessig, who taught courses about the Article V Convention of states, has noted that "an Article V Convention is not a ‘Constitutional Convention,'" since, "an Article V convention only has the power to 'propose amendments' to the Constitution of the United States. Those amendments are not valid or effective unless ratified by 38 states. Until ratified, they are mere proposals."

 

Conclusion

These expert sources confirm that Congress shall call a convention—and are compelled to do so—only for limited purposes, and can withhold any proposed amendment from ratification if it does not respond to the original application from the state legislatures.

Under Article V of the Constitution, both alternatives receive equal treatment about how an amendment is proposed—either by a two-thirds vote of both houses of Congress, or a convention called by two-thirds of state legislatures (34 states). The next step, the ultimate safeguard, requires three-quarters of states to ratify the amendment regardless of which method was used to propose it.

The urgency of citizens acting when Congress fails to overcome the corrupting influence of big money on our democracy was noted by Rep. Buck (R-CO) in the HBO documentary The Swamp: “There’s no incentive for leadership to reduce its own power by reforming Congress. But Congress will react when the people stand up and demand action.”

 

* Justice Scalia argued for a convention of states during a 1979 debate.