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Can Republicans Rewrite the Constitution?

A stealth right-wing campaign to call a constitutional convention is perilously close to succeeding. Its goal: repealing the twentieth century.

The Constitutional Convention room at Independence Hall in Philadelphia. Andrew Rehbein / Wikimedia.

In coverage of the midterms, we’ve heard a lot about the House, the Senate, governorships, and even ballot measures, but almost nothing about state legislatures. That may soon change, because the Democrats’ meager gains in this department will be crucial to stopping corporate America’s next strategy to further roll back the twentieth century.

The weekend before election day, a little-noticed article was run by the Associated Press, detailing plans by right-wing groups to push for a constitutional convention after the midterms to alter the United States’ founding document. This itself is nothing new: the Right has spent the past few decades pushing for just such a thing. But with a historically radical GOP in power, and with the Democratic takeover of the House frustrating right-wing congressional legislation for the foreseeable future, the next couple of years could well see the Right go all in on circumventing Congress entirely by simply rewriting the Constitution.

“Having a divided Congress may cause the proponents to feel even more committed to this idea,” says Michael Leachman, senior director of state fiscal research at the Center on Budget and Policy Priorities. “They might imagine that this is the only way they’re going to win the radical changes to the Constitution that they want.”

There’s good news and, obviously, bad news to this. The bad news is, this is a scary prospect that would not only be a disaster for any future left-wing project — a Bernie Sanders presidency, for example — but would severely hobble efforts to mitigate rapidly intensifying environmental collapse.

The good news is, it can be stopped.

But first let’s back up for a second. For the last few decades, the Right has been gradually setting the table to pass a particular constitutional amendment (more on the details below). The most familiar way of doing this is to get two-thirds of both houses of Congress to approve it, before convincing three-fourths of all state legislatures — or thirty-eight of them — to ratify it. Congress actually came perilously close to doing this in 1995, when the amendment in question failed by one vote in the Senate.

Now, with Democrats controlling the House and a thinning GOP majority in the Senate, this is a non-starter. But there is another way to pass an amendment: have two-thirds of all states, or thirty-four of them, adopt resolutions calling for a constitutional convention on just this issue.

The proposed measure is the fabled balanced budget amendment. While its exact mechanics differ depending on who writes the language — in some versions Congress is simply barred from raising the debt ceiling, other times a supermajority is required to do so — the basic idea is to make it extremely hard, if not impossible, for the federal government to spend more than it takes in.

It’s not hard to see why this measure would be disastrous. The strict spending limit would serve as a constant, ready-made pretext to slash social spending. It would debilitate any effort to forestall catastrophic climate change, such as through unprecedented, large-scale investment in infrastructure. And it would magnify the impact of economic crises by taking away the government’s ability to stabilize the economy through spending. According to a couple of different estimates, balancing the budget in the face of the Great Recession would have sent GDP plunging by 22 percentage points and doubled the unemployment rate to 18 percent.

But wait, you say. Couldn’t a future Democratic president use this to jack up taxes on the rich? The answer is, not if the Right crams through any other constitutional amendments, such as an abolition of the federal income tax or a ceiling on federal spending, making brutal spending cuts the only avenue for meeting this legal standard. The Koch-funded American Legislative Exchange Council, one of the right-wing groups most aggressively engaged in this fight, included wording that would open the door to such limits in its model legislation in 2016.

And that brings us to the other terrifying thing about an Article V convention, so-named after the constitutional provision that governs it: there’s a good chance it could see the entire Constitution rewritten amid an orgy of corporate spending and lobbying.

This might sound like an exaggeration, but consider that the last time a constitutional convention met was in 1787. Originally called to simply amend the Articles of Confederation that then served as the country’s supreme legal document, the convention decided to rewrite the whole thing instead. Far from “the greatest document ever written,” the 1787 constitution — “the Constitution” — was the product of mess of bickering, wheeling and dealing, and bitter compromise that initially barely passed, and some of whose authors doubted would survive more than a couple of decades.

Now imagine that already chaotic, rancorous process re-done, except with an army of lobbyists with bottomless wallets deployed to put their clients’ stamp on the process. Imagine every form of legalized bribery dangled in front of hapless delegates to ensure they vote in line with corporate America, from generous campaign donations to the prospect of cushy, well-paid corporate jobs just through the revolving door.

“Ethics and campaign finance rules don’t apply to these delegates,” says Jay Riestenberg, who manages Common Cause’s campaign work on this issue. “I think Article V will work similar to ALEC — corporations and legislatures sitting around the table as equals.”

“This would be the mother of all opportunities for powerful interests to change the country’s Constitution,” says Leachman.

In such an environment, there’s no telling how many items on the Right’s long-term wishlist would be stuffed into a new founding document. One additional possibility mentioned in the AP report is a repeal of direct election of senators by voters, rather than selection by state legislatures, another anti-democratic bulwark against the GOP’s gradually fading electoral fortunes.

There’s also no telling how the rules might be tilted to ensure the Right’s agenda passes. Republican dominance of the states guarantees the party would choose most of the delegates, and there’s no legal guidance as to how such a convention is supposed to work, from drafting all the way to voting. The ratification process could even be radically changed, as in 1787, when the convention straight up ignored the existing process and decided to make ratification substantially easier.

But the sky would really be the limit. When 137 state legislators got together in 2016 to simulate such a convention, some of the drafted amendments required a congressional supermajority to raise taxes, empowered three-fifths of states to nullify federal laws, let congress override regulations, and limited the commerce clause of the constitution, which has been used to authorize everything from Obamacare to the Civil Rights Act. And it’s easy to imagine even more radical amendments being made: a constitutional ban on abortion, for instance, or all manner of language limiting government power at a time when large corporations, some industries in particular, are increasingly spooked about their future bottom lines.

This has been in the works for a while. A number of states passed resolutions calling for a constitutional convention on a balanced budget amendment in the late 1970s and 1980s, after which a decades-long hiatus ensued, followed by a renewed push by well-financed right-wing groups, including ALEC, since 2010.

This is partly what the Right’s long-term project to capture the country’s statehouses has been about, aided by the Democrats’ nationwide collapse under Obama. Since 2010, seventeen states, red and blue, have passed such resolutions. When added to the states that have rescinded their earlier calls, that puts the current number of states approving a constitutional convention at 28, according to the Balanced Budget Amendment Task Force, just six short of what’s needed.

There are some legal questions about whether the resolutions passed decades ago still apply, a question that would more than likely be settled by the Supreme Court, currently in the grip of a 5-4 conservative majority. Riestenberg believes the justices may not treat the matter as a “strictly partisan issue.” Even so, it’s clear the court is a frail shelf on which to rest one’s hopes.

Fighting Back

Now we come to the good news: after Tuesday, Democrats have the power to deal a further, powerful blow to this effort.

As mentioned before, a number of states have already rescinded the resolutions they passed years before, including Maryland, Nevada, and New Mexico, which did so last year just as resolutions passed in two other states. The modest number of state legislative chambers now flipped by the Democrats provides an ideal opportunity to rescind more of them.

Two states that have previously passed such resolutions are now controlled by Democrats: Colorado, which as of Tuesday has a “trifecta” in place (Democratic control of the governorship, and both legislative chambers); and New Hampshire, which now has a Democrat-controlled legislature presided over by a Republican governor (calls are rescinded through a simple majority and don’t need the governor’s signature). Riestenberg says Common Cause is “super involved in Colorado,” hoping to obtain a repeal of that state’s resolution in the 2019 session, and is “starting work in New Hampshire.”

These two revocations would increase the Right’s deficit to eight states, a number that may narrow again depending on Republicans’ future electoral fortunes. But further electoral gains for the Democrats could present more opportunities to keep eroding it.

Michigan and Wisconsin are typically blue states that passed resolutions while under Republican control. After Tuesday, both will now have Democratic governors, signalling a possible wider statewide shift back to the party in the future.

Then there are the states that are being targeted to pass new resolutions. Eight states are being worked on by balanced budget amendment campaigners, according to the Task Force, including Minnesota, Maine, Washington, and Virginia. Minnesota and Maine saw their respective statehouse and senate turn blue last week, while Democrats have a trifecta in Washington. Virginia, currently governed by a Democrat, could see further blue gains when its state senate goes up for election next year, if last week’s results are anything to go by.

It’s also worth noting that a Republican presence isn’t necessarily an automatic death-knell for rescinding these calls. Resolutions have already failed to pass this year in red states like Idaho, Nebraska, Iowa, and Kansas (though all but Idaho are still counted by the idea’s proponents in their current tally). When Nevada rescinded its earlier resolution, the vote was unanimous. There’s also some grass-roots conservative opposition to the idea, with both the John Birch Society and Eagle Forum lobbying against it at the state level. Among other things, conservatives fear rewriting the constitution could eliminate their beloved second amendment.

Rescinding calls in New Hampshire and Colorado, or potentially in Michigan and Wisconsin, wouldn’t necessarily halt an increasingly desperate Right. One right-wing scholar has already argued that six states should be added to the pro-convention count on the back of resolutions passed, in some cases, over a hundred years ago, while the libertarian Independence Institute has taken aim at the “rescissions,” arguing they’re invalid.

Still, making it as hard as possible for the Koch brothers to rewrite the Constitution should be a top priority for Democrats around the country, in addition to advancing a positive agenda in advance of 2020.

The GOP has long been a radical party devoted to carrying out its ideological aims at almost any cost, but there’s a reason it’s gone particularly off the deep end under Trump: it knows the country’s demographics are rapidly shifting in a way unhelpful for their continued hold on power. That’s why the organized Right has increasingly put its hopes in anti-democratic measures like stacking the courts with ideologues, suppressing voter turnout, outright rigging elections, and, potentially, overhauling the country’s core legal rules.

Their success in that last project is in no way inevitable. And Democratic lawmakers around the country will soon be being pressured to make sure of that.