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Initiatives Amendment by Second Method at A Limited Article V Convention

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Introduction

If the reader believes that the preceding discussions of the Problems and a potential Solution are valid, the next step is to determine if there is a way to implement that Solution. The discussions showed that the Solution would inevitably require passage of a constitutional Amendment. The question now becomes is there any way to pass a Constitutional Amendment authorizing this Solution in the face of certain opposition from Congress and other antagonists?

Methods for Passing a Constitutional Amendment

Article V of the Constitution defines that either of two methods can pass an Amendment to the Constitution:

First Method

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution,

Second Method

The Congress, 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, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress.

Note: The "second method" calls an "Article V Convention" for proposing Amendments;
it does not call a Constitutional Convention that could rewrite the Constitution.

The first method requires a two-thirds vote in both Houses of Congress. This is unimaginable except possibly in the special case of the "prodding effect". This occurs when the States are certain of immanent success using the second method but Congress wishes to avoid an Article V Convention. In this case, Congress proposes the Amendment directly to the States for ratification. In effect, Congress preempts the States' opportunity to change the Amendment's wording at an Article V Convention. Congress has done this several times in the past.

Therefore, the second method is the key and the focus of this Plan. The first method has importance only in a "prodding effect" scenario.

Using the Second Method

The Founding Fathers certainly anticipated today's situation. Federalist 85 states "…the national government will always be disinclined to yield up any portion of the authority of which they were once possessed.…We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority." The statement is prophetic—Congresspersons will not give up their power and perquisites in order to limit special interest's excessive control of Congress. The Founding Fathers therefore included the second method of Amending the Constitution, which for clarity this Plan calls an Article V Convention.

The Founding Fathers deliberately gave Congress no power to prevent the second method. Federalist 85 continues, "The words of this article are peremptory. The Congress shall call a convention. Nothing in this particular is left to the discretion of that body." The words could not be clearer.

The Founding Fathers' words have great importance. They were the last assurances provided to the States to persuade them to ratify the Constitution. Scholarly legal interpretation of the Constitution relies heavily on them to find the meaning behind the Constitution. Thus, Congress may not derail a valid second method application:

  1. Congress shall call a convention—there is no option not to call a convention.

  2. Congress may propose one or the other mode of ratification—there is no option to propose neither.

There has been only one Convention to date. The 1778 Philadelphia Constitutional Convention, convened under the Articles of Confederation, proposed the United States Constitution to the States for ratification. Even though there have been no further Conventions, the Second Method has been very active.

There have been over 400 State applications requesting an Article V ConventionFOAVC counted 568 applications. Of these, only about 29 have been for a general revision—i.e., with risk of a "runaway" unlimited convention—while the remaining applications concern a specific or limited matter. Congress believe that none reached the point where two-thirds of the States acted together. FOAVC claim that the necessary two-thirds were reached on four occasions for same-subject applications, i.e., Apportionment, Balanced Budget, Direct Election Of Senators, and Limited Taxation.

Congress seems to recognize the States' authority to have their Convention, even though it has failed to clarify the procedures. When it has become apparent to Congress that two-thirds of the States would apply with similar Amendments, it has responded by proposing the Amendment even when Congress was averse—e.g., Amendment 17 and Amendment 19 below. On the other hand, congressional deliberations tell a different story, so the States must always plan that they will need an Article V Convention to propose the Amendment.

Per Congressional records, some specific cases where the States came close to having an Article V Convention are:

  1. Amendment 17 - Senators elected by popular vote
    Only one State was lacking when the Senate finally passed a proposed amendment providing for the direct election of Senators.

  2. Limitation of Income Tax Rates
    Two States were lacking in a petition drive for a constitutional limitation on income tax rates.

  3. Legislative Apportionment Decisions
    The drive for an amendment to limit the Supreme Court's legislative apportionment decisions came within one State of the required number, 

  4. Balanced Budget Amendment
    32 of the necessary 34 State legislatures passed resolutions in the 1970's and 1980's petitioning Congress to call an Article V Convention to propose an amendment requiring a balanced Federal budget except in time of war.

  5. Amendment 19 - Women's suffrage
    About 40 percent of the States had adopted women's suffrage in one form or another by 1918—the people of Oregon and Arizona even used the new power of State direct initiative to approve women's vote. Finally, in 1919, Congress had little choice but to adopt the 19th Amendment, which the States ratified in 1920.

  6. Amendments 1 through 10 - Bill of Rights
    Many of the States explicitly supported a Bill of Rights in their documents ratifying the Constitution, and the States worked forcefully with Congress to resolve its omission from the Constitution.

Using the First Method

As discussed above, Congress may preempt an Article V Convention by proposing the Amendment by the first method. Consequently, the First Method may ultimately be the method used, but it will require the Second Method to reach an unstoppable momentum for that to occur—often called the ''prodding'' effect.

Since the first Congress until the present, congresspersons have introduced more than 10,000 proposals to amend the Constitution. Congress proposed thirty-three of these to the States, of which the States ratified twenty-seven. Thus, the procedures for the First Method of amendment are well defined.

However, as was shown previously, the chance of Congress initiating an Amendment to solve the Problems is remote to non-existent. Nevertheless, there are several reasons why the First Method may eventually be used. The political realities are such that when it is evident that two-thirds of the States will apply for an Article V Convention to propose the Amendment, then congress may respond by proposing the Amendment itself.

  1. The Constitution does not limit the number of amendments that an Article V Convention can take up. Rather, by using the words "convention for proposing amendments" in the plural, it infers that the Convention may take up more than one amendment. Moreover, when the Constitutional Convention assembled in 1787, its mandate was to revise the earlier Articles of Confederation, but it ended up writing the current Constitution. Consequently, Congress has adopted fear of a ''runaway convention'' as a political argument to propose an inevitable Amendment themselves rather than yield to the States' Article V Convention power.

  2. In the Amendments where Congress preempted an Article V Convention in the past, Congress kept close to the States' wording. If Congress had not kept close to the States' wording, then the States could have proceeded to an Article V Convention and adopted their own wording. Then Congress would submit two versions of the Amendment to the States for ratification, and they could choose which one to ratify.

  3. Support for the Amendment will come from the many congresspersons who are embarrassed by congressional unwillingness to resolve the wealthy special interests problem, and others who are concerned about the People's opinion of Government and wish to improve respect and trust. Still others will understand the need to provide the frustrated People of the U.S. with a way to influence their own destiny through a government over which they currently have no real influence.

  4. The greatest voting pressure for Congressional support of the Amendment will probably come from women and minority men whom Congress under represents by a factor of 7 and 2.4 respectively, but are fully represented in a Boule (i.e., Citizens' Initiatives Assembly). These two groups constitute 62.2 percent of all who actually voted in 1998. If the Amendment becomes a campaign issue, this group may be decisive in forcing Congress to move ahead.

State Implementation Options Using the Second Method

State Legislatures will recognize that they have both federal and state constitutional obligations to support this approach. They will also see compelling state benefits. The next section on state support discusses the obligations and benefits. The people can obtain state support using four approaches as appropriate. The first, a State Referendum Bill, builds the most powerful consensus, while the others are backup alternatives.

Most importantly, each state should endeavor to support the Solution in principle. At least, this should include a bill that sets out the level of support and encourages public debate. Since success by the second method depends on inter-state cooperation, the next most important step is to starting dialogue with other states to develop the cooperation plan.

  1. State Referendum Bill—Preferred Option

    A separate referendum bill page shows a generic referendum bill. To meet each state legislature's desired level of commitment, they can make it as binding or non-binding as they wish. The People's support by referendum not only adds a compelling energy to the application, but also combines the rights of the States and the People in any constitutional dispute with Congress over procedures.

    State referendums prove the People's wishes and completely justify the state's action. If Congress later prevaricates or fails to call the Convention, Congress thereby would deny both the States and the People's constitutional rights. This combination could be a decisive factor to force Congress to comply with the Constitution, perhaps via the Supreme Court. The other options may not achieve this constitutional force.

    The onus for a referendum is on the state legislators. Motivation will arise from the arguments in the State Support page, pressure from public interest groups, and from grassroots action. In hesitant States that require referendum approval on issues such as bonds, voters may have some linkage to urge a State referendum on the Amendment.

  2. State Legislative Bill—Non-Binding or Binding

    A State Legislature can pass a bill in support of this Amendment, although this would not demonstrate the extent of the people's support in the first option. However, if a state proceeds with a bill to meet a schedule—e.g., to coordinate timing with other states—the state can put a subsequent referendum of support to the people. This would make the second option equivalent to the first option.

    The wording of the bill can range over a spectrum of levels of commitment. For example:

    1. A relatively binding bill appears on a separate page. The bill uses the ward "shall" for the necessary state actions. From the perspective of moving the plan forward, the binding bill is preferable.

    2. A relatively non-binding bill appears on a separate page. The bill uses the word "may" for necessary state actions. If a state is unwilling to make a binding commitment, passing a non-binding bill is far better than taking no action. States adopting a non-binding bill can still demonstrate leadership, test public response, obtain sound advice, coordinate with other states and take authority and control over the amendment's wording.

    Adopting a bill that supports this Planned U.S. Constitutional Amendment without necessarily committing the State, or implementing an equal or better way to solve these Problems for their State’s people

  3. State Citizens' Legislative or Constitutional Initiative

    Twenty-four States permit direct democracy initiatives—i.e., 70 percent of the 34 states needed to propose the Amendment, 63 percent of the 38 states needed for ratification. The following list of states has links to the I&RI site describing their direct democracy features: AK, AZ, AR, CA, CO, FL, ID, IL, KY, ME, MD, MA, MI, MS, MO, MT, NE, NV, NM, ND, OH, OK, OR, SD, UT, WA and WY.

    1. Fourteen states (AZ, AR, CA, CO, ID, MO, MT, NE, ND, OK, OR, SD, UT and WA) have direct legislative initiatives. A generic direct legislative initiative example appears on a separate page.

    2. An additional five state (FL, IL, MI, NV and OH) have direct constitutional initiatives. These states could change the wording to achieve a similar result.

    3. Five more states have indirect legislative or constitutional initiatives (AK, ME, MA, MS and WY). In these states, the state legislature must give prior consent before the initiative appears on the ballot.

    A state initiative may be used to apply for an Article V Convention. The State of Washington confirmed this in 1983. Under the U.S. Constitution's Comity Clause (Article IV, Section 2),  "the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." Consequently, the 24 initiative states may use initiatives to apply for an Article V Convention to propose the Citizens' Initiatives Amendment.

    State persons attending the Article V Convention or voting to ratify the Amendment must act in a federal function. Consequently, a State initiative probably does not legally bind the legislature. The Supreme Court (Hawke v. Smith 1920) ruled that a popular referendum (i.e., an Initiative) is not a substitute for either the legislature nor a convention, nor can a referendum (i.e., an Initiative) approve of or disapprove of the legislature's or a convention's decision on a U.S. constitutional amendment. Of course, the initiative will carry great moral weight and it is likely that those attending the convention will follow with their instructions. Any legislator who does not follow the initiative's instructions will have to answer at the next election.

    In this option, voters should place state initiatives on the ballot to demonstrate public opinion, establish the Amendment’s wording, gain nationwide recognition, and build momentum towards its ratification. However, a non-supportive state legislature could negatively influence the Convention.

    Five states (MI, NV, OH, UT and WA) permit both direct and indirect initiatives. After an indirect initiative has been approved by the voters, it is submitted to the state legislature for approval. Thus, in states whose legislatures are favorably inclined to the Plan but may need nudging, an indirect initiative is preferable to a direct initiative because its final approval demonstrates both the legislature's and the people's support.

These state actions are summarized in the following schematic:

Page-1

 

State Lobbying and Voting Pressure

For all options and in all the States, it will be essential to lobby and apply voter pressure to move the plan forward. A separate section of the web site presents ways to achieve this. At a state level, voter lobbying and pressure can be very effective. State legislators are much more accessible and willing to listen to the people—they tend to live and work close to their constituents and there are about 15 times more state legislators per capita than congresspersons.

This method was very effective in gaining women's suffrage. The National Woman's Party urged citizens to vote against anti-suffrage senators up for election in the fall of 1918. After the 1918 election, most members of state and congress were pro-suffrage.

Grass-root action can start immediately:

  1. Initiate grassroots voter action with a voter email campaign and postal mail that encourage your family and friends to participate in direct democracy. It will educate voters in how to use their votes to create this Solution. Recent elections have demonstrated the effectiveness of this approach. Internet now connects to 207 million people—70.4 percent of the U.S. population. Ultimately, it will lead to more conventional political advocacy in cooperation with many other public-minded organizations.

  2. Make your position known to your elected representatives and candidates by an email campaign and post letters. Note that email and mail addresses of all your Congresspersons, State Representatives and Candidates are available by simply entering your zip+4 code at top left of Use Project Vote Smart for your email campaign and postal mail elected representative
and candidates addresses. If you do not know your zip+4 code, you can find it by entering your address at Project Vote Smart or at U.S. Postal Service.

  3. Young family members are invaluable Internet agents for an email campaign and they get a good civics lesson too.

  4. Get clear statements of candidate intent to know if your candidates are committed to this Amendment and to minimize the extent that the Amendment may be watered-down during its adoption.

  5. Encourage public debate and media involvement.

  6. Enlist the support of other organizations, especially those who can encourage their members to use their Internet sites to promote this Solution by an email campaign to their members.

    There are many nonprofit nonpartisan public issue organizations. Moreover, many have huge memberships—few voters are not on the membership list of one or more organizations. As U.S. corporations, they will be eligible to propose Initiatives, to which the Boule will generally pay attention because they will usually address issues of concern to the People. This will accord these organizations an authority that they do not now possess.

    Consequently, the general support of these organizations is expected. Moreover, since their influence with their members is considerable and their memberships are very large, they can have a profound effect on the implementation of this Solution.

    On the other hand, some of these organizations become overly bureaucratic. This could cause them to view this Plan as a threat to their reason for existence. However, most organizations address a range of issues so they will not feel threatened and they will generally wield their power to gather support for the planned Solution.

  7. Print and circulate copies of key pages of this web site for those not on the Internet (If you print copies remember to set your print margins to minimum or zero).

  8. If you think this plan has merit, start the dialog now by emailing the link for this web site to your friends and associates. Unique visitors to this web site have increased by 215% in 2005. The site is easy to find on all the major search engines and its list position is steadily moving up. To increase its visibility, please send comments to improve its content, introduce it into blogs, and add a link to it from your web site.

  9. If there are States and legislators whose support is needed but not forthcoming, voters will have to use ballot power. If you are not a registered voter, Project Vote Smart is a major asset in the email campaign to cause a constitutional convention to adopt then ratify this constitutional amendment instructs you how to register in your district.

When a few states support this Amendment, it is likely that they will annex this Amendment and improve it. When 34 states have submitted applications for the Amendment, Congress is obliged to call an Article V Convention at which the States can propose the Amendment.  Subsequently, 38 states can ratify the Amendment as part of the Constitution.

At present, there do not appear to be any Solutions to the Problems that are equal to or better than the Plan presented here. This Plan may motivate others to create a better plan. Realistically, it is possible that one will arise and that the States will adopt it. This Plan will then have performed its objective by setting a standard. However, procrastination is a very dangerous option given the urgency, magnitude and consequences of the Problems.

Passing a Constitutional Amendment is a huge task and the end is not foreseeable at the start. Opposition will certainly be intense, devious and wealthy. If the States find the section on state support to be compelling, the necessity to raise funds will be minimal. On the other hand, a long fight to gain support could cost over $250 million, using professional organizations to manage the process. Nevertheless, this is a minuscule price compared with the annual savings and a small fraction of Washington lobbyists' annual budget. Funding is within the means of many philanthropic organizations and a few wealthy patriotic individuals. Public donations could also raise the funds—but this would require huge effort and would take a long time. Depending on the need and availability of funds, it will take about five to fifteen years from start to ratification.

 

   

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Version 13.03
 November 07, 2013