2021: Mid-Year Article V Status Report

By Stu MacPhail – June 2021

Some state legislatures remain in session for 2021.  But most states where proposed Article V applications were on the table have either adjourned sine die, or passed deadlines for fully dealing with those proposed resolutions.

In view of that, what is the outlook for Article V efforts?  When this newsletter talks about “Article V efforts,” it means efforts to activate the second option within Article V, a convention of States to propose amendments to the US Constitution. 

As far as potential constitutional amendments dealing with meaningful federal fiscal responsibility, congressional term limits or other restraints on Congress… actually being proposed by Congress (the first option in Article V)… that will only happen if God strikes dead more than half of the members of Congress.  So… NO CHANCE!

This newsletter has publicized numerous one-off efforts to use a convention of states to propose various amendments to the US Constitution.  However there are only four “movements” that are seriously pushing for specific amendments.  In the judgement of this newsletter editor, sadly, none of those “movements” are doing very well.

The Convention of States Project (CoSP):
This group (that also operates under the name Convention of States Action and Citizens for Self-Governance) has been funded to the tune of multi-millions of dollars by wealthy donors since its inception in 2013.  The three-topic proposal that its thousands of supporters and big budget pushes has so far gained just 15 state applications out of the 34 needed to activate an Article V convention to propose amendments.

During 2014 Georgia became the first state to adopt the CoSP application.  By the start of 2017 CoSP boasted 8 state applications for their cause.  During 2017 the group picked up 4 more states.  During 2019 the group picked up its 13th, 14th and 15th states (AR, MS and UT).  Then COVID hit, and no new states have been added during the last two state legislative sessions… in spite of the fact that its staff and volunteers have been working hard in some 17 states.

Montana Senator Tom McGillvray reports that he believed the CoSP application was headed for approval in the Senate this year when one JBS-influenced Senator lobbied heavily against it.  The proposal failed by a vote of 24 to 26.  The Montana legislature will not meet again until 2023.

In Missouri SCR4 was approved in the Senate on March 29 by a vote of 23 to 11.  Then on May 13 the House voted 89 to 64 to approve the same bill.  This is a repeat of an earlier-adopted CoSP application that included an expiration date.  It does not change the number of adopted CoSP applications.  SCR4 has no expiration date.

On May 11 the Wisconsin House approved the CoSP resolution (HJR9) by a vote of 58 to 36.  It remains under consideration in the Senate.

Also on May 11 the South Carolina House approved the CoSP resolution by a vote of 66 to 42.  The Senate did not get around to deal with the proposal before recessing.

At this rate readers can entertain their own speculation as to the probability of CoSP reaching 34 states within the foreseeable future.

On May 19 NewsMax magazine carried a story by Convention of States President Mark Meckler reporting on a poll conducted by his organization and the Trafalgar Group.  Among other things the poll found that “66% of all Americans, including 75% of Republicans and 55% of Democrats, support using a convention of states to limit federal spending and power, and impose term limits on federal officials.”  Read about that poll HERE.

The Campaign to Force Congress to Live Within a Budget:
There are several loosely-related groups that have been pressing for a single-topic constitutional amendment which would force the federal government to operate under a “balanced budget,” or with “fiscal discipline” or “fiscal responsibility.”  They include the Balanced Budget Task Force (BBTF), the Center for State-led National Debt Solutions (CSNDS), Let Us Vote for a BBA (LUV) and various groups that write lengthy web postings about the need for federal fiscal restraint but are really not active in seeking such restraints via an Article V convention-proposed constitutional amendment (read Heritage Foundation, the Peter G. Peterson Foundation, Fix the Debt Coalition and Committee for a Responsible Federal Budget).

The efforts on this front date back to the 1970s when folks like Lew Uhler (who now heads the National Tax Limitation Committee) worked on this campaign with other concerned Americans like Ronald Reagan.  By the 1980s that early effort reached some 32 state resolutions calling for an Article V convention before an unholy alliance of left- and right-wing organizations began organizing rescissions.

The drive resumed again in 2010, starting from a base of 16 valid and subsisting (un-repealed) state resolutions, operating under the name Balanced Budget Amendment Task Force, led by David Biddulph and Bill Fruth, both of Florida.  The effort never had substantial financial backing, but over the years has succeeded in building the number of BBA-focused Article V applications to 27 (maybe 28… the one from Mississippi has wording problems).  The last one was Wisconsin in late 2017.

Since then, the effort has virtually died, except for efforts to include 6 very old “non-topic-limited” applications for an Article V convention.  Even if that approach eventually prevails, the effort is still one state short.  Efforts to get Mississippi to adopt an application to replace its ill-worded 1975 application, and/or to get South Carolina to adopt an application have been underway during 2021, but so far without success.

There was one good development for this campaign this year.  During April the Oklahoma legislature adopted a renewed Article V application (SJR23, named in honor of deceased Article V activist and former Oklahoma US Senator Dr. Tom Coburn) that calls for two separate Article V conventions… one for a BBA-focused convention and one for the triple-subject CoSP convention… one of the few occasions CoSP worked cooperatively with the BBA folks.   In 2016 the state adopted SJR4, a similar resolution, but that bill had an expiration date of December 31, 2023.  SJR23 has no expiration date.

The US Term Limits (USTL) Campaign:
This effort focuses exclusively on obtaining a constitutional amendment that sets term limits on members of Congress.  It is the only campaign to see a new Article V application adopted in the past two years.  On March 22, 2021 the West Virginia legislature adopted HCR9, making that the 4th state to adopt the USTL application.

This session the Tennessee House has approved the USTL resolution by a vote of 53 to 34.  It was under consideration in the Senate when the legislature recessed.

This campaign believes that the term limit portion of most of the 15 existing CoSP applications can be aggregated with the USTL applications, reaching a possible (probable) total of 19 states supporting a convention focused on setting congressional term limits.

USTL is a moderately funded campaign and has been actively campaigning for its effort in some 18 states this year.  While this group has simultaneously pushed Congress to propose its constitutional amendment, it is clear Congress will never do so.

The “Take Money Out of Politics” Effort:
Variously known as the “Fair and Free Election” or the “Repeal the Supreme Court’s Citizens United Decision” effort, this campaign is primarily led by a group known as Wolf-PAC, with limited support from a second group known as American Promise.
 
They seek an Article V convention that would focus its discussions on “the influence moneyed interests have on our elections” with the hope that it would propose a constitutional amendment that would prohibit excessive corporate interference/intrusion in American elections.
 
Five states have adopted applications for an Article V convention that would focus on this topic.  The last state to do so was Rhode Island in 2017.  During 2021 this group was active in 5 states, including West Virginia, where the Senate approved the resolution, but the House did not.
 
Related Article V News –

  • On May 16 long-time Article V supporter Congressman Steve Stiver resigned his post as US Representative for the 15th District in Ohio.

 Stiver was the Congressman responsible for getting a provision added in the US House Rules (clause 3 of Rule XII) requiring the US House Clerk to list and publicize the applications (Memorials) adopted by states in pursuit of an Article V convention.  That was the first time either House of Congress had even made any effort to acknowledge receipt of such applications. The list, although far from complete, can be found at https://clerk.house.gov/SelectedMemorial .
 
Reportedly, after 10 years in Congress, Stivers will become President and CEO of the Ohio Chamber of Commerce.  The Ohio governor has announced a special election to fill Stivers’ post in Congress.
 

  • Article V activist Mike Kapic has just unearthed an interesting study of the 1970s efforts to bring about a BBA-focused Article V convention.  The 30+ page essay was written by E. Donald Elliott and published in the Duke Law Journal (Duke University School of Law).  It can be downloaded HERE.

Elliott asks the question: “If a convention really is a ‘monster approaching the capital’ that threatens to rend the social fabric, destabilize the republic, and repeal our liberties, then why did the framers include the convention procedure in the Constitution in the first place?  When, if ever, is it appropriate to use the convention route for amending the Constitution?”  Elliott uses scholarly research in an attempt to answer his own question.

  • On April 29 the Committee for a Responsible Federal Budget issued a news release/paper entitled The Nation’s Upcoming Fiscal Challenges.  In it they say, “President Joe Biden and the nation face perhaps the most daunting fiscal situation on record.  One hundred days into his presidency, President Biden faces record deficits and debt, expiring discretionary spending caps, a series of looming fiscal deadlines, several major trust funds facing shortfalls, and no agreement on how to address these challenges.”

 They report that “The Congressional Budget Office (CBO) estimates the Highway Trust Fund (HTF) will be exhausted in FY 2022 and the Medicare Hospital Insurance (HI) trust fund in FY 2026.  The Social Security Old Age and Survivors Insurance (OASI) trust fund is projected to run out in calendar year 2032 and the Social Security Disability Insurance (SSDI) trust fund in calendar year 2035.”

  • Surprisingly, the Heartland Institute used its Somewhat Reasonable Thoughts blog to publish an anti-Article V story by Nancy Thorner.

Ms. Thorner filled her piece with quotes from an outspoken anti-Article V retired attorney who writes under the name Publius Huldah.  The strange article can be found HERE.
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