A New Strategy for the Article V Convention of States Movement[i]

by Paul Gardiner (Ron Scott & Neal Schuerer also contributed) February 13, 2020

Efforts to convene a Convention of States (COS) to propose important amendments to America’s constitution have been going on for many years. Millions of Americans heartily support the convening of a COS due to, among other things, deeply troubling concerns about the future actions of a far-left, socialist controlled federal government, perhaps as early as 2025. Due to the slow progress in convening a COS, however, some people wonder whether it is realistic for a COS to ever be held.

Hence, the purpose of this article is three-fold: 1) briefly review the current status of the Article V (AV) COS movement (now mainly consisting of four citizen volunteer AV organizations); 2) review recent COS application aggregation studies; and 3) suggest a new strategy oriented toward year 2022. Hopefully, the ideas presented herein will serve as a basis for meaningful discussions and cooperation among the various AV groups to enable a COS to be conducted not later than year 2022.

The importance of conducting a COS to propose urgently needed amendments to the United State Constitution cannot be overemphasized. The overreach of the federal government (including the Congress and various regulatory agencies and executive departments) into the everyday lives of American citizens is legendary.[ii] Additionally, the recent impeachment and trial (acquittal) of President Trump exemplifies the dysfunction of much of the federal government, dysfunction that certain amendments could help to correct.[iii]

One AV organization, COS Project, limits and categorizes needed amendments into three broad subject areas: limiting the power/jurisdiction of the federal government; limiting the terms of office for its officials; and imposing fiscal restraints on the federal government. The other three primary AV organizations strive to have Congress call a COS that limits the delegates to only proposing a single, specific amendment. The objective of all four AV groups is for Congress to call and sanction what is termed a “limited” COS.

To date, there has been little, if any, cooperation among the four primary AV citizen volunteer groups attempting to reach the required threshold of 34 state legislature applications. And, as discussed herein, the AV COS movement overall has slowed to such an extent that realistically,  the current disjointed strategy to convene a COS may be “a bridge too far”.

As part of the suggested new strategy, this article argues that it is truly time to put aside differences and strive for strong unity of effort among the different AV groups. In order for this to happen, one of the four AV groups (or perhaps a completely new entrant) has to come forth to  provide the foresight, strategic leadership, and courage to make it happen.

For discussion purposes, it is useful to define the terms “limited”, “general”, and “plenary” as they pertain to a COS. A limited COS (open to all 50 state legislatures to attend) intends to limit delegates to only proposing, debating, and voting upon specific amendments or amendments dealing with specific subject areas. A general COS (open to all 50 state legislatures to attend) allows delegates to propose, debate, and vote upon any and all amendments subject to convention rules adopted by the delegates themselves. The term “plenary” in this context refers to COS delegates having full power and authority to convene and conduct a general COS. Delegates are accountable to their sponsoring state legislatures and can be subject to immediate recall and/or possible civil penalties for abusing their delegated authorities.

Ratification. Recent conversations with various AV group volunteers indicates that some lack a complete understanding of how the amendment ratification process works. It is generally understood that the legislatures in at least 38 states must ratify an amendment in order for it to become part of the constitution and law of the land. In some people’s minds, this equates to a total of 38 votes.

What is not often understood is that America’s 50 state governments consist of 99 individual

legislative chambers: 49 states have both House and Senate chambers whereas Nebraska only has one legislative chamber. Both House and Senate chambers in each state must vote to ratify an amendment. [iv]

Thus, in order for an amendment to be successfully ratified by state legislatures, the amendment must receive not just 38 votes but a total of 76 votes for ratification (75 if Nebraska’s legislature is involved). Because the 99 legislative chambers are a mix of Democrat and Republican controlled chambers, this ongoing dichotomy functions as the ultimate “safety valve” against a rogue type amendment (proposed by a COS or Congress) being successfully ratified.[v]

The above is a very important fact to remember when discussing the prospect of a general COS taking place where any and all amendments could be offered, debated, and perhaps voted out and sent to the state legislatures for ratification. Additionally, some constitutional scholars believe that even in a so-called limited COS, nothing (except the COS rules established by the delegates themselves) will prevent amendments being proposed and voted upon that are outside the limitations stated in COS applications.

COS Status Report. In his January 2020 The Article V Convention Legislative Progress Report, Georgia Attorney David F. Guldenschuh states that “The last half of the past decade saw the Article V movement peak, but the last two years have seen a plateauing of our efforts. We are now down to four major groups: the Center for State-led National Debt Solutions (CSNDS; the 501(c)(3) arm of the BBA Task Force); U.S. Term Limits; WolfPAC/Free & Fair Elections; and the Convention of States Project.”

Guldenschuh goes on to say ” No matter your politics, Washington’s dysfunction has never shown so brightly as it presently burns.  I am convinced that our only hope to keep this Thelma and Louise convertible called our federal government from driving off the cliff is the work all of you are doing to promote the Article V movement.  As the documentary “Unrepresented” points out, there are now many movements – right, left and center – to rein in the excesses of Washington, and many of them rest their hopes in the Article V movement.

In terms of numbers of state legislatures that have passed the different COS applications, the report indicates the following as of January 2020:

• CSNDS/BBA Task Force application: passed in 28 states
• COS Project application: passed in 15 states
• WolfPAC Free & Fair Elections application: passed in 5 states
• US Term Limits application: passed in 3 states

One of the major takeaways from the above report is that years 2018 and 2019 experienced a   “plateauing” of effort by the various AV groups in securing the required 34 COS applications.

Unless there is a significant change in strategy, this article argues that not much will improve during year 2020 and beyond. In fact, efforts to rescind COS applications might very well increase in different states due to the growing presence of leftist, socialist politicians in state legislatures. This is a risk factor that must be taken into account when considering future COS strategy and timing.

COS Application Aggregation Studies. Two recent COS application aggregation studies are discussed that were completed in 2018. Both studies rely on the writings and findings of several noted constitutional scholars including Michael Stokes Paulsen, Robert G.Natelson, Professor Akhil Amar, Charles L. Black, Jr, James Kenneth Rogers, David C. Huckabee, Thomas M. Durbin, Walter E, Dillenger, and Russell Caplan. Both studies conclude that there are at least 34 valid, qualifying COS applications to require Congress to call a general COS.

1) American Constitution Foundation (ACF) Aggregation Study.[vi]

During 2018, ACF completed a COS application aggregation study to determine if enough qualifying COS applications exist to require Congress to call a general COS. One of the principal reasons for conducting the study was the consensus of opinion among several of the scholars previously mentioned that Congress lacks authority to limit in any way the call for a COS. These scholars believe that America’s Founders intended for state delegates to a COS to fully be on a parity with their fellow national government peers in the manner in which any and all amendments are proposed, debated, and voted upon. In other words, only a general COS will allow delegates to be on a full parity with their congressional counterparts in the manner in which amendments are proposed, debated and voted upon.

The aggregation criteria and rules used by ACF are as follows:

“1) General (GEN) applications merely call for a convention of states for proposing amendments

without indicating any particular topic or subject;

2) GEN applications are compatible with all other unrestricted applications;

3) Convention of States Project (COSP) applications are the closest to a GEN application as they

recommend three broad topics: federal fiscal responsibility, federal power and jurisdiction,

and term limits;

4) All other applications recommend subjects that most likely fit under federal power and

jurisdiction;

5) Aggregation is based first on active GEN convention applications;

6) States without GEN applications were then added, starting with COSP applications; and

7) Then followed by any other active State application without exclusionary language.”

“Combined, the total is 37, exceeding the 34 needed for Congress to call for a Convention of States. If three of the BBA applications removed the restriction (New Hampshire, Utah, and Wyoming), the total would increase to 40.”

2) Attorney John M. Cogswell Aggregation Study.

General Comments, Newsletter – Edition 72, January 2019, Providing Article V / Federalism News and Scholarly Resources Since 2013 – State Legislators Article V Caucus Feature Article: An Interview with Attorney John Cogswell On Why Enough Article V Applications Already Exist to Justify the Calling of an Article V Convention.

“John M. Cogswell is not a widely recognized name within the Article V movement. The 79-year-old Cogswell is an attorney living in Buena Vista, Colorado. He is a graduate of Yale University and Georgetown Law Center, who has appeared before the US Court of Appeals for the District of Columbia, US District Courts in Colorado, Kansas and the District of Columbia, and the Supreme Courts of Colorado and Kansas.”

“Cogswell has been practicing law for 48 years. He has been civically and politically active, and in 2011 he formed a group known as Campaign Constitution, focusing on the citizen powers locked up in the fifth Article of the US Constitution.”[vii]

“During this past year, at the request of the new American Constitution Foundation (ACF), Cogswell invested more than 250 hours reading and carefully studying state applications for a convention to propose amendments as listed by the Article V Library (a feat very few other legal minds have attempted).”

“He also studied the extensive research and writings of respected constitutional scholars Michael Stokes Paulsen and Robert G. Natelson… and related works by James Kenneth Rogers, Charles L. Black, Jr., Thomas M. Durbin, David C. Huckabee, and Yale constitutional law professor Akhil Amar.”

“His objective was to analyze a recently completed study done by ACF that concluded that there currently are 37 valid applications for an Article V convention for proposing amendments. He compared the ACF study to a recent report by Natelson that concluded there are at least 33 existing applications that could be aggregated to justify the calling of a BBA-focused Article V convention.”

“In 2011 Paulson issued an opinion that at the time there was 33 valid current applications. Cogswell then used Paulsen’s model (basis for counting aggregable state applications) and concluded that recent additions (after deducting rescissions) bring that number to at least 36… toward the 34 needed to trigger a Congressional Call for a plenary Article V convention to propose amendments.”

“Cogswell recently issued his legal opinion that a willing Congress could easily find sufficient state applications to justify an immediate Call for a convention of states under the terms of Article V. His 39-page (plus numerous pages of appendix documentation) opinion is not exactly bedtime reading, but should be read and studied by every state legislator, Article V activist, and member of Congress.”

“In a recent interview with Mr. Cogswell, he made the following comments:

‘My opinion (linked above) is intended to bring together the disparate views that exist (between constitutional scholars and activists in the Article V community). We have to bring these scholars and organizations together as one (with one consistent voice). If we continue to argue about what Article V means, we will never get a convention. Simplicity is absolutely requited or we will go nowhere.’ ”

“Asked what he believes the American people might do if Congress refuses to call an Article V convention once presented with proof that 34 legitimate applications have been shown to have been made, Cogswell said: ‘You know Congress would never propose amendments itself (like those currently being called for by American citizens), because it is corrupt… otherwise we would never have the debt we have in this country. We feel the polarization that is going on. We need to get the American people motivated to support use of Article V as a civil way to make governance corrections.’ ”

“Cogswell offered the opinion that ‘If we are not able to use Article V (to resolve our nation’s governance shortcomings) we are going to have major civil disobedience. This is very serious business. The average life of a civilization is about 250 years, and we are rapidly approaching that limit.’ ”

COS Considerations. Given the relatively slow progress by the different AV groups to reach the threshold of 34 COS applications, it does not appear likely that any of the four primary groups will reach the 34-application threshold any time soon. Among considerations for future actions are reports from some AV group volunteers that many state legislators have “had their fill” of COS talk and activities and are increasingly reluctant to press on for a COS in the near term.

A second important consideration is the probability of various COS applications being rescinded through the efforts of a growing number of leftist, socialist state legislators. This is a valid risk factor that is unquantifiable at present, but none the less is ever present.

A third important consideration is the overall, deep negative feeling that millions of Americans have over the tremendous dysfunction and corruption displayed by various members of the United States Congress and numerous federal government agencies and departments. These Americans are absolutely disgusted with the situation. As a consequence, many more citizens could be persuaded that the state governments need to take control of the situation as soon as possible via a COS where numerous important amendments would be proposed intended to reinstate the state governments as a creditable “check and balance” on the actions of an overreaching, corrupt, all-too-powerful federal government.

Finally, another important consideration in determining a strategic direction for the AV COS movement are the opinions of several constitution scholars (Paulsen, Black, Dellinger, Caplan, et al) that Congress lacks authority to call and sanction a limited COS. There is the possibility that opponents of a COS will ask the United States Supreme Court (SCOTUS) to rule on the matter, and an originalist majority could decide in favor of the opponents. [viii]

Conclusions.

1) In concert with the axiom that “timing is everything”, and in view of the increasing risk of COS application rescission efforts in different states, it would be a very wise action to have a COS successfully convened and conducted no later than end of year 2022;

2) In concert with the axiom “a bird in the hand is worth two in the bush”, it makes good sense to use whatever qualifying COS applications are available to have a COS convened as soon as possible;

3) Two creditable COS application aggregation studies find that at least 34 valid, qualifying applications currently exist to enable a call for a general COS to be presented to the Congress; and

4) Convening a general COS overcomes the risk of SCOTUS ruling against the legitimacy of Congress having authority to call and sanction a limited COS.

Recommendations.

1) The leaders of the different AV COS groups need to begin serious, realistic discussions concerning the future of the COS movement overall including the significance of the two aggregation studies described herein; the leaders need to begin cooperating and developing a unified approach toward convening a general COS by end of year 2022;

2) Absent the above, a new COS entrant such as ACF, Campaign Constitution, or Acts 2 Reform [ix]needs to take the lead and coordinate efforts among the different AV groups; and

3) The comprehensive strategy of ACF (or similar strategy) needs to be seriously considered and funded in planning to make application to the Congress to call a general COS.  Below, for example, are some of the more important actions listed by ACF:

“● Organize the states that have already submitted applications for an Article V General Convention to affirm that their applications remain valid and in force, and that they expect Congress to discharge their duty to call the Convention;

• Work with additional states (if necessary) to remove limiting language from an existing application, or pass a new application for an Article V General Convention to attain the 34 applications needed to trigger the Convention;
• Equip State Attorneys General for litigation to compel Congress to call the Convention, should it be necessary;
• Hold a pre-convention assembly to prepare state legislatures to effectively participate in the Convention; and
• Provide the states with logistical support from pre-convention all the way through ratification, including facilities, security, communications, media, and legal support.”

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[i] Principal author is Mr. Paul S Gardiner who served as Georgia Coalitions Director and National Veterans Coalitions Director for COS Project. Contributors include Dr. Ron Scott, Vice President of the American Constitution Foundation and Mr. Neal Schuerer, Executive Director of Act 2 Inc.

[ii] See https://conventionofstates.com/news/10-terrifying-examples-of-federal-overreach

[iii] For example, delegates to a COS could propose an amendment preventing strictly partisan impeachment actions.

[iv] Article V allows states to use ratifying conventions in place of legislatures to ratify an amendment.  Only the 21st Amendment repealing Prohibition was ratified in this manner. The usual method of ratification is by vote of 3/4 of the state legislatures.

[v] Some argue that the 28th Amendment, recently ratified by the Virginia state legislature, is an example of a rogue amendment. However, this amendment may not become part of the constitution due to various legal challenges.

[vi]ACF website is https://www.amconfdn.org/

[vii] See http://www.campaignconstitution.com/

[viii] In its published literature, COS Project states that “• A convention meeting under Article V may be limited to its purpose; In Re Opinion of the Justices, 204 N.C. 306, 172 S.E. 474 (1933).” In actuality, the citation refers to an advisory opinion of North Carolina Supreme Court justices in 1933, and as such, has little, if any, bearing on future actions of SCOTUS if and when it is asked to rule on Congress having authority to actually call for a limited COS.  The cited opinion revolves around the perceived need to call an NC constitutional convention for a vote by either “special election” or “general election” to ratify the 21st amendment to repeal the 18th amendment (prohibition). In other words, this citation is about the manner in which ratification should take place in one particular state, and appears to have nothing to do with proposing amendments.

[ix] See https://www.act2blueprint.org/