Three Article V Convention Efforts

By David M. Walker & Ken Cuccinelli – June 5, 2024

There is increasing concern regarding excessive federal spending and mounting debt burdens. It has become clear that the statutory debt ceiling has failed to constrain the growth of the federal government and potentially insurmountable debt burdens. In addition, other statutory approaches to promote fiscal discipline have not stood the test of time.

Given Congress’ failure to pass a Fiscal Responsibility Constitutional Amendment, three separate efforts are underway to call a Convention of States to propose such an amendment under Article V of the Constitution. There has been considerable confusion regarding these efforts.

The best-known effort is being promoted by the Convention of States (COS). That effort advocates for a Convention of States that would propose three amendments. One relating to fiscal responsibility, one imposing term limits on Congress, and one that would limit the size and scope of the federal government.

This effort has achieved 19 of the required 34 state applications for a convention to be called. However, the COS effort will not be successful because the primary opposition to any Convention of States to Propose Amendments is that it might runaway, and the COS effort is leading with its chin in that regard by proposing multiple amendments at the same time.

The Balanced Budget Amendment Task Force seeks to achieve 33 state applications that focus solely on a Fiscal Responsibility Amendment to force Congress to act. This effort achieved 31 applications in 2017 and, with rescissions, has leveled off at 28 since 2021. It is unclear whether 33 applications will be completed and, if so,  whether Congress will act. In addition, it is unclear whether an amendment proposed by Congress would be effective or just a smokescreen.

The Federal Fiscal Sustainability Foundation leads the third effort, of which we are board members. This effort seeks a Convention of States that will focus solely on proposing a Fiscal Responsibility Amendment. It has conducted extensive research and discovered that 39 states had active applications for a Convention of States in 1979, of which 30 were limited solely to fiscal responsibility and nine were plenary (general) applications. Those numbers rose to 40 and 32, respectively, in 1983.

Constitutional scholars on the right and left agree that plenary and single-subject applications should be counted in meeting the 34-state application requirement. They also agree that if a majority of states want to limit the convention’s scope to a single subject (e.g., fiscal responsibility), a runaway convention can be avoided.

Despite the fact that the requisite number of applications were received by Congress many years ago, Congress has failed to call the convention as required by Article V of the Constitution. House Concurrent Resolution 24 is designed to bring light to this failure in the hope of getting Congress to discharge its explicit and non-discretionary responsibility to call the convention.

The House needs to hold a hearing on this proposal. Since 49 of 50 states already have constitutional fiscal responsibility requirements, we believe they are more likely to propose an effective federal fiscal responsibility amendment than Congress.

Given all these circumstances, the Federal Fiscal Sustainability Foundation effort represents the most timely and effective means to restore federal fiscal sustainability and the equal right of the states to propose amendments under Article V of the Constitution. We strongly support this effort and encourage the states to sue Congress if it fails to act.

David M. Walker is a former U.S. Comptroller General.

Ken Cuccinelli is a former attorney general of Virginia.