Recently I attended a political gathering where constitutional attorney Michael Farris was given an hour to promote his “Convention of States” to amend the US Constitution. Apparently the person that was scheduled to debate him had to cancel, so in lieu of presenting equal time for an opposing view, participants were allowed to ask questions after submitting them. After learning of the cancellation, I had expressed an interest in debating him, and learned the cutoff to do so was the prior Thursday, as debate rules mandated he had to know who he was debating. I was disappointed to hear an educated man such as Mr. Farris use the terms “crazy” and “idiots” when describing people that may try to offer something at a convention other than what he had in mind. Hypocritically, he asked those asking questions not to “throw rocks” at him when asking them.
This is a divisive topic among those that support limited government, and as such it requires in-depth reading and study. Needless to say lovers of things 140 characters or less will not take the time to look into the issue.
I’ll begin by agreeing that the federal government spends too much, exercises powers not delegated to them, and I support term limits. These are the three key areas Mr. Farris wishes to correct via a Convention of States. On a side note, I initially wrote here that an Article V Convention was not a Constitutional Convention. After doing some more research and re-reading Article V above, I don’t see where there is a difference. The mechanism within the Constitution to change it is Article V, and it requires a convention, so in fact it could be called a Constitutional Convention. There is no mechanism to do away with the entire Constitution within it, so any convention to do anything could be called a Constitutional Convention. At any rate, there are far more pressing concerns here.
Where I disagree is that this method is costly in both money and political effort and certainly offers no assurance of success- and in fact exposes citizens to negative unintended consequences. It’s my opinion that the money and time being spent on this effort could be better used to achieve the desired goals.
Since I didn’t get equal time then and get to ask all the questions (I was limited to two not of my choosing), I’ll take it now and just hit the highlights of my opposition with 7 questions. These come not from some other political source or organization, but instead from my work and experience as both an activist and a lobbyist for liberty issues since 2011.
Question 1: If Congress is not following amendments such as number 10 in things such as the national ID card (REAL ID), then why will they follow a new amendment?
This question was one I was able to ask. In summary, Mr. Farris believes that by writing an amendment that disallows use of the general welfare clause contained in Article 1 Section 8 as a justification this will compel compliance to the amendment. He also favors disallowing the Supreme Court to render some decisions, stated on his website as “We must curtail the power of the Supreme Court to approve federal power grabs by the other branches.” He of course cites the Supreme Court Obamacare decision of it being a tax and as such constitutional while completely ignoring things such as the USA PATRIOT and REAL ID Acts, which greatly affect citizens. Of course the former was passed by “liberals” and the latter two by “conservatives”.
That is advocating undercutting 1 of the 3 stool legs of our original balance of power. The answer to improper court decisions is properly-written laws, not doing away with the court. I have long opposed violating the Constitution for a “good” purpose as the opposition will be able to do so for a “bad” purpose once in power using the same process. As an lawyer, Mr. Farris must realize that in every court decision there are those happy and those unhappy. The fact is for every law, there will usually at some point be a court action involving it.
Mr. Farris believes that if Congress were to simply ignore the new amendment, they would be held accountable:
“No politician could then legitimately claim that they were following the true meaning of the Constitution. The public would know better. And the public would throw the rascals out.”
Anyone that has looked at congressional approval ratings knows they are usually in the single-digit range, while incumbents win re-election over 90% of the time. The “throw them out” mentality just does not work in the real world.
The above argument assumes an amendment was passed at the convention to do what Mr. Farris’ desires. In politics, there is no sure bet on this happening. That brings me to my next question.
Question 2: How do we know what the amendments will be to accomplish the stated goals of limiting power, spending, and term limits?
I’ll call this the “Pelosi factor” in honor of the former speaker’s saying we needed to pass a bill to find out what is in the bill. The Convention of States by its nature cannot have amendments pre-approved. The process involves getting legislation passed in 39 states (2/3 majority) to CALL for a convention, THEN the subject matter can be addressed. After an agreement by the delegates (this is another issue, see below), then the final amendment must be approved (ratified) by 38 state legislatures, or a 3/4 majority.
If we hold a Convention of States and limit it to federal power, spending, and term limits, we can certainly have any number of amendments proposed using those justifications. As a lobbyist that has written legislation, I see all too often that a bill that begins life as doing “A” ends up being amended to get a majority vote and it then no longer does “A” but in fact now does “Z”, which is opposite of “A”. This is pretty much what happens to every red light camera repeal bill.
Here’s an example in simple terms: The Congress is hereby limited to spend no more than 125% of the prior year’s budget. Is this “limited” spending? Yes. Will it result in less than last year? No. Slickly-worded amendments can and do turn the intent of bills around. A convention would fare no differently.
Question 3: The goal is to get agreeable delegates in the convention and then have them vote for favorable amendments. How can you control who gets there?
Mr. Farris did address this on his website:
“States are free to develop their own selection process for choosing their delegates —properly called “commissioners.” Historically, the most common method used was an election by a joint session of both houses of the state legislature.”
If they are to be designated by our state legislature, we need to keep in mind these are the same folks that don’t listen to us on things like red light cameras, where public (non-legislative) votes have gone against them 90% of the time.This leads to a follow-up question.
Question 4: What will prevent the “other” side from stacking the convention with their own delegates?
If you look at any election in the past decade or so, you’ll likely see that it was closely-contested. While some do not like to admit it, we are in fact a house divided in America. There are those such as I that think the solution to problems begins locally with each one of us, and then there are those that think the solution to problems begins with our government providing all sorts of assistance. Many noble efforts have been made to get limited-government people in place in government, but sadly more often than not they fail. There is therefore no guarantee any precinct-level plan will work. One outcome may be a gridlocked convention that has cost us millions of dollars. In the worst case, the subject amendments are legally twisted 180 degrees and then our Constitution is damaged for the several years it would take to mount an operation to correct it.
Question 5: If you have the ability to control the majority of delegates for 38 states, what would happen if instead you utilized this effort and funding to get the same caliber of people into elected office?
The problems noted as to spending, power, and term limits all originate from elected officials. The fact is that local officials such as city and county commissioners love so-called “federal money” (most see it as free money or money owed to them due to money paid to the federal government by citizens) and thereby set into perpetual motion the same spending Mr. Farris seeks to eliminate. A common phrase when asked to not take a grant or spend money is “If we don’t spend it, someone else will.” These are all accomplished politicians, and collectively they contain a great deal of political power. In my experience, it is unlikely they will simply sit on the sidelines while people seeking to reduce the amount of the “federal money” are sent to a convention.
Question 6: What is the real possibility of getting 38 state legislatures to agree on specific language?
I spend a lot of time researching bills. I looked at recent (the past 3 months) calls for a convention of states. I found 41 such bills. Of these, 10 were for limited power, spending, and term limits. There were 15 for a balanced budget amendment. There were 12 for campaign finance reform. Marriage preservation, single subject, repeal the 17th Amendment, and no subject (allowing anything at all) each had 1 bill.
It’s interesting to note a bill in a coupe of “conservative” states of the 40 Mr. Farris is relying upon (South Dakota, where two such bills failed, and New Mexico) to compel delegates to stick to legislative terms either failed or is stagnant. In Florida, the bill places a felony-level penalty on such conduct. That appears to be excessive. What will happen when someone appeals under an 8th Amendment claim of an excessive punishment and it is properly struck down? BTW, the South Dakota law that failed assessed a civil fine and no criminal penalty.
Question 7: What has the cost been so far to do this?
I noted a number of paid staff in the room, several from out of state, when this was taking place. Being well acquainted with the volunteer nature of most grass root efforts, it appeared to me there was a lot of money behind this effort. It has never been disclosed from where this money is originating.
That’s it for the questions. As an observation, Mr. Farris stated a state legislature cannot nullify a federal law, of course again citing Obamacare where a court decision was handed down. For those where no such decision exists, that’s simply not true. I have experience fighting the federal REAL ID law since 2010. In Florida, our legislature gave us the law, and they can certainly nullify it by repealing it. Or the state can simply stop complying with it as was done in Ohio last year. Or like Montana and several other states, they could simply refuse to enact it. We’d be much further ahead in areas such as REAL ID if constitutional lawyers such as Mr. Farris would take the case. Without exception, each and every one I’ve asked has declined to take it on. Usually the reply is they do not have the resources, or it is not their area of specialty.
I’ll close this with an analogy, a way I prefer to relate real life situations. Let’s say there are 50 people in a room. Nearly all agree they are hungry. They need to eat. Can I convince or can 34 of them agree as to where to eat? If we get past that, then can 38 of them agree as to what we will eat? 34 is 2/3 and 38 is 3/4 of 50. Under Article V, 2/3 of the 50 states must agree to call an Article V convention (the restaurant), and then if the convention passes some ideas, 38 states must approve them (the meal). I do not see this happening in modern America. The chance that we end up with a meal poisonous to our palette for liberty is too great to risk via a Convention of States.