January 24, 2017
Prof. Robert Reich
Richard & Rhoda Goldman School of Public Policy
University of California, Berkeley
2607 Hearst Avenue
Berkeley, CA 94720-7320
Dear Professor Reich,
I’m writing to you as the Chairman of Common Cause, an organization I admire. Unfortunately, the only two times Common Cause and I have interacted it was as adversaries when I would have wanted it to be as collaborators.
The first time was in 1992. I was a Branch Chief in EPA supervising writing regulations for controlling the dumping of hazardous waste when, in 1978, we were ordered stop what we were doing and to draft much weaker rules and invent plausible explanations for doing so. Since I was entrusted to draft the regulatory laws for the protection of human health and the environment, I strongly resented being told to destroy the good work that we had done and to cover it up its destruction. In order to live with myself I informed Congress and the press about what was going on. I was removed from my managerial position and sidelined but that only freed up my time to do more. A year later Senator Carl Levin held hearings about EPA’s delays and sabotage of its own hazardous waste regulations and asked me to testify. His committee report praised my testimony and used a great deal of it.
With that victory I expanded my activities by joining up with Lois Gibbs of Love Canal fame. She went around the country helping grassroots citizen groups faced with hazardous waste dumping in their neighborhoods and I served as a technical advisor telling them about EPA research which put to the lie what EPA, and its allies in the waste dumping industry, were telling them. After a while groups all over the country were asking me to talk at their meetings and paying my travel expenses. This was all done on my own time.
The hammer dropped in 1991 when the government issued a law barring me from accepting travel expenses when speaking about government business even on my own time. The National Whistleblower Center took up my cause and sued EPA (Sanjour v EPA.) We asked Congressman Barney Frank to hold hearings about the new law which we thought was unconstitutional and he obliged. And that’s when I ran into Common Cause. Ann McBride, senior vice president (and later President) of Common Cause, testified against us and for the law. Common Cause argued that allowing government employees to accept money for any reason should be banned as it promoted corruption. Barney Frank supported us and a year later the federal Appellate Court for the DC Circuit en banc threw out the law claiming it was unconstitutional and it violated our First Amendment rights. I was told that Judge Ruth Bader Ginsburg was the key player on this decision.
Bottom line: The fact is there were plenty of government ethics laws on the books to prevent corruption which, as our brief pointed out, are routinely sidestepped by the government. If Common Cause had won its argument it would not have prevented one iota of corruption but would have only silenced outspoken critics of government corruption.
I retired from EPA in 2001 and did a lot of sailing until my legs gave out and I had to give it up. Now I found a new cause, one I share with you and Common Cause: Money in politics, the most important issue of our time. But what I also found was that while both Common Cause and the organization I joined, “Get Money Out – Maryland” (GMOM), advocate a Constitutional amendment overthrowing Citizens United, we disagree on the optimal way of doing it. GMOM has no objection to Common Cause pursuing its approach but Common Cause is blocking ours. Common Cause was wrong in 1992 and Common Cause is wrong in 2017 and I’ll explain why.
As you know, Article V has two ways to amend the Constitution. The Usual Method is for two thirds of each house of Congress to propose an amendment and call for ratification by at least three quarters (38) of the 50 state legislatures.
The Alternative Method, which has never been fully used, requires if two thirds (34) of the state legislatures apply to Congress to propose an amendment, Congress “SHALL call a Convention for proposing Amendments.” [Emphasis added.] In this case the Convention writes the amendment, not Congress. As before, if 38 of the 50 states approve a proposed amendment it becomes part of the Constitution.
Under the Alternative Method the convention, not Congress, writes the proposed amendment. This is precisely why the Founders put in the alternative procedure – to bypass Congress. But under the Alternative Method, it is uncertain whether the Convention would be limited to the topic or topics specified by the 34 states that called for the convention in the first place. As Common Cause correctly says: “There are no settled rules or procedures to govern an Article V convention” and it might not be able to be limited in scope. And this is what troubles Common Cause: that a “runaway convention” might, like a parasite, take possession of a convention called by 34 states and use it for purposes never intended by the 34 originators. For instance a convention called by 34 or more states to overthrow Citizens United (CU) could be used instead to propose a Balanced Budget Amendment (BBA).
But if you examine this concern closely, it makes no sense. If the parasitic BBA were to take possession of a CU convention it would still need 38 states to pass an amendment and if they had 38 states why would they bother being a parasite since it takes only 34 states to require Congress to call for their own convention?
Leaving the world of the possible let’s look at what’s probable. According to Wikipedia*, there have been over 700 state applications to Congress for an Article V convention and none (zero, zip) have come to fruition. BUT “At least four amendments (the 17th, 21th, 22th, and 25th Amendments) have been identified as being proposed by Congress at least partly in response to the threat of an Article V convention”. So, if GMOM and its allies are successful and get say 20 or 30 states calling for an Article V convention to overthrow the Citizens United decision, it is very likely that Congress would take over the process and write its own proposed amendment in fear of a runaway convention. The very outcome being sought by Common Cause! So why cripple our cause by removing that weapon?
Bottom line: If the advocates of say the BBA, or some other cause, have 38 state legislatures in their pocket they can get their amendment and there’s not a damned thing you or I can do about it. If they do not have 38 state legislatures in their pocket they cannot get their amendment even if they use the “runaway convention.” The net effect of Common Cause blocking state legislatures from using the Alternative Method to overthrow Citizens United is to reduce rather than increase the chances of overthrowing Citizens United.
For goodness sake, Professor Reich, can’t we put these boogeymen to bed and start working together? A Constitutional amendment to overthrow Citizens United is difficult enough without dividing our forces and fighting each other over shadows. Let’s instead join our forces for a common cause.
cc: Karen Hobert Flynn, President of Common Cause
cc: Maryland Senator Michael Erin Busch, Speaker of House of Delegates
* “Convention to propose amendments to the United States Constitution”