The Myth of the Runaway Convention

by

William Sanjour

April 13, 2017

 

Fred Wertheimer, the former head of Common Cause has said “the call for an Article V constitutional convention ‘is by far the most dangerous thing in the country today. If we ever got [to a convention], this would create a constitutional crisis unlike anything we’ve seen in our lifetimes[1].’” Such intemperate language is not what I would expect from a scholar like Mr. Wertheimer.  Let’s examine his words closely:

 

·by far the most dangerous thing in the country today” More dangerous than nuclear warfare? More dangerous than global warming? And to the point, more dangerous than the consequences of Citizens United v FEC?

 

·If we ever got [to a convention]” This glides over all the intermediate steps to get to a convention. Mainly it ignores the FACT that every single time, without exception, an Article V convention looked like it would get the needed two thirds state legislatures to require Congress to call a convention, Congress stepped in and wrote its own amendment.  Congress did it because it doesn’t want to lose control of the process.  There is no earthly reason to believe the same thing wouldn’t happen again. Why should it?

 

·  a constitutional crisis unlike anything we’ve seen in our lifetimes.”  Let’s look at the line that leads to the Common Cause “constitutional crises.”

 

There are three events that have to happen.  If any one of these three does not happen, there can be no crisis as defined by Common Cause. The first event is that having achieved close to or all the two third states required under Article V to require Congress to call a convention, Congress fails to step in to control the amendment process itself.  This has never happened and there is no reason to believe it ever would happen since Congress doesn’t want a runaway convention either even when it approves of the amendment. Therefore I would rate this event as very unlikely.

 

The second thing that would have to happen to get Common Cause’s “constitutional crises” is that once the convention is called, a putsch takes place and the convention is seized by a group determined to use the convention for purposes other than the purpose for which it was created. I don’t know where this idea comes from with no basis in history or fact but I would rate it at least very unlikely. Therefore the probability of both these two events happening is very, very unlikely.

 

The third required event is that three quarters of the states would ratify the results of this hypothetical “runaway convention.” Why on Earth would three quarters of the states do that after two thirds of the states had called for the convention which the runaway convention is running away from? Also very unlikely, which means the probability of an amendment resulting from a runaway convention being ratified is very, very, very unlikely.

 

Or to put it in mathematical terms, if the probability of each one of those three events was 10% then the probability of all three happening would be 0.1%. Or a probability of 99.9% that it won’t happen. For this minuscule chance of a “runaway convention” succeeding, Common Cause would discard the weapon that our Founding Fathers gave us. Far more likely, if Common Cause has its way, is the failure to defeat Citizens United.

 

Common Cause says: “There is nothing in the Constitution to prevent a constitutional convention from being expanded in scope to issues not raised in convention calls passed by the state legislatures, and therefore could lead to a runaway convention.” They also say: “There are no rules governing constitutional conventions.” And, reading Article V that may be true although scholars disagree.

 

Common Cause shows us how, it says, it could happen: “There are no rules governing constitutional conventions. A constitutional convention would be an unpredictable Pandora’s Box; the last one, in 1787, resulted in a brand new Constitution. It’s rather far-fetched, not to say unpatriotic, to suggest that the 1787 convention was a model for some sort of runaway usurpation (by George Washington?) If the Constitutional Convention was a "runaway" convention, then what was it running away from?  Common Cause claims it was running away from the Confederation Congress under the Articles of Confederation whose charter it had violated. Perhaps so, yet the Confederation Congress itself had never made that claim and had instead tacitly supported the proposed Constitution. This illustrates the difficulty Common Cause has in its search for facts to support its doomsday conjectures

 

Common Cause would have us fear some dreadful consequence could follow from an Article V convention. After all, under the guise of an amendment, one could theoretically amend the Constitution so as to essentially rewrite or repeal it. Donald Trump could write an amendment to appoint himself president and dictator for life. That could theoretically happen. And theoretically 38 or more states could ratify it. But the same things could theoretically happen without an Article V convention. Why is a runaway Article V convention any more likely than a runaway Congress?

 

Let’s bring some cool facts into all this heated speculation.

 

As we know, to achieve Common Cause’s worst case scenario would require ratification by three quarters of the states. This process has been used successfully 27 times to ratify 27 amendments. How many times has this process produced a disastrous result?  In my opinion only once – the 18th amendment, prohibition.  (And even this was no quick flim-flam but part of a movement which had been building for a century and had already succeeded in 23 of the 48 states and many more communities.)  That’s hardly a track record to justify Common Cause’s concern about the ratification of a runaway convention.

 

There have been over 700 state applications to Congress for an Article V convention and none (zero, zip, nada) have resulted in an Article V convention.  That fact alone should relieve Common Cause’s anxiety.

 

The first Congress in 1789 took over the job of amending the Constitution with a Bill of Rights after two states voted for an Article V convention to add one. The 17th Amendment (1913) was proposed by Congress after the states demanding an Article V convention came within two of the necessary votes of three quarters of the state legislatures. Fully half the Constitutional amendments were written wholly or at least partly in response to the threat of an Article V convention. These are:

 

Amendments 1 to 10, the Bill of Rights.

17th Amendment established the direct election of Senators by popular vote.
21st Amendment repealed prohibition.
22nd Amendment limited the number of times that a person can be elected president.
25th Amendment addressed succession to the Presidency.

 

There’s not a bad amendment or a runaway convention or even a convention among them. That’s not bad record for 228 years of every conceivable crisis.

 

So, if Wolf-PAC and its allies like Get Money Out-Maryland are successful and get say 20 or 30 states calling for an Article V convention to overthrow the Citizens United decision (they already have five), historical precedent shows that Congress would take over the process, as it has always done before, and write its own proposed amendment in fear of a runaway convention out of Congress’s control. Even if Congress hates the amendment, as they did with the 17th, they will still take over the process when the convention is inevitable in order to prevent a runaway convention.

 

That’s what would happen if Common Cause would stop sabotaging the efforts of thousands of unpaid volunteer activists slogging away through the halls and offices of state legislatures to convince the states to call for an Article V convention to overthrow Citizens United.

 

Yes, volunteers, not the “special interests and the wealthiest” Common Cause cites as the advocates of an Article V convention.  (Common Cause also cites that its own supporters include the John Birch Society, the National Rifle Association, and the Koch brothers.)  If Common Cause succeeds in sabotaging the efforts of these volunteers it would remove its only weapon to force Congress to amend the Constitution to overthrow Citizens United.  Common Cause then would be left to rely only on its ability to jawbone a Congress, flooded with money, to give up its money. Good luck with that.

 

The Founding Fathers gave us the weapon to stop this from happening and Common Cause would have us throw it away.

 



[1] The quotes from Common Cause come from:

“The Dangerous Path, Big Money’s Plan to Shred the Constitution,” http://www.commoncause.org/issues/more-democracy-reforms/constitutional-convention/opposition-from-across-the-spectrum.html

“Common Cause Opposes a Constitutional Convention” http://www.commoncause.org/issues/more-democracy-reforms/constitutional-convention/constitutional-convention-fact-sheet.pdf