The Runaway Convention

 

 

        Last month (April, 2017) I wrote to some Board and some staff members of Common Cause as well as some organizations which support Common Cause’s crusade against any calls for an Article V convention (which they derisively call a “con-con”.)  I received many interesting responses and had several discussions.  The heart of our controversy is the concept of the “Runaway Convention.”  Article V of the Constitution gives the states the opportunity to bypass Congress and call for a convention to propose an amendment. If two-thirds of the states or 34 states submit such a call then Congress MUST call a convention. But in fact in our 228 year history, that has never happened. In spite of the fact that it has never happened, both Common Cause and the John Birch Society and their allies, have developed an elaborate theory of the dire consequences that would follow if such a thing were to happen.

 

        To summarize the theory of the Runaway Convention: if 34 states call for an Article V amendment convention and if Congress does not itself propose the amendment and instead calls for a convention, then it is inevitable that the convention will become a Runaway Convention and be taken over by evil elements who will propose evil Constitutional amendments and maybe change the very Constitutional rules by which the amendments are ratified. While the John Birch Society and Common Cause agree on this chain of events and its inevitability, they disagree on their choice of villains and their villainy.  Indeed, one side’s villains and villainy are the other side’s heroes and wish list. The interesting thing, I found, was that while there is a great deal of emotion surrounding this issue, and while it is frequently promoted, no one seems to have thought very deeply about it.  And that is what I propose to do.

 

        I mention that both Common Cause and the John Birch Society because they have the same view about the Runaway Convention even though they differ about what they are running away from. Here’s a simplified chart which illustrates the symmetry. The Left, led by Wolf-PAC and its allies such as Get Money Out-Maryland (GMOM) who want an amendment to overthrow the Citizens United v FEC Supreme Court decisions, among other things. The right, led by the Balanced Budget Amendment Task Force, wants a balanced budget amendment. Both are pursuing their amendments via the Article V route.  The Balanced Budget Amendment Task Force is being frustrated by the John Birch Society while Wolf-PAC and ally GMOM are frustrated by Common Cause. Both Common Cause and the John Birch Society have created arch villains who will take possession of an Article V convention and turn it into a Runaway Convention which will do the evil deeds listed and many others. I call these villains and their villainy “money makers” because they always seem to come attached to requests for donations.

 

        I have looked at many appeals on the Web for money which say that either the Koch brothers or George Soros (depending on what side you’re on) want a Runaway Convention to steal the Constitution. Yet I’ve never seen a shred of proof of these accusations and later I will go into why I think this is so.

 

                

 

 

        That’s the framework. Now to the issues. This is my paraphrase of what I was told by a Common Cause spokesperson to justify Common Cause’s opposition to a call for an Article V amendment convention.

 

        “In this political climate, as charged with big money as it is as lopsided as the current gerrymandering congress allows and a minority president who is under suspicion that he won the race because of hacking this to me is a climate that is not going to be conducive to high minded Jeffersonian debates. This is going to be a situation where the Kochs and the Mercers spend whatever it takes to pack the room with the people they want and do what they want. That’s just not a risk we can take. We do not believe that this is a political climate that will get us the same product as in 1787. We are not saying that the article V convention should come out of the Constitution, we’re saying in this political climate, the facts that we have to deal with right now don’t lend itself to high minded conversation. We don’t believe the founders anticipated the climate that exists today.”

 

        So this is the heart of Common Cause’s opposition. (I have read similar sentiments from the John Birch Society although their villain is George Soros rather than the Koch brothers.) Here is a prime example of the lack of deep thinking. Common Cause and the John Birch Society believe this is the worst of times and todays villains are the worst of villains. They have apparently never heard of the “Robber Barons” of the “Gilded Age” of the late Nineteenth Century. Here’s an introduction to them.

 

        “Sophisticated in their political ideas, the great capitalists like the Rockefellers, Havemeyer, Gould, James Hill, and others who ‘moved obscurely in the background’ of party action nowadays admittedly paid their money to both parties. In all regions and all elections they worked by using the tactics of alternation as one of them said, for ‘the party of business,’ and operated as a kind of interior cabal, untouched by the theatrical triumphs or defeats which the professional political adversaries administered to each other. Ostensibly Republican in their sympathies in 1888, the men of the Standard Oil clan, for instance, were believed to own also a large share of stock in the Democratic Party, through Senator Henry B. Payne and the former Secretary of the Navy, W. C. Whitney. The Sugar Trust had its Republican champion in Senator Aldrich, but a Democratic agent as well, it was understood, in Senator Gorman. A great railroad magnate might shift his affections like some heartless cocotte, who would sleep for a night with anyone who rewarded her. Jim Hill, master of the Great Northern Railroad, had paid heavily for Cleveland's election in 1884; but in 1888 reports of his fabulous offers of money to the Harrison campaign chest in return for the privilege of controlling one of the cabinet posts had been repeatedly heard. Henry Villard, another great Railroad Baron of the time, had been in other years a passionate Abolitionist Republican, the pupil of Horace Greeley, but in 1892 he, like many others of his class, ‘switched’ to the support of the Democratic Party and Grover Cleveland. Four years later, in 1896, it was another story.”[1]

 

 

 

 

        These guys could eat the Koch brothers and George Soros for lunch and still have room left for desert.

 

        Another reason given by The Common Cause spokesperson for the need for extraordinary measures is “the current gerrymandering Congress allows.” Perhaps the spokesperson doesn’t realize that gerrymandering is named after Elbridge Gerry, a signer of the Declaration of Independence in 1776. So gerrymandering wasn’t exactly invented last year, it’s been around a long time.  In 1790 Founding Fathers Patrick Henry and James Madison were bitter enemies. Henry was governor of Virginia and “By artfully drawing the boundaries of the state's congressional districts, he and his allies hoped to prevent Madison's election to the House of Representatives.”[2] And “Throughout the 19th century, gerrymandering biased partisan seat distributions, and, on occasion, even decided majority control of the chamber.”[3]     

 

        This brings to mind another lack of serious thought on the part of Common Cause. References to “high minded Jeffersonian debates” and “the facts that we have to deal with right now don’t lend itself to high minded conversation” shows a great ignorance of what the Founding Fathers were all about.  Washington, Madison, Hamilton, Jefferson, Adams, Franklyn; these were not naive academic philosophers in ivory towers as Common Cause paints them. They were savvy politicians, polemicists, and a general, all capable of lofty rhetoric as well as not so lofty trickery. They were willing to do whatever was necessary to create a nation and to write a Constitution to prevent the profound corruption and abuses of power which they lived through and witnessed under the British Crown. There is no corruption you see today that they hadn’t seen and they saw a lot more abuses and corruption than we will ever see, thanks to them.

 

        Faced with the lack of any real examples of a Runaway Convention, both the John Birch Society and Common Cause have made use of an invented one. As one commenter said: “The Constitutional Convention of 1787 was convened to ‘amend’ the Articles of Confederation, The delegates, instead, rejected the Article of Confederation in its entirety and proposed the adoption of an entirely new Constitution.”

 

        Remember that in 1787 there was not one but thirteen independent nations that were invited to meet in Philadelphia. They had formed a loose confederation under the Articles of Confederation, not unlike the today’s European Union, and it had a Congress called the Confederation Congress. Here is the chronology of the 1787 convention[4].

 

21 February 1787. At the suggestion of Alexander Hamilton and others, the Confederation Congress calls for the convention to amend the Articles of Confederation which later came to be called The Constitutional Convention.

 

17 September. The proposed Constitution, which replaced rather than amended the Articles of Confederation, was signed and delivered to the Confederation Congress and the Convention adjourned.

 

20 September. Congress read the proposed Constitution.

 

“On 26 and 27 September Congress debated the manner in which it would send the Constitution to the states. Critics of the Constitution wanted it transmitted to the state legislatures with an indication that the Convention had violated Article XIII of the Articles of Confederation and the congressional resolution of 21 February 1787.  Supporters of the Constitution advocated that Congress should approve the Constitution before submitting it to the state legislatures. ....... On 28 September Congress reached a compromise. It resolved “unanimously” that the Constitution and the resolutions and the letter of the Convention be sent to the states with only a suggestion that the states call conventions to consider the Constitution. This compromise followed the recommendation of the Convention.”

 

        If this was a “Runaway Convention,” what was it running away from since it was tacitly approved by the Confederation Congress?

 

        Let’s look at another Common Cause commenter. “Given the current make-up of the Supreme Court, if advocates of overturning Citizens United succeeded in calling a con-con, and advocates of a balanced budget amendment demanded that the con-con also address their issues, and this went to court, it’s hard to see how the question of whether the con-con can be limited to just addressing Citizens United would go our way.”  

 

        It is important to follow this argument to its logical conclusion, which the commenter doesn’t do.  First we have to back up in time to when the advocates of overturning Citizens United were within one two states short of the 34 states necessary to require Congress to call for a convention.  At this stage, when it looks like achieving the required number of states is a foregone conclusion, one would normally expect Congress to intervene and propose the amendment themselves rather than deal with the uncertainty of a convention. This is what has happened several times in the past. Without exception. How, in this scenario, can we explain this anomaly?   If, in this scenario, Congress favored overturning Citizens United, they would have proposed the amendment themselves. This is what Common Cause advocates. So, under this scenario from Common Cause, Common Cause’s approach must have failed and Congress opposes overturning Citizens United.  In the past, particularly in the case of the 17th amendment, when Congress was faced with the unpleasant choice of proposing an amendment they hated or letting a convention of people whom they considered “crazy radicals” do it, they chose to do it themselves as the lesser of two evils. In neither case would there be a convention but there would be a proposed amendment.

        How, then, can we explain this scenario? The author gives us the clue.

 

        Either, based on previous Supreme Court decisions or by expectation of future decisions, Congress and the other opponents of overturning Citizens United must be confident that the Court would allow the convention to be opened to proposing other amendments beside one to overturn Citizens United. And this, they would have to feel, would be sufficient to be confident that there would be no amendment overturning Citizens United and instead there would be an amendment to their liking.  No matter how farfetched, since this is the author’s scenario, we have to go with it, so let’s see where it goes.

 

        So now we are faced with fifty states sending delegates to a convention to propose an amendment overturning Citizens United and other amendments. Thirty-four or more of those fifty had already petitioned for an amendment overturning Citizens United, so one would expect an overwhelming majority of the state delegations to be of that mind. Do the delegates from the 34 or more states that favored the amendment somehow get captured by the delegates from the 16 or fewer states that opposed it? If so, how is that done?

        At this point the author gives us no more guidance.  We are left with a farfetched scenario where Common Cause’s efforts to overturn Citizens United have failed and the efforts of the advocates of overturning Citizens United via the Article V amendment convention likely to succeed, and the slim possibility of some other amendment(s) being proposed since all of the proposed amendments would still have to be ratified by 38 states to become law. And that is the trouble with Common Cause’s thinking – they never follow through to completion.

 

        Also note that in Common Cause’s own scenario, Common Cause’s approach to overthrowing Citizens United has failed and Wolf-PAC’s approach has probably succeeded!

 

        Let’s look at what happened in the real world.

 

“The Bosses of the Senate” by Joseph Keppler, PUCK, January 23, 1889

 

        In the 19th Century, U.S. senators were not elected to office, they were appointed by their state legislatures. “Intimidation and bribery marked some of the states' selection of senators. Nine bribery cases were brought before the Senate between 1866 and 1906.” [5]  By the last few decades of the century, corruption of the senate was widespread as illustrated in the cartoon, with many senate appointments being bought by big money interests.

 

        “During the 1890s, the House of Representatives passed several resolutions proposing a constitutional amendment for the direct election of senators. Each time, however, the Senate refused to even take a vote. When it seemed unlikely that both houses of Congress would pass legislation proposing an amendment for direct election, many states changed strategies. Article V of the Constitution states that Congress must call a constitutional convention for proposing amendments when two-thirds of the state legislatures apply for one.” [6]

        In 1893 Nebraska filed the first Article V application for direct election of senators. By 1911, 29 states had Article V convention applications on file for an amendment providing for direct election of senators, just two short of the 31-state threshold. The Senate finally conceded and passed its version of an amendment in May 1911, which was then approved by the House in 1912 and submitted to the states.”[7]

 

        Now remember, this all happened during the bad bad Gilded Age where:

 

        Gilded Age politics induces pertinent despair about democracy. Representative government gave way to bought government. Politicians betrayed the public trust. Citizens sold their votes. Dreams faded. Ideals died of their impossibility. Cynicism poisoned hope. The United States in these years took on the lineaments of a Latin American party-state, an oligarchy ratified in rigged elections, girded by bayonets, and given a genial historical gloss by its raffish casting.

 

        “Jay Gould was president. He never ran for office, he never lost office --- he ruled. He wrote the laws. He interpreted the Constitution. He commanded the army. He staffed the government. He rented politicians, fattening his purse off their favor. He was John D. Rockefeller, James J. Hill, Andrew Carnegie, Tom Scott, and George Pullman; and this was his time—this was his country.”[8]

 

        Why didn’t the likes of Gould, Rockefeller, Hill, Carnegie and the rest of the Robber Barons do what Common Cause is predicting that the Koch brothers will do and the John Birch Society is predicting George Soros will do, i.e. get a Runaway Convention to kill the amendment for the popular election of the Senate and introduce their own amendment(s)? The times were certainly more corrupt than today and the villains had more power and villainy than today’s villains. They had the best lawyers money could buy. They owned the best politicians money could buy. So why? Let’s see my little scenario of what might happen if the Robber Barons had tried to get their own Runaway Convention.

 

        The Consortium – curtain up

        Time: 1911. There are 46 states in the Union.  Some of the richest and most powerful industrialists in the United States have formed a secret organization called The Consortium, to promote their interests. A meeting between the senior lawyer representing the Consortium and Senator X who is the senior senator in the pocket of the Consortium.

 

Lawyer: Tell me Senator, how is it going with the push from the states to force Congress to call a convention for proposing a Constitutional amendment to elect U.S. senators by popular vote?

 

Senator: Well sir, it looks like they are only two states short of the 31 states needed under Article V.  At the rate they are going they should be there in another year.  But we’re not going to let that happen.  We, the Congress that is, plan to cut them off from a constitutional convention by writing the amendment ourselves and proposing it to the states for ratification. That’ll make their convention moot. Anyway the handwriting is on the wall since many states have already taken action to sidestep the Constitution and directly elect their U.S. senators and, sadly, I’m sure many more will follow. So we’re not really losing anything by writing the amendment ourselves and we are preventing those crazy bastards from writing their own. 

 

L: Do you think stopping a convention is wise?

 

S: Well sir, think about this. The Constitution is very vague about the Article V convention.  If we let them go ahead with their convention, there could be a lot of legal battles about just what this convention might or might not do. Suppose the courts decide that that the Constitution does not limit the convention to just the one amendment? Do you realize what a catastrophe that would be?

 

L: And what would that be?

 

S: Well that madman Samuel Gompers might write an amendment limiting workers to a 40 hour week and paid vacations and give them the right to collective bargaining. That crazy biddy Susan B. Anthony might write an amendment giving women the right to vote. That other crazy old Biddy, Jane Addams, would take little children, earning a living for their families, out of the coal mines and cotton mills. But worst of all, that lunatic Carrie Nation would outlaw all our booze! That is the abomination the Article V convention would crush us with. No sir, you’ll find no Friends in Congress to support such a wild idea.

 

L: Well we have hatched a plan to take possession of a convention and use it for our purpose.

 

S: What purpose is that?

 

L: With the passage of the Sherman Anti-Trust Act back in 1890, they’re now looking to break up the American Tobacco Company and the Standard Oil Company and replace them up with lots of little bitty companies. All the other monopolies cannot be far behind.  So we want a Constitutional amendment to put monopolies above the law so they can’t be broken up. We call it the Freedom of Commerce Amendment. So If Congress would just not propose an amendment to elect senators but call for a convention instead, then we could take possession of the convention to propose the Freedom of Commerce Amendment.

 

S: Well that’s a pretty dumb idea. If you want a convention why not just call for your own Article V convention?

 

L: We would have to line up, er I mean make “Friends” with 31 state governments. That would be difficult and time consuming. But we don’t need our own convention when we can take over someone else’s convention, namely the convention for proposing a Constitutional amendment to elect U.S. senators by popular vote, i.e. the 17th Amendment convention.

 

S: You’re going to intentionally create a “Runaway Convention?”

 

L: A catchy phrase. Maybe I’ll use it with the boss.

 

S: But I already told you, Congress doesn’t want a convention. It’s too risky. They just want to propose the 17th Amendment themselves and avoid a convention altogether.

 

L: Suppose I told you and our other Friends in Congress that we could guarantee that they wouldn’t get a bad Runaway Convention, one run by the likes of Samuel Gompers and Susan B. Anthony and the rest but a good Runaway Convention run by The Consortium, i.e.us?

 

S: And how could you do that? The first thing you would have to do is to guarantee the Supreme Court would allow multiple amendments to be considered. If you couldn’t do that then you wouldn’t be allowed to propose your Freedom of Commerce Amendment at a convention called for the passage of an amendment to elect U.S. senators by popular vote.  And if you want to convince Congress to allow a convention, which they fear, then you would have to guarantee to them in advance, that you can do that.

 

L: No problem. That would mean that we would have to convince five, no six Supreme Court justices, to be on the safe side, to be our Friends.

 

S: What are you going to do, bribe them?

 

L: Oh that’s a crude word. There are many ways to convince men to be our Friends besides giving them money. Our doctors have some wonderful drugs that lift you to paradise, and after a few trips you become dependent on our doctors to keep you lifted or to prevent you from falling. And we have some beautiful talented young women who know how to treat a men in ways never dreamed of by their wives and once we take a few photographs of them enjoying themselves, they are easily convinced to be our Friends.

 

S: You mean whores?

 

L: Such an offensive word. I prefer courtesans.

 

S: OK, so you’ve lined up six, so called, Friends in the Supreme Court, but then you have to be able to guarantee, in advance if you want Congress’ support, that you can take control of a convention which was called by the advocates of an amendment to elect U.S. senators by popular vote.

 

L: Regardless of what they called the convention for, all 46 states will send a delegation. There’s no law on how a delegation may be chosen so this issue will also be thrown to the courts. Since we will have six Friends on the Supreme Court, we will “suggest” that they decide that each state appoint just one delegate. That way would have to convince only 25 or 26 delegates to be our Friends. Then we could propose The Freedom of Commerce Amendment for ratification by the states. We can do whatever you want with the popular election of the senate amendment and we won’t have to make any further advance guarantees to our Friends in Congress.

 

S: True. If you can relieve us of the fear of a Runaway Convention, then we’re with you. But once you get your amendment proposed, how are you going to get it ratified to become law? The Constitution says it has to be ratified by the legislatures of three fourths of the states, or by conventions in three fourths of the states as may be proposed by the Congress. That’s 35 states. I don’t know what they mean by “proposed by Congress.”  That may be another thing to be decided by your six Friends in the Supreme Court. But either way getting both houses of 35 state legislatures, that’s 70 state legislatures, or 35 state conventions. That would call for you to make one helluva lot of Friends. And the ratification process could drag out for 5, 10, 20 or even more years.

 

L: Hmmm, yes … well, let us worry about that.

 

S: But tell me something. Since you need to control, er I mean, make Friends with Congress to get your own Runaway Convention, why bother with a Runaway Convention at all. Why not just have your Friends in Congress propose your Freedom for Commerce Amendment for ratification themselves? That way you don’t have to bother with no good or bad Runaway Convention and no Supreme Court.

 

L: Maybe we can’t get enough Friends in Congress to do that.

 

S: Well if you can’t get enough Friends to do that, how the Hell are you going to get enough Friends to allow for your Runaway Convention?

 

L: Hmmm, good thinking. I’ll point that out to the boss.

 

        The End-curtain down

 

        Think! Why would Congress, if faced with the certainty that they will soon have to deal with the choice of 1) proposing an amendment they hate or 2) allowing a “con-con” run by the people they hate and fear propose the amendment, choose the later? This is not Congress’ choice between acquiescing to pressure or calling their bluff, as one respondent has said, but a choice, between something bad and something worse.

 

        The plain truth is --- nobody wants a Runaway Convention, or even any convention. The whole idea of a Runaway Convention has no basis in fact, history, or logic. It is a myth blown large by PR folks at the John Birch Society and Common Cause because they saw what a great money-maker it was.

       

        My friends at Common Cause, I leave you with this thought: I wish you well in your efforts to convince Congress to overthrow Citizens United. But if you fail, what is your plan B?

 

William Sanjour

May 23, 2017

jurason@comcast.net

http://sanjour.info

 

 



[1]  Matthew Josephson, The Politicos: 1865-1896, Commons, New York, 1938, p.455.

[2] Richard Labunski,  James Madison and the Struggle for the Bil1 of Rights, Oxford University Press, New York, 2006. p. 139.

[3]  Erik J. Engstrom, Partisan Gerrymandering and the Construction of American Democracy, University of Michigan Press, Ann Arbor, 2013, p. 202.

[4] University of Wisconsin, Center for the Study of the American Constitution, http://csac.history.wisc.edu/confederation_1.pdf

[5] U.S. Senate, “Direct Election of Senators”, https://www.senate.gov/artandhistory/history/common/briefing/Direct_Election_Senators.htm

[6] National Archives, “17th Amendment to the U.S. Constitution: Direct Election of U.S. Senators.” https://www.archives.gov/legislative/features/17th-amendment

[7] Wikipedia, “Convention to propose amendments to the United States Constitution”, https://en.wikipedia.org/wiki/Convention_to_propose_amendments_to_the_United_States_Constitution

[8] Jack Beatty, Age of Betrayal The triumph of Money in America, 1865-1900, Alfred A. Knopf, New York, 2007,  p. 192.