Kentucky targeted in the national effort for convention to amend U.S. Constitution

Questions center on just how a convention could work.
It’s never been tried before.

Frustrated by a Congress that won’t check its own spending, citizens in some quarters are calling on the states to take on the duty of adding a balanced budget amendment to the U.S. Constitution. And, while the states are at it, other people are calling for congressional term limits and limited jurisdiction of the federal government as well. Others would like to see constitutional limits on campaign contributions and gun ownership.

A constitutional convention called by the states, is one method set forth in the constitution’s Article V for amending the nation’s governing document. The other method – and the only one used so far – starts with Congress passing an amendment that is then ratified by three-fourths of the states (An amendment does not go to the White House.) Congress has initiated all 27 amendments to the U.S. Constitution in its 231-year history.

Advocates are pressuring state lawmakers across the country to pass resolutions calling for a convention even as states are backing off previously passed resolutions. Article V requires a call from two-thirds of the states, or 34, to trigger a convention. The nonprofit Convention of States Action notes resolutions have passed both chambers in 12 states and have passed at least one legislative chamber in 10 states. Another 18 states, including Kentucky, saw active legislation in 2018, COSA notes on its website.*

In the last two years, four states – Delaware, New Mexico, Maryland and Nevada – have rescinded their states’ calls for a convention.

Convention of States Action, based in Houston, Texas, has sent lobbyists to Kentucky for the last two sessions of the General Assembly to push for a convention resolution. This year, former U.S. Sen. Tom Coburn, R-Okla., worked Frankfort, according to records filed with the Kentucky Legislative Ethics Commission, and in 2017 COSA President Mark Meckler and regional director Ken Clark lobbied Kentucky lawmakers.

Funded by “everyday patriots,” COSA says on its website that its convention “would only allow the states to discuss amendments that ‘limit the power and jurisdiction of the federal government, impose fiscal restraints, and place term limits on federal officials.’”

COSA is not alone in Frankfort. The Balanced Budget Amendment Task Force, headquartered in Palm City, Florida, has been lobbying Kentucky legislators, too. BBA’s director of state campaigns, Loren Enns, still has an active lobbyist’s registration on file with the ethics commission, and during the 2018 legislative session, BBA hired Laura Owens, a lobbyist with the Frankfort-based JYB3 Group, to represent its interests.

Narrower in scope than COSA, the Balanced Budget Amendment Task Force wants, simply, a balanced budget amendment added to the U.S. Constitution via a convention.

However, limiting a convention may be tricky, some legal experts say. Article V tells how to call a convention, but then what?

“There are huge political science questions that no one has ever answered,” University of Kentucky law professor Paul Salamanca said. For example, he queried, can an agenda be limited? Or, once you get into a convention, can the agenda be changed? Do all 34 states have to agree to the same language in calling for a convention? How will a convention be run, and how are the delegates determined?

Sheryl Snyder, a Louisville attorney and constitutional expert, said if a convention is called, each state would choose delegates, and those delegates would decide where to meet and likely would follow a parliamentary process.

“In this country, legislative bodies have certain norms that are followed; a convention likely would do the same,” said Snyder, a member at Frost Brown Todd.

How are delegates determined?

“The short answer to that is, ‘I’m not sure.’ But I would think the legislature would determine the process,” he said.

Salamanca pointed out that three-fourths of the states, or 38, still would have to ratify amendments that might come out of a convention.

Both Salamanca and Snyder said setting the agenda poses a major question. They agreed the present constitution could be used as a starting point, with slight changes made to the document, or delegates could start from scratch. A convention could even change the ratification process.

“If you can’t bind a convention, it could do whatever it wants,” Salamanca said. “A: You don’t know if you can [bind the convention], and B: You’d likely have to have 34 identical calls. And good luck with that.”

University of Louisville law professor Russell Weaver also questioned the ability of COSA, or anyone, to restrict an agenda because the constitution does not address that specific question.

“The concern is [a convention] might not be limited,” he said. “The worry is that a constitutional convention could spin out of control, and God knows what it will become.”

Parsing Phrases

Convention advocates draw a distinction between the phrases “convention of states” and “constitutional convention.”

In an op-ed piece published last fall in D.C.-based The Hill, COSA’s Meckler outlined his view of the difference:

“A constitutional convention and a convention of states are two different things. In a constitutional convention, the delegates would get out a blank sheet of paper and start all over. In America, we have a strong, robust constitution that has served us well. The Founders realized that there may come a time when the constitution may need to tweaked or amended. The Founders realized that there may come a time when Congress could become corrupt and unreliable and unable to make necessary changes. So, they gave us another way of proposing amendments – one that does not require the permission of Congress or the president. Thus, two-thirds of the state legislatures can call a Convention of States to propose amendments to the Constitution.”

Snyder disagreed with this interpretation.

“I think the proponents calling it a ‘convention of the states’ is an effort to make the convention sound less dangerous than calling it a ‘constitutional convention.’ Article V does not provide for two separate types of conventions. It provides two means of amending the constitution, but not two types of conventions,” Snyder said in a follow-up email to the Gazette. “There is no other provision for calling a convention. So a ‘convention of the states’ does not exist in Article V separate from a ‘constitutional convention.’”

Further, nothing in Article V suggests delegates would “start all over” from a “blank sheet of paper” in a constitutional convention but not do so during a convention of states, as Meckler seems to suggest: Article V is mum on setting an agenda for a constitutional convention.

Article V cites no role for the U.S. president in the amendment process, as Meckler alluded.

Convention Backers

According to a March 2017 Dallas Morning News story, COSA and a sister organization, Alliance for Self-Governance, are backed by a larger entity called Citizens for Self-Governance. None of these organizations is required to disclose its donors, but the Morning News reported CSG had raised nearly $6 million through 2014.

U.S. Sen. Rand Paul, R-Ky., endorses COSA. According to a testimonial posted on its website, Paul wants to “curb years of abuse and overreach by the judicial, legislative and executive branches of the federal government [that] have obliterated the enumerated powers established by our founders and made a mockery of the 10th Amendment rights granted to the states and the people.”

Other COSA backers include: conservative podcaster Ben Shapiro; Fox News commentator Sean Hannity; conservative radio host and lawyer Mark Levin; former Govs. Jeb Bush, of Florida, Mike Huckabee, of Arkansas, and Sarah Palin, of Alaska; Sen. Marco Rubio, of Florida.

In addition, the American Legislative Exchange Council, a conservative think tank with ties to wealthy libertarian brothers David and Charles Koch, has pushed for a convention for years and offers model legislation for state legislators to use in drafting their resolutions.

Americans for Prosperity, which also has ties to the Koch brothers, supports a balanced budget amendment, but not a fully open convention.

These and other small-government groups want to restrict a federal government they see as too large and too intrusive.

Balanced budget amendment opponents sum it up this way: “Such an austerity amendment would drastically cut the size of the federal government, threatening critical programs like Social Security and Medicare and eviscerating the government’s ability to respond to economic downturns, major disasters and the climate crisis,” reported The Center for Media and Democracy.

Consensus on whether to even have a convention, let alone debate a topic, will be hard to reach, which is how the nation’s founders designed it. From Common Cause to the John Birch Society, calls for halting the convention process and rescinding already-passed state resolutions are coming from hundreds of organizations in many corners.

Resolution Attempts in Ky

The Kentucky General Assembly was one of a handful of legislatures targeted by pro-convention organizations this year precisely because it is controlled by the GOP, which is seen as a bit friendlier than Democrats to the notion of a convention.

State Reps. Regina Huff, R-Williamsburg, and Scott Wells, R-West Liberty, filed resolutions for consideration during the 2018 session.

Wells’ House Joint Resolution 119 would have limited the convention call to the balanced budget amendment. The bill died in committee.

Huff’s HJR 81 would “impose fiscal restraints, limit the power and jurisdiction of the federal government, and limit the terms of office for federal government officials and for members of Congress.” It, too, went nowhere.

State Rep. Mary Lou Marzian, D- Louisville, also filed an amendment bill, House Resolution 96, which called on Congress to propose an amendment to limit campaign contributions and expenditures, as she has since 2013. This year’s resolution died in committee as well.

Amendment legislation is not new in Kentucky. Every year for at least the last decade, Kentucky lawmakers have filed legislation calling for a convention or on Congress to propose amendments. In fact, Senate President Robert Stivers II, R-Manchester, called for a balanced budget amendment in Senate Joint Re-solution 132 during the 2015 session. The year before, then-Rep. Mike Harmon, a Danville Republican who is now state auditor, filed House Bill 449, which would have established Kentucky’s process for participating in a convention.

As far as we can tell, none of the measures filed over the years have seen any action.

Even so, Kentucky hasn’t fully abandoned its convention quest just yet. State Sen. Tom Buford, R-Nicholasville, last fall attended the Balanced Budget Amendment Planning Convention hosted in Phoenix by the Arizona Legislature and “authorized by the official call within Arizona House Concurrent Resolution 2022.”

Buford said Stivers sent him as a delegate to gather information for Kentucky lawmakers and that state Sen. Wil Schroder, R-Wilder, attended a similar meeting in Williamsburg, Virginia.

“Right now, we’re in that debate, talking with different states to see if there’s an interest from different states to [move forward],” Buford said. “We’re talking about the procedural means for doing this.

He cautioned: “Don’t construe that just because I was there [in Phoenix] that I’m ready to roll. I was there just to see how things would go. Stivers had some interest, and he’s like me: We’re ready to stand our ground; we’re not there necessarily to push an agenda. As Rick Pitino used to say, ‘We’re eyeballing the issue.’”

Buford also said he thinks the convention calls are a tactic that can pressure Congress to act.

“My personal opinion – I’m not sure the Article V issue will ever appear, but they will have their meetings. And in having their meetings, they’re getting the attention of Congress,” he said.

*Several entities, ranging from Common Cause to the Balanced Budget Amendment Task Force, have said 28 states passed resolutions calling for a convention. These entities seem to be including measures that have passed at least one state legislative chamber. Spot checking other states’ legislative websites and newspaper reports, the Gazette decided the COSA tally was the most current and accurate for this discussion. Kentucky’s HJR 81, filed for the 2018 session, also lists 12 states (the same number COSA cites) as having fully passed convention resolutions. Those states are: Alabama, Alaska, Arizona, Florida, Georgia, Indiana, Louisiana, Missouri, North Dakota, Oklahoma, Tennessee, and Texas.