BY IAN MILLHISER – – – – –
In a brief USA Today op-ed that extends for just 340 words, Republican presidential candidate and Senator Marco Rubio calls for major constitutional changes that would fundamentally rework American society to be implemented through a process that has literally never been invoked in the entirety of American history.
The core of Rubio’s proposal is what he calls a “convention of states to amend the Constitution and restore limited government.” Under Article V of the Constitution, the legislatures of two-thirds of the states may apply to Congress for a constitutional convention, where amendments will be proposed that must be ratified by three-quarters of the states in order to take effect. Though this process has never once been invoked in 227 years of American constitutional history, Rubio believes it is the appropriate way to implement “ideas that reduce the size and scope of the federal government, such as imposing term limits on Congress and the Supreme Court and forcing fiscal responsibility through a balanced budget requirement.”
Should such a convention actually succeed in writing term limits and a balanced budget amendment into the Constitution, that would radically transform American government. Althoughcongressional term limits are unconstitutional, several states have imposed term limits on their state lawmakers. The result has been more power for lobbyists — and less scrupulous lobbyists to boot.
Lawmaking is not an easy process, and it requires the kind of expertise that can take years to develop. Term limits, however, force lawmakers to quit their jobs just as they begin to garner such expertise. Accordingly, a 2006 guide published by the National Conference of State Legislatures (NCSL) explained, “term-limited legislators” must “rely on lobbyists for information” because they have no senior colleagues that they can turn to for advice.
Meanwhile, the lobbyists themselves lose an incentive to be honest dealers with the people they are lobbying. Ordinarily, lobbyists depend “upon their reputation to effectively do their jobs,” according to the NCSL. Indeed, “lying to or misleading a legislator can lead to a loss of credibility that quickly ends a lobbying career.” In a term-limited legislature, however, there are no senior lawmakers who can warn their junior colleagues away from bad lobbyists. As a result, “short-term lobbying goals have come [to] outweigh the importance of long-term credibility.” A lobbyist is much more likely to deal with lawmakers in an underhanded way today because they are less concerned about preserving their credibility tomorrow with lawmakers who will soon be out of power.
A balanced budget amendment would also fundamentally change how America operates. As USA Today’s editorial board writes in its response to Rubio’s proposal, “tying the government’s hands could have serious consequences during wartime, when spending surges, or during an economic downturn, when government borrowing can stop a recession from becoming a depression, as it did in 2007-09.” And it’s not entirely clear how such an amendment would be enforced. As Judge Robert Bork, the failed Supreme Court nominee who became a conservative martyr-hero, tried to warn his fellow conservatives 1983,
In the early stages of discussion, a lot of people, including most economists, apparently thought this was no problem: if Congress exceeded the constitutional limits on spending, someone would sue. That much is true. The result, however, would likely be hundreds, if not thousands, of lawsuits around the country, many of them on inconsistent theories and providing inconsistent results. By the time the Supreme Court straightened the whole matter out, the budget in question would be at least four years out of date and lawsuits involving the next three fiscal years would be slowly climbing toward the Supreme Court.
It’s also likely, moreover, that while Rubio describes his proposed amendment as a “balanced budget requirement” he’s actually referring to something much more transformative. In 2011, Senate Republicans pushed something that they called a “balanced budget amendment,” but which also contained additional provisions requiring a two-thirds majority in both chambers of Congress to raise taxes and limiting annual spending to 18 percent of the nation’s gross domestic product. Had this amendment actually become part of the Constitution, it would have required draconian spending cuts that would literally take the United States back half a century. According to Senate Budget Committee Democrats at the time the amendment was under consideration, federal spending last dipped below 18 percent of GDP in 1966.
Indeed, according to the Center on Budget and Policy Priorities, the spending cuts required under such an amendment would have been so drastic that they would have plunged the United States into a second Great Depression:
If the 2012 budget were balanced through spending cuts, those cuts would total about $1.5 trillion in 2012 alone, the analysis estimates. Those cuts would throw about 15 million more people out of work, double the unemployment rate from 9 percent to approximately 18 percent, and cause the economy to shrink by about 17 percent instead of growing by an expected 2 percent.
Notably, every single Senate Republican voted for this amendment, including Rubio.
An Uncertain Process
The method Rubio wishes to use to implement such amendments — a constitutional convention — is also riddled with uncertainties.
The language in the Constitution permitting such a convention provides that “The Congress . . . on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which . . . shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof.” Notice what this language does not say. It does not say how delegates will be chosen. Or how they will be allocated among the states. Or whether each delegate will have one vote or whether each state shall have one vote. Or what rules will govern the convention. Or whether a supermajority of the convention must approve proposed amendments or if a mere majority will suffice.
Nor does it appear to permit a convention that is limited in scope. In his op-ed, Rubio says that “the agenda should be limited to ideas that reduce the size and scope of the federal government,” but it is unlikely that this is permissible. Because the Constitution refers to a “convention for proposing amendments,” that appears to suggest that the task of determining which amendments will be proposed is the exclusive province of the convention itself. State lawmakers who call the convention, or the Congress, for that matter, likely lack the authority to limit the convention’s agenda because this power is reserved to the convention.
Yet, while Congress probably is not empowered to limit the convention’s agenda, it most likely will be able to manipulate the process significantly. Though the Constitution does not explain what rules will govern the convention, it does say that “Congress . . . shall call” the convention once a sufficient number of states has applied for one. This implies that Congress has the power to set many of the convention’s rules, such as how delegates will be selected.
It also means that a partisan Congress will most likely be able to manipulate those rules. If Republicans control Congress, for example, and they also control a large number of governor’s mansions, then they could choose to have delegates be selected entirely by state governors. If they control fewer governors but more state legislatures, they could opt to have delegates selected by those lawmakers. Or, perhaps if congressional districts remain as gerrymandered as they are today, they could opt to have delegates elected directly using those same gerrymandered maps. The result would be a convention rigged to propose amendments supported by a transient majority in the Congress, rather than ones that enjoy the kind of supermajority support typically understood to be necessary to amend the Constitution.
And then there’s the problem of what happens if a radical amendment is proposed by the convention. Historically, the requirement that all amendments must be ratified by three-quarters of the states — current 38 states — has proved a high barrier to constitutional amendments. In the early twentieth century, for example, after the Supreme Court decided to ban federal child labor laws, an amendment seeking to restore Congress’s power over child labor stalled out due to opposition from likely opponents such as cotton mill owners who wished to employ children — but also from unexpected sources such as the Catholic Church.
Nevertheless, there is at least some reason to be concerned that a political party determined to write its preferences into the Constitution could do so if given enough time. The Twenty-Seventh Amendment was proposed as part of the original Bill of Rights in 1789, but it was not ratified until more than 202 years later in 1992. It is considered to be a valid amendment that is no less a part of the Constitution than any other. Moreover, there is considerable uncertainty regarding whether a state that has voted to ratify an amendment may later choose to change its mind. As USA Today notes, the “National Archives’ position is that its certification of ratification documents is ‘final and conclusive.’”
So, while there may never be 38 state legislatures sitting at the same time that agree with Rubio’s proposals, it is entirely possible that the natural ebbs and flows of elections will enable supporters of these proposals to briefly control 38 different states’ legislatures at different times over the course of the rest of American history. Americans could wake up 20, 30 or even 200 years from now to learn that some obscure act by a single state’s lawmakers has pushed the number of states over the threshold that requires a largely forgotten amendment to be written into the Constitution.
At the moment, the Balanced Budget Amendment Task Force, an advocacy group calling for such an amendment, claims that 27 states have applied for a constitutional convention. If their numbers are accurate, that means that just a handful of states could set in motion the kind of radical change Rubio proposes.