Constitutional Convention: Your Questions Answered!

Hello! I have received an unexpected swarm of interest in a constitutional convention to reverse the Citizens United decision, likely because the Colorado legislature has introduced two resolutions to petition Congress for such a convention. 

Let me start with saying I do support these resolutions and I also understand the concerns about them. Let's set the record straight and have a discussion. E-mail me at Barrett@RotheColorado.com with questions, concerns, and maybe even support.

If you're not familiar with Citizens United, it is a Supreme Court decision that allows basically unlimited, secret money from special interests to be spent on elections. Campaign finance was not exactly great in the United States before Citizens United, now it's a fundamental threat to our democracy. 

A growing number of states are petitioning Congress to call a constitutional convention that would propose an amendment to reverse the Citizens United decision. What a mouthful! States are asking for this because, so far, Congress will not act.
 

Constitutional Convention: In the Weeds

First let's go over the process. Article V of the Constitution (which is all of 143 words by the way, take a look) establishes the ways you can amend the Constitution. Every time the U.S. Constitution has been amended the process started with two-thirds of both chambers of Congress passing an amendment and sending it to the state legislatures to approve it. Three-quarters of the state legislatures (38 states at current headcount) have to approve the amendment before it is ratified.

A constitutional convention supplants Congress in that process... sort of. The mechanism to call for a convention is that two-thirds of the state legislatures (34 states) can petition Congress to call a convention that would recommend an amendment to the constitution. Any amendment would still have to be ratified by three-quarters (38) of the state legislatures.

And that's about all we know for sure because this process has never been used in the history of the Republic... but don't fear the unknown just yet.
 

What these resolutions in the legislature are and are not

Colorado's resolution to petition for a convention would simply compel and allow Congress to call for such a convention. The resolutions also detail that the request is for a convention with the specific purpose of addressing campaign finance laws.

While I would concede that there are a lot of details to iron out, the consensus is that Congress (when calling the convention once enabled to do so and while setting up its logistics) can limit the scope of the convention to a specific purpose.

These resolutions would have Colorado join five other states in petitioning Congress for such a convention. The states we would join are Vermont, Illinois, California, Rhode Island and New Jersey... not exactly breeding grounds for a conservative Trojan Horse. We would also need 28 more states to join in.

I would also offer my own layman's legal opinion that these petitions, even if you get to two-thirds of states supporting them, do not actually compel Congress to rush in calling a convention in any way. Congress could take a theoretically unlimited amount of time to call a convention.
 

The Strategy

Let me state in unequivocal terms I believe the path forward here is to join the growing chorus of state legislatures and citizens who want to reverse the Citizens United decision. I do not believe Congress will act unless they are pressured to do so, and fighting for a constitutional convention will put pressure on Congress to act themselves without a convention.
 

The Concerns

Let me detail the concerns I have seen and heard and respond to them.

A constitutional convention could offer up other amendments that we do not want.

Probably not. For one thing: there's no reason to think delegates to such a convention would be paid or have any interest in staying longer than is necessary. Second: many legal scholars believe Congress, once authorized to call a convention for a specific purpose, can limit the scope of the convention. And finally: you still need three-quarters of the state legislatures to ratify any amendment proposed by the convention. It's not an express lane to amendment ratification.

We don't know what will happen or who will be in charge of the convention.

The same is true every time we vote to send a Representative or Senator to Congress... we don't know if the party we support will be in the majority or what they will vote on. I think not knowing who will be at the convention is a legitimate concern, but to me it is outweighed by the need to act.

We can legislate at the state- and local-level to chip away at Citizens United.

Not really. While the legislatures can control campaign finance for candidates for state office (Governor, legislature, etc.), they do not have jurisdiction for congressional and presidential campaigns. Moreover, federal elections all still take place in our communities to some degree and national money influences local politics even when they don't adhere to local rules.

If we confirm a Supreme Court justice that would overturn Citizens United that would do the trick!

That would! Now all we need is a President that will nominate such a justice, a Supreme Court vacancy, a cooperative United States Senate, and someone to bring another lawsuit forward. To some degree all of that is easier than a constitutional convention but it also would violate rules of legal precedent (the Supreme Court likes to adhere to previous rulings even when the seats change over) and it opens up the door for a future reversal of our reversal. Better to carve an amendment in stone.

We don't know how a constitutional convention would work. It's too risky.

More on this later, but a constitutional convention might do damage to our democracy whereas Citizens United definitely is doing damage to our democracy right now. The risk of inaction is greater than the risk of the unknown.

Congress would have to agree on a plan for a convention, and agreement is not something Congress is known for. I believe that if they are compelled to call a convention they will pass an amendment instead, and I have faith that if they must call a convention a reasonable (and probably very uneventful) format will be approved.

Why don't we spend this energy on electing members of Congress that will vote for an amendment?

Please click here and get started. That is a much better path but at the moment there's no momentum for it; state resolutions help build that momentum.
 

The Status Quo

A constitutional convention is not a silver bullet, it's not the cure to everything wrong with campaign finance. However, I believe strongly that the status quo is unacceptable. The risk of inaction is greater than the risk of a constitutional convention. When special interest groups can use their resources to exert undue influence in an election, we all suffer. So when you hear a convention is too risky... remember that the damage being done to our democratic process right now is much worse than murky constitutional law theories.

I also want to reiterate that a convention is not an all-powerful, permanent conclave of our political opponents. Like every other lever of power in our constitution it too has checks and balances.
 

And finally...

I try not to overpromise. I work very hard to show you all that I am human and I don't have all the answers, but pushing these ideas forward is critical. To me a legislator worthy of your vote is not someone who is a subject matter expert in all things, but rather someone that wants to represent you and try to make things better. We may have to refine, pivot, and improve the strategy to reverse Citizens United as we move forward but I am certain we'll be better off by proposing these resolutions, having the debates, and working together. 

In their current form I would vote for the resolutions being proposed in the Colorado legislature. If they fail this year I would keep trying. Making our democracy better is a painfully slow, messy process, but I want to make sure we all have a fair chance to fight for our country's future and to do that we have to overturn Citizens United. I'm open to new ideas for doing that.

If you've stuck with me all this way thanks for reading.

 

Barrett Rothe

 

 

 

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