In fact, as the Congressional Research Service recently emphasized, Congress has never regarded its role in Article V as purely ministerial. As analyst Thomas Neale puts it, Congress “has traditionally asserted broad and substantive authority over the full range of the Article V Convention’s procedural and institutional aspects from start to finish.” Congress has repeatedly introduced bills that purport to give it a substantial role in delegate selection, convention rules and even setting or enforcing the convention agenda.
All of these efforts pose a real and substantial political and litigation risk to a non-compact "Convention of the States" effort.
And even if Congress called an Article V convention with no federal strings attached on the front end, there is no guarantee that Congress would not set an impossibly short ratification sunset date for any proposal it disliked on the back end.
As a matter of practical politics, Congress could find it very easy to completely disrupt years of effort culminating in the proposal of meaningful amendments from an Article V convention simply by imposing a three month sunset on its ratification referral resolution.
In short, whether Fivers like it or not, Congress has significant leverage in the Article V amendment process. Confronted with the foregoing fact, some Article V movements firmly stick their head in the sand. They declare they will just ignore Congress if Congress balks at its constitutional duties.
But does that mean that an Article V convention will select the mode of ratification for itself? Obviously, that sort of stance would clash directly with the Constitution’s text. And actually deploying such a stance would be incredibly damaging to the wider Article V movement. This is because suggesting that an Article V convention should just ignore Congress tends to legitimize the otherwise absurd claims of those who fear that an Article V convention actually possesses extra-constitutional power.
At best, propagating the notion that the States should ignore Congress in the Article V process would de-legitimize the outcome of the process. At worst, the entire project would get shut down by the federal government through court or military action as a type of insurrection. A day may come for insurrection, but we are not there yet.
For these reasons, the optimal strategy for securing constitutional reform does not involve confronting a constitutional violation by Congress with a constitutional violation by the States. Two wrongs don't make a right. Rather than producing a constitutional amendment, that tactic is far more likely to lead to the further degradation of the Constitution, if not anarchy.
Instead, Fivers who are truly interested in maximizing the chances for constitutional reform from the states should grapple with Congress’ leverage in Article V by taking the high road—but on the States’ own terms.
Only the Compact approach to Article V ensures the States lead and Congress follows. The Compact occupies all convention logistics before Congress can. The Compact's activating Congressional resolution, which sets the Compact’s Article V process in motion, simultaneously calls the Article V convention and pre-selects legislative ratification of the contemplated Balanced Budget Amendment. This ensures we can elicit a commitment from Congress to facilitating the amendment process at the front end of the process, rather than merely hoping that Congress won't sabotage it after the convention is called.
In fact, the Compact approach affords total tactical flexibility in dealing with Congress. The Compact Commission gives the member states an institutional presence to parley with Congress; the effort is not just a stack of paper shuffled by interest groups.
The Commission can approach Congress early, when it presents no political threat. It can approach Congress later, when it does. It can seek Congress’ engagement voluntarily, if the opportunity for buy-in looks real or if negotiations towards a consensus approach look fruitful. And if the member states must, the Commission can also deploy a litigation strategy to compel the Article V convention call.
In fact, Compact for America is already preparing for the possibility of an early Congressional push. The Compact's activating Congressional resolution is already drafted by legislative counsel.
By fully occupying all logistical spaces and then deliberately seeking to co-opt Congress at the States’ time of choosing—using the platform of a Compact Commission to unite the States and enable them to parley institution-to-institution—the Compact approach minimizes the risk that Congress will abuse the political leverage that the text of Article V gives it.
For this reason, only the Compact approach to Article V can truly neutralize the principal litigation risk to the Article V movement—the erroneous view that Congress, not the States, controls convention logistics in significant ways. Only the Compact approach to Article V can truly neutralize the principal political risk to the Article V movement—the prospect of Congress unconstitutionally using its points of leverage to sabotage the process.
In short, only the Compact approach to Article V maximizes the chances of delivering a constitutional amendment originated by the States without provoking a constitutional crisis and without legitimizing the fears of those who wrongly believe an Article V convention possesses extra-constitutional powers.