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Article V 2.0, Part 2: Safety
May 15, 2015
This post is part two, of a three-part series explaining the difference between the Compact for a Balanced Budget approach and other “legacy” approaches to originating federal constitutional amendments-from the states under Article V of the U.S. Constitution.
The differences between the Compact approach to Article V and the “legacy” approaches to Article V can be captured in three categories: 1) Certainty; 2) Safety; and 3) Speed.
As you will see, the Compact approach is truly “Article V 2.0.” Today’s topic is…
Unlike the legacy approach, the Compact approach recognizes that it is not unreasonable to be uncomfortable with relying upon the ratification hurdle as the sole safeguard against rogue amendment proposals. Simply put, from a certain perspective, the ratification hurdle has an 11% failure rate (the 16th Amendment (income tax), the 17th Amendment (popular election of senators) and the 18th Amendment (prohibition)). Because of this perspective, many well-meaning individuals lack the risk tolerance needed to rely on ratification alone to protect against bad or rogue amendment proposals.
For that reason, the Compact approach uniquely allows for four additional political and legal safeguards, which in combination with the ratification hurdle, reduce to implausibility any risk that the convention it organizes will disregard its mandate and propose damaging rogue amendments.
The Four Additional Political/Legal Safeguards
1) The Compact approach contemplates state leadership with congressional buy-into the laser-targeting of the Article V convention it organizes. The congressional resolution is designed to call the convention in accordance with the Compact. This neutralizes the main political adversary otherwise faced by the legacy approach, and arguably transforms the terms of the Compact into the equivalent of both federal and state law under current precedent.
Without congressional buy-in, the legacy approach faces the risk of Congress claiming the power to determine convention logistics in its call on the front end, and Congress setting an unreasonably short sunset date for ratification referral on the back end of the process. That risk is avoided by the currently drafted congressional resolution here.
2) The Compact layers on numerous legal safeguards to keep the process on track and to function as a kill switch for a rogue convention. Those safeguards include specific language requiring delegates from all member states to vote the Compact’s limited agenda rules into place as the first order of business at the convention, automatically forfeiting the legal authority and disqualifying any rogue delegate or state, barring all member states from participating in a rogue convention or ratifying rogue amendments, and declaring all rogue actions of the convention and its participants “void ab initio.”
3) The Compact empowers every member state attorney general to enforce the Compact against every other member state in the federal and state courts located in the Northern District of Texas. It thus reliably imposes the legal obligation on one state to recognize the authority of another state’s attorney general to enforce its obligation to hew to a limited convention agenda.
By contrast, the legacy approach relies exclusively on the willingness of a given state to enforce its own laws, which may or may not instruct delegates to respect a limited convention agenda. This is little protection at all if the rogue delegate comes from a politically corrupt state, and it is obviously an inferior enforcement mechanism compared to that furnished by the Compact approach.
After all, if delegates go “rogue” at a legacy-organized Article V convention, other states will have little recourse other than to rely on the political integrity of the states that sent the rogue delegates to enforce their own delegate limitation laws.
4) Finally, the Compact approach includes a “sunset” provision that automatically repeals the Compact in seven years from its first enactment. As a result, the Compact not only clearly and unequivocally masses maximum political will and commitment behind a specific, fully-defined, and known-in-advance political product, it does so in a short period of time. This means that a huge network of existing political reputations are clearly at stake in any decision to follow or not to follow the terms of the Compact.
This single dynamic will cause the wrong people at the convention to do the right thing purely out of political self-preservation. And that is especially the case if states retain the default setting of sending the governor who signed the Compact into law to the convention as their sole delegate.
Taken together, no straight-faced argument can be made by anyone that the Compact contemplates any other activity at the convention it organizes other than a straight up or down vote on the amendment it specifies. Rogue delegates and rogue actions will be clearly identifiable and de-legitimized politically.
The bottom line is that advancing the Compact for a Balanced Budget is a lot safer than waiting on Washington to lead when it comes to fixing the national debt.