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FAQ Series Question #4: What's the Difference between Compact for America and Other Article V Efforts?
January 26, 2015
All of the efforts to originate amendments from the states under Article V organize a convention for proposing amendments, so what is the difference between the Compact for America approach and other Article V efforts?
The Compact for America approach is truly “Article V 2.0." It is best suited to advancing constitutional reforms, like a federal Balanced Budget Amendment, which already enjoy supermajority support and which require quick action to remedy the targeted problem. 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.
Unlike the legacy approach, the Compact approach ensures you know precisely what you’re going to get from the amendment by convention process before it begins. The necessary agreement among the states (the “compact”) and the compact-activating congressional resolution pre-commits supermajorities of the states and simple majorities of Congress to the:
identity and instruction of delegates,
convention agenda (including the complete text of the contemplated amendment),
convention logistics, and the
Unlike the legacy approach, the Compact approach also uniquely organizes a Commission to oversee the amendment process, enforce the Compact, manage logistics, and parley with Congress and other states to keep everything on track. The states will have a megaphone to match that of the political class in Washington. The only question left open is whether the convention the Compact organizes will approve or reject the contemplated amendment(s).
Compact for America Chairman Tom Patterson offers his thoughts on the importance of this unique aspect of the Compact approach here. For specifics, you can find a one page overview of the Compact for a Balanced Budget here.
The Compact for a Balanced Budget Commission currently exists and you can learn more about it here.
This Expert FAQ addresses every major legal issue raised by the Compact approach to Article V and demonstrates that the approach is fully constitutional under current legal precedent. It includes a detailed discussion, with citations, of the constitutionality of binding the states to the Compact once 38 states join.
This article establishes (with hyperlinks to original Founding-era sources) that an agreement targeting and limiting an Article V convention to one or more pre-drafted amendments is fully consistent with the original meaning and public understanding of the Constitution.
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, 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)). Obviously, many people who are interested in birth control would not be satisfied with a condom that had a 11% failure rate. Likewise, 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 rogue amendments that will do any damage.
First, 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, any state-led Article V effort 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. You can read the currently drafted congressional resolution here.
Second, 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, 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," which means a legal nullity. You can review a comprehensive list of the Compact’s safeguards here.
Third, 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.
Fourth and 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 and shot down in court.
In fact, joining the Compact for a Balanced Budget is actually safer than not attempting to advance an amendment from the states. Why is that? Because the Constitution as it currently exists has three fatal flaws, which will inexorably lead to tyranny unless they are fixed with a constitutional amendment; namely, unlimited borrowing capacity, unlimited taxing capacity (16th Amendment), and the unlimited concentration of power over national policy making in Washington (17th Amendment). These three flaws will cause the federal government to gradually accumulate and centralize all political power over time. Hugging and holding this fatally flawed system is doomed to produce the opposite of freedom. Electing and unelecting federal officials to serve in this structurally flawed system is like rearranging deck chairs on the Titanic.
Only the Compact approach can, in principle, deliver a ratified amendment in as little as one session year. The Compact approach essentially transforms the amendment process into a ballot measure voted on by simple majorities of Congress and supermajorities of governors and state legislators.
As intimated previously, the Compact approach works by consolidating into one interstate agreement (a “compact”) all of the legislative steps that the states control in the Article V amendment by convention process (the convention application, the designation of delegates, the convention agenda (including the text of the amendment(s) to be proposed), the convention rules, and the legislative ratification). It also consolidates into one congressional resolution (an “omnibus concurrent resolution”) all of the legislative steps that Congress controls in the process (the convention call and the selection of mode of ratification).
Mechanically, this means that you pass a single compact bill advancing a specific constitutional amendment in thirty-eight (38) states (the threshold for ratification), and you never need to return to the states to get the job done. It means you pass a single compact-activating resolution in Congress with simple majorities and no presidential signature, and you never need to return. The only thing left to do once the states and Congress are done with their respective legislative roles is for the convention to meet and vote up or down the specific amendment contemplated in the compact and resolution.
The Compact approach achieves in three legislative stages and thirty-nine (39) total legislative actions what would otherwise take at least six legislative stages and at least one hundred (100) total legislative actions using the legacy approach. Moreover, only by using the Compact approach can you can actually identify all of the political actors you need to persuade, which allows you to build out a meaningful campaign along a typical legislative model. The legacy approach is a complete shot in the dark requiring a massive political machine to sustain it because of the numerous sequential legislative stages that need to be navigated at uncertain points in time. This <3 minute video illustrates the difference between the two Article V approaches.
History shows the plausibility of surmounting the thresholds needed for the Compact approach to generate a limited government constitutional amendment. This website lists existing interstate compacts in every state. You can see that persuading thirty-eight (38) states to join an interstate compact has been done before. Simple majorities of Congress have repeatedly voted in favor of a Balanced Budget Amendment proposal on the floor (only failing to reach the two-thirds threshold required for a Congressionally-proposed amendment). By contrast, after 225 years, we are still waiting for the legacy approach to generate a ratified amendment.
Taken together, the Compact for America approach to Article V is fundamentally different from the legacy approach because it has unique advantages of certainty, safety and speed, all of which combine to make it the first undeniably plausible vehicle for constitutional reform from the states. Indeed, the Compact for a Balanced Budget is far closer to generating a ratified amendment than any other effort. With only 36 state enactments, 1 congressional resolution, and one 24 hour convention to go before achieving a ratified amendment, the Compact for a Balanced Budget is twice as far along the Article V amendment process as any legacy approach.
If you agree with the Compact for America approach, please like and share this post! Also, your support is essential for the coming educational deployment to Washington, DC. Please review our plans here. Finally, February 10, 2015 at 3:30 pm is the date and time the “States Take Charge” in Tucson, Arizona. Please join us for a presentation about and an update regarding the status of the Compact for America initiative. Cocktails are complementary. Details here.