A Friend Made a Mistake
Sometimes friends make mistakes. We all do. So here we are with our friends at the Heartland Institute. It is hard to offer any public criticism of the Institute because it has proved time and time again to be a powerful and leading ally in the Article V movement. Nevertheless, here is a partial list of the ways in which a recent Heartland Institute Article V policy brief authored by Georgia attorney David Guldenschuh strikes us as deficient in its analysis:
The article uses a “percentage to goal” point system to assess progress in the Article V movement that is deficient in that it: (a) assumes the goal is an Article V convention, not a ratified amendment; (b) counts as "points" any success at any legislative stage regardless of whether passage of a bill is achieved in the same session; and (c) fails to account for the fact that the Compact consolidates multiple pieces of legislation into a single piece of legislation.
By basing the “goal” on achieving a convention, rather than a ratified amendment, the article erroneously contends that the 38 state passage hurdle faced by the Compact approach to Article V is more onerous than other approaches—38 states is the goal of every approach, not just the Compact’s approach, IF a ratified amendment is the goal.
By basing the “goal” on achieving a convention, rather than a ratified amendment, the article erroneously disregards the fact that delegate appointment and instruction laws are required for the non-compact approaches to work—and that requires Congress to yield the logistical field to the states as well as gubernatorial presentment in at least 26 states if you want to assume that one-state/one-vote will control the quorum or (based on the blue states that are unlikely to cooperate) in at least 38 states if you want to ensure you have enough delegates to control a quorum based on population.
The article’s contention that the Compact approach is “complex” is incorrect in so far as it is more complex to have to pass multiple pieces of separate legislation (as required by the non-compact approach) than to pass a single piece of consolidated legislation.
The article’s contention that the Compact approach faces significant legislative hurdles from being “complex” disregards the complexity of the hundreds of compacts that exist nationally and the dozens that exist in each state (we would challenge Mr. Guldenschuh to identify a single existing compact that is simpler than the Compact for a Balanced Budget).
The article does not address the latest research into Article V here, here, here, here, here, here, here, and here that calls Natelson’s denial of the ability of states to target a convention to a pre-specified amendment into question by showing clearly and unequivocally the Founders expected the states to specify their desired amendments in their Article V applications.
The article does not address the very serious problems with aggregating applications faced by the Reagan-era Balanced Budget Amendment topic-limited Article V approach ("BBATF") discussed here and here.
The article does not address serious problems with the balanced budget concepts contained in the BBATF applications that exist (deficit control rather than debt control), which will preclude consideration of many stronger BBA drafts (including ours) if state control over the convention agenda is taken seriously.
The article does not address the fact that a “topic-limited” agenda can be easily expanded to encompass just about any subject by virtue of the same “house-that-jack-built” arguments that expanded the reach of the Commerce Clause and so many other parts of the Constitution.
The article fails to grapple with many other unique risks of the BBATF approach to Article V discussed at length in an earlier Heartland Institute policy report, which is available here.
We are required to note the foregoing analytical deficiencies because our President & Executive Director, Nick Dranias, is a Research Fellow and Policy Advisor with the Heartland institute. Let it be known that Nick had no opportunity to review Mr. Guldenschuh's piece before it was published. While formal peer review is not necessary for a good scholarly work, or even good advocacy work, we believe the Heartland Institute should perform due diligence consisting of seeking the commentary of its own policy advisors on a publication in their field of expertise.