Anger with Washington, D.C., gridlock is understandable. Bipartisanship is gone; straight party-line votes are the norm; and special interests and their money dominate the political process. Many see our Constitution and Bill of Rights as out of date. Some hate the Second Amendment right to bear arms, the Electoral College or abortion or see the president as too powerful or Congress as trampling on states. The system needs to be fixed.
Yet a constitutional convention is a dangerous and uncharted mechanism to address these problems. In fact, it might be distorted by the very special-interest money that reformers want to fix, doing serious damage to our government and individual rights.
Minnesotans should reject resolutions currently before the state Legislature calling for a constitutional convention.
Article V of the U.S. Constitution describes two ways it and the Bill of Rights may be amended. One is where amendments are passed by two-thirds of both the U.S. House and Senate and ratified by three-fourths of the states. So far, every amendment to the Constitution has been done this way. But Article V also allows for two-thirds of the states to call for a constitutional convention, with a vote of three-fourths of the states necessary to adopt any amendment at the convention. This process has never been used.
If a constitutional convention were called by the states under Article V, it is not clear how much could be done to prevent the process from being captured by and dominated by special interests. The reason is both because current law is inadequate in its ability to control special interests and because there is no framework of law that addresses what role groups or money would have in a constitutional convention process.
Because no constitutional convention has ever been called under Article V, exactly what rules govern are in question. One theory would be that the existing rules of the Constitution, Bill of Rights and federal law would apply, including the existing legal precedents of cases such as Buckley v. Valeo, 424 U.S. 1 (1976) and Citizens United v. Federal Election Commission, 558 U.S. 310 (2010). This means that corporations and wealthy donors could expend unlimited amounts of money to affect and influence the deliberations that would take place in such a convention, as well as to influence the ratification of any amendments that would be proposed.
Nothing would prevent any groups from expending money to influence the calling of the convention, the deliberations or the process of ratifying any of the amendments proposed. All of these would be protected by the First Amendment as either issue advocacy or a legitimate activity to petition the government.
It is also not clear that the courts would have the authority to review or monitor any of the activities or deliberations that would take place in the conventions. In cases such as Baker v. Carr, 369 U.S. 186 (1962) and Coleman v. Miller, 307 U.S.433 (1939), the Supreme Court declared that the issue of amending the Constitution is a topic textually committed to Congress. It simply may not be possible for the courts to review any claims that special interests had undue influence over anything that happened in the convention deliberations.
At present, there are no rules regarding who can participate, give money, lobby or have a voice in a constitutional convention. There are no rules about conflicts of interest, disclosure of who is giving or expending money. No rules exist that address political action committees, corporate or labor union involvement or how any other groups can or should participate. Not only might legitimate voices of the people be silenced by convention rules, but special interests may be given privilege to speak and affect the deliberations.
Finally, there are no rules limiting what can be debated at a constitutional convention. Given the potential domination by special interests, who knows the result? The Second Amendment gets repealed … or strengthened. Abortion outlawed, freedom of religion or speech limited or search warrants abolished. All this is possible and could not be controlled by the courts or the people.
While a constitutional convention sounds good in theory, it is a dangerous idea that should be rejected nationally and in Minnesota.
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