While Democrats on Wednesday were feeling encouraged and empowered by Tuesday’s coast-to-coast rejection of Trumpism, Republican legislators who control Wisconsin did what the GOP does best in elections: voted to rig the system to favor their agenda. Only this time the target wasn’t voter suppression; it was the U.S. Constitution.
On Tuesday, the Wisconsin Legislature voted to call for what’s known as an Article V constitutional convention, becoming the 28th state to do so in recent years. Thirty-four states are needed, according to the nation’s founding document, to launch a process that would open up the foundation of American’s rights and laws to revision.
“Sadly, this is not fake news,” said Common Cause president Karen Hobert Flynn. “The specter of an Article V convention to rewrite the Constitution remains one of the most alarming threats to our democracy that nobody has ever heard of before.”
“The deep-pocketed special interest groups behind this effort to call a convention are not likely to stop with a single amendment when there are no rules to prevent opening up the Constitution to a full rewrite in a runaway convention,” Flynn explained. “The effort to call the convention is funded by wealthy special interest groups like the American Legislative Exchange Council that have long pushed for a broad legislative agenda in the states, and it is hard to imagine then not foisting that agenda on the Constitution itself through unelected and unaccountable delegates to the convention.”
Revising the U.S. Constitution is not the only big idea that has surfaced following 2017’s Election Day. On Wednesday morning, the New York Times endorsed the national popular vote compact, where states agree to award all of their Electoral College votes for the next president to whoever wins the national popular vote. (In 2016, that was Hillary Clinton, by nearly 3 million votes. So far, 10 states and the District of Columbia have signed on, pledging 165 of the 270 Electoral College votes needed.)
Harvard Law professor Larry Lessig, who dubiously called for an Article V convention a half-dozen years ago to reform the nation’s campaign finance system, has another big idea that would shake up the electoral process in unpredictable ways. His non-profit, EqualCitizens.US, has sued to reallocate Electoral College votes by congressional district instead of the current winner-take-all system that exists in 48 states. (Maine and Nebraska split up their Electoral College votes.)
But an Article V convention is closer to reality than either the national popular vote or Lessig’s Electoral College reshuffling (even though two states, Minnesota and Virginia, saw lawmakers introduce 2017 legislation to reapportion these votes; both stalled). In the past three years, 12 red-run states have called for an Article V convention (Georgia, Alaska, Florida, Alabama, Tennessee, Indiana, Oklahoma, Louisiana, Arizona, North Dakota, Texas and Missouri). Meanwhile, four blue states (Delaware, New Mexico, Maryland and Nevada) that previously voted for a convention, under the assumption it would only be concerned with balancing the federal budget, rescinded that earlier vote because of fears a convention would become a runaway train.
These offensive moves by the right and defensive moves by the left show the prospect of an Article V convention is not just another fanciful idea, but is moving closer to something the nation may eventually face. Before 2017’s Election Day, the next six states targeted by proponents were Kentucky, Idaho, Minnesota, Montana, South Carolina and Virginia, according to Common Cause’s background memo. Virginia’s election of a Democratic governor, and the partisan majority of its lower House of Delegates still unknown (due to ballots that are still being counted), dampens the nearer-term possibility of reaching 34 states.
But no one should underestimate the Republicans. The GOP, more so than Democrats, have kept their eyes on longer-term political prizes. They did that with partisan gerrymanders in 2011 to lock down red supermajority legislatures and U.S. House delegations. The Supreme Court is now reviewing a challenge to Wisconsin’s extreme gerrymander. It’s no coincidence that it voted Tuesday to call for a federal constitutional convention. (In New York State on Tuesday, voters rejected a call for a state convention to revise the state constitution, but approved a proposal to seize pensions from corrupt politicians.)
The rhetoric from those calling for a federal convention is simplistic, given the stakes, complexity and chaos of the consequences. From the mid-1970s until three or four years ago, the call for a convention was to rein in federal spending via a balanced budget amendment, said Jay Riekenberg, a campaign strategist at Common Cause. But today, proponents are talking about more sweeping reforms, which becomes an open-ended invitation to revise the Constitution to accommodate virtually every right-wing goal that cannot be adopted through state legislatures or Congress.
“The messaging change we are seeing coming out of the convention of states [the main advocacy group] is forcing the conservatives to talk differently about this,” Riekenberg said. “The convention of states folks talk about how simple this is; this is all about taking back power from Washington.”
“The conservative movement has basically made this a long-term strategy,” he continued. “They had a lot of momentum between 2011 and maybe Monday night. They need six states… Four are firmly in Republican hands.”
Virginia and in Minnesota are the likely near-term exceptions, where Democrats either gained power on Tuesday or may do so in 2018. But as far-fetched as an Article 5 convention sounds, the unknowns associated with it should prompt notice. It could be a runaway convention. It could be a bonanza for special interests. There are no certain convention rules laid out in the Constitution or a ratification process. There’s no guarantee participants would be representative of the electorate.
Supreme Court justices from both sides of the aisle agree on this assessment.
“There is no way to effectively limit or muzzle the actions of a Constitutional Convention,” wrote Warren Burger, chief justice from 1969 to 1986. “The Convention could make its own rules and set its own agenda. Congress might try to limit the convention to one amendment or one issue, but there is no way to assure that the Convention would obey.”
“I certainly would not want a constitutional convention,” said Antonin Scalia, associate justice from 1986 to 2016. “Whoa! Who knows what would come out of it?”
Nobody knows. And that’s the point. As the Republicans see their grip on political power slip, as it did on 2017’s Election Day, and may continue to do so in the 2018 and 2020, you can safely bet nothing will be taken off the table to ensure their survival.
Republicans have done many things to rig the rules of elections this decade, from gerrymandering to a deep catalog of voter suppression tactics. While Democrats and Independents were voting Tuesday to reject Trumpism, the GOP in Wisconsin intentionally ignored the public and moved to rewrite the Constitution. Take heed.