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Changing the Constitution?

Convention to pass balanced budget amendment poses dangers to civil liberties

Aug. 8, 2017
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Photo credit: Kim Davies

In June, the Wisconsin State Assembly voted to join a multistate call for adding a Balanced Budget Amendment (BBA) to the U.S. Constitution. Under this measure, the BBA would be passed, not through Congress (as every other amendment has been), but through a state-led constitutional convention. Such an event has occurred exactly once before—in 1787, with George Washington presiding. The Founding Fathers met in Philadelphia with the purpose of revising the Articles of Confederation and ended up drafting what became the constitution. Were a constitutional convention to happen today, many legal experts agree, there’d be nothing to stop it from spiraling well beyond its mandate once again.

“The predominant opinion is that a constitutional convention can go in any direction that the representatives want it to go,” says Edward Fallone, a professor at Marquette University Law School. “They can consider not just specified subject matter, but anything they want.” This movement has attracted a succession of states over the last few decades and recently enjoyed a surge of support among conservative lawmakers and special interest groups.

Wisconsin’s resolution was introduced by Sen. Chris Kapenga (R-Delafield) and passed in the Assembly by a 54-41 vote—with all Democrats and seven Republicans voting against it. Article V of the constitution requires two-thirds (or 34) of the states to issue a call for this convention before it can take place. If the Wisconsin State Senate approves Kapenga’s resolution, Wisconsin will be state number 28.


A Balanced Budget

Supporters of Kapenga’s proposal have praised the BBA as a countermeasure against the $20 trillion-and-counting national debt. A balanced budget might look to some like a good idea in the shadow of that towering number, but, as many have pointed out, a new amendment is not needed to achieve one. “If they want a balanced budget, let them do it,” says Sen. Fred Risser (D-Madison), who voted against the proposal when it went before the Senate Committee on Financial Services, Constitution and Federalism in March. “They’ve got the process to do it. They’ve got control of Congress. They’ve got the White House. All they have to do is do it.”

Of course, submitting an actual budget would require them to move past the appealing notion of “balance” and get into some unpleasant specifics, like raising taxes or cutting popular programs. Jay Heck, executive director of Common Cause in Wisconsin, argues that supporting the BBA allows lawmakers to sidestep those details while still presenting themselves as fiscal conservatives. “If they enunciate that they’re going to cut Social Security, Medicare or Aid to Families with Dependent Children, those are difficult things to explain to your constituents,” he says. “So they say, ‘I’m for a balanced budget amendment.’”

According to the resolution’s lead sponsor, Rep. Kathy Bernier (R-Chippewa Falls), a BBA is more about reining in the debt and holding the federal government accountable. A constitutional convention is needed to accomplish this, she says, because “the states have no authority over Congress to do it any other way.”

Critics worry that a BBA would harm the economy by blocking all deficit spending—preventing the federal government from intervening during recessions or addressing crises like natural disasters or national security threats. Even more than that, they fear that the BBA is really just an excuse to get the convention movement off the ground—that, once formed, there’d be nothing to prevent a runaway convention with delegates suggesting all manner of ideological tweaks and procedural hurdles far beyond the scope of a balanced budget.

“No matter what they say, the purpose is to get a group together and start fussing with the entire document,” Risser says. “There’s no purpose for a constitutional convention unless you want to rewrite the whole thing.” For opponents of the constitutional convention movement, this is where it really starts to get scary.


A Runaway Convention

As the term “runaway convention” suggests, there’s no telling what would happen if representatives decided to veer off course, but a convention would be a unique opportunity to fast-track existing agendas. Delegates would likely be selected by state leaders, and the majority of state governments at this time are dominated by Republicans. Consider those facts together, and a few possible outcomes start to emerge.

“I think everything we’ve seen in Wisconsin and nationally in the last couple of years would be really telling of what we might expect to see,” says Mel Barnes, legal and policy associate for Planned Parenthood of Wisconsin, “except without any check on that power or normal process for it to go through.” Barnes says that a constitutional convention in today’s political environment could pose a threat to reproductive rights and access to women’s health care, in general. If, for example, delegates wanted to turn their focus to abortion restrictions or cutting federal funding for Planned Parenthood during the convention, there would be no legal mechanism to stop them.

In a March testimony, ACLU-Wisconsin listed reproductive rights and gun control among the subjects that might come under consideration. The organization’s executive director, Chris Ott, says that, in addition to those issues, proposed changes could infringe on any number of civil rights, undermining principles as fundamental as freedom of religion and freedom of speech. “A lot of the rights that the framers gave us way back in the 18th century actually protect us pretty well in the 21st,” Ott says. “Instead of starting over, we need to defend and make good on the Constitution and Bill of Rights that we already have.”

Rep. Fred Kessler (D-Milwaukee) says the convention would “clearly go beyond the mandate” of a BBA and could attempt such wide-ranging changes as obstructing immigrants’ paths to citizenship, promoting taxpayer-funded religious education and limiting voting rights. He says that, while the balanced budget amendment may be the main goal for a handful of conservatives, “there are some really substantial other motivators.”

In spite of these concerns, Bernier says that a runaway convention is unlikely. Were some delegates to discuss changes beyond a BBA, she says, leaders would declare their actions out of order and bring them back on task. If this didn’t work, they would likely adjourn the event until states agreed to focus on balancing the budget. She also points out that any amendment would still have to be approved by three-fourths of the states (as outlined in Article V) before being ratified—meaning delegates would still have to sell their changes to the public before anything went into effect. “If it’s horribly flawed, it will not be ratified by 38 states, and it will be a moot point,” she says.

The three-fourths requirement is part of why passing amendments is so difficult and could be a powerful safeguard against any radical changes proposed in a convention. However, some legal analysts have suggested that delegates could simply modify or remove that step once convened. Depending on interpretation, an Article V convention could endow representatives with near-limitless control over one of the country’s founding documents. Opponents caution against giving anyone that kind of power, regardless of ideology. “It would be a serious mistake for either party to rewrite the constitution,” Risser says.


Special Interests and Public Opinion

While the national mood may be primed for spontaneous popular uprisings, the constitutional convention movement isn’t one of them. The American Legislative and Exchange Council (ALEC) has been pushing for an Article V convention for decades, supplying state lawmakers with model legislation in pursuit of the magic number 34.

According to Professor Fallone, these groups want to impede the democratic process by imposing limits on the federal government that make it harder to enact changes, even if those changes have majority support. Kapenga’s proposals (which include a resolution establishing procedural rules and a bill outlining the delegate selection) have not received much popular support in Wisconsin. Thanks to the redistricting that followed the 2010 election, they don’t really need it.

“I think the only thing legislators were hearing from their constituents is that this is a bad idea, and they shouldn’t do it,” Heck says. “But, because of the way this state is gerrymandered, a lot of the Republicans say, ‘Well, I don’t care what my constituents say. I do care what Wisconsin Manufacturers & Commerce and Wisconsin Club for Growth and ALEC say. So I’ll go with that.’”

The U.S. Supreme Court recently agreed to consider Gill v. Whitford, which concerns partisan gerrymandering in Wisconsin. Kessler, an expert on redistricting, says that the outcome of this case could loosen Republicans’ grip on state legislatures, which is a big part of why the convention is a priority for them right now. “I think they want to extend their control,” he says.

The push for a constitutional convention lost some steam earlier this year with several states rescinding their calls. Wisconsin’s joining could reverse that momentum, encouraging other conservative-leaning states to get on board. But the chances of that happening are unclear. Republicans control the Wisconsin State Senate, but some have expressed reservations about the idea, including Majority Leader Sen. Scott Fitzgerald (R-Juneau).

“I do get some encouragement from the fact that there’s been bipartisan opposition to this,” Ott says. “A broad spectrum of groups that are not often allies have come out in opposition. I think that speaks to the need to proceed with caution, or not to proceed at all.”

For now, many legal experts and lawmakers still regard the constitutional convention as a remote possibility, but a terribly dangerous one, nonetheless.


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