Page Eleven A

There are two lines of thought on how state applications for a convention call should be officially counted by Congress in order to determine if two thirds of the state legislatures have submitted applications for a convention call thus requiring Congress to call a convention. These two methods of counting are described as "numeric" and "same amendment subject" or "same subject." The method for counting directly affects the political scope of the convention. The two political scopes of convention are known as an "open" or "closed" convention.

The "Open" Convention

In an "open" convention all subjects of all state applications submitted to Congress (regardless of whether that specific application caused a convention call) are automatically placed on the agenda of the convention (along with any others elected convention delegates wish to discuss). The convention then considers the entire agenda in open public debate. Following debate the convention then determines by public vote whether a proposed amendment should be made by the convention on each of the issues in the agenda. Until the sets of applications causing the conventions to be called are exhausted or the convention proposes an amendment on that particular issue, the subject matter of any application remains active on the agenda of all conventions. In an "open" convention determination of the outcome on various amendment proposals is actually decided by the people prior to the convention during the election of convention delegates.

As the agenda of an "open" convention is already known and as the convention can carry on no other business but amendment proposal, the election of delegates favoring a particular amendment proposal or proposals provides or denies the necessary political support required to pass a proposed amendment at the convention. As with Congress, because of the requirements of the 14th Amendment's equal protection clause, the convention must pass a proposed amendment by two thirds vote of the state delegations present assuming a quorum of state delegations (See: Page 18). Therefore only a few amendment proposals will receive sufficient political support for passage. In effect the people conduct a referendum on the various amendment issues though the election of delegates. Thus the people have a direct electoral input in which amendment proposals will be proposed by the convention and exactly who represents them at that convention (See Page 19).

The "Closed" Convention

In a "closed" convention, only those applications for a particular amendment subject are presented in the convention. All other subjects in all other applications are excluded from the convention agenda. As subject matter is pre-selected debate on the issue is non-existent as proposal of the particular amendment subject is a foregone conclusion. Those supporting a "closed" convention favor unelected "commissioners" controlled by state legislators as convention attendees. The state legislature gives the commissioners a pre-determined set of instructions on how they will vote, what they write and even what they may say on the pre-determined subject of the convention. Convention attendees face felony arrest for failure to obey these "instructions" from state legislators regarding their actions during the convention. Under current state laws the people have no place or say in a "closed" convention and are not represented by anyone at the convention (See: Page 5 B).

"Same subject" advocates believe two thirds of the states must agree in their applications on a specific amendment subject--some advocates even believe on identical language--before Congress must call a convention. These advocates also believe state "rescissions" must be recognized by Congress despite the fact such recognition (removing the application from public record) violates both Constitution and federal criminal law (See: Page 6 D). Under "same subject" before calling a convention Congress is first required to group the applications by amendment subject to determine whether two thirds of the states have applied for the same amendment subject and issues its call limiting the convention to that amendment subject.

"Same subject" advocates believe a convention should be "closed." Effectively "same subject" creates a veto for Congress allowing it to determine which amendment subject will be considered by the convention, if any. There is no provision in Article V allowing Congress such discretion. Indeed the historic record of the convention emphatically proves the reason for a second mode of amendment proposal, the convention, was to ensure Congress did not have the power to entirely control the amendment process.

The grouping of amendment subjects is left entirely to the discretion of Congress. Possible abuse of this power can be easily illustrated. Congress, for example, can title one amendment subject group "balanced budget amendment" and another amendment subject group "debt reduction amendment" and still another amendment subject group "limited federal spending," terms all frequently found the various state applications used by the states to describe the overall goal of a balanced budget amendment.

However under "same subject" Congress can determine the application is not an application for a "balanced budget" amendment, but rather an application for "limited federal spending" amendment. When completed instead of one set of applications requesting a balanced budget amendment, there are three groups of applications requesting "different" amendment subjects none of which may contain the required two thirds necessary to trigger a convention call. When Congress completes its separation of applications into groups it then counts the state applications within each amendment subject group it has created. If the count in each amendment subject group is less than two thirds of the states on that particular amendment subject Congress has created, it then declines to call the convention for lack of the proper number of applications on a particular subject.

FOAVC has conducted it own investigation of this grouping system. It has determined it is very easy to group applications to preclude any amendment subject from receiving the necessary two thirds required to cause Congress to call a convention. FOAVC has grouped the applications into broad amendment subjects and believes four amendment subjects have achieved the two thirds status necessary for a convention call. In short, whoever groups the applications under "same subject" determines whether there is a convention call.

In order that people can judge for themselves the potential abuse this system of count affords, FOAVC's grouping of state applications into various broad amendment subjects is found at this link. The public record clearly demonstrates Congress has little, if any, interest in calling a convention and therefore is politically motivated, if given the opportunity, to use any means to defeat a convention call. Therefore if Congress is presented the opportunity to use "same subject" it is likely it will determine an insufficient set of applications on the same amendment subject exist to cause a convention call.

"Same subject" advocates favor a "closed" convention. By this combination these groups, who favor a particular amendment or agenda, intend that only "their" amendment or agenda is considered by the convention by excluding all other amendment subjects before the convention begins. These political groups therefore ignore all applications previously submitted by the states except for those they themselves obtain from the states. Reasons for ignoring these applications (even if the applications support the group's amendment agenda) are always vague if stated at all. No legal reference or constitutional reason is ever given for the rejection. Examples of groups favoring a "closed", "same subject" Article V Convention include Convention of States, Compact for America and Balanced Budget Amendment Task Force.

The major reason given by these political groups for a "closed","same subject" convention is fear of a "runaway" convention which these groups all believed occurred at the 1787 Convention. However, as FOAVC has proved, no such event ever transpired (See: Pages 6 A, 6 B). Thus, this excuse for a "closed","same subject" convention has no merit and must be disregarded. Having disposed of the "runaway" convention excuse all that remains is the fact those advocating a "closed", "same subject" Article V Convention do so for self-serving political reasons to advance their particular political agenda based on the fear that in an "open" convention their particular political agenda may not have the public support necessary to get their amendment proposed in a convention without the "help" of a pre-arranged "closed" convention.

Numeric count is supported by historic statements of the Founders, official acts of Congress and rulings of the Supreme Court. A numeric "count" of applications is exactly that; a numeric count of applying states with no other terms or conditions attached. Thus, Congress is limited to simply counting how many states have submitted applications for a convention call regardless of subject matter contained within the application. The content of any application as to proposed amendment is the constitutional business of the convention. Therefore the subject matter of an application is addressed and disposed of by the convention, not Congress. The assumption is the state, clearly desiring a convention propose the amendment subject described in the application, intends the contents of the application be considered by the convention, not Congress. Further the people of each state have an inherent right to present amendment subjects to a convention which cannot be abrogated either by Congress or other states.

When the number of applying states reaches two thirds of the states in the Union at the time of submission of the final application creating the set of two thirds applying states, Congress is peremptorily obligated to call a convention. Congress has no veto in this process. The only grouping of applications permitted therefore is by sets of applying states (referred to by FOAVC as "tiers"). Under the terms of Article V, each time the states submitted a set of applications amounting to two thirds of the states at the time of submission of the last application (as some tiers existed before the present 50 states) Congress is obligated to call a convention.

Article V does not sunset applications. Therefore all applications remain in full force (and are not archival records) until each tier causes a convention call. Currently 11 tiers of applications, or eleven convention calls are mandated according to public record. The reason for the 11 tiers of applications is until 2015 Congress never bothered to count the applications (with the intent of actually calling a convention) thus creating this constitutional backlog. Had Congress obeyed the Constitution, tracked the applications, counted accordingly then called when mandated conventions would have been already held and no backlog would exist.

As the state intends the subject matter of the application be disposed by the convention, the subject matter all applications submitted by the states automatically become part of the convention agenda. Thus all amendment subjects described in the state applications must be discussed by the convention creating a "numeric", "open" convention. Any amendment proposal that is discarded is done by decision of the convention rather than Congress. Thus the only grouping of state applications permitted is by state and date. Currently Congress is counting applications by state and date (See: Front Page).

Few political groups favoring amendment of the Constitution by convention support the numeric count of state applications as the basis for a convention call. A "numeric", "open" convention has no pre-determined political agenda. Instead, all political groups favoring a particular amendment or agenda have to compete for political support in the elections leading up to the convention rather than control of a convention being handed to them under the "closed", "same subject" process. A "numeric", "open" convention makes the people, not special interests, the final judge of what is amended in their Constitution. The Supreme Court has ruled the convention is a "deliberative assemblages representative of the people, which it was assumed would voice the will of the people." (See Page 17 G).

If Congress determines to legislatively limit the convention to only a specific amendment subject in its convention call, it is Congress, not the convention, which proposes the amendment. In combination with state laws making it a felony for "commissioners" to disobey "instructions" of their state legislators, it is clear the convention becomes nothing more than a political facade representing special interests and not the American people. FOAVC believes this is wrong. The convention, rather than being an independent proposal body equal to Congress as intended by the Founders, instead becomes a committee of Congress and special interests in the state legislatures. Article V requires a two thirds vote by both houses of Congress to propose amendments. Congress, having legislatively determined the convention agenda and limiting that agenda to specific subject by majority vote in both Houses permits Congress to unconstitutionally circumvent the Constitution.

The Supreme Court has ruled the legislative and amendatory powers of Congress are distinct and may not be intertwined. Thus when Congress passes legislation it is in it legislative mode; when it proposes an amendment it is in its amendatory mode. The Court has made it plain Congress may not use its legislative mode to propose an amendment. Article V does not grant Congress authority to determine convention agenda. Congress has no authority to do anything but call a convention if the states apply for one. Therefore attempts to limit convention agenda by means of pre-determination through legislative action are unconstitutional. Limiting convention agenda by means of electoral selection of delegates and open public debate of agenda is constitutional.