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Go To Page 5: A, B, C

Page 5--The Convention of States and Compact For America Movements

The "Convention of States" (COS) and its companion organization "Compact for America" (CFA) are two Article V Convention political advocacy groups receiving a great deal of national attention. Thanks to largely undisclosed financial backing COS in particular has gained much public attention in certain national conservative circles. However both COS and CFA have avoided informing the public about many of the details surrounding their organizations particularly those effecting the amendment process. FOAVC believes the public is entitled to know all the facts about these two political groups.

It should noted immediately that the Constitution makes no reference to a "Convention of the States" but instead refers to a "convention for proposing amendments." Therefore there is no such thing as a "Convention of the States." COS is a political group with its own political agenda. Thus any interpretation of Article V which COS makes must be viewed in the context of an attempt by COS to advance its own political agenda rather than an interpretation of the constitutional intent of the Federal Convention of 1787.


As a result of the efforts of COS and CFA many people today mistakenly refer to an Article V Convention as a "Convention of the States." These people believe, as is advocated by both COS and CFA, that an Article V Convention is controlled not by the people through the election process, but by the state legislatures, more specifically by a few select legislators within those state legislatures. Thus state legislatures have the right to propose amendments through control of an Article V Convention.

FOAVC has examined this premise of amendment proposal by state legislatures and determined through examination of the historic record the 1787 convention deliberately removed the authority of state legislatures to propose amendments and instead assigned this right to the people through an elected convention held specifically for that purpose (See Page 11 D). Even opponents to ratification of the Constitution stated emphatically Article V did not allow for "states, as states" to propose amendments. Given these people were present during the actual discussion of the meaning and intent of Article V and could discuss the intent of the convention with actual delegates to that convention, such a statement must be viewed as conclusive.
This is one many examples where COS/ CFA have spread misinformation or deliberately buried pertinent facts about their organizations and their intent to control the amendment process.

The courts have ruled any convention held in consequence of the amendment process in the federal Constitution must be "deliberative assemblages representative of the people, which it was assumed would voice the will of the people." (See: Page 17 G). Therefore there is no such thing as a "Convention of States" in the Constitution. Thus the only proposal convention in the Constitution is a "convention for proposing amendments" more commonly called an "Article V Convention" or an "amendments convention." That convention is a "deliberative assemblage representative of the people" not the state legislatures or any subgroup within them.

COS and CFA supporters apparently care nothing about accurate facts if they obstruct "their" view of the Constitution. If such a view is to be adopted as national public policy in regards to amendment conventions, it is appropriate the people, before consenting to such policy, be informed of all facts about that policy. The consequences of an amendments convention controlled by a select group of legislators rather than being controlled by means of free elections are extensive and far reaching. It is a choice between the people controlling their destiny or a small group of politicians controlling that destiny. Therefore FOAVC believes the public should have all the facts about the organizations which propose this kind of convention as our form of government. Such information permits the public to make an informed judgment about COS and CFA. The information provided by FOAVC is based on public record and liberally cited as required.


COS and CFA Explained
COS
In simplest terms, COS advocates the "traditional" method of causing an Article V Convention call, that is gathering sufficient applications (with  the caveat the term "convention of states" is contained within the application) to cause a convention call by Congress. However COS has renamed the convention process referred to in Article V (a convention for proposing amendments) as a "convention of states." This is not an accident of political labeling. COS believes a convention is strictly controlled  by the state legislatures (or small group of legislators within the legislatures) rather than by the people and hence the name "convention of states." Thus under COS the American people have no part in the convention process.

As a result, COS is attempting to gather 34 identical applications from the state legislatures supporting of a "convention of the states." Naturally COS believes any other applications either submitted previously by the states or which do not refer to a "convention of the states" are invalid. This belief has reached the point of COS advocates attacking other convention groups urging those efforts be ignored by the state legislatures. All the applications currently being gathered by COS are supposed to contain identical language in order to avoid what COS believes is or will be a roadblock by Congress to count the applications due to differences in language and subject matter. In fact the language used by the states thus far is not identical. Indeed, other than using the term "convention of states" in the opening paragraph few of the applications thus far share common language.

However it appears the use of the term "convention of states" is sufficient for COS to claim the application as one of their own. Neither COS nor CFA have ever publicly acknowledged Congress is currently counting the state applications without regard to subject matter or language. As of January, 2017 Congress reached a total count of 35 applying states with hundreds of applications yet to count from 49 states. This count of 35 states in combination with the tabulation by the United States Senate in 1930 thus creating a set of applications means a convention is mandated. There is every reason to believe long before COS or CFA reaches "their" 34 applications, Congress will have called several conventions none of which will be a "convention of the states."

The history of Article V amendment proposals is littered with various groups' amendment proposals being defeated by their political opponents when that group released specific language of a proposed amendment(s). To avoid this political pitfall, COS had, until late September 2016, avoided any specific amendment(s) proposals. Instead COS spoke in generalities of amendment subject implying that later after it gets its 34 applications COS would produce specific amendment language. COS had stated such language would be written by convention delegates  as "instructed" by the aforementioned select group of state legislators. COS identified four general subjects (and only those subjects) it wants the convention to address: (1) "The Spending and Debt Crisis"; (2) "The Regulatory Crisis"; (3) "Congressional Attacks on State Sovereignty"; and (4) "Federal Takeover of the Decision-Making Process."

Avoidance of specific amendment language changed however when COS sponsored a "simulated" convention held in Williamsburg, Virginia in September, 2016. At this convention several proposed amendments were advanced which COS immediately claimed as its own. The convention, proposed amendments to: repeal of the 16th Amendment, create state authority to nullify any federal law, rule or court ruling but permitting the law to be reinstated six years later, limit federal debt, establish term limits on members of Congress, limit federal use of the commerce clause and require express congressional approval on all proposed federal regulations.

While COS referred to the convention as "simulated" FOAVC disagrees. The convention was in all aspects in compliance with state laws regulating a COS convention. All state laws thus far enacted by the states regarding a convention of states are identical in thier basic composition. The use of the term "state laws" therefore refers to all such laws enacted in the various states. The salient facts are the convention delegates were current state officeholders from the various state legislatures described as representing their states in their official capacity. These officials recorded votes by them well above the required two thirds requirement for proposal of amendment. The convention, as required by state law, was "called by the states." As of January, 2017 these state laws are the only laws existing that regulate a convention in this nation. Under the terms of the full faith and credit provision of the Constitution the laws have affect in all 50 states. These laws do not allow for a "simulated" convention. As the convention acted in full compliance with these laws FOAVC believes the convention was "real" not "simulated." 

On October 9, 2016 in order to determine the constitutionality of the COS amendment proposals and because the COS convention failed to forward their proposed amendments to Congress to begin the ratification process, Bill Walker, FOAVC co-founder sent the proposed amendments to Congress requesting Congress begin the official process of ratification of the proposed amendments. Walker stated, "Despite my numerous attempts at contacting COS officials regarding this issue I have yet to receive one legal argument from anyone in COS proving the COS convention was anything but an actual convention authorized under appropriate state laws to propose actual amendments to the Constitution."


COS believes only "its" amendment proposals have validity and that in order for Congress to call a convention the applications must be on the same amendment subject which, in the case of COS, is the political agenda of COS. However COS has claimed applications as their own which just the use of the name "convention of states" in the application. The COS state laws however refer to a convention "called by the states" and make no mention of Congress calling the convention. Thus COS has publicly ignored all already submitted state applications. This strategy has political drawbacks. It takes time (on average 30 years) to gather 34 applications for a particular amendment subject. By that time the issue may have been resolved by other means. Alternatively the attention of the nation needed to get the necessary applications is focused elsewhere. Ultimately this results in insufficient applications on the subject.

FOAVC believes it is politically foolish for groups not to take advantage of already submitted applications which favor their own cause.
Constitutionally, all applications "count" which is why a convention call is based on the number of applying states and not on any subject contained within the application (See Page 11 C). However politically, having a large number of states favoring a particular amendment subject is a distinct advantage when the convention is called as proposal requires two thirds favorable vote by the state delegations. Not taking advantage of already submitted applications is politically questionable.

In the case of COS, for example, thirty four states have already applied for repeal of federal income tax, nullification has already been asked for by several states. Term limits for members of Congress and federal judiciary have already been applied for. The states have submitted sufficient applications on balanced budget not only to cause a convention call, but to ratify it. The states have requested a initiative, referendum and recall amendment which easily could include review of all federal regulations. No state has ever submitted an application dealing with federal use of the commerce clause. A list of the applications grouped according to subject is available at this link.

COS believes states have the right to criminally prosecute convention delegates who fail to follow "instructions" from the state legislature. At the convention held by COS in September, 2016, one of the proposals made was a limitation on the commerce clause. Such a proposition has never been advanced by COS nor any state legislature in any application submitted to Congress. The rest of the proposed amendments have applications on file with Congress. Thus it can be argued the COS convention "acted" under the instructions of the state legislatures with its other proposed amendments.

However the proposed commerce clause amendment was never requested in any state application nor is it mentioned in any COS material. Thus the proposed amendment was entirely convention created and not based on any instructions from any state legislature. FOAVC believes under the terms of already enacted state laws in regards to convention conduct in a COS convention (and thus recognized in all states under the full faith and credit clause of the Constitution) this amendment proposal is illegal as it was not made according to state legislative instructions.

The COS convention therefore violated its own political position and state laws which it lobbied to be enacted in regards to limiting amendment proposals to only those which were pre-approved by the state legislatures at a "convention of states" convention. Further, despite the fact state laws mandate such action is a criminal offense and FOAVC notified all three attorney generals of the appropriate states of the violation by their state officials, no action whatsoever has been taken by any state attorney general to prosecute anyone.


Another example of this political hypocrisy is the fact the Alaska COS application (and state law) expressly limit delegates from the state of Alaska to only supporting the "Countermand" or nullification amendment. At the September, 2016 convention Alaska delegates ignored both the COS application and state law and voted in favor of all the proposed amendments. The "Countermand" Amendment was not among them.

FOAVC notes the correct method for "counting" applications to cause a convention call is by numeric count. However, once called, the subject matter of the applications submitted by the states automatically becomes the agenda of the convention. Politically, a subject which has massive support from the states stands a much better chance of passage in a convention than a proposal which has little support. Thus the subject matter of the applications will matter when it is most needed: when the convention considers whether to propose an amendment on that subject.

CFA

Unlike COS, CFA is ignores the "traditional" method for an Article V Convention and is not seeking applications for a convention call in the traditional sense. Instead CFA proposes states use the "Compact Clause" of the Constitution to amend the Constitution by the creation of amendatory compact in which all issues of the amendment process are decided beforehand. Thus, while the CFA process does produce applications to Congress for a traditional convention call, this is secondary to the creation of a 38 state amendment compact.

This untested constitutional theory has never been reviewed by any court. The Compact Clause has, up to now, been used by the states to address interstate problems generally commercial in nature such as electrical power distribution across state lines or flooding by a river having several state boarders along its banks. There is absolutely no historic record the Founders ever intended the Compact Clause be used as CFA advocates.

Unlike COS, CFA supports only one amendment proposal--a balanced budget amendment. But even here CFA has never released the actual text of its proposed amendment. CFA proposes the multi step process of Article V (proposal, ratification and enrollment) be "condensed" into a "single enactment joined by 38 states." CFA proposes the vote on a proposed amendment be passed "ONCE" "with simple majorities" entailing "all of the stages of the amendment process." In this way CFA wants to bypass the super majorities required by Article V for both the proposal and ratification process. However CFA does acknowledge one requirement of Article V: that the compact only takes affect when 38 states (the number of states equal to the three-fourths super majority required for ratification) is achieved.

According to the CFA website the CFA compact includes the following:
In sum, CFA proposes a state amendment compact in which 38 states agree in advance to an amendment proposal and its ratification. This is accomplished by a single majority vote in each state legislature and a single majority vote of Congress. The compact ignores the super majorities called for in Article V. All matters which otherwise might be debated or voted on during a convention are pre-determined. Thus the convention becomes nothing more than a meaningless formality under the CFA Compact plan with no participation of the American people whatsoever.

FOAVC Concerns Regarding COS/CFA

FOAVC has several concerns regarding the COS/CFA proposals which it believes should be examined by the American people prior to their supporting either COS or CFA. These concerns are:

Under the COS/CFA proposals the people have no participation in the selection of convention delegates and are thus disenfranchised.

FOAVC believes under no circumstances should the people's right to vote be removed nor should the people be denied access to the regulation of their Constitution by means of the amendment process. Under the COS/CFA proposals, quoting George Mason, delegate to the 1787 Convention, "...the whole people of American can't make, or even propose alterations to it [the Constitution]; a doctrines utterly subversive of the fundamental principles of the rights and liberties of the people."
Under the COS/CFA proposals the amendment agenda of a convention is pre-determined by a select group of state legislators who may be open to outside influence.

Besides the obvious dangers of outside influences gaining control of the Constitution, FOAVC believes all amendment proposals should be subject to vigorous and open public debate before, during and after a convention during the ratification process. The COS/CFA proposals deprive the people of their First Amendment right of open public debate on public issues not to mention denying them right of petition to convention delegates for redress of issues they believe the convention should address.
Under the COS/CFA proposals delegates to a convention can face felony arrest if they fail to follow "instructions" issued them by a select group of state legislators.

FOAVC believes no convention delegate should be required to obey any instructions from anyone except those of the electorate who puts him in office. By election the American people have placed their trust in that individual to perform his duties as instructed by those who elected him. No elected official should ever be required to function under threat of arrest or other similar coercion.

FOAVC believes under the doctrine of equal protection under the law enunciated in the 14th Amendment, the protections of the Speech and Debate Clause of the Constitution (Article I, Section 6, Clause 1) which extend to members of Congress equally apply to convention delegates as these two groups are the only citizens empowered to propose amendments to the Constitution and thus form a legal class. The principle of equal protection demands that if one portion of a legal class is legally protected, that protection must extend to all members of that legal class.

FOAVC also notes that those legislators who have enacted such criminal penalty have not applied the same to themselves even though they, as state legislators, are part of the amendatory process. In sum, what's good for the goose should be good for the gander.
State laws passed in several states putting the COS/CFA proposals into legal effect disenfranchise all state voters from voting for convention delegates could be expanded to include disenfranchisement of voting for all members of Congress and all state legislators.


FOAVC believes language in the Constitution creates the possibility of this occurring should an opportunistic politician wish to take advantage of the peculiar language of the Constitution.

First, all voting discrimination laws, federal and state, are based on the particular concept of denying the right to vote to a particular group on the basis of race, sex, age, ethnicity, nationality or similar classification. There is nothing in any anti-discrimination law against discriminating against everyone in a state for example and denying all the citizens their right to vote. The basic principle is that as all are treated equally, none can be discriminated against. Therefore there is no discrimination. Where the Constitution addresses discrimination such as in the 15th or 19th amendments the language only provides that the right to vote "shall not be denied or abridged on account of [race or sex]. Thus if the right to vote is deprived for reasons other than those of sex or race, the Constitution is silent on that form of discrimination, particularly where it involves all citizens rather than a specific group within the citizenry.

Second, as discussed elsewhere on this site members of Congress and convention delegates form a legal class which under the Constitution must be treated equally. This class is part of a larger class of citizens which includes all citizens (members of all state legislatures) and whomever may serve as a delegate to a state ratification convention. Thus, if one part of this group is treated in a particular manner, then all must be treated equally. Thus, if convention delegates may be chosen by means of discrimination against citizens depriving them of their right to vote, under the terms of the Constitution it is conceivable all members of that legal class--members of Congress, state legislators and convention delegates can be selected by means other than election.

Third, the language of the Constitution is peculiar regarding the qualification of an elector to chose a member of Congress. Both Article I which describes the elector qualification for the House and the 17th Amendment which describes elector qualification for the Senate have the identical language: "The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures." Thus, if the members of the most numerous house in a state legislature are not elected (as they are part of the amendatory process and not subject to election) then under the Constitution, citizens are excluded from voting for members of Congress.

FOAVC grants this may appear to be a "far out" political theory. But then, who would ever believe ten state legislatures would ever vote to disenfranchise their citizens from having any say in their Constitution?
State laws putting COS/CFA proposals into legal effect permitting felony arrest of a convention delegate conducting convention business outside the state boundaries raise serious questions of extraordinary state sovereignty.

As a convention may not be held in the state in which the state criminal law in question has affect, FOAVC believes in order for the state law to have affect it must extend into all other states, that is the effect of the law must cross state boundaries. In this way the state law assumes the authority of a federal law while remaining, in fact, a state law. Thus, if the state of Indiana gives instructions to its delegate in the state of Texas and that delegate disobeys those instructions, under Indiana law that delegate can be criminally prosecuted for an act committed in the state of Texas. This example is based on fact rather than fiction. The CFA compact specifically mandates the convention be held in Dallas, Texas. Indiana law specifically mandates criminal prosecution for any convention delegate failing to obey "instructions" at the convention.

This extraordinary extension of state sovereign power past its own boarders, FOAVC believes, raises gave concerns about state sovereignty. Whether such sovereign power stops at the state boarder or can be extended by the sole action of a state to include all 50 states in the Union is a serious issue. Can a person, for example, who commits a legal act in the state of Oregon be tried for violation of a Georgia law which criminally prosecutes for that act when the act was legally committed in the state of Oregon? The COS/CFA proposals believe the answer to this question is "yes." FOAVC believes the people should carefully consider the consequences of such state laws becoming general public policy. 

State laws which enact COS/CFA proposals into law raise another question. As COS/CFA believes it is legal for a state to "instruct" delegates as to their performance at a convention (under threat of criminal prosecution), can a single state, which is chosen to hold a convention within its boarders, enact legislation which controls all convention delegates?

There is no question of extra ordinary state sovereignty here. Such law would be confined within state boarders. Indeed the principle of state law stopping at the boarders precludes interstate control but does not preclude intrastate control. If, as COS/CFA believe, the principle of criminal sanction against one set of delegates is constitutional then FOAVC believes it is also possible for a single state slated to hold the convention within its boarders to enact COS/CFA legislation regulating not only its own delegates but all convention delegates as well. After all there is no question that all persons within the boundaries of a state are subject to the state laws of that state while in that state. None of the states which have enacted COS/CFA legislation have a prohibition against any state enacting such legislation should the convention convene within the boarders of another state.

Therefore there is nothing in the COS/CFA laws prohibiting this political scenario. Thus, by a simple alteration of COS/CFA language with a few words, (instead of saying their state delegation, say instead all state delegations) a single state could seize control of the convention (and such law could be enacted after the convention convenes) under threat of criminal prosecution for failure to follow the instructions of a single state legislature (or small group of legislators within that legislature). The simple presence of state police at the convention could enforce the law and prevent exit by the delegates until the "instructions" of the single state legislature was enacted.

Ironically, any issue of ratification is nullified by the COS/CFA law of extraordinary state sovereignty whereby state law extends into all 50 states. The single state in question could simply extend its decision on a ratification vote
to all 50 states for whatever amendments it caused to be proposed in the convention it controlled based on the extraordinary interstate powers advocated by COS/CFA in regards to its felony criminal laws. In short the state could pass a law making a crime for anyone not to obey its law in regards to its ratification instructions.

Preposterous? Certainly. But ten state legislatures have already enacted into law the first step in such a scenario and appear to have no issue with any question of constitutionality or consequences about the laws they have enacted. FOAVC believes the people should carefully consider all possibilities when judging this new form of public policy.

Continued to Page Five A

Page Last Updated: 25-MARCH 2017