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The Convention of States Project (COS)

1. Misinformation on and misrepresentation of the constitutional amendment process

The COS website states:

"Almost everyone knows that our federal government is on a dangerous course. The unsustainable debt combined with crushing regulations on states and business is a recipe for disaster.

What is less known is that the Founders gave state legislatures the power to act as a final check on abuses of power by Washington, DC. Article V of the US Constitution authorizes the state legislatures to call a convention for proposing needed amendments to the Constitution.

Citizens for Self-Governance has launched the Convention of States Project to call an Article V Convention to propose only amendments that would impose fiscal restraints on the federal government, limit its power and jurisdiction, and impose term limits on its officials and members of Congress."

In simplest terms, COS advocates the "traditional" method of causing an Article V Convention call, that is, gathering a sufficient number of applications to cause a convention call by Congress. Despite the COS website statement, state legislatures do not "call" the convention; that is a specific constitutional duty assigned Congress. COS insists that the term "convention of states" must be included within the application. In other words, 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 accidental use of similar terms; it is political labeling. COS believes a convention is strictly controlled  by the state legislatures (or small group of legislators within the legislatures) rather than directly by the people who elect delegates specifically for the purpose. Thus, according to COS, the American people have no part in the convention process as intended by the framers.

Under the terms of Article V a minimum of 34 states (two-thirds) must apply for an Article V Convention before it is called by Congress. COS is attempting to gather 34 identical applications from the state legislatures supporting a "convention of the states" based on the assumption that if this is accomplished Congress will then be obligated to call a "convention of the states" controlled by the state legislatures as intended by COS rather than a "convention for proposing amendments" controlled by the people as intended by the framers.

Furthermore, COS believes that any application for an Article V Convention that has either been submitted outside the COS Project, or that does not specifically refer to a "convention of the states," is invalid. Advocates of COS are going as far as to attack other convention groups, urging that those efforts be ignored by state legislatures. According to the COS document "Convention of States Article V Application vs. BBA Application," all "COS applications are identical." Identical application language avoids what COS believes is a roadblock to Congress counting applications by states due to differences in language and subject matter. But, in fact, the language used by the ten states that have applied to date using the COS format is not identical. Indeed, other than using the term "convention of states" in the opening paragraph, few of these ten applications share common language. As discussed elsewhere in this site, the only reason Congress has never called a convention is because Congress has never bothered to count the applications!

COS never discusses the fact the Supreme Court has already ruled the "character" (subject matter) of a proposed amendment has no bearing on the amendment process or in the same ruling expressly stated state legislatures do not control the amendment process (See: Page 17 J).

It appears the use of the term "convention of states" is sufficient for COS to claim a state's application as one of their own. Neither COS nor its associated Compact for America (CFA) have ever publicly acknowledged that Congress is currently counting the state applications without regard to subject matter or language in compliance with several Supreme Court rulings and a prior determination by Congress. As of January, 2017, Congress has reached a total count of 35 applying states, with hundreds of applications yet to count from a total of 49 states. This fact that 35 states have been counted, in combination with the tabulation by the United States Senate in 1930 that comprised the required number of applications, means that a "convention for proposing amendments" is mandated.

It is likely that long before COS or CFA reaches 34 applications using "their" standard form, Congress will have called several conventions, none of which will be named a "convention of the states" but rather a "convention for proposing amendments" or an Article V Convention.

The history of Article V amendment proposals is littered with various groups' amendment proposals being defeated by their political opponents as soon as the specific language of the proposed amendment is released to the public. To avoid this political pitfall, COS had, until late September 2016, avoided any specific amendment 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 (each with their own political agenda).

2. The COS agenda and its "simulated" convention of states

COS identified four general subjects (and only those subjects) it wants the COS convention to address:


The policy of avoiding published specific amendment language changed 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, including:

• repeal of the 16th Amendment that established income taxes in 1913;
• creation of a state authority to nullify any federal law, rule or court ruling but permitting the law to be reinstated six years later;
• limiting federal debt;
• establishment of term limits on members of Congress;
• limit federal use of the commerce clause with regard to foreign, intrastate, and interstate trade; and
• requirement for express Congressional approval on all proposed federal regulations that are challenged by at least 1/4 of Congressional members.

"Simulated convention or "real" convention?

While COS referred to the convention as "simulated," FOAVC disagrees with the designation. In all aspects the "simulated" convention complied with the various state laws regulating a COS convention that have been passed using similar COS-generated language, albeit language with questionable constitutionally. (For example, the language threatens felony prosecution of Convention delegates who do not heed "instructions" from state legislators, a clear violation of the First Amendment as well as the Speech and Debate Clause of the Constitution which, under the terms of the 14th Amendment, equally applies to members of Congress and convention delegates as it deprives the delegates of their independence as delegates.) As stated by the Court in United States v Brewster, 408 U.S. 501, 507 (1972), "The immunities of the Speech or Debate Clause were not written into the Constitution simply for the personal or private benefit of Members of Congress, but to protect the integrity of the legislative process by insuring the independence of individual legislators."

The evidence that the simulation was in fact a real convention includes these facts:

• Convention delegates were current state officeholders from the various state legislatures; delegates were described as representing their states in their official capacity.
• These official delegates recorded votes by participants that totaled 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, 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 (Article IV), laws of each state have effect in all states. None of these state laws allows for a "simulated" convention. Since the Virginia convention acted in full compliance with state laws in force, FOAVC believes the convention was "real" not simulated."

This implies that the amendments proposed as a result of the convention are "real" as well, leading to the next step of the amendment process --ratification-- which means forwarding them to Congress for publication and determination by Congress of the mode of ratification which shall be used by the states (legislature or elected state conventions) for possible ratification of the proposed amendments. The Constitution does not permit Congress to ignore, modify or otherwise veto any amendment proposed in convention. Thus in any vote or debate on the  issue in Congress is confined to determine which mode of ratification to employ for the purposes of ratification and not to decide whether to forward the proposals for possible ratification.

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 [to communicate with] 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."

3. Disinformation about counting state applications

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 four point political agenda discussed above. However COS has claimed applications as their own whenever the phrase "convention of states" is contained in the application even if they do not contain the four point political agenda. COS-promoted state laws refer to a convention "called by the states" and make no mention of Congress calling the convention, even though the Constitution requires Congress, rather than the states, call the convention (See: Page 17 K). No such state authority is textually expressed in Article V. By bypassing the required step of Congress calling the convention, COS has publicly ignored all previously-submitted state applications.

This strategy has political drawbacks. It takes time (on average 30 years) to gather 34 required applications for a particular amendment subject. By that time the issue may have been resolved by other means; or, the attention of the nation that is needed to gather the necessary applications is focused elsewhere. Ultimately, these factors result in difficulty gathering applications on a single subject.

The true motive of the COS simulated convention: previously-submitted state applications only selectively addressed.

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). Of course, when a large number of states favor a particular amendment subject, there is a distinct political advantage when the convention is called, since any amendment proposal requires a two-thirds favorable vote by the state delegations. Thus, when a convention advocacy group such as COS does not take previously-submitted applications into account, its political motives must be questioned.

Consider the COS convention's six proposed amendments listed above and then the fact COS has rejected the following applications as "invalid":

• 34 states have already applied for repeal of the 16th Amendment that created the federal income tax.
• The power to nullify federal law has already been requested by several states.
• Applications have already been submitted to set terms limits for members of Congress and the federal judiciary.
• The states have previously submitted many applications on a balanced budget amendment -- not only enough to cause a convention call by themselves (which requires 34 states), but enough to ratify the proposed amendment (which requires 38 states).
• The states have previously requested an initiative, referendum, and recall amendment which could easily include review of all federal regulations.
  

However, no state has ever submitted an application related to the federal use of the commerce clause. This amendment, proposed in the COS "simulation" is a true maverick and show how easy it is to slip in subjects that are on the agenda of legislators who do not speak for the people. This maverick proposal shows why the framers wisely called for a directly elected Article V Convention because passage of maverick amendment proposals is much less likely in an elected convention. This is because:

• Due to the massive public vetting during an election the views of the delegate/candidate will become public knowledge giving the American people the opportunity to determine whether that subject should be a proposed amendment.
• Because of the election process opposition candidates will be elected as delegates and will thus be in the position to prevent passage of maverick proposals not supported by an overwhelming portion of the American public.
  

A list of convention applications previously submitted by the states grouped according to subject is available at this link.

4. Examples of why state legislators are not allowed to propose amendments

COS believes states have the right to criminally prosecute convention delegates who fail to follow "instructions" from the state legislature. As noted above, at the "simulated" convention held by COS in September 2016, one of the proposals was for a limitation on federal use of the commerce clause on international, intrastate and interstate trade. Such a proposition has never been advanced by COS nor any state legislature in any application submitted to Congress, while the rest of the simulation-proposed amendments already have applications on file with Congress. Thus one might assume that the COS simulated convention delegates "acted under the instructions" of the state legislatures in proposing the rest of the amendments which is allowable under COS rules. (The fact the 1787 Convention expressly rejected state legislatures proposing amendments which would include authority to "instruct" delegates to make such proposals is extensively discussed elsewhere in this site). 

The simulation-proposed commerce clause amendment is not mentioned in any COS material or legislation; it was entirely simulation-created, and not based on instructions from any state legislature. FOAVC believes under the terms of the already-enacted state laws in regard to convention conduct in a COS convention (and because of the "full faith and credit" clause of the Constitution, recognized in all states), the commerce clause amendment is illegal as it was not made according to state legislative instructions -- in other words, the COS process violated its own [unconstitutional] rules.

The COS convention therefore violated its own political position and state laws which it lobbied to be enacted: amendment proposals are limited to only those that were pre-approved by the state legislatures at a "convention of states" convention. Further, despite the fact state laws mandate punishment of such action as a criminal offense, and despite the fact that FOAVC notified all three attorney general of the offending states, no action whatsoever has been taken by any state attorney general to prosecute the 'offenders.' At the least this raises the question whether the attorney generals of the various states believe the state law is valid, legal or constitutional as they have declined to enforce its provisions.

Another example of COS political hypocrisy is the fact the Alaska's COS application and associated state law expressly limit delegates from the state of Alaska to supporting only the "Countermand" or nullification amendment. At the September 2016 "simulated" 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 even among them.

Moreover COS has failed to acknowledge an already submitted application by a state using the term "convention of states" in the text of the application and which politically reflects the COS agenda in the text of application in its "count" of COS applications. The application, submitted by the state of South Carolina, may be read here and here. Finally, in more recent examples, a "convention of states" application by the state of Wyoming has never been recognized by COS as a "valid" "convention of states" application. The same applies for a Michigan "convention of states" application, again not recognized by COS as a "valid" "convention of states" application as well as a North Dakota application. Meanwhile, COS has claimed a Texas application which doesn't have the phrase "convention of states" in it, as a "convention of states" application. The only conclusion possible is Convention of States Project politically cherry picks which state applications are "convention of states" applications and which state applications are not "convention of states" applications for political, rather than constitutional, reasons.

5. The correct way to count applications

FOAVC notes, as determined by court ruling and congressional decision, the correct method for counting applications to determine when a convention is called 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.

The Compact for America (CFA)

Unlike COS, CFA 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 that states use the "Compact Clause" contained in Article I, Section 10 of the Constitution to amend the Constitution by the creation of amendatory compact in which all issues of the amendment process are decided beforehand. As this is all performed at the state legislative level by the passage of appropriate legislation or resolution, the people are automatically excluded from any participation in the process. 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 to amend the Constitution. Based on the 230 years record of Supreme Court rulings (See Page 17) which repeatedly state the Constitution can only be amended under the process expressed in Article V, it virtually certain the courts will find the CFA proposal unconstitutional on numerous grounds.

Unlike COS, CFA supports only one amendment proposal: the balanced budget 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 supermajorities 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 presently required for ratification as mandated by Article V) have joined the compact.  

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 in Congress. The compact ignores the supermajorities 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.

1. 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."

2. 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 instead of the people controlling it, 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 the right to petition convention delegates for redress of issues they believe the convention should address.

3. 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 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.

4. State laws passed in several states putting the COS/CFA proposals into legal effect disenfranchise all state voters from voting for convention delegates; the same laws could be expanded to include disenfranchisement of voting for all members of Congress and all state legislators.

5. 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.

6. 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?

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