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Subjects Inside: Article V Applications  FAQ, Application Counts By Congress, Articles, AVC Legislative Report, Convention of States, The Historic Record of COS, COS Laws, COS Articles, John Birch Society, Con-Con, Runaway Convention, "Obey the Constitution, Only Two More States", Rescissions, The Phony Burger Letter, The Madison Letter, Fotheringham Exchange, JBS Articles, Sibley Lawsuit, General Interest, Article V.org, Robert Natelson, History of Article V, Counting the Applications, The Numeric Count History, Congressional Decision of May 5, 1789, Development of Article V, The Committee of the Whole, The Committee of Detail, August 30, September 10, Committee of Style, September 15, Official  Government Documents, History of FOAVC, Founders, Audio/Visual, Links, Contact Us, Legal Page, 14th Amendment, The Electoral Process, Packets

Page 19--The Electoral Process

Many convention opponents have suggested one reason an Article V Convention should not be held in violation of the Constitution is that it will be controlled by special interests bent only on advancing their own political agenda at the expense of the American people. While there is no way to absolutely guarantee those with such intent can in all ways be prevented from obtaining their object, FOAVC believes in the philosophy of an ounce of prevention is worth a pound of cure. Therefore it recommends any electoral law, state or federal, dealing with the election of Article V Convention delegates contain the following electoral provisions in order to prevent undue influence by special interests from occurring:

1. The office of Article V Convention delegate shall be non partisan.
2. No political party shall nominate any candidate for the office of Article V Convention delegate.
3. No Political Action Committee of any description may donate any candidate seeking election to the office of Article V Convention delegate. All campaign donations shall be by individuals.
4. The campaign expenditures of any candidate seeking election to the office Article V Convention delegate shall, at all times, be equal to that of the least campaign expenditures of any candidate seeking the office of Article V Convention delegate within that district.

For the first time in its nearly 250 year history, with the advent of the first Article V Convention, America will be operating under the full United States Constitution as originally intended by the 1787 Federal Convention. For all practical purposes, this is a new form of government for this country. FOAVC believes in order for the American people to have faith in what to them will be a new form of government, the choice of those representing them must be as "transparent" and "Ivory Snow" as possible.

FOAVC believes the above rules accomplish this purpose. The effect of these rules will be to: (1) remove all partisan politics from the choice of candidate for the office of convention delegate and (2) limit the influence of money on any campaign for the office of convention delegate thus reducing the election to where it should be focused; on the various amendment proposals on the convention agenda. By limiting the spending in each district such that the amount spent by any candidate is no more than what the least candidate possesses, the influence of money is removed yet still available to conduct a campaign. Those seeking office therefore will achieve victory not through undue financial influence but on the basis of the issues they support. The purpose of the election is not election of delegates but to provide the American people the opportunity to conduct an referendum on the amendment proposals.

FOAVC believes those favoring a particular amendment proposal should not be restricted in any campaign in gathering support for that issue but should be prevented from attempting to use that campaign money to influence the election of delegates to a convention. In this way delegates represent the interests of the people, not special interests. Thus they will be able to objectively judge the amendment proposal sought by the special interest on the basis of what is best for the American people rather than the special interest. The campaign must be focused on issue not candidate because the effect of any amendment proposal, if adopted, extends well past any current election cycle and any current politics of this time period. The election must be geared so as to accept the fact an amendment is intended to last as long as the Constitution exists rather than until the next election cycle.

FOAVC believes its proposals to be both constitutional and legal and do not violate any Supreme Court rulings such as Citizens United for two reasons. First, the Supreme Court ruled in 1939 any ruling it made regarding Article V of the Constitution was "advisory...given wholly without constitutional authority (See Page 17 M). It should be noted any ruling by the Court made prior to its 1939 ruling still has effect as the rule of ex post facto prohibits the Court's determination of advisory authority being applied retroactively. Thus any ruling such as Citizens United which purports to regulate the election of convention delegates to an Article V Convention cannot be applied as according to the Court's own determination it is "advisory" and therefore can be disregarded.

Second, Citizens United addressed campaign contributions not campaign spending. Under these recommendations by FOAVC candidates may still receive as much money as legally permitted; the candidate simply can't spend it unlessthe least candidate's campaign finances permit it  by having the same financial opportunity. State and federal laws generally focus on campaign contributions not how candidates spend the money they receive. It is not a undue burden to demand a candidate for an office with authority to alter the Constitution, the fundamental law of this nation, be judged at a higher standard of conduct than the usual cesspool of American politics.
Therefore the American people cannot justify repeating mistakes already learned in their elections that may be corrected by appropriate legislation for this new form of election. These laws for convention delegate election should cause focus on proposals and positions and eliminate undue financial influence.

Moreover politically these recommendations do all candidates and special interests a favor: they remove the charge any group or individual is attempting to "buy" the Constitution. Given the 98 percent support in this nation for the Constitution, such a charge, substantiated or not, would result in a political avalanche no group or individual would survive.
By causing all candidates for office of convention delegate (within each district) to spend equally any such charge becomes meaningless.

How money is spent in the campaign is unaffected by these recommendations except for the fact all candidates seeking the same office within a district are restricted to spend the identical amount based on the campaign financial assets of the least candidate. A campaign for convention delegate is therefore won on the basis of ideas not money.

State Legislative Control of Convention Agenda

While the American people have electoral control of delegate selection and thus convention agenda and thus probable outcome of amendment proposal this does not preclude state legislatures from influencing that agenda in real time during the convention session. Once a convention has proposed an amendment the ratification process of the Constitution returns control of the proposal to the state legislatures and more importantly, Congress. Just as with any amendment proposed by Congress, Congress determines which of two ratification modes, ratification by state legislature or by state ratification convention, will be used to ratify any proposed amendment from a convention. 

In the past all but one of the 27 amendments to the Constitution have been ratified by the state legislatures. Therefore it is fairly certain  state legislatures will most likely consider ratification of amendments proposed by a convention. The goal of "closed" "same subject" advocates is to control the convention agenda for their own purposes. While constitutionally these advocates may not accomplish this goal directly it is still possible, and constitutional, for these groups to achieve their goal indirectly during the time the convention is still in session and considering one or more proposed amendments. In short, the Constitution permits state legislative control of convention agenda by indirect means.

Whether proposed by Congress or convention, the Constitution mandates that any proposed amendment must be ratified by three fourths of the state legislatures or three fourths of state ratification conventions (elected by the people) called for that purpose (See Page 17 K). At present with 50 states in the union, this means approval by 38 states. Thus, if 13 states oppose ratification of the proposed amendment, it is defeated and does not become part of the Constitution. Indeed the amendment process of the Constitution is such that any opposition to a proposed amendment can lose support and still prevent a proposed amendment from becoming part of the Constitution. It requires two thirds support of the members present (assuming a quorum) in both Houses of Congress to propose an amendment or two thirds support of state delegations in a convention (assuming a quorum) to propose an amendment. Thus the opposition requires at least one third plus one to prevent proposal but only one fourth plus one to prevent ratification. The opposition can lose political support and still prevail.

The Constitution does not describe when a state legislature (or state ratification convention) shall ratify a proposed amendment. Thus state legislatures may act upon a proposed amendment at any time including while the proposal is still under discussion either in Congress or during a convention and express its ratification position on that proposal. Provided the state legislature does not notify Congress of its official ratification vote by transmission of that vote across state lines, the state legislature is (1) free to vote at any time and (2) may change its position whenever it pleases. If the vote is officially transmitted to Congress it becomes the official ratification vote of the state. Further changes to that vote are by permission of Congress.
The Supreme Court has stated it is up to Congress whether to accept a new decision by a state legislature as the ratification vote by the state once its official ratification vote is transmitted to Congress (See Page 17 M). Control of the vote is thus removed from the state legislature.

Assuming politically the state legislature represents the will of its people and thus votes how a state ratification convention would vote on the proposition, control of the convention agenda may be accomplished by state legislatures voting on ratification while the convention is still in session. The convention could be notified by a simple email to the state delegation representing the state. The delegation in turn would then notify the convention of its state legislative vote. As the email is not an official state document retention of the official documents remains within the state thus preserving state control of the ratification vote.

If a sufficient number of state legislatures (13 legislatures or one house of 13 state legislatures) vote not to ratify a proposed amendment, then this decision may have a political effect on the convention. It is unlikely a convention would propose an amendment when it is aware the proposal will not be ratified. The convention will therefore not propose the amendment. By this indirect means state legislatures can politically control convention agenda.

However there are political risks to be considered by those attempting control of a convention agenda by ratification votes. First, the convention may still propose the amendment despite the votes of the 13 state legislatures or legislative houses. Pro amendment advocates in Congress may then choose the state convention mode as its choice for ratification circumventing the vote. Unless the state legislature truly represents the will of its people on the national question the proposed amendment addresses, it is possible a state convention may not vote the same as its state legislature.

Second, the vote of any state legislature may be subsequently overturned by another state legislature. Thus, if the vote is not officially transmitted to Congress a future state legislature may reverse the earlier decision as it still remains within state control. For this reason any vote by the state legislature aimed a politically controlling convention agenda must remain within the state boarders and not be transmitted to Congress until after a mode of ratification is chosen and immediately transmitted to Congress in order to preclude this possibility. Otherwise the vote is still subject to state legislative control and may be changed in the future.

Finally, there is the political risk of backlash at the next election against any legislator using this method of influence. The electors of the state may not like their state legislators using a quirk in the Constitution to override their electoral decision as to choice of delegates and thus convention agenda and therefore probable outcome of an amendment proposal. It will be up to supporters and detractors of a specific amendment proposal to weigh all political consequences and determine whether to use this process during the convention to stop a proposed amendment or wait until the amendment is proposed and do political battle during the ratification process.

Page Last Updated: 6 MARCH 2017