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Page 19--The Electoral Process
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
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
FOAVC believes those favoring a particular amendment proposal
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
ruling still has effect as the rule of ex post facto prohibits the
Court's determination of advisory authority being applied
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
Second, Citizens United addressed campaign contributions
not campaign spending. Under these recommendations by FOAVC candidates
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.
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.
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
How money is spent in the campaign is unaffected by these
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
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
this goal directly it is
still possible, and constitutional, for these groups to achieve their
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
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
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
the state legislature.
Assuming politically the
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
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
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.
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
amendment proposal. It will
be up to supporters and detractors of a specific amendment
proposal to weigh all political consequences and determine whether to
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