Testimony in Support of the “We the People Act”
Dear Representative Garlick,
I am writing today in support of the “We the People Act” (H.1926 & S.379), which calls upon Congress to propose a Constitutional Amendment to reverse key aspects of the 2010 Supreme Court Ruling on Citizens United; and puts Massachusetts on record as requesting an Article V Amendments Convention if Congress does not act within 6 months from the passing of these bills.
The influence of money in our political system has always been a threat to our democracy. And although the problem didn’t begin with Citizens United, the Citizens United decision has undoubtedly provided new and greater opportunities for those with money to place political pressure on our legislators. More and more our Democracy is functioning like an Oligarchy as members of Congress, despite their oath of office, feel beholden to their donors rather than their constituents.
In the wake of Citizens United, an undeniable majority of Americans, from all political persuasions, have voiced their objections to the ruling and the ever-growing power being wielded by money interests. Despite the clear message from the people, and after seven years and several protests, Congress has yet to take any meaningful action to address the problem.
Fortunately though, our forefathers provided “the people” with Article V of the Constitution. Article V provides a means by which States can bypass Congress to amend the US Constitution, allowing them the opportunity to address critical issues regarding our democracy when Congress fails to do so. Evoking Article V will force Congress to either act on the issue at hand, or allow the States to act by way of a Constitutional Amendments Convention.
Previously, when enough States have evoked Article V on a particular issue, Congress has felt compelled to take action, making an Amendments Convention unnecessary. But because an Amendments Convention has never taken place, there are concerns about what might happen if one actually does get called. Opponents of the use of Article V argue that such an event could become a free-for-all for special interests, aka a “runaway convention”, where delegates could try to push through proposals on controversial issues. But proponents of its use, including myself, believe those fears are unwarranted, and that the issues addressed at a convention can be made limited in scope, and here’s why;
- There are provisions written into the law that make an Article V Convention self-limiting. The most compelling is the high threshold for amendment ratification, which requires the support of both the House and the Senate of 38 State Legislatures. This provision purposely makes it difficult to change the Constitution by guaranteeing that only amendments that garner an overwhelming consensus throughout the country have even a remote chance of passing.
- In 1987, in a 50-page report, The United States Department of Justice concluded that an Article V Convention can legally be limited in scope. See footnoted summary below (1) or view the entire document at: https://www.ncjrs.gov/pdffiles1/Digitization/115134NCJRS.pdf
- The language of the “We the People Act” specifically calls for a limited convention and stipulates that the request for an Article V Convention is only to be considered in conjunction with similar requests from other States.
- Over 400 requests have been made by State Legislatures for an Article V Convention, yet a convention has never been called. This is because there have not been 34 requests on the same subject. Therefore, it can be reasoned that, if a successful call to convention requires a consensus on a single subject, the resulting convention can and should be limited to that same single subject.
- An Article V Convention is not the same as a Constitutional Convention. Unlike the Constitutional Convention of 1787, an Article V Convention is limited to the action of proposing amendments. It does not have the power to rewrite or completely overhaul the Constitution. Arguments in opposition to the use of Article V often fail to make the distinction between these two types of conventions, and at times have taken the positions of prominent legal minds, like Justice Scalia and Laurence Tribe, out of context as a result. Read more about it here: https://medium.com/@marketing_75534/the-honest-path-to-save-democracy-3811163db2d0.
- State Legislatures have the ability to require those who represent the State at the Convention (delegates) to abide by certain rules. These rules can include an obligation to refrain from proposing amendments on issues other than those they were elected to address.
- In the United States, 233 Amendments Conventions have been held at the State level without a single one becoming a “runaway”. 44 states currently have rules for enactment and process, and many of the procedures are standard and could be used for the establishment of a National Convention.
When the decisions being made daily by our political leaders demonstrate an utter disregard for the best interests of the American people, it’s clear we’ve lost our way and need to use every means possible to find our way back, including Article V.
In the past, our country has overcome far greater challenges than those of establishing the rules of engagement for a successful and orderly Amendments Convention. By setting the fear of the unknown aside, and considering what’s possible, rather than what’s not, we’ve even managed to put a man on the moon.
In conclusion, I would suggest that, far more unsettling than the unlikely occurrence of a “runaway convention”, is the reality that this country is currently being governed by a “runaway Congress” whose members can no longer be trusted to act free of the corrupting influence of big money. By passing the “We the People Act” in the upcoming legislative session, Massachusetts will join ranks with other States leading the effort to take back our Democracy from money interests.
We need to remind the members of Congress that it is the American people that they were elected to serve. The stakes could not be higher, so please act NOW by giving your support to the “We the People Act”.
Footnote: (1) “We conclude that Article V does permit a limited convention. This conclusion is premised on three arguments. First, Article V provides for equality between the Congress and the states in the power to initiate constitutional change. Since the Congress may limit its attention to single issues in considering constitutional amendments, the states also have the constitutional authority to limit a convention to a single issue. Second, consensus about the need for constitutional change is a prerequisite to initiating the amendment process. The consensus requirement is better met by the view that Article V permits limited constitutional conventions than by the view that it does not. Third, history and the practice of both the states and the Congress show a common understanding that the Constitution can be amended issue by issue, regardless of the method by which the amendment process is initiated…………………….Because the convention method has never been successfully invoked, and despite the collection of potential enforcement devices reviewed above, there will still be political uncertainties the first time that two-thirds of the states, apply for a limited convention. But allowing for such uncertainties, we are convinced that Article V was designed to permit limited conventions and that a variety of legal and political means are available to help to enforce such limits. The successful triggering of the convention method would be an extraordinary political event. Precedent and tradition are important in constitutional democracies such as ours, and there is no precedent to guide us here. But we also think that uncertainties should not lead to a questioning of the legitimacy of the convention method nor to a shirking of the duties of the various parties to put into effect, despite difficulties, the meaning of the various clauses of Article V.”