If anyone asks you, “Hey, did you know Wyoming signed off on joining this crazy constitutional convention that could wind up rewriting the document that has guided this nation for the past 228 years?” tell them yes. Because even if you didn’t know before, you do now.
The Wyoming Legislature approved House Joint Resolution 2 during this year’s general session with little fanfare. It serves as the state’s official request to Congress to authorize a constitutional convention for the specific purpose of considering a federal Balanced Budget Amendment.
That’s what it states, and that’s what supporters of HJR 2 promised, but that’s not what the resolution does. When it was approved by the House 35-23, by the Senate 20-10 and signed by Gov. Matt Mead, Wyoming joined an effort that could open a constitutional Pandora’s Box.
A recent event served as a reminder about how Wyoming was hoodwinked into making this mistake by powerful forces. Three state legislators chose to blow off attending a meeting of the Joint Revenue Interim Committee in Buffalo earlier this month so they could attend a four-day session in Phoenix, Ariz., to plan for the proposed convention, if it ever happens. The trio were Sens. Ray Peterson (R, SD-19, Cowley) and Jeff Wasserburger (R, SD-23, Gillette), and Rep. Dan Laursen (R, HD-25, Powell).
The revenue committee is considering bills to help close the $260 million annual shortfall in education funding, but I can see how the opportunity to fly free to Phoenix (using “scholarships” paid for by a nonprofit group that’s funded by wealthy conservative organizations) could lure them from doing their jobs here.
Radical conservative groups like the American Legislative Exchange Council have been trying pass a federal balanced budget amendment since the 1980s. Having been repeatedly turned away from the front door — having an amendment proposed by Congress then ratified by a supermajority of the states — they are now using Article V of the U.S. Constitution, which sets the parameters of a constitutional convention of the states, to achieve their goal.
Nevermind that such a convention could totally alter how the United States is governed. Once they remove the lid on the supreme law of the land, there would be absolutely no filter on what could go in or come out. Article V doesn’t contain a word about what issues a constitutional convention can cover. Constitutional scholar and Harvard Law School Professor Laurence Tribe has succinctly spelled out the possible damage: “What you’re doing is putting the whole Constitution up for grabs.”
If that doesn’t scare Americans, I don’t know what will.
The Wyoming Legislature tried to put a safeguard in HJR 2 that says such a convention can only be for one purpose, and the one it approved was to pass a BBA. Unfortunately, the state’s resolution doesn’t control the situation, the U.S. Constitution does.
A convention can be called if a two-thirds majority of the states — 34 or more — petition Congress for it. Wyoming is supposedly the 27th, but there is a heated debate over how many states have officially sought the convention. Several other states passed resolutions decades ago, so it’s questionable whether they are still in effect. While Wyoming approved its resolution this year, Maryland, New Mexico and Nevada just overturned the ones they signed years ago .
There are two main backers of the BBA movement. One is ALEC — a “bill mill” that churns out anti-democratic proposals introduced by red state legislatures. Their most recent high-profile handiwork is a suite of ID laws that courts have been throwing out left and right. The other primary backer is Americans for Prosperity, which is the vehicle the billionaire Koch brothers use to fund causes like getting the government to stop telling rich people what they can do.
There is a legitimate debate to be held about whether a balanced budget amendment would be good for the U.S., which is now $20 trillion in debt. Conservatives believe a constitutional amendment mandating that the nation balances its budget and stops borrowing money is the only way to get its fiscal ship in order. Progressives, like myself, maintain that passing the BBA would have the unintended consequence of causing a recession in many small states and could cause economic havoc everywhere.
But Congress has already had that debate, and the last time it considered the issue in the 1990s, it failed by one vote in the Senate. Congress, which is at least nominally accountable to voters, and which can restrict a bill to a single issue, is the appropriate place to debate and, if warranted, take action on a balanced budget amendment.
An Article V convention, in contrast, could be hijacked by radical groups like the Convention of States, which advocates for an open convention. ALEC is hedging its bets and supporting both the Balanced Budget Amendment Task Force, a legislative alternative, and the COS.
The COS has passed 12 resolutions about what it wants to come out of a constitutional convention. It has proposed imposing term limits on Congress, mandating a nationwide voter ID, “taking back” America’s education system, and restricting the fiscal powers and jurisdiction of the federal government.
Fritz Pettyjohn, a former Alaska state senator and a leading BBA advocate, was surprisingly candid in an op-ed that was posted on the ALEC website in April. “An Article V Convention could … propose any number of solutions. One would be to dissolve Congress and elect a new one. When you’re the sovereign, you can do that.”
You could constitutionally outlaw abortion, redefine who has the right to vote, institute the gold standard, disband the standing military and do away with all federal public lands while you were at it. Once the white-out and the red pencils come out, only the loudest (i.e. best funded) voices will determine how and where they’re applied.
Whether they realized it or not at the time of the HJR 2 vote, Wyoming lawmakers have made possible the kind of undemocratic power-grabs described by Pettyjohn at an open convention.
“I’m sure there are those that disagree with the effort of acquiring the needed 34 states and their applications for a state’s constitutional convention,” Peterson wrote in an email to WyoFile reporter Andrew Graham. “But … developing the rules that will govern such a convention and ensuring that our state is involved in that planning … is critical as we approach the necessary number.”
No matter how many times Wyoming’s Peterson, Wasserburger, Laursen and other state legislators fly to Phoenix and pass rules against opening up their convention, their efforts are meaningless. There are no rules that could keep a convention from becoming a free-for-all where anything could get passed. If extreme-right groups grab control, the nation is in deep trouble.
David Super, a Georgetown law professor who has extensively studied the issue, told Graham, “If an actual convention is convened we will see an outpouring of special interest money like this country has never seen.”
The other side doesn’t even contest that view. According to a report in the Center for Media and Democracy’s PRWatch a cocky convention proponent bragged to Democratic Wisconsin state representative Chris Taylor at a 2013 ALEC summit, “You really don’t need people to do this. You just need control over the legislature and you need money, and we have both.”
They certainly do. Republicans control 32 state legislatures and 33 governorships, including 25 where they have majorities in both state legislative chambers and the governorship. That includes red state Wyoming, of course.
The 55 Wyoming legislators who voted for HJR 2 have aligned our state with billionaires who would like to change the U.S. Constitution, and are all too willing to buy those changes — groups like ALEC that connect state lawmakers with businesses that want to be deregulated; and radical ideologues who openly intend to hijack a BBA convention and have their way with the Constitution.
What will our lawmakers do for an encore? How about coming to their senses and changing their minds in 2018?