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Tag Archives: Constitutional convention

HCR 23: discovering Pandora’s rifle rack

15 Friday Feb 2013

Posted by Michael Bersin in Uncategorized

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Constitutional convention, General Assembly, HCR 23, missouri

Offered today:

FIRST REGULAR SESSION

House Concurrent Resolution No. 23

97TH GENERAL ASSEMBLY

INTRODUCED BY REPRESENTATIVES FITZPATRICK (Sponsor), CURTMAN, BRATTIN, JUSTUS, BAHR, SPENCER, SOMMER, WILSON, FRAKER, HICKS AND REMOLE (Co-sponsors).

1565H.01I

           WHEREAS, the Missouri General Assembly, acting with the best of intentions, applied to the Congress of the United States by resolution in accordance with Article V, Constitution of the United States, for a constitutional convention for the purpose of amending the Constitution of the United States and

           WHEREAS, Senate Concurrent Resolution No. 3, was passed by the Eighty-second General Assembly of the State of Missouri in 1983 specifically proposing a constitutional convention for the sole purpose of adopting an amendment requiring a balanced federal budget; and

           WHEREAS, over the course of time, the will of the people of the State of Missouri has changed with regards to Missouri’s previous call for a constitutional convention to amend the Constitution of the United States; and

           WHEREAS, certain persons or states have called for a constitutional convention on issues that may be directly in opposition to the will of the people of this state; and

           WHEREAS, the people of this state do not want their previous applications for a constitutional convention to be aggregated with those calls for a convention from other states; and

           WHEREAS, former Justice of the United States Supreme Court Warren E. Burger, former Associate Justice of the United States Supreme Court Arthur J. Goldberg and many other leading constitutional scholars are in general agreement that a convention, notwithstanding whatever limitation might be placed on it by the call for a convention, may propose sweeping constitutional changes or, by virtue of the authority of a constitutional convention, redraft the Constitution of the United States creating an imminent peril to the well established rights of citizens and to the duties of various levels of government; and

           WHEREAS, the Constitution of the United States has been amended many times in the history of this nation and may be amended many more times without the need to resort to a constitutional convention, and has been interpreted for more than two hundred years and found to be a sound document that protects the lives and liberties of citizens; and

           WHEREAS, there is no need for, and in fact there is great danger in, a new constitution or in opening the Constitution of the United States to radical changes, the adoption of which could create legal chaos in this nation and begin the process of another two centuries of litigation over its meaning and interpretation; and

           WHEREAS, changes or amendments that may be needed in the present Constitution of the United States may be proposed and enacted without resorting to a constitutional convention by using the process provided in the Constitution and previously used throughout the history of this nation:

           NOW, THEREFORE, BE IT RESOLVED that the members of the House of Representatives of the Ninety-seventh General Assembly, First Regular Session, the Senate concurring therein, that the Missouri General Assembly hereby repeals, rescinds, cancels, renders null and void, and supersedes any and all existing applications to the Congress of the United States for a constitutional convention under Article V of the Constitution of the United States for any purpose, whether limited or general; and

           BE IT FURTHER RESOLVED that the Missouri General Assembly urges the legislature of each and every state that has applied to Congress for either a general or limited constitutional convention to repeal and rescind their applications; and

           BE IT FURTHER RESOLVED that the Chief Clerk of the Missouri House of Representatives be instructed to prepare a properly inscribed copy of this resolution for the President of the United States Senate, the Speaker of the United States House of Representatives, the Administrator of General Services in Washington, D.C., each member of Missouri’s Congressional delegation, and the Secretaries of State and presiding officers of both houses of the legislatures of each state in the Union.

[emphasis in original]

Yeah, they probably figured that a constitutional convention could make that originalist muzzle loader too explicit for their taste.

HCR 19: and you shall know them by their teabagger legislation

29 Saturday Jan 2011

Posted by Michael Bersin in Uncategorized

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Chuck Gatschenberger, Constitutional convention, General Assembly, HCR 19, missouri, Teabaggers

The usual suspects have proposed a constitutional convention for the purpose of amending the Constitution so that state legislatures would have to approve raising the national debt limit. Yeah, that’ll turn out really well.

FIRST REGULAR SESSION

House Concurrent Resolution No. 19

96TH GENERAL ASSEMBLY

INTRODUCED BY REPRESENTATIVES GATSCHENBERGER (Sponsor), FRANZ, LONG, KOENIG, DIEHL, BARNES, SCHARNHORST, MOLENDORP, KELLEY (126), FITZWATER, JONES (89), NANCE, NOLTE, BROWN (50), PACE, JONES (117), RICHARDSON, PARKINSON, DENISON, HINSON, ZERR, SCHOELLER, SCHATZ, REIBOLDT, SCHIEFFER, LARGENT, ALLEN, GUERNSEY, RIDDLE, LANT, LEACH, BROWN (85), LICHTENEGGER, GRISAMORE, DUGGER, SCHAD, COX, LOEHNER, BAHR, COOKSON, FRAKER, BURLISON AND WIELAND (Co-sponsors).

0497L.02I

AN ACT

Relating to the calling of a convention proposing amendments to the United States Constitution.

Be it enacted by the General Assembly of the state of Missouri, as follows:

           WHEREAS, Article V of the Constitution of the United States provides authority for a Convention to be called by the Congress of the United States for the purpose of proposing amendments to the Constitution upon application of two-thirds of the Legislatures of the several states (“amendments convention”); and

           WHEREAS, the Legislature of the State of Missouri favors the proposal and ratification of an amendment to said Constitution which shall provide that an increase in the federal debt requires approval from a majority of the Legislatures of the separate States:

           NOW, THEREFORE, BE IT RESOLVED that the members of the House of Representatives of the Ninety-sixth General Assembly, First Regular Session, the Senate concurring therein, hereby respectfully applies, as provided for in Article V of the Constitution of the United States, for an amendments convention to be called for the purpose of proposing an amendment which shall provide that an increase in the federal debt requires approval from a majority of the Legislatures of the separate States; and

           BE IT FURTHER RESOLVED that the amendments convention contemplated by this application shall be entirely focused upon and exclusively limited to the subject matter of proposing for ratification an amendment to the Constitution providing that an increase in the federal debt requires approval from a majority of the Legislatures of the separate States; and

           BE IT FURTHER RESOLVED that this application constitutes a continuing application in accordance with Article V of the Constitution of the United States until at least two-thirds of the Legislatures of the several States have made application for an equivalently limited amendments convention; and

           BE IT FURTHER RESOLVED that a certified copy of this application be dispatched by the Chief Clerk of the Missouri House of Representatives to the President of the United States Senate, the Speaker of the United States House of Representatives, each member of the Missouri Congressional delegation, and the presiding officers of each house of the several State Legislatures requesting their cooperation in applying for the amendments convention limited to the subject matter contemplated by this application.

[underline emphasis added]

Is anyone in the republican majority in Jefferson City concerned about job growth and unemployment rather than symbolic teabagger legislation? Just asking.

Previously: The Ultimate in teabagger Bills: it was only a matter of time (January 26, 2011)

HCR 9: on reading the fine print

19 Wednesday Jan 2011

Posted by Michael Bersin in Uncategorized

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Constitutional convention, General Assembly, HCR 9, missouri

The usual tenther suspects have proposed a state’s rights constitutional convention, strictly limited to one amendemnt:

FIRST REGULAR SESSION

House Concurrent Resolution No. 9

96TH GENERAL ASSEMBLY

INTRODUCED BY REPRESENTATIVES BARNES (Sponsor), JONES (89), RICHARDSON, BROWN (85), CROSS, McCAHERTY, BERNSKOETTER, BROWN (116), SMITH (150), FREDERICK, LANT, FITZWATER, WYATT, NANCE, BERRY, REIBOLDT, DIEHL, RIDDLE, ELMER, JONES (117) AND COOKSON (Co-sponsors).

0420L.02I

AN ACT

Relating to the calling of an amendment convention.

Be it enacted by the General Assembly of the state of Missouri, as follows:

           WHEREAS, Article V of the Constitution of the United States provides that “on application of the legislatures of two-thirds of the several states” the calling of a convention for the purpose of proposing amendments to such Constitution is authorized; and

           WHEREAS, any amendment proposed by the convention “shall be valid to all intents and purposes as part” of the Constitution of the United States “when ratified by the legislatures of three-fourths of the several states, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress”; and

           WHEREAS, in the interests of preserving principles of federalism and state sovereignty, such an amendment convention should be restricted to considering the following amendment only:

“Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.”; and

           WHEREAS, this resolution is submitted as an official application by the State of Missouri, which when joined by two-thirds of the several states, shall authorize the calling of an amendment convention for the purpose stated in this resolution:

           NOW, THEREFORE, BE IT RESOLVED that the members of the House of Representatives of the Ninety-sixth General Assembly, First Regular Session, the Senate concurring therein, hereby apply and make application to the Congress of the United States to call an amendment convention pursuant to Article V of the United States Constitution for the limited purpose of a constitutional amendment that permits the repeal of any federal law or regulation by a vote of two-thirds of the state legislatures, and the Missouri Delegation to such convention, when called, shall propose the following amendment:

“Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.”; and

           BE IT FURTHER RESOLVED that the Chief Clerk of the Missouri House of Representatives prepare copies of this resolution for the President of the United States Senate, the Speaker of the United States House of Representatives, and each presiding officer of each state legislative chamber in the United States.

[underline emphasis added]

“…Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed…”

Wouldn’t it be easier to cater to their angry teabaggers base and get their corporate shills to dump an obscene amount of money into an election to take over Congress? Oh, wait…

Repeal. They have a list.

Report on Article V Convention Symposium at Cooley Law School

10 Sunday Oct 2010

Posted by Michael Bersin in Uncategorized

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amendments, article 5, Article V, Citizens United, Constitutional convention, corporatocracy

Dana Milbank’s article two days ago, “Mormon Prophecy Behind Glenn Beck’s Message“, talks about some coded language Beck’s been using–supposedly a prophetic prediction made by the founder of Mormonism, Joseph Smith.

From Milbank,

“The phrase is often attributed to the Prophet Joseph Smith, founder of the Church of Jesus Christ of Latter-day Saints, or Mormon Church. Smith is believed to have said in 1840 that when the Constitution hangs by a thread, elders of the Mormon Church will step in — on the proverbial white horse — to save the country.”

“When the Constitution of the United States hangs, as it were, upon a single thread, they will have to call for the ‘Mormon’ Elders to save it from utter destruction; and they will step forth and do it,” Brigham Young, Smith’s successor as head of the church, wrote in 1855.”

Hanging by a thread. Sounds like the sign of the times in so many ways. We all know profit-driven ‘news-entertainment’ is dominated by fear and sensationalism, so we should expect an abundance of apocalyptic story telling from pundits like Beck. But even after disregarding the truth-warping profit motive, there is still ample evidence to heed this ‘constitution hanging by a thread’ notion. Accordingly, the people are restless.

In a recent poll by People for the American Way, 95% of those surveyed believe corporations spend money on politics to buy influence and elect people favorable to their financial interests. Further, 85% of voters say that corporations have too much influence over the political system today, while 93% say that average citizens have too little influence.

This is not the “government of the people” the Founders and Framers envisioned–well, not really.

The Founders actually did envision the current state of the nation. They could foresee an intractable situation befalling the Republic in which undue influence and corruption would become so entrenched into our political institutions, that elections–or any actions taken by the Federal Government–would be incapable of correcting America’s biggest problems. Sound familiar?

What the designers of our constitution foresaw was the distinct possibility that the same kind of centralized tyrannical power they had just opposed and defeated (the British Crown and Parliament) could potentially materialize over time in the new nation. They unanimously agreed to incorporate a switch that could be flipped in the future to convene a group of citizen delegates charged with addressing what was broken.

That switch is called an “Article V Convention”, and contrary to popular myth, it is not a self-destruct button. An Article V Convention allows citizen delegates to produce a roster of ideas for each state to consider to approve as a US Constitutional Amendment. There are sufficient protections built-in to prevent any kooky, radically partisan, or extreme ideas from surviving the two-step nomination and ratification process. If you believe in the brilliance of the Founders, you cannot presume to think that they would have been so idiotic as to put a poison pill right in the heart of the constitution.

The convention clause was seen by the Framers as a necessary check-and-balance, and has the potential to reboot the Federal laptop that’s been locked-up and frozen for years. While banging on the keys may seem like it’s working (elections), if you really want to get something done, Article V is the reset switch.

Why an Article V Convention cannot runaway and throw out the Constitution

Two-thirds of the convention must vote to approve a suggested fix–and then a super-super majority of 75% of the state legislatures must independently vote to ratify each amendment. This 75% threshold is an exceedingly difficult task which allows for only the most robust and transpartisan ideas to survive the process and become law. Solutions delivered from the states to our nation via an amendatory convention occurs beyond the purview of Congress, outside of Washington DC. It’s a viable way for everyday citizens to say, “enough is enough”–and then have that actually mean something. The point is, elections and electeds may be unwilling or incapable of steering our ship of state away from the dangers of corruption spiraling our nation out of control–and this is precisely the reason for Article V’s existence.  

The idea of a people’s intervention to a Federal Government addicted to spending and power is gaining traction

A group formed in 2007, Friends of Article V Convention (FOAVC.org), investigated the Congressional record to answer the question: how many times have the states applied for an Article V Convention?

Unbelievably, at the time there was no central repository containing these convention requests–no collated record maintained by Congress. The procedure laid out in Article V commands Congress to call a convention to propose amendments when two-thirds of the states apply. No other requirements are needed. Some scholars think that the applications must contain a same-subject amendment, or be sent at the same time. This interpretation creates restrictions out of thin air. To artificially add non-existing stipulations to an amendment is called “construction“–which in this case–has been repudiated by multiple Supreme Court rulings.

What the Friends discovered, is that there have been hundreds of applications submitted from all fifty states; and per the constitution, only 34 states need apply to trigger the non-discretionary call for an Article V Convention.

Is Congress purposefully not calling the convention because they view it as a threat to their power?

It’s certainly possible. Congress has sat on its hands and feigned to ignore the applications issue for at least a hundred years.

Professor Christopher Trudeau and some others from Cooley Law felt that the legal doctrine of “Laches” may apply, which is “based on the maxim that equity aids the vigilant and not those who procrastinate regarding their rights; neglect to assert a right or claim (the people demanding that Congress call an Article V Convention) that, together with lapse of time and other circumstances, prejudices an adverse party.” The argument is, since the first call was supposed to have happened in the early 1900s, we can’t use an accumulation standard for those older applications. The reality is, however, that there have been hundreds of applications since 1960 alone, which should trigger the call. Because there isn’t any precedent in regard to the nation’s first Article V Convention, the doctrine of Laches here is by no means established.

The inherent power of the people resides in the convention

Retired Michigan Supreme Court Justice, Judge Thomas Brennan, in his pivotal article, “Return to Philadelphia (1982)” paints a passionate depiction of the infinite well from which springs the authority of the people, embodied in the convention.

“A convention is the last bastion of public sovereignty. It is perhaps the sole remaining device by which the people of the states can act together as the people of the United States; not as citizens or subjects of a supreme national government, but as the sovereign ultimate political authority from which springs the consent of the governed and the constitutional legitimacy of all public institutions and officers.”

Judge Brennan and Cooley Law school, the largest law school in the nation, recently sponsored a symposium entitled, “Article V Empowers The People of All the States.” Speakers included co-founders of FOAVC, active and retired Federal judges, constitutional scholars, and law professors, each presenting their case to the eager ears of an audience chiefly made up of law students; aspiring lawyers.  

Bill Walker, a FOAVC co-founder, spoke about his lawsuit against Congress for failing to call a convention. Walker vs. Members of Congress went through the courts on appeal to the Supreme Court, where it was denied certiorari. It was denied because the Supreme Court only agrees to see a very small percentage of cases that request review. The lower court’s ruling was upheld with the court essentially standing aside due to the political question doctrine. The judges did not feel it prudent to coerce Congress to call a convention, even though the constitutionally required number of Article V applications had been submitted by the states.  

In his presentation at the symposium Walker stated,

1. A convention call is peremptory (ie without debate).

2. There are sufficient applications already on record to cause a convention call.

3. A convention call is based on a simple numeric count of applying states with no other terms or conditions such as recessions, same subject, contemporaneous and so forth.

4. By refusing to obey the Constitution and so advocating the same in a public forum, the members of Congress violated their oaths of office and other federal criminal laws.

“The Solicitor General of the United States acting in both his official capacity and as official attorney of record for all members of Congress, after consultation required by federal law with those members, formally and officially waived response to my brief. Thus, he formally and officially acknowledged what I had stated in my brief was and is correct as to fact and law. This is what I mean when I state the only group I’ve been able to persuade is the United States government as this is the only official government act on the convention call in United States history.”

Judge James L. Ryan, a Senior Circuit Judge for the United States Sixth Circuit of Appeals, was asked at the symposium if he felt Congress was obligated to issue the call based on the evidence presented of the required number of convention applications having been submitted. He replied he didn’t have enough information to make an informed decision. If Judge Ryan, in public, had supported the idea that Congress was avoiding their constitutional obligations, as a sitting Federal Judge, he would be tying his hands to have to continue to investigate the issue to further determine the legal and potential criminal ramifications of Congress violating their of oaths of office by disregarding a clear constitutional directive. Many established lawyers, judges, politicians, are reticent to rock the boat; but this goes to the heart of our problems, doesn’t it?

Another FOAVC co-founder, Joel Hirschhorn, unpacked several reasons why Congress has gotten away with not obeying the constitution,

“Apparently, a combination of political corruption and public ignorance has allowed Congress to get away with this. Even among the millions of Americans that proudly declare their loyal allegiance to the Constitution, there is no recognition that unless they demand that Congress obey Article V, they are constitutional hypocrites. Congress has no right to unilaterally decide that it can ignore and disobey a part of the Constitution.”

The arguments against a convention have been fielded, and the simple fact remains, the corrupting influences currently in power have everything to lose from a convention–while everyday Americans have everything to gain. As it is, if we allow for the teeter-totter of mainstream politics to continue to have its sway, we will have essentially conceded defeat. All the bailouts, unfavorable court rulings and corporate/political sell-outs point to one trajectory–they indicate, that indeed, the coup may be complete–we may have lost control of our country.  

But concerned citizens are bucking up, joining new initiatives, and sending the message that it’s time for the people to stage an intervention before its too late. An online effort called Convention USA, launched by Justice Brennan, is described as, “…an interactive, virtual convention for proposing amendments to the Constitution of the United States.” Term limits, balanced budget amendment, secure the vote–common sense ideas that in D.C. are usually always DOA.

A mock convention chaired by Harvard Law professor Lawrence Lessig and Republican political advisor Mark McKinnon was recently staged at a “Coffee Party” meeting in Louisville, Kentucky. Hundreds of delegates took to reviewing ideas that were brought to the table through a town hall meeting format. Professor Lessig has been mobilizing support for an amendment convention in the wake of the Citizens United Supreme Court ruling which sanctioned unfettered corporate electioneering and relied heavily on the legal fiction of “corporate personhood”. As legal persons in the Citizens United ruling, corporations can support or oppose any candidates with unrestricted political contributions. Recently, after Citizens United, the Chamber of Commerce has been accused of funneling foreign contributions into US elections-clearly a violation of the basic principles of national security. With many major corporations being multi-national conglomerates, it is not entirely clear how foreign influence will be kept from muscling under the radar into our body politic, if we don’t seriously regulate the level at which corporations can buyout our democracy.

Lessig’s “Call A Convention” website makes the pronouncement,

“Democracy in America is stalled. From the Right and Left, citizens are increasingly coming to recognize that our democracy does not work as our Framers intended.”

Things are happening, people are waking up to the fact that extraordinary times require extraordinary measures. If you’re in search of truly transpartisan solutions, and are not satisfied with electoral politics, check out this time-capsule gift from the Founders: the amendatory convention enshrined in Article V, an idea whose time has come–and whose design was scrupulously intended for present circumstance.

The Mormon prophecy Glenn Beck has been consciously or unconsciously sounding, predates Joseph Smith, because the Founders saw it as well. They laid out a specific plan to deal with the catastrophic nature of a collapsing Republic. It would be good to see pundits, progressive, conservative, libertarian, take up the cause to spread awareness of this tool. An Article V Convention will be a rebirth of civic engagement and a means to reinvigorate our democracy–let the people drive the bus out of the ditch.

Desperate times call for …

20 Saturday Feb 2010

Posted by Michael Bersin in Uncategorized

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Constitutional convention, missouri

The wealthy have always been more equal than the rest of us, even when the Republic was still a babe and even in the aftermath of FDR. But it’s far worse these last thirty years. You’ve bitched and moaned, am I right? that we need elections funded by public dollars and small donors. You’ve ranted and ground your teeth that any legislator who wants to can leave Congress and immediately triple his salary working as a lobbyist. Until recently, getting an indifferent Congress to fix those problems–impossible as that seemed–were all (all?!) we would have needed to do to make the commoners equal … sort of, anyway … to the moneyed interests. But now SCOTUS has ruled that corporations may waltz in and purchase any election that takes their fancy. Now that the Court has upped the ante for even getting dealt a hand of cards in this country’s democracy, the citizenry won’t be in the game at all unless we can ante up. And the only way to do that is with a Constitutional amendment to rein in corporate spending in our elections.

Rep. Donna Edwards has proposed a bill to start that process, and Free Speech for PEOPLE.org is organizing a national campaign to support her.

Friday morning, I called Rep. Lacy Clay’s office to ask whether Clay is aware and supportive of Rep. Edwards’ proposed amendment. Not yet, it seems. Or at least, Britney in his office is not. She said she’d look into it and get back to me. A few more phone calls (202-224-6154) might make Clay aware more quickly. Other Missouri representatives need to be asked the same question. (You can get their phone numbers here.)

Actually, Lawrence Lessig, writing for The Nation about “How to get our democracy back” would tell me I’m dreaming if I think Congress is going to initiate the absolutely crucial Constitutional amendment. He might mention that Roberts et. al. have effectively granted Big Business the right to blast out of the water any legislator that doesn’t cozy up to it, and to support that claim Lessig could point to what Edwards herself said: namely that she worries that corporations will spend money attacking her in her own district for even presuming to offer an amendment. She’s doing it anyway, but then she’s one of the brave ones.

But Lessig does lay out what he thinks needs to be done. He has this vision:

What would the reform the Congress needs be? At its core, a change that restores institutional integrity. A change that rekindles a reason for America to believe in the central institution of its democracy by removing the dependency that now defines the Fundraising Congress. Two changes would make that removal complete. Achieving just one would have made Obama the most important president in a hundred years.

That one–and first–would be to enact an idea proposed by a Republican (Teddy Roosevelt) a century ago: citizen-funded elections. America won’t believe in Congress, and Congress won’t deliver on reform, whether from the right or the left, until Congress is no longer dependent upon conservative-with-a-small-c interests–meaning those in the hire of the status quo, keen to protect the status quo against change. So long as the norms support a system in which members sell out for the purpose of raising funds to get re-elected, citizens will continue to believe that money buys results in Congress. So long as citizens believe that, it will.

Citizen-funded elections could come in a number of forms. The most likely is the current bill sponsored in the House by Democrat John Larson and Republican Walter Jones, in the Senate by Democrats Dick Durbin and Arlen Specter. That bill is a hybrid between traditional public funding and small-dollar donations. Under this Fair Elections Now Act (which, by the way, is just about the dumbest moniker for the statute possible, at least if the sponsors hope to avoid Supreme Court invalidation), candidates could opt in to a system that would give them, after clearing certain hurdles, substantial resources to run a campaign. Candidates would also be free to raise as much money as they want in contributions maxed at $100 per citizen.

The only certain effect of this first change would be to make it difficult to believe that money buys any results in Congress. A second change would make that belief impossible: banning any member of Congress from working in any lobbying or consulting capacity in Washington for seven years after his or her term. Part of the economy of influence that corrupts our government today is that Capitol Hill has become, as Representative Jim Cooper put it, a “farm league for K Street.” But K Street will lose interest after seven years, and fewer in Congress would think of their career the way my law students think about life after law school–six to eight years making around $180,000, and then doubling or tripling that as a partner, where “partnership” for members of Congress means a comfortable position on K Street.

Before the Supreme Court’s decision in Citizens United v. FEC, I thought these changes alone would be enough at least to get reform started. But the clear signal of the Roberts Court is that any reform designed to muck about with whatever wealth wants is constitutionally suspect. And while it would take an enormous leap to rewrite constitutional law to make the Fair Elections Now Act unconstitutional, Citizens United demonstrates that the Court is in a jumping mood. And more ominously, the market for influence that that decision will produce may well overwhelm any positive effect that Fair Elections produces.

This fact has led some, including now me, to believe that reform needs people who can walk and chew gum at the same time. Without doubt, we need to push the Fair Elections Now Act. But we also need to begin the process to change the Constitution to assure that reform can survive the Roberts Court. That constitutional change should focus on the core underlying problem: institutional independence. The economy of influence that grips Washington has destroyed Congress’s independence. Congress needs the power to restore it, by both funding elections to secure independence and protecting the context within which elections occur so that the public sees that integrity.

No amendment would come from this Congress, of course. But the framers left open a path to amendment that doesn’t require the approval of Congress–a convention, which must be convened if two-thirds of the states apply for it. Interestingly (politically) those applications need not agree on the purpose of the convention. Some might see the overturning of Citizens United. Others might want a balanced budget amendment. The only requirement is that two-thirds apply, and then begins the drama of an unscripted national convention to debate questions of fundamental law.

Many fear a convention, worrying that our democracy can’t process constitutional innovation well. I don’t share that fear, but in any case, any proposed amendment still needs thirty-eight states to ratify it. There are easily twelve solid blue states in America and twelve solid red states. No one should fear that change would be too easy.

No doubt constitutional amendments are politically impossible–just as wresting a republic from the grip of a monarchy, or abolishing slavery or segregation, or electing Ronald Reagan or Barack Obama was “politically impossible.” But conventional minds are always wrong about pivot moments in a nation’s history. Obama promised this was such a moment. The past year may prove that he let it slip from his hand.

For this, democracy pivots. It will either spin to restore integrity or it will spin further out of control. Whether it will is no longer a choice. Our only choice is how.

Okay, suppose Lessig is right and it turns out that Congress finds the idea of promoting a constitutional amendment to rein in corporate spending just to-o-o plebian to contemplate. Suppose a Constitutional convention does turn out to be our only alternative. Bet on it that if Missouri voted in favor of one, it wouldn’t be for the purpose of overturning Citizens United. It would be for the purpose of “urging Congress to pass a balanced budget amendment to the United States Constitution.” Sen. Schmitt, R-Glendale, is already sponsoring SCR 36. Think he wouldn’t do backflips at a chance to make that one a reality? Or maybe Republican mouths would water over a chance to “Reaffirm Missouri’s sovereignty under the Tenth Amendment”. Sen. Jim Lembke, R-some other galaxy, has sponsored SCR 34 and already has seven co-sponsors: Jane Cunningham, District 7; Scott Rupp, District 2; Chuck Purgason, District 33; Rob Mayer, District 25; Gary Nodler, District 32; Eric Schmitt, District 15; and Bill Stouffer, District 21. See? That’s eight full out nuts–more than a third of their party’s number in the Senate–who would be on board without a backward glance. Throw in a few Democrats who’d like to see Citizens United overturned and some Republicans who’d be bound to straggle in and vote for it: voila, the Missouri Senate votes for a Constitutional convention. And the senate is the sane chamber in our legislature. It would be voting ditto for what the House had already passed.

A Constitutional convention would be one hair on fire event. Scary. But what choice do we have? We might as well go out with a bang. It’s better than a whimper.

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