Inside the Secret Conservative Campaign to Rewrite the Constitution

Who's winning, who's losing, and why.
Dec. 10 2013 6:34 PM

Give Me Amendments or Give Me Death

Inside the secretive campaign by state legislators to pass conservative amendments in 34 states and rewrite the Constitution.

Conservative radio talk show host Mark Levin greets supporters after his remarks at a 2009 protest on the West Lawn of Capitol Hill with an estimated 20,000 supporters against the new proposed health care plan.
Conservative radio host Mark Levin, here in 2009 protesting the new health care law, advocates for a state-based plan to amend the Constitution.

Photo by Paul J. Richards/AFP/Getty Images

The newest movement to save the republic began this past Saturday on the grounds of George Washington’s old estate. Shortly before 9 a.m., nearly 100 state legislators from 32 states filed into the library that sits above the museums of Mount Vernon. It was state legislators only; supporters (and reporters) learned that the hard way, as they called for details or were stopped at the security gates.

Inside, the legislators said a prayer, recited the Pledge of Allegiance, and got to work talking about how to form a convention of states that could amend the Constitution–without interference from Congress. They’d been brought to Mount Vernon by a team of five Republican legislators, who’d circulated the invitation back on Oct. 22. “Article V of the U.S. Constitution gives states equal standing with Congress to propose constitutional amendments,” they wrote. “In light of the federal government’s struggle to effectively execute the will of the people,” they’d create a bipartisan and “politically pure” environment to figure this out.

“I started the meeting with a discussion about what authority the convention would have,” recalled Wisconsin Rep. Chris Kapenga, a CPA who was swept into office in the 2010 Tea Party wave. He was one of the five organizers of the meeting, and he emphasized several times that Democrats were in the room. This wasn’t about any partisan goal. It was about states reclaiming the power they’d ceded, through stasis and lack of strategy, to the feds, by getting 34 states to call for a convention.

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“We wanted people to understand that the convention itself is a legal authority,” said Kapenga. “Over the last year and a half I've been studying Article V—I went back into the Federalist Papers, read anybody who did anything on constitutional conventions—I saw that hundreds of resolutions have been brought forth, by both parties, and always failed. Reason No. 1: The states are not used to working together. Reason No. 2 was the process. So, we worked on the process.”

The meeting lasted four hours, ending when legislators agreed to meet again in the spring of 2014. That’s the most progress anyone’s made in decades toward a states-first constitutional amendment campaign. A few liberals have glommed onto the idea, but right now all of the enthusiasm for Article V is coming from the right.

How do we know? Well, most of the legislators who trekked to Mount Vernon were in town—Washington, D.C. is 30 minutes up the road—for the annual meeting of the American Legislative Exchange Council (ALEC). Some of them hit up a panel organized by Convention of States, a project of Tea Party Patriots co-founder Mark Meckler. His new organization, Citizens for Self-Governments, schlepped 24-page briefing books that laid out the plan: “viable political operations,” with district captains, in at least 3,000 state legislative districts in 40 states.

Meckler and his colleagues would make it easy. In the book, CFSG listed a few “examples of amendment topics” that were stalled in Washington but doable at a convention: a balanced budget amendment, term limits for the Supreme Court, “a prohibition of using international treaties and law to govern the domestic law of the United States,” and a “limit” on taxes. The convention would be centered not on any one of these ideas, but “for the purpose of limiting the power and jurisdiction of the federal government.” The chance of success? “Almost certain.”

If that wasn’t enough, the conservative legislators who stopped by this panel heard an endorsement from a real politician. Wisconsin Sen. Ron Johnson, another member of the 2010 Tea Party class, suggested Article V as a way of rolling back the government, because Washington never would. “They are giving away candy, and it is tasty stuff,” he said. “We've got the drill and the Novocaine to fix the cavity.”

Johnson’s got company. Every major Republican leader in Ohio, from Gov. John Kasich through the state Legislature, has endorsed a constitutional convention in order to pass the Balanced Budget Amendment. “I’m for getting a balanced budget, one way or the other,” Ohio Sen. Rob Portman said when asked about Article V. “I think we need it. It’s tough in Congress, but getting two-thirds of the states might be a way to get it. I’m supportive.” If a Republican’s affiliated with the Tea Party in some way, chances are he’s down with the convention, too. “I do like the idea of forcing the country to take up some constitutional amendments,” said Kentucky Sen. Rand Paul.

How did so many conservatives come around to this idea, so quickly? It happened naturally—states’ rights are hardly new to Republican activists—but it gained traction thanks to radio host and author Mark Levin. Every year or so, Levin writes a tract of doomsaying, originalist constitutional arguments that sells like mad but gets completely ignored on the left. It happened again this year, when his book The Liberty Amendments topped the New York Times best-seller list. While liberals were napping, Levin was selling a pocket history of state tyranny and a package of amendments that could thwart it.

“Upon ascending to the presidency,” wrote Levin, “[Franklin] Roosevelt erected an autocratic program to overcome the transience of Statist electoral victories and interrupted rule.” Conservatives could win elections, but they could never roll back the state that FDR, then LBJ, then Barack Obama had expanded. “The repercussions were never in doubt and are now ever more tangible, with a definite upshot—devouring the civil society and subsuming individual sovereignty. This is precisely why the Framers provided in Article V a backstop to restore constitutional republicanism.”

And Levin knew what the Framers would have wanted. He proposed 10 amendments, starting with 12-year term limits for members of Congress and Supreme Court judges. Unpopular Supreme Court decisions could be overridden by a three-fifths congressional vote, “not subject to a presidential veto.” The 17th Amendment would be abolished, letting state legislatures once again elect the Senate. (If that happened today, the Senate would be snapped up immediately by Republicans.) If 34 states chose to, they could override any federal statutes or regulations “exceeding an economic burden of $100 million.”

None of this could pass the 113th Congress. None of this had really been proposed when Republicans ran the federal government. That was Levin’s whole point. “America is blue state right now,” he told the crowd of social conservatives who gathered for this year’s Values Voter Summit. “The only way to address this is to find 34 state legislatures, and to take the time to do it. It took us a century to get here and so it may take us 20 or 30 years to get out of this. But we have no options. This is the only option. I don’t care if no senator or no member of Congress supports this. We bypass them.”

Without Levin, far fewer conservatives would be tingling at the mention of “Article V.” The legislators who met in Mount Vernon had their qualms with giving Levin credit. “He called me up to have me on his show,” said Kapenga. “That was a little frustrating, because I saw a couple of people saying this was inspired by Levin’s book. This was planned before the book! All of a sudden, people say, ‘Oh, these guys must have read The Liberty Amendments.’ But this is a nonpartisan idea. Prof. Lawrence Lessig, who definitely doesn’t agree with Mark Levin, has said that we’re doing something that makes sense.”

That’s true. There are progressive-minded legal thinkers who like the idea of states blowing past the unmanageable Congress. “Relying on ALEC will assure that the specific proposals will be untenably right-wing,” said University of Texas law professor Sandy Levinson. “But, of course, that doesn’t guarantee they’ll get to the magic number of 34, let alone the further magic number of 38 actually to amend the Constitution.” Some good-government reform, like multiple-member House districts, would combat gerrymandering in a way that cut against Republicans.

“It’s impossible to imagine that the House of Representatives would adopt such a proposal,” said Levinson, referring to the notion of multiple-member seats. “But one can imagine that it could get to 38. There would be no reason for the 19 states with four or fewer representatives particularly to care, and one could imagine that another 19 states would see this as a way to diminish the reapportionment wars.”

But conservatives wouldn’t be clamoring for Article V if they thought a convention would produce victories for the left. They’ve got a head start on this; they’re thinking of how to build a movement that runs around Congress to restore the “Constitution in exile.” The convention, if it happened some years from now, needs to happen on their terms. Not that they’re going to shout that from the mountaintop.

“This is something that our members were interested in,” ALEC spokeswoman Molly Fuhs explained when asked about the Article V panel. “We do not advocate for anything.”

Emma Roller is a Slate editorial assistant. Follow her on Twitter.

David Weigel is a reporter for Bloomberg Politics

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