Ohio applied to bypass Congress to amend US Constitution – Critics fear lack of guardrails

Ohio formally applied for a Convention of States to amend the US Constitution in 2013, and that application remains in effect to this day. Legal scholars worry that this unprecedented process would have little accountability. Activists fear that the Convention could entrench the interests of the rich without representing the will of the people, or could even threaten hard-fought civil rights victories.

Balanced Budget Amendment, by Congress or a Convention of States

The 130th General Assembly passed Senate Joint Resolution 5, introduced by then-Senate President Keith Faber, to amend the US Constitution to require the yearly federal budget to be balanced, except during a national emergency. A similar resolution was introduced in the House by then-Representative and Speaker Pro Tempore Matt Huffman. The goal of limiting federal spending to incoming revenue is admirable and worthwhile, but amending the Constitution must be very carefully considered.

The resolution first urges Congress to pass such an Amendment, the same way that all 27 existing Amendments have been passed. Faber said this is his preferred path. There have been literally hundreds of unsuccessful attempts by Congress to pass such an Amendment over the years, mostly from Republicans but also some Democrats. One attempt in 2011, supported by Senator Portman, failed a vote in the Senate 47-53. Another attempt the same year failed by a large margin, but was supported by Senator Sherrod Brown for a total of 20 Democrats. This shows there is bipartisan support for some kind of balanced budget amendment. There were 5 Congressional attempts just this year, including one from Cincinnati Congressman Steve Chabot which gained 42 cosponsors, including Ohio Reps. Bill Johnson, Robert Latta and Mike Turner.

SJR5 also officially applies for a Convention of States to pass such an Amendment, a power granted by the Constitution which has never been used. This unprecedented Convention would bypass the 535 elected members of Congress and could give State legislators full control of changing our nation’s founding document. So far 32 States have joined the initiative, just shy of the 34 required for the Convention to be formed, although 5 States have since withdrawn their applications.

The Huffman and Faber resolutions are essentially identical to the recommendations from the American Legislative Exchange Council (ALEC), of which they have both been dues-paying members. The influential group has a history of advocating against gay rights, for stricter voting requirements and more permissive gun laws.

Opponents of Convention of States

Common Cause, a pro-democracy advocacy group, opposes a Constitutional Convention for any purpose. They fear the Convention would be heavily influenced by wealthy special interests to propose any number of changes to the Constitution, with no enforcement mechanism to limit their activity. They quote dozens of legal scholars and even Supreme Court Justices who raise concerns that the Constitution doesn’t provide any guidance on how the power of this Convention could be constrained.

Can the Convention be restrained?

Ohio’s SJR5 does embed some restraints in its application. It says it should not be counted with other States that apply for other reasons. Even if 34 States apply for a Convention, Ohio is only agreeing to contribute to the required two-thirds of States if they’re all applying for a balanced budget amendment.

Our resolution also limits any Ohio delegate to only debate and vote on a balanced budget amendment, and no other subject. The enforceability of that is unclear: an Ohio delegate to the Convention might have a Constitutional argument for voting on other subjects, and there’s no consequence written into Ohio’s SJR5 for exceeding their initially granted authority. Ohio could assert that our delegate’s vote on other matters is invalid, but other States might plow forward with ratification anyway.

There is one explicit limit on the power of the Convention: 38 States still have to ratify any Amendments they propose. However, bypassing the Senate, which cannot be gerrymandered, subjects the entire Amendment process to unfairly drawn State legislative districts from start to finish. Notably, leaders of the Convention initiative Keith Faber and Matt Huffman both sit on the Ohio Redistricting Commission, which has adopted several maps that were ruled an unconstitutional effort to unduly favor their party. Gerrymandering means Amendments from a Convention of States would be less likely to represent the will of the people.

Questions about this unprecedented process

Who would represent our 11.7 million residents in this Convention? One district’s State Senator? A statewide elected official? An OSU law professor?

Would we get 1 delegate to have influence identical to Wyoming, whose population is only 5% of ours, or would we send a proportional delegation like we do for the House of Representatives? Large states and small states are unlikely to have the same answer in mind.

Who gets to decide who our delegate(s) are: the Governor, the General Assembly, or a statewide vote? If we get multiple delegates, would the gerrymandered supermajority send a delegation of 100% Republicans, even though Ohio votes 46% for Democrats?

Can the people of Ohio recall or replace our delegate(s)? Who can disband the Convention once it’s established? Could the Convention stay in power indefinitely?

These are just some of the unknowns regarding a Convention of States which the US Constitution doesn’t answer.

Now just because this hasn’t been done before doesn’t mean it’s certain to end in disaster. Surely there’s a way to answer all of these questions and establish a precedent which is roughly fair and rooted in the founder’s intent. Perhaps Congress can provide oversight of the proceedings even though it won’t have a vote in what gets proposed. At the very least, we ought to ask our legislators how they intend to run the process before it begins.

However, the process likely won’t go down without heated fights and lobbying from powerful interests. The end result would be to empower fewer people to decide important questions on what our foundational document should dictate. At a time when our democratic norms are under stress, it would be risky to chart this unprecedented course right now.

The Ohio General Assembly could rescind our application for a Convention of States at any time.

Other attempts at a Convention of States

Ohio lawmakers have introduced several other Constitutional Convention resolutions:

• For congressional term limits, fiscal restraints and limiting the power of the federal government. Attempted in 2021, 2019, 2017 Senate and House, and 2015, first by Reps Bill Patmon and Christina Hagan, next by Senator Matt Huffman, and most recently by Reps Riordan McClain, Craig Riedel and 15 cosponsors.
  The language is so broad that delegates could propose all kinds of Amendments, and the Convention could stay in effect indefinitely.
  The resolution prevents Congress from having any oversight, sets 1 delegate per State, and prevents changes to the Bill of Rights. It also outlines how our delegate is to obey all instructions from the General Assembly.
• For federal debt increases to require approval from majority of State legislatures. Attempted in 2013 and 2011 by Rep Ron Maag.
• To limit Constitutional rights to human beings only (excluding organizations, and also animals, robots and extraterrestrials). Also to regulate election contributions. Attempted in 2013 and 2011 by Rep Dan Ramos.
• To require federal balanced budgets except during war, to give the President line-item veto, and 2 year budgets instead of annually. Attempted in 2011 and 2007 Senate and House, by Senators Keith Faber and Bill Coley and then-Rep Matt Huffman.

Convention of States Action organization

The Citizens for Self-Governance (CSC) organization’s initiative called Convention of States Action (COSA) is a noteworthy group with the goal of “proposing amendments that will impose fiscal restraints on the federal government, limit its power and jurisdiction, and impose term limits on its officials and members of Congress.”

COSA commissioner John Eastman undermined democracy

COSA held a simulation event in 2016 with people from across the country. In their short video covering the event, one of their featured commissioners and self-described advisory member is John Eastman, a man who conspired to undermine our democracy by overturning the 2020 election results. We cannot have this type of person in charge of changing our constitution.

In the 2020 election, Eastman recommended officials use a “historical rejection rate” in Pennsylvania instead of the real vote count, to “help provide some cover.” He also detailed steps for Vice President Pence to steal the election, recommending that he brazenly announce “there are no electors that can be deemed validly appointed in those [7] States”, adding “Pence should do this without asking for permission.”

On January 6th, Eastman yelled lies about a “secret folder” of fake ballots to the crowd that went on to break into the Capitol building. Later that day, he explicitly encouraged Pence to knowingly violate federal law, saying, “I implore you to consider one more relatively minor violation [of the Electoral Count Act] and adjourn for 10 days to allow legislatures to finish their investigations…”

A court ruling on Eastman’s emails implied he likely “engaged in a criminal conspiracy to defraud the United States in violation of 18 U.S.C. § 371.”

Did COSA know this was the type of person they were appointing to represent their cause? They’ve featured Eastman on their site even after the January 6th attack. How many others in COSA supported overturning the 2020 election results?

Even after everything Trump and his associates did to attack on our democracy, COSA co-founder Mark Meckler still says that Trump was “clearly” the better candidate in the 2020 election.

Polls provide insight into COSA intentions

Meckler is pro-life and has praised former President Trump for getting abortion rights protections overturned by the Supreme Court. In May 2022, COSA produced surveys with Trafalgar Group, asking if abortion should be legal and if it’s acceptable to protest at a Supreme Court Justice’s home over abortion rights. This suggests the intention of his Constitutional Convention may not be merely to restrain the federal government, but also to restrain the abortion rights of citizens.

Their abortion survey’s results are misleading because they didn’t include an option for upholding the nearly 50-year Supreme Court precedent of Roe v Wade. The only options they listed for protecting the life of the mother either (a) make abortion almost always illegal or (b) make partial birth abortion legal, neither of which includes any middle ground such as the fetal viability test established by court precedent. As a result of this omission, Trafalgar claims 58% of Americans want abortion to be mostly illegal. However, Pew Research’s recent survey found that number was only 37%, and they had 10 times as many respondents taking their survey compared to Trafalgar’s.

Would COSA use manipulated poll results to justify changing our US Constitution to enshrine states’ ability to outlaw abortions, or outright ban it nationwide, despite the fact that 61% of Americans actually want abortion to be mostly legal?

Resources

Ohio lawmakers join in push for national convention on balanced-budget amendment (2013)
Two Ohio lawmakers to introduce resolution calling for convention of states (2021)
Term limits, a balanced budget: Ohio Republicans want to amend the U.S. Constitution (2022)
DefendOurConstitution.org – a project of Common Cause

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