COMMONWEALTH OF PENNSYLVANIA HOUSE OF REPRESENTATIVES
HOUSE STATE GOVERNMENT COMMITTEE joint with the SENATE STATE GOVERNMENT COMMITTEE PUBLIC HEARING
STATE CAPITOL HARRISBURG, PA
IRVIS OFFICE BUILDING ROOM G-50
MONDAY, APRIL 13, 2 015 10:00 A.M.
PRESENTATION ON ARTICLE V CONVENTION (HR 63)
HOUSE STATE GOVERNMENT COMMITTEE MEMBERS PRESENT: HONORABLE DARYL METCALFE, MAJORITY CHAIRMAN HONORABLE GEORGE DUNBAR HONORABLE CRIS DUSH HONORABLE MATT GABLER HONORABLE KRISTIN HILL HONORABLE RICHARD IRVIN HONORABLE JERRY KNOWLES HONORABLE BRETT MILLER HONORABLE BRAD ROAE HONORABLE RICK SACCONE HONORABLE THOMAS SANKEY HONORABLE DAN TRUITT HONORABLE JUDITH WARD HONORABLE JEFF WHEELAND HONORABLE MARK COHEN, DEMOCRATIC CHAIRMAN HONORABLE LESLIE ACOSTA HONORABLE MARY JO DALEY HONORABLE PAMELA DELISSIO HONORABLE STEPHEN MCCARTER HONORABLE MICHAEL O ’BRIEN HONORABLE EDDIE DAY PASHINSKI HONORABLE RONALD WATERS 2
SENATE STATE GOVERNMENT COMMITTEE MEMBERS PRESENT: HONORABLE MIKE FOLMER, MAJORITY CHAIRMAN HONORABLE PATRICK STEFANO
Pennsylvania House of Representatives Commonwealth of Pennsylvania 3
HOUSE COMMITTEE STAFF PRESENT: SUSAN BOYLE MAJORITY EXECUTIVE DIRECTOR KAREN PENICA MAJORITY RESEARCH ANALYST PAM NEUGARD MAJORITY ADMINISTRATIVE ASSISTANT TY MCCAUSLIN MAJORITY PUBLIC RELATIONS COORDINATOR
KIM HILEMAN DEMOCRATIC EXECUTIVE DIRECTOR MATT HURLBURT DEMOCRATIC RESEARCH ANALYST KATHY SEIDL DEMOCRATIC RESEARCH ANALYST LINDA HUNTINGTON DEMOCRATIC LEGISLATIVE ASSISTANT
SENATE COMMITTEE STAFF PRESENT: GWENN DANDO MAJORITY EXECUTIVE DIRECTOR 4
I N D E X
TESTIFIERS
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NAME PAGE
REPRESENTATIVE MATT GABLER PRIME SPONSOR OF HR 63...... 6
MICHAEL BEKESHA, ESQ. STAFF ATTORNEY, JUDICIAL WATCH...... 11
MIKE FARRIS, JD, LLM HEAD OF CONVENTION OF STATES PROJECT, CONVENTION OF STATES...... 26
JANINE HANSEN STATE PRESIDENT, EAGLE FORUM...... 44
MIKE STERN COFOUNDER, BALANCED BUDGET AMENDMENT TASK FORCE...... 59
BARRY KAUFFMAN EXECUTIVE DIRECTOR, COMMON CAUSE PENNSYLVANIA...... 75
NICK DRANIAS PRESIDENT AND EXECUTIVE DIRECTOR, COMPACT FOR AMERICA EDUCATIONAL FOUNDATION, INC... 91
MATTHEW SPALDING, PhD ASSOCIATE VICE PRESIDENT AND DEAN OF EDUCATIONAL PROGRAMS, HILLSDALE COLLEGE, ALLAN P. KIRBY, JR. CENTER FOR CONSTITUTIONAL STUDIES AND CITIZENSHIP...... 108
SUBMITTED WRITTEN TESTIMONY
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'See submitted written testimony and handouts online 1 P R O C E E D I N G S
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3 MAJORITY CHAIRMAN METCALFE: Today’s hearing is
4 going to be a joint hearing between the House and the
5 Senate State Government Committees. And we have a number
6 of testifiers here today. Senator Folmer is on his way.
7 His director is here. Gwenn is with us already. And we do
8 have some opening remarks so I want to get started since
9 it’s going to be a tight schedule. If I could ask
10 everybody to please rise, w e ’ll start with the Pledge.
11 Representative Gabler, I ’d ask you to lead us in the
12 Pledge, sir.
13 REPRESENTATIVE GABLER: Absolutely.
14
15 (The Pledge of Allegiance was recited.)
16
17 MAJORITY CHAIRMAN METCALFE: And just to kind of
18 get us rolling before Senator Folmer, the Chair of the
19 Senate State Government Committee, arrives to get us
20 rolling here with our first testifier. We do have some
21 opening remarks from Representative Gabler that w e ’ll start
22 with prior to our first testifier. Just so we don’t waste
23 any time, w e ’ll start with Representative Gabler’s remarks
24 related to his resolution that he’s proposing that we’re
25 holding this on today, along with the broader concept of a 6
1 Constitutional Convention under some other initiatives,
2 Balanced Budget Amendment Initiative that’s been around I
3 think since the ’7 0s and Compact for America and the
4 Convention of the States. And there’s some other ideas out
5 there. So Representative Gabler does have the resolution
6 that calls for the Convention of the States.
7 Representative Gabler.
8 REPRESENTATIVE GABLER: Chairman Metcalfe, thank
9 you very much. And I look forward to having Chairman
10 Folmer join us. I want to thank both of you I want to
11 thank the Members of the House and Senate State Government
12 Committees for taking the opportunity to hear testimony
13 about the proposal contained in House Resolution 63, which
14 calls for a limited Article V Convention under the United
15 States Constitution. I ’m looking forward to hearing some
16 enlightening testimony this morning and I ’m excited to have
17 a conversation about this important topic.
18 As State legislators, perhaps many of you have
19 had similar experiences to the ones I ’ve had in my
20 district. As I speak with constituents, a frequent
21 sentiment that I hear expresses frustration with "that mess
22 in Washington." As I discuss the efforts that we make in
23 Harrisburg to try to make government work better for the
24 citizens of our State, I often hear people say that, while
25 that is all well and good, what about the big mess in 7
1 Washington? What can we do about that? Well, 99 percent
2 of the time the answer is nothing.
3 As State legislators, we don’t make Federal laws.
4 But there is one means available to us today provided by
5 the Framers of the United States Constitution that enables
6 us to have a tangible input. And that is they provided
7 State Legislatures with the ability to call a Convention of
8 the States for the purpose of proposing amendments to the
9 United States Constitution. Now, this has never been done
10 since the Constitution was signed in 1787 and ratified the
11 following year. All 17 amendments adopted after the Bill
12 of Rights have been proposed through the other means
13 provided in Article V, which is proposal by Congress.
14 I believe that the Framers of our Constitution
15 would be surprised if they saw the government of the United
16 States today. State budgets can’t be conceived without
17 huge strings attached of billions of Federal dollars.
18 Recently, the Bureau of Alcohol, Tobacco, and Firearms, an
19 agency of unelected Federal bureaucrats, proposed to ban an
20 entire category of ammunition with no accountability to
21 voters or to the States.
22 We see an increasing involvement of Federal
23 control over education with Federal dollars attached to the
24 implementation of Common Core. The citizens of this
25 country feel that they’ve lost control of their republic. 8
1 I don’t believe that the Constitution is wrong.
2 I believe that the interpretation of it that gives these
3 Federal agencies this much power is wrong. Here’s our
4 problem though: The powers that be in Washington have
5 bought into this interpretation. Can we trust the Federal
6 Courts to simply wake up and see the error of their ways?
7 Can we trust Congress and the President to limit their own
8 powers? Perhaps a solution worth considering would be
9 adopting language through Article V that could strengthen
10 limits on the powers of the Federal Government and its
11 officers.
12 I introduced House Resolution 63 because I
13 believe the concept of a limited Article V convention is
14 worth exploring. House Resolution 63 and the companion
15 resolutions filed in a few dozen other States call for a
16 limited convention to have only the power to consider
17 amendments that would further limit the powers of the
18 Federal Government and its officers.
19 The Constitution does not give rights to
20 citizens. We already have them endowed by our Creator.
21 But what the Constitution does do is it stops the Federal
22 Government from taking those rights away. Perhaps our
23 Constitution needs some help in stopping a runaway Federal
24 Government. That’s why I ’ve introduced this resolution.
25 I’m looking forward to the testimony this morning 9
1 and learning the perspectives of our esteemed guests on
2 both sides of this important question. Thank you very
3 much.
4 HOUSE MAJORITY CHAIRMAN METCALFE: Thank you,
5 Representative Gabler, for those opening remarks.
6 And our Chair of the Senate State Government
7 Committee is here, Senator Mike Folmer, who will be kicking
8 us off with the introduction of testifiers. So thank you
9 for joining with the House to do this joint hearing today,
10 Senator.
11 SENATE MAJORITY CHAIRMAN FOLMER: And thank you
12 very much, Chairman Metcalfe. This is a great time to have
13 exposure. I ’m just going to read a couple comments quick
14 before we get into the testifying.
15 I really appreciate the opportunity to partner
16 with you, Representative Metcalfe and Members of the House
17 Committee, to discuss this very important issue.
18 While I believe changes are needed to amend the
19 U.S. Constitution, I nonetheless have a number of concerns
20 with such an endeavor. Beginning with potential problems
21 of a "runaway convention” where prior former government is
22 scrapped in favor of a new one. I ’m also interested in
23 hearing people’s opinions about the theory of "the living
24 Constitution," which I believe is a 20th century invention
25 to avoid the work of properly amending the Constitution, as 10
1 outlined by our Forefathers.
2 I also would like to get some reactions to the
3 Liberty Amendments I introduced last session, including the
4 Congressional term limits, repeal the 17th Amendment, term
5 limits for Supreme Court Justices, limiting Federal
6 spending, limiting Federal taxation, promoting free
7 enterprise, States’ authority to directly amend the
8 Constitution, granting States authority to check Congress,
9 and protecting the vote. I also would like to get some
10 input on the nullification of Federal laws which were first
11 proposed by Thomas Jefferson, James Madison, and John C.
12 Calhoun but never actually applied by any State in the
13 Nation.
14 If possible, I also would like to hear some
15 opinions about proposals to amend the U.S. Constitution to
16 overturn the U.S. Supreme Court decision on Citizen United,
17 which some contend likens political contributions to free
18 speech and equates corporations to the rights of human
19 beings.
20 I also would like some thoughts on linking public
21 opinion polls to setting public policy, which elected
22 officials commit to supporting one side of an issue while
23 public opinion polls show a solid majority of support for a
24 particular position.
25 Finally, I hope to get some thoughts on the 11
1 National Popular Vote Initiative, whose advocates contend
2 they can preserve the Electoral College but establish a
3 popular vote for the President with 11 jurisdictions with
4 165 electoral votes, 61 percent of the 270 electoral votes
5 to activate it.
6 I look forward to these discussions and we will
7 go right into our first testifier, which will be Mr.
8 Michael Bekesha, Esquire. Please come forward and make
9 sure your green light is on. If you would, could you
10 summarize your testimony so we would have some time for
11 questions -
12 MR. BEKESHA: Absolutely.
13 SENATE MAJORITY CHAIRMAN FOLMER: — for
14 everybody, okay?
15 MR. BEKESHA: Sure. Good morning. I ’m Michael
16 Bekesha, an attorney at Judicial Watch.
17 Judicial Watch is a Washington, DC-based
18 educational foundation dedicated to promoting transparency,
19 integrity, and accountability in government and fidelity to
20 the rule of law.
21 Thank you, Chairman Metcalfe and Chairman Folmer
22 for inviting me here today. It’s always an honor for me to
23 come before this Committee on behalf of Judicial Watch.
24 About four years ago I reported to this Committee
25 that the Federal Government had decided, rather shockingly 12
1 I must say, not to enforce Federal immigration laws. It is
2 therefore with mixed emotions that I return to this
3 Committee to provide you and your colleagues with an
4 overview of how the Federal Government has continued to
5 disregard the rule of law.
6 As the first witness to appear before this
7 Committee today, I thought I would take this opportunity to
8 define the problem at the heart of the movement for an
9 Article V Convention in the out-of-control Federal
10 Government. As the public well knows, the U.S.
11 Constitution establishes a system of dual sovereignty
12 between the States and the Federal Government. The
13 Founders created a Federal system of government in order to
14 protect the individual liberties of the people. Under this
15 system, the authority of the Federal Government is limited
16 to those powers specifically enumerated in the
17 Constitution. Unfortunately, those within the Federal
18 Government apparently do not understand the importance of
19 this Constitutional system.
20 With that being said, I thought I would address
21 two specific topics that Judicial Watch routinely monitors:
22 wasteful government spending and abuse of Federal power.
23 On our website we have a tag designated specifically to
24 report outrageous expenditures. A few highlights:
25 • Since 2009, President Obama, Vice President 13
1 Biden, and their families have spent more than
2 $56 million for travel, for vacations, and
3 fundraisers.
4 • Since 2002, the U.S. Treasury has spent over
5 $110 million to educate the public about
6 redesigning the various dollar bills.
7 • The State Department spent $18.5 million to
8 renovate a prison in Afghanistan that still is
9 unfinished and not being used.
10 • Approximately $684 million were spent to
11 publicize, market, and advertise the Affordable
12 Care Act.
13 • About $500 million was given to alternative
14 energy companies that collapsed shortly after
15 they received Federal funding.
16 • And also about $65 million were provided to New
17 York and New Jersey so that those States could
18 buy television ads promoting tourism after
19 Hurricane Sandy. Just to be clear, that money
20 was not spent to help rebuild communities but
21 simply to spend money on television advertising.
22
23 In addition to Judicial Watch’s reporting,
24 Senator Tom Coburn of Oklahoma publishes an annual list of
25 the most wasteful government projects. Each year he finds 14
1 approximately $40 billion of taxpayer money that was spent
2 on what he describes as outrageous Federal Government
3 projects.
4 Also, just recently, the Washington Examiner
5 reported that "taxpayers could save as much as $43 billion.
6 The Examiner arrived at this number by reviewing the
7 reports of Inspectors General of 14 agencies. The
8 Inspectors General reported that they had returned almost
9 $11 billion to the U.S. Treasury as a direct result of
10 their investigations and that $32 billion additionally
11 could be saved if the agencies implemented their management
12 recommendations.
13 This is only a fraction of what Judicial Watch
14 and others have exposed, but the examples and the numbers
15 speak for themselves. Federal Government officials are
16 spending taxpayer money without much thought. As the
17 Heritage Foundation concluded, the Federal Government
18 "spent nearly $3.5 trillion in 2014 while collecting nearly
19 $3 trillion in revenues, resulting in a deficit of slightly
20 less than half a trillion dollars. In other words, 14
21 cents of every dollar that the Federal Government spent in
22 2014 was borrowed." It appears that the Federal Government
23 spends money as though it is not their own. Well, that is
24 because the money is not that of the Federal Government; it
25 is that of the people. And, right now, there is no self 15
1 restraint in astronomical spending.
2 It is with great dismay that I must say that
3 there is no end in sight to wasteful spending by the
4 Federal Government. Similarly, there is no end in sight to
5 the Federal Government acting outside its legal authority.
6 As I mentioned earlier, when I appeared before this
7 Committee about four years ago, I had hoped that the
8 Federal Government's indifference to the rule of law was an
9 aberration. Unfortunately, we've come to learn that it is
10 the norm. The Federal Government continues to disregard
11 laws, violate State sovereignty, and ignore Constitutional
12 limits.
13 The list of abuses of the Federal Government is
14 long. Therefore, I will focus on two particular instances
15 that highlight the problem. First, the Federal Government
16 continues to ignore immigration laws passed by Congress and
17 signed by the President almost 30 years ago. In trying to
18 grant lawful residence to at least five million individuals
19 who are in this country unlawfully, the executive branch
20 has ignored numerous statutes and provided individuals with
21 not only promises that they will not be deported but also
22 provided them with the opportunities to apply for benefits
23 and services that they otherwise would not be able to
24 receive.
25 I will not go into any more detail about those 16
1 abuses, except to say that 21 States and five Governors
2 have sued the Federal Government to stop it. So far, one
3 Federal Court has agreed that the Federal Government has
4 gone too far.
5 Second, in passing the Affordable Care Act, the
6 Federal Government sought to expand Medicaid coverage.
7 After the passage of the law, 26 states, including
8 Pennsylvania, sued to prevent the coercion of States by the
9 Federal Government. The Supreme Court by a 7-2 vote found
10 that the Federal Government overstepped its Constitutional
11 authority and sought to unconstitutionally coerce the
12 States to provide Medicaid to additional individuals.
13 Although the Supreme Court struck down the law, it will not
14 be the last time that the Federal Government seeks to
15 unconstitutionally violate the sovereignty of the States.
16 Just recently, Lawrence Tribe, a highly regarded
17 Constitutional scholar at Harvard and a mentor to President
18 Obama, argued that the Federal Government’s requirement
19 that States cut carbon emissions by changing energy
20 supplies from fossil fuels to renewable sources is an
21 assertion of power far beyond its lawful and Constitutional
22 authority. In other words, there is no end in sight to
23 unlawful coercion of the States by the Federal Government.
24 As is evident from these examples, the abuses of
25 power are not solely a result of one branch of the Federal 17
1 Government. Both the executive and legislative branches
2 are complicit in overstepping Constitutional boundaries.
3 In addition, although the Federal Judiciary has at times
4 stopped these abuses, the American people cannot rely on it
5 to do so in every circumstance.
6 However, what is clear from these two examples is
7 that the majority of the States have come together to send
8 a message to the Federal Government that they will not sit
9 quietly as the Federal Government ignores the basic tenets
10 of our Constitutional system. Whether by litigation,
11 Constitutional Convention, or other available tools, the
12 public should be assured that States like Pennsylvania are
13 doing everything in their power to protect the public from
14 an out-of-control Federal Government. The Framers would
15 approve.
16 Thank you.
17 HOUSE MAJORITY CHAIRMAN METCALFE: Thank you,
18 Michael. Thank you for joining us again. We appreciate
19 it.
20 We have some Members that have questions.
21 Senator Folmer, would you like to start off with any?
22 SENATE MAJORITY CHAIRMAN FOLMER: Yes. I have
23 two for you, sir, and real quick, and I realize that time
24 is pressing and we want to get to everybody because this is
25 a very, very important issue that w e ’re trying to bring 18
1 enlightenment to and bet.
2 My first question to you is basically you do a
3 great job in highlighting the problems going forward, and I
4 don’t mean this as a criticism, but it’s a little short on
5 the specifics of how do we overcome these issues? And I
6 would just like to know specifically what you would
7 recommend from the Judicial Watch what should be done to
8 help us get this out-of-control Federal Government issue
9 out of the way?
10 MR. BEKESHA: I think there are two parts to
11 that. The first answer is to enforce the laws that are
12 already on the books.
13 SENATE MAJORITY CHAIRMAN FOLMER: Got you.
14 MR. BEKESHA: I think whether it’s Congressional
15 oversight, State oversight, the State litigation,
16 organizations like Judicial Watch bringing these issues to
17 the forefront, that’s important. And then the next step is
18 to figure out what can be done. Whether it’s a convention,
19 whether it’s other avenues, it’s time for the States, in
20 their important role in the Constitution system, to act.
21 SENATE MAJORITY CHAIRMAN FOLMER: Okay. Well,
22 thank you. And my second question is kind of along the
23 same lines. I think back when I was first elected I put in
24 a Senate Resolution, it was just a resolution, to call upon
25 the Federal Congress to adhere to the 10th Amendment, plain 19
1 and simple. What can or should be done to better highlight
2 the Federal Government’s failure to adhere to the 10th
3 Amendment? Here’s my point: I believe we’ve gotten to the
4 point here on the national basis that rather than 50
5 independent States, each with their own problems each with
6 their ability to take care of those problems, under a
7 Federal system of government we more or less have become in
8 my opinion 50 administrative units at the beck and call of
9 the Federal Government for whatever they want to do. And I
10 would rather stress that we are 50 independent States in a
11 republic, understanding that there’s a role for the Federal
12 Government and understand there’s a role for State
13 Governments. How can we bring that wall of separation
14 again without hurting the Federal system of government of
15 this great republic as we are known?
16 MR. BEKESHA: Sure. I think States individually
17 could take a stronger position against the Federal
18 Government, whether it’s not taking Federal money, whether
19 it’s doing whatever is in its powers to stop the Federal
20 Government from interfering with the States. I mean I
21 think you’re right. I think some of these lawsuits have
22 shown that States can come together and fight but
23 individual States should do the same.
24 When it comes to immigration, Arizona, Texas,
25 those States have tried, Pennsylvania has tried, and I 20
1 think that’s important. I think States need to continue to
2 do that.
3 SENATE MAJORITY CHAIRMAN FOLMER: Okay. Thank
4 you very much.
5 MR. BEKESHA: Thank you.
6 HOUSE MAJORITY CHAIRMAN METCALFE: Thank you,
7 Senator Folmer.
8 And just a reminder for our Members from the
9 House on how we run the hearing, we have a certain limited
10 time for Q&A to respect the time of our guests and future
11 testifiers and the Members, so we will be ending the Q&A at
12 the time prescribed on your Agenda or thereabouts, within a
13 minute or two, so we keep things moving this morning. And
14 we ’ll try and alternate back and forth from party to party,
15 on chamber to chamber to make sure that everybody gets a
16 chance. And if we run out of time for your question, w e ’ll
17 recognize you for the next testifier so you can maybe get
18 it in there. But I would ask everybody’s indulgence with
19 that so we can stay on time.
20 Representative O ’Brien I believe had a question.
21 REPRESENTATIVE O ’BRIEN: Thank you, Mr. Chairman.
22 Let’s begin if we can by establishing the
23 dialectics of this conversation. Certainly one can make
24 the argument that a conversation on the Articles of
25 Confederation became runaway, became the Constitutional 21
1 Convention, and in essence established a new form of
2 government.
3 So talk to me for a moment about checks and
4 balances that were to go into an Article V Convention to
5 prevent it from becoming runaway.
6 MR. BEKESHA: I think what a lot of the
7 testifiers will talk about today would be, within the
8 applications of the States, to limit the convention to a
9 very specific purpose. And I think that's the biggest
10 check. When Congress calls the convention, it can do so
11 for a limited purpose.
12 REPRESENTATIVE O'BRIEN: And there's no way to
13 amend that to expand the basis of it, the breadth of
14 conversation?
15 MR. BEKESHA: I think there's always a concern
16 that people will ignore the rule of law, ignore what
17 they're meant to do, but that's possible in all
18 circumstances. But if Congress calls a convention for a
19 limited purpose, that's what should be done.
20 REPRESENTATIVE O'BRIEN: Chairman knows I'm a fan
21 of process. There's no process to suspend the rules?
22 MR. BEKESHA: The Constitution doesn't outline a
23 process for the convention, that's correct.
24 REPRESENTATIVE O'BRIEN: Thank you, Mr. Chairman.
25 HOUSE MAJORITY CHAIRMAN METCALFE: Thank you, 22
1 Representative O'Brien.
2 Next question from Representative Knowles.
3 REPRESENTATIVE KNOWLES: Thank you, Mr. Chairman.
4 Just to continue along the lines of
5 Representative O'Brien, from what I gather, there's no
6 precedence that has been set in terms of a runaway
7 convention, and if someone would make the wrong decision on
8 that, it would be a runaway convention, and I guess how
9 possible do you think that is that since precedence has not
10 been set, that that could be a real problem?
11 MR. BEKESHA: I think there's always a concern
12 that process won't be followed but I think what's important
13 to understand is that the States should do everything in
14 their power to start to curb the Federal Government abuses
15 of power, and I think this would be one way that it could
16 be done. It may not be the only way. There may be others.
17 But again, process needs to be followed. The rule of law
18 needs to be followed.
19 And the questions that I'm hearing today is
20 what's wrong with the Federal Government? No one cares
21 about process. No one cares about the rules in the Federal
22 Government. So if these questions are important, they're
23 important to ask, important to think about, but at some
24 point every individual for themselves, every government
25 official has to decide am I going to follow a process, 23
1 follow the rule of law or just ignore it?
2 REPRESENTATIVE KNOWLES: Okay. I ’ll be real
3 quick, Mr. Chairman. The reason I asked that question is
4 I ’m getting calls and emails from the same group, from very
5 conservatives who on one hand are saying this should be
6 done and then on the other hand they’re saying it should
7 not be done because of their fear for a runaway convention.
8 So thank you, Mr. Chairman.
9 HOUSE MAJORITY CHAIRMAN METCALFE: Thank you,
10 Representative Knowles.
11 Representative Pashinski.
12 REPRESENTATIVE PASHINSKI: Thank you,
13 Mr. Chairman.
14 Thank you, sir, for your testimony.
15 I ’ve also been getting a lot of comments from
16 folks saying the Constitution is fine. It’s the people
17 that are in charge that’s messing things up. And you
18 yourself have indicated based upon the question that was
19 previously asked, there are no safeguards to an Article V
20 Convention, so that process in itself is tainted, is it
21 not?
22 MR. BEKESHA: It could be. Unfortunately, since
23 it’s unprecedented, you don’t know what’s going to happen
24 until you have it. But I think what’s important to know is
25 that there are rules in place, there are laws currently in 24
1 place, and this is just one option that States should
2 explore to figure out whether or not this is the proper
3 tool to use to curb the Federal Government.
4 REPRESENTATIVE PASHINSKI: And in pursuing that a
5 little further, I mean each one of us here on a State level
6 have every right to call on our Congressmen and our
7 Senators from this State to engage in discussion as well.
8 That way might be a lot safer of a process in order to make
9 our case rather than lead to an Article V Convention that
10 could be a runaway convention.
11 MR. BEKESHA: It could be and hopefully your
12 Congressman or Congresswoman would listen to your concerns
13 and then take those back to Washington and do something
14 with it. The problem that a lot of people see these days
15 is that Washington is out of control and they’re not
16 listening to the people of the States.
17 REPRESENTATIVE PASHINSKI: Well, then w e ’ll have
18 to get our Congressmen and Senators in control in PA.
19 Thank you, sir.
20 Thank you, Mr. Chairman.
21 HOUSE MAJORITY CHAIRMAN METCALFE: Thank you,
22 Representative Pashinski.
23 Our final question from Representative Truitt for
24 this testifier.
25 REPRESENTATIVE TRUITT: Thank you, Mr. Chairman. 25
1 Thank you, Mr. Bekesha, for your testimony.
2 My takeaway from what you said is it sounds to me
3 like it’s more important for us to reign in the Federal
4 Government by preventing them from overstepping their
5 bounds than it is to revise the Constitution. What you
6 said kind of mirrored what I ’m hearing from a lot of
7 constituents who say the Constitution isn’t the problem;
8 the problem is that we don’t follow it. So what good does
9 it do us to modify the Constitution if we still have no
10 assurance that it will be followed after we modify it?
11 MR. BEKESHA: Again, I think that’s a concern,
12 but what I think is important that this hearing is being
13 held today that you and your colleagues are tackling the
14 issue, addressing the issue, your constituents are thinking
15 about the issue, realizing that the Federal Government has
16 overstepped its bounds and that action should be taken,
17 must be taken to fix it. And you’re right; the
18 Constitution could be amended and those in power may ignore
19 it. But potentially with some stronger language it may be
20 more difficult for them to do so. It also may allow the
21 Federal Judiciary to see issues a little bit differently
22 and have a little more strength in reviewing actions by the
23 Federal Government.
24 REPRESENTATIVE TRUITT: So you’re saying if we
25 could amend the Constitution in a way that makes things 26
1 more clear, takes away some of the ambiguity, then it
2 wouldn’t be as easy for them to go around it?
3 MR. BEKESHA: Hopefully, yes.
4 REPRESENTATIVE TRUITT: Okay. Thank you,
5 Mr. Chairman.
6 HOUSE MAJORITY CHAIRMAN METCALFE: Thank you,
7 Representative Truitt.
8 Thank you, Mr. Bekesha.
9 MR. BEKESHA: Thank you very much.
10 SENATE MAJORITY CHAIRMAN FOLMER: Our next
11 testifier will be Mr. Mike Farris, the Head of Convention
12 of States Project. Mr. Farris. Thank you for joining us.
13 If you could, sir, summarize -
14 MR. FARRIS: Sure.
15 SENATE MAJORITY CHAIRMAN FOLMER: — because I
16 know I had a bunch of questions for you. But anyway, if
17 you could -
18 MR. FARRIS: That’s fine.
19 SENATE MAJORITY CHAIRMAN FOLMER: — just
20 summarize so we could -
21 MR. FARRIS: I will try to do so. I ’m not going
22 to read you my testimony but I would encourage you to take
23 a look at it. Some of the questions that were already
24 asked I address in my written testimony.
25 For the record, my name is Michael Farris. I ’m 27
1 the Chancellor of Patrick Henry College where I teach
2 Constitutional law. I am one of the few attorneys in the
3 country who has actually litigated an Article V case. When
4 the Equal Rights Amendment was given an additional 3-1/2
5 years for ratification back in the late 1970s, I filed the
6 first Constitutional Challenge to that manipulation of the
7 Article V process on behalf of four Washington State
8 legislators. And together with legislators from Arizona
9 and Idaho we litigated in Federal Court in Boise, Idaho,
10 and we won that case at the Federal District Court level.
11 It became moot when the second deadline passed without 38
12 States ratifying, so it created a persuasive but not a
13 binding precedent.
14 But the basic rule from that case is you can’t
15 change the rules in the middle of the stream. So a lot of
16 the arguments about the potential for runaway convention
17 have been addressed at least in part by that litigation
18 that you can’t change the rules in the middle of the
19 stream.
20 Most of the authorities and duties that this body
21 has come from the Pennsylvania Constitution, but this one
22 duty that w e ’re talking about today comes to you directly
23 from Article V of the United States Constitution and it
24 gives you both your highest authority and your highest
25 responsibility, and that is to lawfully amend the 28
1 Constitution of the United States.
2 The problem that we're facing in this country is
3 we effectively have two Constitutions. We have the
4 Constitution as written and we have the Constitution as
5 interpreted by the Supreme Court, and those are rarely the
6 same thing. And so the effort that we are engaged in here
7 today is an effort to try to amend the Constitution as
8 interpreted by the Supreme Court to look a whole lot more
9 like the Constitution as written. You can reverse the
10 Supreme Court and make it stick. The Supreme Court said in
11 Dred Scott, black people can't ever be citizens. That got
12 reversed in the 13th and 14th Amendment and it has stuck.
13 Despite the equal protection clauses, the Supreme
14 Court said women can't vote. The 19th Amendment reversed
15 the Supreme Court in that case and it stayed reversed. The
16 Supreme Court of the United States said religious freedom
17 was a second-class right in Employment Division v. Smith.
18 The result of that was the Religious Freedom Restoration
19 Act that I named and was the chairman of the group of
20 lawyers in Washington, DC, who wrote it.
21 The Hobby Lobby decision decided last summer
22 reversed the stance of the Supreme Court, and the Judge
23 that wrote Smith voted in favor of religious freedom in the
24 Hobby Lobby case. You can reverse the Supreme Court if you
25 know what you're doing and you write language correctly. 29
1 So we can reverse the Supreme Court in the areas of the
2 interpretation of the Commerce Clause, interpretation of
3 the General Welfare Clause.
4 The reason that this Legislature has become, as
5 Chairman Folmer has so accurately described, and
6 legislators all over the country feel the same way, 50
7 administrative units at the beck and call of the Federal
8 Government is because of a misuse of the General Welfare
9 Clause. It would be a simple one-sentence fix to the
10 General Welfare Clause to stop that because it’s not the
11 text of the General Welfare Clause that’s the problem; it’s
12 the interpretation of the General Welfare Clause that the
13 Supreme Court has given in a number of cases. That’s the
14 problem and that can be fixed.
15 Chairman Folmer, all of the Liberty Amendments
16 that you’ve proposed would be germane under the application
17 that’s contained in HR 63. Mark Levin, who wrote the book
18 The Liberty Amendments has endorsed our project and is on
19 board as one of our legal advisors for this.
20 Our application seeks to address the scope of the
21 problem that’s been addressed so far, and that is we seek
22 to impose fiscal restraints on the Federal Government,
23 limit the power and jurisdiction of the Federal Government,
24 principally the General Welfare Clause and the Commerce
25 Clause, and to impose term limits on Federal officials. 30
1 It's a rule of germaneness at this point in that we're
2 saying we're going to get the States together with the
3 authority to propose formal amendments.
4 Contrary to the prior testimony, there are checks
5 and balances on this; there are rules. And the ultimate
6 rule is 38 States have to ratify. The suggestion that was
7 made by one of the questions that the original
8 Constitutional Convention was the result of an illegal
9 runaway convention is what I believed as well. It's what I
10 was taught all the way through law school. It's just not
11 true.
12 In Federalist 40 James Madison lays out the truth
13 for you and you can also go look at the archives of the
14 Commonwealth of Pennsylvania because this Commonwealth was
15 one of the places that called the convention. Congress did
16 not call the Constitutional Convention; the States did.
17 And the States told their delegates to render the Federal
18 Constitution adequate for the exigencies of the Union. It
19 is one of the grandest myths of all time that it was called
20 only to amend the Articles of Confederation. That's simply
21 not what actually happened. And so this two-page document
22 that was handed out to you this morning gives you the
23 accurate history. If you want to check me, go read
24 Federalist 40.
25 You're going to hear from the following witness 31
1 that all kinds of things could be -- the Parental Rights
2 Amendment, abortion, marriage, all manner of things could
3 be addressed under the application that w e ’re advocating.
4 You’ve heard this someplace. I ’m the one who drafted this.
5 I ’m here to tell you this is just simply not true, and if
6 it would be true, I would be the one that would be for it,
7 because the Parental Rights Amendment is something that I
8 work in my other job that I have with Home School Legal
9 Defense Association. But that’s done through the normal
10 process. W e ’ve got that pending in Congress. It is not
11 germane here. So despite what somebody from Nevada heard,
12 it’s just not true.
13 The question that I ’ll ask and answer is why has
14 this process not been followed? And it’s because of
15 irrational fear. Irrational fear is fear that’s based on
16 something that’s not true. It is not true that the
17 original Constitutional Convention was a runaway
18 convention. The vast majority of fear comes from that
19 false history. It is not true that there are no checks and
20 balances. Thirty-eight States must ratify anything that
21 comes out.
22 This process is almost identical to the process
23 that’s been in place for 100 years or more with the Uniform
24 State Law Commission. The States get together, they
25 propose a topic, the Commissioners meet, one State, one 32
1 vote. They describe the topic, they propose laws like the
2 Uniform Commercial Code, Uniform Adoption Codes, and so on,
3 and they’ll come back to the States for adoption. That’s
4 exactly the same process you follow here. It’s one State,
5 one vote and it will come back to this body for
6 ratification, whatever comes out.
7 The last thing to note in this regard is the
8 famous statement by Warren Burger. Warren Burger also said
9 in a non-scholarly fashion -- the quote from Warren Burger
10 comes from a letter to Phyllis Schlafly, not exactly
11 scholarship. He also said in Parade magazine the Second
12 Amendment is an anachronism; we should ignore it. I don’t
13 think that Warren Burger, when he’s speaking in a non-
14 scholarly fashion, deserves any extra attention over people
15 who’ve actually studied the issue and know what they’re
16 talking about.
17 It’s time for the States to get together with
18 other States to carry out your responsibility. You cannot
19 campaign against Washington, DC, any longer unless you’re
20 going to actually do something that the Constitution gives
21 you the authority do and that is stop their abuse of power.
22 Thank you very much.
23 HOUSE MAJORITY CHAIRMAN METCALFE: Thank you,
24 Mr. Farris. I met you in DC last year in December and
25 asked you if you’d be willing to come up and testify, and 33
1 after talking with Senator Folmer, he was interested in the
2 issue also. That’s why we ended up having a joint hearing
3 so we appreciate you -
4 MR. FARRIS: Great.
5 HOUSE MAJORITY CHAIRMAN METCALFE: -- making the
6 trip. We thought w e ’d try and get you before the Senate
7 and the House Committee.
8 We have about 10 Members that want to ask
9 questions so if we could have the Members, when you do get
10 a chance, to be light on the pontification and heavy on the
11 questions so we can get the expert testimony.
12 And Senator Folmer would be the first to want to
13 lead off with a question.
14 SENATE MAJORITY CHAIRMAN FOLMER: I have a litany
15 of questions. I ’m trying to prioritize my questions for
16 you. You answered a lot of my issues on the runaway
17 convention scenario, which I would like to speak with you
18 at a further time on -
19 MR. FARRIS: Sure.
20 SENATE MAJORITY CHAIRMAN FOLMER: — to further
21 clarify those things.
22 In our State Constitution, Pennsylvania State
23 Constitution, Article I, Section 2, which I believe many
24 people don’t realize is there, says that "All power is
25 inherent in the people, and all free governments are 34
1 founded on their authority and instituted for their peace,
2 safety, and happiness. For the advancement of these ends
3 they [the people] have at all times an inalienable and
4 indefeasible right to alter, reform, or abolish their
5 government in such manner as they may think proper.” It
6 was always stressed that it should be bottom-up and so
7 forth as w e ’re trying to deal with these issues.
8 Now, one of the big issues going forward that I ’m
9 seeing and the one question w e ’d like to ask you is this:
10 One of the Constitutional changes proposed by various
11 advocacy groups is an amendment to overturn a U.S. Supreme
12 Court’s Citizens United decision. Critics of Citizens
13 United contend this decision incorrectly likens political
14 contributions with free speech and equates corporations to
15 human beings entitled to the Constitutional rights of
16 people. What are your thoughts on this decision, the need
17 to overturn it by amendment? I’m especially interested in
18 knowing if you think attempting to reverse this decision by
19 Constitutional amendment would conflict with the First
20 Amendment rights of free speech.
21 MR. FARRIS: Senator, first of all, the HR 63, an
22 amendment relative to Citizens United would not be germane.
23 And so there are other people that are proposing such
24 amendments and I ’m not supporting those efforts. I believe
25 that if we wanted to transfer jurisdiction of election law 35
1 from the Federal Government to the State Governments, that
2 could be considered, but a general overturning of
3 contribution limits and so on, I think that we are in deep
4 trouble when we start messing with the First Amendment.
5 Nothing in our application would give the convention any
6 ability to mess with the First Amendment, the Second
7 Amendment. One of the Members -
8 HOUSE MAJORITY CHAIRMAN METCALFE: Mr. Farris —
9 MR. FARRIS: Yes.
10 HOUSE MAJORITY CHAIRMAN METCALFE: -- we have 10
11 other Members that have questions besides just -
12 MR. FARRIS: Okay.
13 HOUSE MAJORITY CHAIRMAN METCALFE: Not to cut you
14 off but if could keep your -
15 MR. FARRIS: Okay.
16 HOUSE MAJORITY CHAIRMAN METCALFE: -- answer as
17 concise -- w e ’ll try and get through as many questions as
18 possible because -
19 MR. FARRIS: I ’ll leave it at that then.
20 HOUSE MAJORITY CHAIRMAN METCALFE: We could spend
21 hours with you -
22 MR. FARRIS: Right.
23 HOUSE MAJORITY CHAIRMAN METCALFE: -- and we
24 appreciate you making the trip.
25 Representative Gabler. 36
1 REPRESENTATIVE GABLER: Thank you very much,
2 Mr. Chairman, and thank you so much for your testimony.
3 I want to take an opportunity to really drive at
4 the crux of the whole -- because it's interesting; people
5 that have the same political philosophy are disagreeing
6 over this issue and it seems to be over one thing, and that
7 is does the concept of a limited convention exist? And so
8 let me just ask you, what would happen under an Article V
9 Convention proposed with this language in House Resolution
10 63, the convention is called, delegates get in there and
11 start trying to go onto a topic that's out of bounds, what
12 are the protections? How would that work? And is it
13 possible to limit it?
14 MR. FARRIS: A limited convention does exist
15 because there have been 400 plus applications and we've
16 never had one because there's never been an agreement on
17 the subject matter. Subject matter agreement is an
18 absolute rule to start the convention. The checks and
19 balances include it's one State, one vote; 34 States that
20 call the convention say you go there and discuss X. And
21 they are going to instruct their delegates to only go there
22 -- now, unless 34 States just simply take leave of their
23 senses, in fact since it's one State, one vote, as long as
24 26 States are faithful to their instructions, you can't
25 pass anything that gets through that. 37
1 Second stage is if they violate that, I ’ll sue
2 them. I sued them when they messed up on the Equal Rights
3 Amendment and I won and I ’ll do it again and I ’ll win
4 again. But the final stage is this: 38 States have to
5 ratify, and it means when a single House votes "no" in a
6 State, that State votes "no." And so 13 bodies out of 99
7 State legislative bodies, as long as they’re from different
8 States, vote "no," the answer is "no."
9 The difficulty of getting something through
10 that’s crazy is so -- you have to take leave of your
11 political senses to believe that anything crazy could
12 happen.
13 HOUSE MAJORITY CHAIRMAN METCALFE: Thank you,
14 Representative Gabler.
15 Representative Cohen, with in mind we’ve got
16 about five minutes left for this testifier and w e ’ve got
17 about eight Members still.
18 HOUSE DEMOCRATIC CHAIRMAN COHEN: Thank you,
19 Mr. Chairman.
20 I assume you’re aware that when the amendment to
21 repeal prohibition passed, it did not go directly to State
22 Legislatures; it went to Constitutional Conventions in each
23 State. The drafters of that amendment felt that State
24 Legislatures would likely vote against it, so therefore,
25 they set up Constitutional Conventions in every State to 38
1 ratify the amendment repealing prohibition. Is there any
2 Constitutional language that we can rely on to stop this
3 Constitutional Convention from avoiding State Legislatures
4 and just set up Constitutional Conventions in every State?
5 MR. FARRIS: Correctly speaking, sir, those
6 conventions are called Ratification Conventions and they've
7 been used twice in our history. We got the original
8 Constitution from Ratification Conventions and we got the
9 repeal of prohibition from Ratification Conventions. Such
10 conventions only have one authority and that is vote up or
11 down.
12 Congress decides which version you go with. I'll
13 bet you whatever you want to bet that Congress will not
14 give it to Ratification Conventions where the people vote
15 directly for delegates to the convention because the power
16 of Congress is going to be on the line. The people will
17 vote more radical views against Congress than legislatures
18 will and Congress is not going to take a chance to let the
19 people have control over how much power Congress has.
20 They're going to let you have the next shot at it.
21 HOUSE DEMOCRATIC CHAIRMAN COHEN: Well, how do we
22 know Congress has a say in this?
23 MR. FARRIS: Predicting sanity from Congress is a
24 difficult task but I'm just betting political odds. But to
25 me either way is going to be okay because the people want 39
1 limited government and the people would control the
2 Ratification Convention selection process if Congress
3 chooses it, and the people ultimately control this body as
4 well by electing people like you. And so I ’m not afraid of
5 it either way because the ultimate check on all of these
6 processes are people.
7 And by the way, the people here today, there’s a
8 number of them here that came to support the convention so
9 maybe I could just ask them to raise their hand if they’re
10 here to support. So thank you.
11 HOUSE DEMOCRATIC CHAIRMAN COHEN: Thank you.
12 HOUSE MAJORITY CHAIRMAN METCALFE: Thank you,
13 Representative Cohen.
14 Representative McCarter, and still several -- if
15 you can get to the question, I appreciate it.
16 REPRESENTATIVE MCCARTER: I ’ll be brief. Thank
17 you, Mr. Chairman.
18 Just very quickly, if I understand in your
19 testimony, you say the only winners of the runaway argument
20 are the EPA, Congress, the White House, and especially the
21 Supreme Court. And I take from that then that spending, as
22 you suggest in your testimony also, is limited really. If
23 the States are spending money on an issue, that’s something
24 the Federal Government shouldn’t touch, is that correct?
25 MR. FARRIS: That’s the original meaning of the 40
1 General Welfare Clause.
2 REPRESENTATIVE MCCARTER: Okay. So therefore,
3 any money spent in terms of Federal education aid, EPA,
4 clean water, clean air, FEMA in terms of aid for natural
5 disasters, et cetera, should be restricted only to the
6 States, is that correct?
7 MR. FARRIS: If w e ’re following the original
8 meaning of the General Welfare Clause, that would be
9 correct. You would not take the money from the States,
10 ship it to Washington, DC, keep a bunch at the bureaucracy,
11 ship it back to the States with strings and tell them how
12 to do these things. You just leave the money in the States
13 in the first place and have them directly take care of the
14 education issues, the emergency issues, and so on.
15 REPRESENTATIVE MCCARTER: Since w e ’re limited for
16 time, just to clarify -
17 HOUSE MAJORITY CHAIRMAN METCALFE: Thank you,
18 Mr. McCarter, you’re on your third question so w e ’re going
19 to go on to the next, Representative Daley.
20 REPRESENTATIVE DALEY: Thank you, Mr. Chairman.
21 I ’m just looking at the wording in the concurrent
22 resolution that’s before us and it uses the word "limit"
23 several times, "limited to proposing amendments to the
24 Constitution of the United States, impose fiscal
25 restraints, limit the power and jurisdiction of the Federal 41
1 Government, and limit the terms of officer for its
2 officials and for Members of Congress.” And I guess I hear
3 the word "limit" a lot and I ’m just not really sure how
4 this Constitutional Convention would actually would work
5 when it talks about limiting the power and jurisdiction of
6 the Federal Government because that seems like that would
7 potentially be a very big question and I don’t know what
8 that means. I don’t see the specificity in that.
9 MR. FARRIS: The essence of liberty is a limited
10 government. That’s why you see the word there a lot. The
11 specificity comes from the convention. If this was the
12 final vote on the final text, you should demand more
13 specificity, but the final text is going to come back to
14 you for ratification. And so this is a rule of
15 germaneness; what should we talk about? And I can tell you
16 there are going to be three major issues there: General
17 Welfare Clause, Commerce Clause, and stopping the executive
18 branch from legislating by itself. Those are the three
19 things that I think will be the big issues. And I don’t
20 think you’ll see more than four or five issues come out of
21 the convention and would be ratified like the Bill of
22 Rights individually as amendments.
23 REPRESENTATIVE DALEY: So are you saying that
24 this resolution is not a resolution that we in Pennsylvania
25 would be voting on? 42
1 MR. FARRIS: No, this body will vote on it to
2 call the convention but the final work product are
3 Constitutional amendments that would come from the
4 convention back to the States for ratification.
5 REPRESENTATIVE DALEY: Thank you.
6 HOUSE MAJORITY CHAIRMAN METCALFE: Thank you,
7 Representative Daley.
8 For our last question for this testifier,
9 Representative Roae.
10 REPRESENTATIVE ROAE: Thank you.
11 My question is how many States so far have passed
12 a resolution to call for this convention? And then if you
13 could also explain in more detail just for the sake of
14 argument -- I don’t think this would happen -- but say at
15 the convention they propose an amendment to ban the freedom
16 of religion or to ban guns. Can you explain in more detail
17 what would actually have to happen in 38 States for those
18 amendments to actually become part of the Constitution?
19 MR. FARRIS: Both Houses in 38 States would have
20 to vote to overturn the language of the First Amendment and
21 the Second Amendment. You have so many States that that’s
22 just politically impossible. Let’s take the Second
23 Amendment issue, which is generally associated more with
24 Republican legislatures. There are 69 Republican Houses in
25 the country today, 30 Democrat-controlled Houses. The 43
1 chances of that getting through 78 Houses in pairs is
2 politically zero. You can't get it through Idaho and
3 Montana and Wyoming and Arkansas and Mississippi. But you
4 have to have a whole bunch of those States to be able to
5 ratify anything. The chances of something bad happening
6 are the exact same chance as President Obama appointing me
7 the next vacancy on the Supreme Court, theoretically
8 possible, isn't going to happen.
9 REPRESENTATIVE ROAE: Do all 50 States actually
10 bring it up for a vote or only the ones that want to ratify
11 it bring it up for a vote if they think they have the votes
12 to pass it? How does that work?
13 MR. FARRIS: If a State does not bring it up for
14 a vote, that's the equivalent of voting "no."
15 REPRESENTATIVE ROAE: Okay.
16 HOUSE MAJORITY CHAIRMAN METCALFE: Thank you,
17 Representative Roae.
18 REPRESENTATIVE ROAE: Thank you. Thank you so
19 much.
20 HOUSE MAJORITY CHAIRMAN METCALFE: Thank you.
21 And thank you, sir, for your humor -
22 MR. FARRIS: Thank you.
23 HOUSE MAJORITY CHAIRMAN METCALFE: -- and for
24 your testimony, and thank you for making the trip up here
25 to Pennsylvania to be with us. We appreciate it. 44
1 MR. FARRIS: Thank you very much. I only live an
2 hour-and-a-half from here so I ’d be glad to come back and
3 visit informally at any time. Thank you very much.
4 HOUSE MAJORITY CHAIRMAN METCALFE: I know we have
5 a lot of Members that still have questions so they might be
6 following up with you if you don’t mind.
7 MR. FARRIS: Thank you.
8 HOUSE MAJORITY CHAIRMAN METCALFE: Thank you,
9 sir.
10 SENATE MAJORITY CHAIRMAN FOLMER: Thank you. Our
11 next testifier is going to come via Skype and the wonderful
12 world of technology.
13 This is Janine Hansen. She’s State President of
14 the Eagle Forum.
15 Welcome, Janine. Can you hear us? We can’t hear
16 you. Do we have any lip-readers in the audience? Are we
17 good now? Hello? Janine, can you hear us? W e ’re not
18 hearing you. Hold one second. This never works the way we
19 ever want it to, does it?
20 HOUSE DEMOCRATIC CHAIRMAN COHEN: We’ve actually
21 done this before successfully.
22 SENATE MAJORITY CHAIRMAN FOLMER: Janine, could
23 you talk again? Try again. Janine? No. This poor guy,
24 he’s going to have a nervous breakdown. All right. Speak
25 again, Janine. 45
1 MS. HANSEN: Can you hear me now?
2 SENATE MAJORITY CHAIRMAN FOLMER: A little bit.
3 Keep on talking.
4 MS. HANSEN: Can you hear me?
5 SENATE MAJORITY CHAIRMAN FOLMER: Thank you for
6 the patience.
7 MS. HANSEN: Okay. May I begin? Can you hear
8 me? Can I go ahead?
9 HOUSE MAJORITY CHAIRMAN METCALFE: Yes, you may.
10 MS. HANSEN: Okay. Thank you.
11 My name is Janine Hansen. I ’m the State
12 President of the Nevada Eagle Forum. However, I have
13 served for 30 years as National Constitutional Issues
14 Chairman with Phyllis Schlafly, the National President of
15 Eagle Forum.
16 I ’m sorry I can’t be with you today but my State
17 Legislature is in session and I am a full-time volunteer
18 working for better government. We just defeated last
19 Thursday the Convention of States Resolution overwhelmingly
20 in committee. Although the Convention of States would like
21 to tell us that HR 63 does not call for a Constitutional
22 Convention, that is exactly what an Article V Convention
23 is. Article V to the U.S. Constitution states, "The
24 Congress, whenever two-thirds of both Houses shall deem it
25 necessary, shall propose amendments to this Constitution, 46
1 or, on the application of the legislatures of two-thirds of
2 the several States, shall call a convention for proposing
3 amendments.” Notice that "Amendments" is in the plural and
4 we can anticipate many amendments. "In either case they
5 shall be valid to all intents and purposes, as part of this
6 Constitution, when ratified by the legislatures of three-
7 fourths of the several States," or, as has already been
8 discussed, by conventions of the States. So it doesn't
9 necessarily come back to the State Legislature.
10 But I'd like to go on to the rest of Article V
11 and notice that there is a further clause there that's
12 important. Article V concludes with a limitation on what
13 can be amended in the Constitution stating, "that no State,
14 without its consent, shall be deprived of its equal
15 suffrage in the Senate." In other words, the only thing
16 limited to being amended is the equal suffrage. So every
17 single portion of the Constitution other than that is open
18 for amendment.
19 The only thing we really know about Article V is
20 what is stated in Article V because we've never had a
21 Constitutional Convention called under the authority of
22 Article V. The Convention of States Resolution asks
23 Congress "to call a convention of States limited to
24 proposing amendments to the Constitution of the United
25 States that impose fiscal restraints on the Federal 47
1 Government." That could mean a balanced budget but it is
2 undefined and could mean much more.
3 The next phrase is even more important and calls
4 for limiting "the power and jurisdiction of the Federal
5 Government." Now, think for a minute about the purposes of
6 our Founders when they wrote the Constitution. The purpose
7 of the first six Articles -- the seventh is just
8 ratification language -- is to "limit the power and
9 jurisdiction of the Federal Government." In other words,
10 the Convention of States’ resolution, from its inception,
11 envisions the possibility of opening every section of our
12 beloved Constitution. That should give us pause. In other
13 words, Articles I, II, III, IV, V, and VI would be open to
14 revision under an Article V Convention.
15 Many individuals and organizations both from the
16 right and the left are interested in amending our
17 Constitution through an Article V Convention, not just
18 Convention of States. W e ’ve heard about conservative talk
19 show host Mark Levin. He’s written a book suggesting 10
20 amendments. In addition, just last week I heard Mark
21 Meckler, an associate of Michael Farris in the Convention
22 of the States and other proponents for the Convention of
23 the States in my own hearing in Nevada an unending list of
24 possible amendments, including an amendment to return
25 Nevada’s federally controlled land to Nevada, parental 48
1 rights, and numerous others.
2 Former Supreme Court Justice John Paul Stevens
3 recently published a book calling for six amendments to the
4 Constitution. One of his proposals specifically calls for
5 changes in the Second Amendment. Stevens proposes that the
6 Second Amendment should be modified by adding five words:
7 "A well-regulated militia, being necessary to the security
8 of a free State, the right of the people to keep and bear
9 arms" -- and these are his additional words -- "when
10 serving in the militia shall not be infringed." Of course
11 we know what that does. It removes the individual right to
12 keep and bear arms out of our Second Amendment.
13 Move to Amend, which has also been mentioned, is
14 a left-leaning organization which opposes the Supreme Court
15 Decision in Citizens United. In my opinion, Move to Amend
16 wants to take away our right to free speech by eliminating
17 independent contributions and expenditures from campaigns
18 and limit campaigns to government money only, which will
19 silence dissent. They support an Article V Constitutional
20 Convention process to pass this amendment. California,
21 Vermont, and Indiana have already passed calls for an
22 Article V Convention for Move to Amend.
23 Move to Amend’s website, if you go there, you
24 will see nine pages of liberal organizations across the
25 country supporting this idea. Move to Amend’s proposed 49
1 amendments prohibits candidates from even spending money on
2 their own campaign. Their claim is money is not free
3 speech. Now, in the real world of politics we know that
4 money is free speech.
5 A Constitutional Convention is the most important
6 political event since the original Constitutional
7 Convention. There will be no State, no organization, no
8 special interest that will not want to be represented with
9 their proposals at a Constitutional Convention. The
10 highest authority in the United States ever to speak out on
11 a Constitutional Convention, Former Chief Justice Warren
12 Burger stated: "I have also repeatedly given my opinion
13 that there is no effective way to limit or muzzle the
14 actions of a Constitutional Convention. The convention
15 could make its own rules and set its own agenda. Congress
16 might try to limit the Convention to one amendment or to
17 one issue, but there is no way to assure that the
18 Convention would obey. After a Convention is convened, it
19 will be too late to stop the convention if we don’t like
20 its agenda.”
21 How will delegates be chosen for a convention?
22 We don’t really know. Will there be one vote, one State
23 like the original Constitutional Convention and the
24 Convention of States suggests? Can you imagine States like
25 California or New York or Texas agree to that and giving 50
1 Nevada, with only four Congressional delegates, the same
2 voting power as California or New York? No, I don't think
3 so.
4 Previously in Congress, Senator Sam Ervin, a
5 Democrat; and Senator Orrin Hatch, a Republican, have
6 proposed rules for a Constitutional Convention. These
7 proposals have passed in the U.S. Senate but not the House.
8 They all provided for proportional representation. In
9 other words, each State would have two delegates plus one
10 additional delegate for each Congressional District,
11 proportional representation, just like in the U.S.
12 Congress. These proposals all reflect the numbers we have
13 in our Congress right now.
14 This proportional delegation would make smaller
15 States essentially meaningless in a Constitutional
16 Convention. Recently, New Mexico's State Legislature had a
17 proposal for an Article V Constitutional Convention on a
18 Balanced Budget Amendment. The New Mexico Legislature
19 placed a large fiscal note on that amendment. Why?
20 Because New Mexico understood that a large portion of their
21 State revenue comes from the Federal Government.
22 If an Article V Convention calls for a balanced
23 budget or fiscal restraints, States could potentially lose
24 revenue and grants that come from the Federal Government to
25 the States. States receive between 20 and 49 percent of 51
1 their revenue from the Federal Government. Pennsylvania
2 receives about 30 percent of its revenue from the Federal
3 Government. Think of your budget and what would happen to
4 it without the money coming from the Federal Government.
5 Article V Constitutional Convention supporters
6 who support a balanced budget or a proposal to impose
7 fiscal restraints on the Federal Government may face some
8 severe unintended consequences. In fact, I just read an
9 article about what happened to Idaho when they cut off some
10 of their Federal funding because of a lawsuit in the State
11 of Idaho. The Governor had to deal with that with extreme
12 burdens on the State to the tune of millions of dollars.
13 In Utah, Article V supporters admitted that a
14 Balanced Budget Amendment will raise your taxes, not
15 necessarily cut spending. Fritz Pettyjohn, who is a former
16 Alaska legislator and has cofounded the Balanced Budget
17 Amendment Task Force and a Field Director for Lew Uhler’s
18 National Tax Limitation Committee, on February 26, 2014,
19 during a meeting of the Utah Legislature’s Conservative
20 Caucus in a room full of legislators, was asked, "What
21 would prevent the Congress from raising our taxes to
22 balance the budget?" Pettyjohn responded by saying, "They
23 probably will raise our taxes, but there’s nothing wrong
24 with that. It would make the people so mad they would
25 throw them out." Well, we would maybe hope for that but 52
1 who knows? The Utah Legislature didn’t trust that and they
2 voted the proposal for an Article V down.
3 The Articles of Confederation required a
4 unanimous vote to amend the governing document. Our
5 Founders during the original Constitutional Convention
6 changed the ratification process from a unanimous
7 requirement of 13 states to only nine states needed for
8 approval. Because Article V allows all Articles of the
9 Constitution to be amended through Article V, it also
10 includes the option to change the ratification process from
11 the current requirement of 38 States to something less.
12 This is what happened at the original Constitutional
13 Convention when they gave us an entirely new Constitution.
14 This is the only real precedent we have. Therefore, I do
15 not consider the requirement for 38 States or conventions
16 in those States to approve changes in the Constitution made
17 through Article V to be a real safeguard to protect our
18 sacred Constitution, which has made America the greatest
19 nation in the world.
20 In conclusion, I would like to thank the
21 Committees for inviting me to speak. I love the
22 Constitution and have worked for 30 years to prevent those
23 who would open our beloved Constitution up to unlimited and
24 unknown consequences.
25 Thank you and I am available for questions. 53
1 HOUSE MAJORITY CHAIRMAN METCALFE: Thank you,
2 ma'am, for joining us over Skype. We appreciate your
3 patience in getting the technology to work there.
4 Senator Folmer will be our first question. We're
5 going to try a couple questions. I'm not sure how good
6 it's going to work with the possible delay that you may be
7 realizing, but Senator Folmer.
8 SENATE MAJORITY CHAIRMAN FOLMER: Thank you,
9 Janine, for joining us via Skype.
10 I just want to make a quick clarification when we
11 talk about the benevolence of Federal Government allowing
12 us to have monies that they send down from us. Let's not
13 forget that every tax dollar that's raised does not come
14 from the Federal Government. It comes from each individual
15 taxpayer who works very hard, so it really starts from the
16 bottom up first.
17 But my question to you is this: It sounds like
18 -- and obviously you are totally opposed to the Convention
19 of States' idea -- without allowing for the status quo to
20 continue, what's your alternative to the overreach of
21 Federal Government?
22 MS. HANSEN: Well, I certainly agree with many of
23 the problems going on in the Federal Government. I think
24 that certainly all those tax dollars that go to the Federal
25 Government start in the States. I have worked for many 54
1 years at my State Legislature and also as I am able with
2 Congress to limit that and often supported 10th Amendment
3 resolutions.
4 We certainly have the process which has been
5 outlined of going through the courts. My own Attorney
6 General has been part of suing the Federal Government over
7 the Affordable Care Act, which I think we have seen some
8 success with in the courts.
9 In addition to that, I think that we have the
10 most important process, and that is the process of
11 elections. In my own State we had a radical change in the
12 Legislature this last election. We have had a Democrat
13 State Senate and a Democrat Assembly for many years. In
14 fact, I think it may have been over 20 years or 30 years
15 that the State Legislature and the Assembly has been
16 controlled by the Republicans. This year, both the
17 Assembly and the Senate were completely changed in
18 leadership and we now have a whole new group of people in
19 charge. That’s the best way to change things, from the
20 bottom up where people have control.
21 We now changed our State Legislature and there
22 are so many things that are changing there, including
23 limiting and resolutions asking for the limitation on the
24 Federal Government. There is another -
25 HOUSE MAJORITY CHAIRMAN METCALFE: Thank you, 55
1 m a ’am. We have another question for you if we can from -
2 can you hear us?
3 MS. HANSEN: Yes, I can hear you. Thank you very
4 much.
5 HOUSE MAJORITY CHAIRMAN METCALFE: Thank you.
6 Representative Dush.
7 REPRESENTATIVE DUSH: Thank you, Chairman.
8 Thank you, Janine.
9 And I have a very simple question. I have a lot
10 of respect for our Founding Fathers and as you referred to
11 this document being a sacred document. If they crafted
12 Article V into the Constitution of the United States, if
13 not for such a time as this, what time would you suggest
14 that any such convention be convened?
15 MS. HANSEN: I certainly appreciate your
16 question. I ask the people I talk to do you control your
17 County Commission? Do you control your City Council? Do
18 you control your State Legislature? Do you have confidence
19 in them? Do you have confidence that Congress will respond
20 to your concerns? I don’t see any George Washingtons or
21 James Madisons hanging around right now. I have
22 considerable concern about the special interests and those
23 that will attend a Constitutional Convention.
24 I certainly agree that our Founders had great
25 vision, but we also have responsibility for maintaining our 56
1 Constitution and I don’t feel secure with groups like Move
2 to Amend who want to take away our freedom of speech and
3 others who might want to deny us the right to keep and bear
4 arms who will certainly be at the convention. I don’t have
5 confidence in those people right now to open up an
6 unlimited Constitutional Convention for the -
7 REPRESENTATIVE DUSH: Janine, I would have to
8 take exception to you on that, though, that you would say
9 that those of us who are in elected positions and actually
10 elected by people who respect our opinions, that we would
11 be someone who would go down there and represent our people
12 in a way other than what they would suggest that we go and
13 represent them. When you’re talking about an organization
14 being at that convention, which you’ve mentioned several
15 times organizations other than the people that the folks in
16 our State would send, then I would have to take exception
17 to what you’re saying.
18 MS. HANSEN: Well, first of all -
19 HOUSE MAJORITY CHAIRMAN METCALFE: First of all
20 -- excuse me, m a ’am.
21 Representative Dush, I ’ve announced this in other
22 hearings. We don’t debate with our testifiers.
23 MS. HANSEN: It’s difficult for me to follow this
24 exactly so I appreciate that.
25 HOUSE MAJORITY CHAIRMAN METCALFE: But we don’t 57
1 debate with our testifiers. Our testifiers are here as our
2 guests to give expert testimony. We don't challenge them
3 and debate them during the hearings. So we'll pull that
4 question back.
5 And does any other Member have a question?
6 Representative Gabler for our final question.
7 REPRESENTATIVE GABLER: Janine, thank you very
8 much for your testimony and for the opportunity to discuss
9 this.
10 Here's my question to you: What would you
11 suggest be the path that State legislators should take?
12 One of the concerns that I have about our Federal
13 Government and the problem with how things are administered
14 is that it appears that we don't even have full control
15 over our State budget when you really look at how many
16 Federal strings are attached to so many programs, whether
17 it's entitlement systems, whether it's our healthcare
18 system, whether it's so many different things. What would
19 you suggest, as you suggest you'd have faith in elected
20 officials that need to do the right thing and need to stand
21 up?
22 What can we do when we're faced with questions
23 of, for example, we could change a State program to save
24 some money, but we find that because it would not comply
25 with Federal rules, we would lose more in Federal funding 58
1 than what we might save? It’s kind of that Catch-22. What
2 would you suggest to State Legislatures who are looking to
3 try to save money but are stuck with Federal strings
4 attached?
5 MS. HANSEN: That is an incredible dilemma which
6 faces us, and I have long opposed Federal mandates with
7 strings attached. And we see what happens with that. He
8 who has the gold makes the rules. They take our money,
9 they take it to Washington, and then they give us a little
10 bit back and they impose rules on us. And oftentimes the
11 States are required to spend more money to match the
12 Federal money. This is something that State Legislatures
13 will have to deal with. I don’t really feel that State
14 Legislatures and the situation w e ’re in right now would
15 vote to cut off Federal money to the States because they
16 are so dependent on Federal money.
17 I think it has to start at your own State
18 Legislature where you say, like many States said, we aren’t
19 going to participate in ObamaCare. We aren’t going to
20 increase all of our Medicaid spending. They have done some
21 of that. In the West we have a huge movement among the
22 States to return our land out of control of the Federal
23 Government. In Nevada, 87 percent is controlled by the
24 Federal Government, which severely limits our taxes which
25 the State can collect. 59
1 So there are many issues regarding this, and the
2 first place it needs to start is not in a Constitutional
3 Convention but in your own State where you take a good look
4 at your own budget and begin to reject Federal money as you
5 are able so that you can reduce dependence on the Federal
6 Government. Because if you don’t do that, a Constitutional
7 Convention to limit and to impose fiscal restraints will
8 never work because no State is going to vote to cut off 30
9 percent of its own revenue and then go back and try to
10 explain that to the people in their States.
11 HOUSE MAJORITY CHAIRMAN METCALFE: Thank you,
12 m a ’am. Thank you very much for your patience today. Thank
13 you for your testimony with us today. And have a great
14 day.
15 MS. HANSEN: Thank you very much.
16 HOUSE MAJORITY CHAIRMAN METCALFE: Thank you,
17 Representative Gabler.
18 HOUSE MAJORITY CHAIRMAN METCALFE: Our next
19 testifier will be Mike Stern, cofounder of the Balanced
20 Budget Amendment Task Force.
21 Welcome, Mike, and if you could summarize your
22 testimony.
23 MR. STERN: Thank you very much, Mr. Chairman,
24 and Members of the Committee. My name is Mike Stern. I am
25 a former lawyer for Congress, and for the last five years 60
1 or so I've been involved in working on Constitutional and
2 legal issues related to the Article V Convention. I want
3 to thank you for inviting me to testify here today and also
4 to extend the regrets of Lew Uhler, who is also one of the
5 cofounders of the Balanced Budget Amendment Task Force who
6 was unable to make it today.
7 Before I get started, let me just correct one
8 important factual mistake from the last testimony. There
9 was a reference to the Balanced Budget Amendment Task Force
10 and our activities in Utah. In fact, contrary to what
11 Mrs. Hansen said, Utah in fact passed the resolution for
12 the Balanced Budget Amendment just in the last month or so.
13 So I just want to make that clear. It was not rejected in
14 Utah.
15 Now, Article V provides two methods of proposing
16 Constitutional amendments. The most familiar method is
17 where Congress, by a vote of two-thirds of each House,
18 proposes an amendment which is then sent to the States for
19 ratification by either of two methods that Congress can
20 choose. Now, the second method of proposing amendments
21 allows two-thirds of the State Legislatures to apply for a
22 convention for the purpose of proposing amendments.
23 Now, it's important to recognize that that
24 convention -- and we've had a lot of discussion here today
25 about the runaway convention and unlimited convention -- 61
1 the first thing you need to keep in mind about this
2 convention is it has no more power than Congress has every
3 day. It has the power to propose an amendment. And in
4 fact, as I ’ll get into, it actually has much less power
5 than Congress has because its powers are restricted. But
6 even if you just forget about that, all these things about,
7 well, you could have an amendment to do this and to repeal
8 the Second Amendment, those things could be done by
9 Congres. Congress has the same power to propose amendments
10 that the Article V Convention has.
11 Now, the reason the Framers put a second method
12 of proposing amendments into the Constitution was that they
13 believed that Congress could not be trusted to check itself
14 or to propose amendments that were necessary that would
15 reduce its own power. So, for example, this point is
16 illustrated by Congress’ repeated failure to propose a
17 Balanced Budget Amendment despite overwhelming public
18 support for this proposal. In 1982 a Balanced Budget
19 Amendment passed the U.S. Senate but was not able to pass
20 the House despite President Reagan’s strong support.
21 Years later, after Congress again failed to
22 propose a Balanced Budget Amendment, President Reagan wrote
23 this letter to Lew Uhler, who I mentioned before, in which
24 he says, "Lew, we can’t depend on Congress to discipline
25 itself as House and Senate leaders have once again 62
1 demonstrated in rejecting a Balanced Budget Amendment. It
2 is clear that we must rely on the States to force Congress
3 to act on our amendment."
4 Fortunately, our nation’s Founders gave us the
5 means to amend the Constitution through action of the State
6 Legislatures. Now, these were the words of President
7 Reagan speaking specifically about a Balanced Budget
8 Amendment. I find it sort of interesting that the Eagle
9 Forum credits Warren Burger’s views on Article V over
10 President Reagan’s, but there you have it; you can consider
11 the contrast yourself.
12 Now, currently, there are 27 active applications
13 for a Balanced Budget Amendment Convention. As I
14 mentioned, several States, including Utah, have just acted.
15 Utah, North Dakota, and South Dakota have all acted in the
16 last couple of months bringing the total to 27. There
17 would already be the required 34 number of States if it
18 were not for the fact that during the 1990s Eagle Forum and
19 some other organizations were able to convince some State
20 Legislatures to rescind their applications because of this
21 fear of the runaway convention.
22 In the 1970s and 1980s, 32 State Legislatures,
23 including Pennsylvania in 1979, applied for a Balanced
24 Budget Amendment Convention. After Michigan and Ohio
25 failed to pass BBA resolutions, momentum on this process 63
1 was lost. In part it was because during the 1990s there
2 was somewhat of an improving, although temporarily
3 improving, Federal fiscal situation and that tended to
4 reduce public attention to this issue. As a consequence,
5 Article V opponents were able to take advantage of this to
6 obtain rescissions in 16 of the 32 States that had active
7 applications.
8 Now, in the last five years, as concern about the
9 growing Federal budget has resurfaced, 9 of the 16
10 rescinders have passed new resolutions. Plus, the two
11 States that had refused to pass them before, Michigan and
12 Ohio, have now passed them. So that brings it up to a
13 total of 27. To get to 34, we would merely need to
14 convince the remaining States that have passed them in the
15 past but had rescinded them to do so.
16 So I just want, if I have a few minutes, to make
17 sure that w e ’re clear on the Article V process because I
18 understand there’s concern about precedent and we can talk
19 about precedent all we want. But I ’m not sure that w e ’re
20 fully clear on how many safeguards are in the very text of
21 Article V. You don’t have to worry about precedent or
22 implication or anything like that.
23 The first step, of course, in the process is that
24 34 States have to apply for a convention. The second step
25 is that Congress must call the convention. Now, w e ’ve had 64
1 the discussion can the convention be limited? But it's
2 important to note that's the issue Congress has to decide
3 when it calls the convention. If Congress does not believe
4 the convention can be limited, then it will not call a
5 convention. The Balanced Budget Amendment applications are
6 very clear. They're solely for a convention to talk about
7 a Balanced Budget Amendment. If you can't limit the
8 convention, those applications are invalid. Congress would
9 not call the convention. It would have no reason to call
10 the convention. Now, we believe they're valid and we
11 believe Congress will determine that they're valid and it
12 will call the convention.
13 If it calls the convention, then if by some
14 reason that would be very unlikely because you're talking
15 about now a convention that is composed of a super majority
16 of States that have asked for a limited convention in the
17 first place, but if for some reason that convention then
18 runs away and proposes something outside that scope, the
19 amendment still has to go back to Congress, the Congress
20 that called the limited convention to choose the method of
21 ratification. If the amendment is outside the scope of the
22 convention that was called, Congress has no reason to
23 choose a method of ratification or submit it to the States.
24 Moreover, Congress has no incentive to make the
25 convention any more powerful than it is. The whole point 65
1 of the convention is to get around Congress so Congress
2 will probably strictly construe the terms and limitations
3 on the convention’s authority, not broadly construe them.
4 Now, some people say, well, supposing Congress
5 changes its mind, and after all, Congress changes control,
6 and let’s say initially Congress thought that the
7 convention could be limited but then new people come in or
8 they’re persuaded they were wrong. Well, even if that
9 happens, you still don’t get a runaway convention because
10 if they were persuaded they were wrong, that means the
11 convention never should have been called in the first
12 place, there never were 34 valid applications, and nothing
13 that the convention proposes are valid.
14 Now, the final check, which was mentioned but
15 ought to be mentioned once more, is that even if we assume
16 the convention for some reason runs away that Congress for
17 some reason decides to accept that and submit the amendment
18 for ratification and there’s no ability of the courts to
19 stop this because if you have a clear violation of the
20 limitation for the reasons I just stated, it would be
21 illegal and the courts should if they reach the merits -
22 which I think is an issue -- but if they reach the merits
23 should find that the amendment is illegal, but even if you
24 get through all those hurdles, it still has to be ratified
25 by 38 States. 66
1 I mean it’s true. If you assume that Congress is
2 conspiring with the convention and with the State
3 Legislatures and with everybody else to run away, right,
4 then, sure, all of that can happen -- and the courts and
5 everyone. But there’s no reason to even worry about it.
6 If that were true, Congress can do that directly. There’s
7 really no reason to focus that concern on the Article V
8 Convention and there’s just really no reason to believe
9 that’s going to happen. It would still require 38 States
10 to ratify this supposed out-of-scope amendment.
11 Thank you.
12 HOUSE MAJORITY CHAIRMAN METCALFE: Thank you for
13 your testimony today.
14 Senator Folmer, do you have a question to kick it
15 off?
16 SENATE MAJORITY CHAIRMAN FOLMER: Yes. Thank you
17 very much, Mike, for testifying and thank you for being
18 here.
19 I think you mentioned this but could you repeat,
20 how many States have passed a balanced budget initiative?
21 MR. STERN: So there are 27 currently live
22 applications. There are actually 34 States that have
23 passed it at one point in the last 40 years or so but
24 enough have rescinded so that the total is now 27.
25 SENATE MAJORITY CHAIRMAN FOLMER: 27. And then 67
1 just some brief thoughts on the Liberty Amendments? Are
2 you familiar with them?
3 MR. STERN: Generally I ’m familiar with them.
4 I ’m supportive of the resolution that is currently before
5 you. The Balanced Budget Amendment Task Force believes
6 that State Legislatures both to put pressure on Congress
7 and to empower themselves, ought to pass both the Balanced
8 Budget Amendment resolutions and the Convention of States
9 resolutions. In this case Pennsylvania already has a
10 Balanced Budget Amendment resolution that remains active.
11 You certainly could update that if you wanted to but we
12 don’t believe that it’s necessary.
13 But we are supportive of the Convention of States
14 resolution as well. That would of course be a much broader
15 subject matter than the Balanced Budget Amendment, and I
16 think my personal view is you are probably best passing
17 both but with the understanding, and I think it’s a
18 reasonable understanding, that you’re going to reach 34
19 with the Balanced Budget Amendment first. At that point
20 you’re going to have a conflict with Congress. You’re
21 going to have to see what Congress does and then you can
22 make your decisions as to how you want to handle it with
23 respect to going forward with the balanced budget, the
24 Convention of States, or both at that point. But until you
25 actually get to 34, you really don’t have a completely 68
1 informed basis for knowing how this process is going to
2 work in terms of fighting with Congress.
3 SENATE MAJORITY CHAIRMAN FOLMER: Thank you.
4 HOUSE MAJORITY CHAIRMAN METCALFE: Thank you,
5 Senator Folmer.
6 Representative Cohen.
7 HOUSE DEMOCRATIC CHAIRMAN COHEN: Thank you.
8 To repeat, the Pennsylvania application is still
9 active that we passed a long time ago because -
10 MR. STERN: Well, it was passed in 1979. It has
11 not been rescinded.
12 HOUSE DEMOCRATIC CHAIRMAN COHEN: And you agree
13 with the Eagle Forum that ratification by States could
14 include ratification by State Constitutional Conventions,
15 not by the Legislature?
16 MR. STERN: Yes. The text of Article V is clear.
17 In either method of proposing amendments, Congress chooses
18 the method of ratification. So Congress may choose it's
19 not a Constitutional Convention but State Ratifying
20 Conventions. It's only done that once in the case of
21 prohibition, the repeal of prohibition, but theoretically
22 it could do that. I think it's highly unlikely they would
23 have a reason to do that but it's -
24 HOUSE DEMOCRATIC CHAIRMAN COHEN: Thank you.
25 MR. STERN: -- within their power. 69
1 HOUSE MAJORITY CHAIRMAN METCALFE: Just a quick
2 question, then, through your testimony talking about if
3 Congress decided not to call a convention, but under the
4 strict language of the Article V, if they’re petitioned by
5 the correct number of States, aren’t they required because
6 it’s a "shall call"?
7 MR. STERN: Well, yes and no. If they have 34
8 valid applications, they are required to call a convention.
9 And I think everyone acknowledges that. What people don’t
10 necessarily acknowledge is what constitutes a valid
11 application. So the question that was raised earlier, can
12 the convention be limited, these are all applications for a
13 limited convention. That’s what Pennsylvania asked for;
14 that’s what all these other States asked for. That’s what
15 the Convention of the States resolution is passed that’s
16 what would be asked for.
17 So Congress has to make that decision, and if
18 Congress makes a decision that the States do not like, do
19 not agree with, say it refuses, then you’re going to have
20 to consider what remedies that you have at that point. But
21 the first question for Congress is have two-thirds of the
22 State Legislatures validly applied for an Article V -
23 HOUSE MAJORITY CHAIRMAN METCALFE: Thank you.
24 MR. STERN: -- Convention?
25 HOUSE MAJORITY CHAIRMAN METCALFE: Thank you. 70
1 Representative Pashinski?
2 Representative Hill.
3 REPRESENTATIVE HILL: Mr. Stern, thank you for
4 testifying here today.
5 One of the questions that I have and have heard
6 from people who have emailed and called and is something
7 that I don’t think has been addressed, and that is if
8 Congress calls for this convention, will the deliberations
9 be held publicly? So in this day and age we have sunshine
10 laws and everything is open and accessible to the people.
11 MR. STERN: Okay.
12 REPRESENTATIVE HILL: What do we envision the
13 process will be with regard to the deliberations and the
14 public’s ability to see what’s going on?
15 MR. STERN: Well, let me give you a technical
16 legal answer and then a real answer. The technical legal
17 answer I believe is that the rules of the convention are up
18 to the convention itself. So in theory if the convention
19 wanted to close a portion of its deliberations, just as the
20 House and Senate, presumably this body has that authority
21 as well. Every legislative body has the authority to -- I
22 mean it may depend on Constitutional provisions -- but
23 generally close its proceedings. As a practical matter, I
24 can’t imagine that they would be closed. I ’m sure they
25 would be open. As we know, even things that are 71
1 theoretically very closed in today’s world are pretty much
2 open to everyone anyway, but I can’t imagine that the
3 public would not fully see what was going on in this
4 convention.
5 HOUSE MAJORITY CHAIRMAN METCALFE: Thank you,
6 Representative Hill.
7 Representative Truitt.
8 REPRESENTATIVE TRUITT: Thank you, Mr. Chairman.
9 Thank you, Mr. Stern, for your testimony.
10 And I ’m curious about some of the nitty-gritty
11 details of the process. Let’s say we authorize this
12 convention, everybody comes together, w e ’re supposed to
13 talk about a Balanced Budget Amendment and somebody
14 proposes an amendment to change the Second Amendment like
15 was described by the prior testifier. Who decides whether
16 that’s germane? I realize that it’s not -
17 MR. STERN: Right.
18 REPRESENTATIVE TRUITT: -- but who decides that?
19 MR. STERN: So that’s a very good question
20 because there’s really two answers: One, the convention
21 itself would decide whether or not it was germane obviously
22 because it’s the convention that would have to take action
23 on it if someone makes that proposal. But in addition,
24 each State Legislature has the power to control its own
25 delegation. So if this were a delegate from Pennsylvania, 72
1 for example, you would have the power to limit the ability.
2 You could prescribe -- and States have done this already,
3 have passed what are called Delegate Limitation Acts, which
4 require that each delegate from their State to take an oath
5 that they will stick within the scope of the application
6 the State has filed. And they will not even propose or
7 discuss anything outside that scope. And they can also
8 provide for recalling those delegates and provide for
9 penalties on them.
10 Now, the analogy I like to use is with
11 presidential electors. In the Electoral College,
12 presidential electors for most of our history have been
13 legally free to do whatever they want. They are pledged to
14 vote for someone, but in theory -- until recently there
15 have been some laws passed but generally there is no legal
16 penalty against them if they decide to vote for whoever
17 they feel like. But in reality they almost never do. It's
18 very rare.
19 I think the same thing would be true for any
20 delegate you send to a convention. But if you wanted to
21 put even more protection in place, you can pass one of
22 these Delegate Limitation Acts that would actually penalize
23 and recall any delegate that strayed from the scope of the
24 convention.
25 REPRESENTATIVE TRUITT: But we could limit the 73
1 power of our own delegates to the convention.
2 MR. STERN: That’s correct.
3 REPRESENTATIVE TRUITT: We can’t control what
4 delegates from other States do, is that correct?
5 MR. STERN: That’s correct. So the check would
6 be, first, each State Legislature controlling its own
7 delegation. Then it would be the convention itself saying,
8 no, this is not germane, which it obviously isn’t. Then it
9 would be if the whole convention agrees to ignore the
10 germaneness, it would be Congress that would say, no, this
11 is outside the scope of the convention that was called. If
12 that doesn’t work, you can challenge it in court. And if
13 none of that works, then it comes back to the States for
14 ratification. So if none of those things work, anything
15 can run away but those are the safeguards.
16 HOUSE MAJORITY CHAIRMAN METCALFE: Thank you,
17 Representative Truitt.
18 REPRESENTATIVE TRUITT: Thank you, Mr. Chairman.
19 HOUSE MAJORITY CHAIRMAN METCALFE: Thank you.
20 Our final question, and we have a minute left,
21 from Representative Gabler.
22 REPRESENTATIVE GABLER: I was wondering if you
23 could go into any detail on what the means available might
24 be if 34 States were to pass an application with identical
25 operative language, whether it be Balanced Budget Amendment 74
1 or the Article V like as in House Resolution 63. What does
2 that look like if you get to the point where you've got 34
3 States that have called it and now Congress does nothing?
4 What happens?
5 MR. STERN: Well, that is a very good question.
6 Let me say that we have been working with Congress. We've
7 been talking to people in Congress about this process to
8 let them know that it's coming, that there is renewed
9 momentum, and we have been successful to the extent that
10 the House of Representatives in the beginning of this
11 Congress passed a rule that said we should at least begin
12 to collect the applications and publish them and give the
13 Chairman of the Judiciary Committee the authority to do
14 that and to control that process. So that is step number
15 one on counting the applications. It's a baby step but
16 it's Congress and we should be happy.
17 HOUSE MAJORITY CHAIRMAN METCALFE: Thank you,
18 sir. That's all of our time for the detailed answer
19 Representative Gabler was seeking.
20 But thank you so much for sharing your expertise
21 with us this morning.
22 MR. STERN: Thank you very much.
23 HOUSE MAJORITY CHAIRMAN METCALFE: Thank you for
24 traveling here to Pennsylvania to be with us.
25 Thank you, Representative Gabler. 75
1 SENATE MAJORITY CHAIRMAN FOLMER: Our next
2 testifier will be Mr. Barry Kauffman, Executive Director of
3 Common Cause of Pennsylvania. Welcome, Mr. Kauffman.
4 MR. KAUFFMAN: Good morning, Chairman Folmer,
5 Chairman Metcalfe, and Chairman Cohen I think is still
6 here.
7 I am Barry Kauffman, the Executive Director of
8 Common Cause Pennsylvania. And for over 40 years, Common
9 Cause and its more than 4,000 members have been working to
10 build a better democracy by reforming our government to
11 make it more open, accountable, and responsive to the
12 citizens.
13 Thank you very much for inviting us to present
14 our views on this important issue.
15 The purpose of today’s hearing obviously is to
16 evaluate House Resolution 63 and its potential impacts. HR
17 63 really reminds us of the wisdom in the warning "Be
18 careful what you ask for." This two-page resolution, if
19 adopted in Pennsylvania and in similar form by two-thirds
20 of the States, could revolutionize American government in a
21 manner that would damage the ability of the Federal
22 Government to effectively serve the people, and cripple the
23 American economy in times of economic trouble.
24 If the instructions to Congress that are proposed
25 in HR 63 would be implemented, it would launch a 76
1 Constitutional Convention of potentially unlimited scope
2 that could significantly rewrite our Constitution. The
3 goal of HR 63 is to mandate a Congressional call for a
4 Constitutional Convention that would be charged with
5 amending the U.S. Constitution to impose fiscal constraints
6 on the Federal spending, establish term limits for Congress
7 and Federal officials, and constrain unspecified Federal
8 powers.
9 On its face, HR 63 is probably unnecessary and
10 would lead to a wasteful exercise, expending valuable
11 legislative time and resources, because it is largely
12 redundant with HR 236 which was passed on November 9th of
13 1976. HR 236 calls for a Congressionally initiated
14 Constitutional amendment to address cited fiscals concerns,
15 or, in the alternative, a Congressional call for a
16 Constitutional Convention to address the said problems. We
17 could not find any record of HR 236 being rescinded over
18 the past four decades, so it is our understanding that it
19 maintains its status as a permanent continuing resolution.
20 Finally, regarding the viability of HR 63, as a
21 joint resolution it appears to require the signature of the
22 Governor, which in our view is very unlikely.
23 Another reason this initiative may be a wasteful
24 endeavor is that even if a Constitutional Convention were
25 to be called, and said convention did report out a 77
1 recommendation that the U.S. Constitution be amended to
2 include language to prevent Federal expenditures from
3 exceeding Federal revenues, it is highly improbable that
4 three-fourths of the States would ratify it. When
5 examining State Government budgets, one sees how dependent
6 States are on Federal funding. Most States already
7 struggle to find the funds necessary to carry out their
8 basic obligations. Thus, it is very unlikely States would
9 ratify a measure that would severely cut their Federal
10 program funding.
11 Common Cause has had longstanding opposition to a
12 Balanced Budget Amendment to the U.S. Constitution. Our
13 open letter to Congress in 1997 stated, "The United States
14 Constitution is not the place for resolving the Nation’s
15 economic and fiscal policies. Nor is the United States
16 Supreme Court, which inevitably will be drawn into these
17 policy matters if the amendment is adopted.
18 While Common Cause believes it is essential to
19 reduce the Federal deficit, we do not believe that amending
20 the Constitution is either an appropriate or effective
21 approach to deficit reduction. A Constitutional amendment
22 is no panacea. It contains no specific proposal for the
23 large spending cuts and the tax measures that must be
24 enacted to deal seriously with the Federal deficit problem.
25 Reducing the Federal budget deficit is a painful 78
1 process which requires leadership and political courage by
2 the President and Members of Congress. If Members of
3 Congress are serious about deficit reduction, then they
4 should get on with the business of enacting specific
5 measures to accomplish this rather than spending time and
6 energy on passing an unnecessary and potentially dangerous
7 Constitutional amendment.”
8 A Balanced Budget Amendment to the Constitution
9 also raises huge separation-of-powers issues. Who would
10 enforce it and how? The courts? Do we want the Supreme
11 Court suddenly making decisions about taxing and spending
12 that are the essence of Congressional authority and a
13 democratic process? The type of Constitutional amendments
14 envisioned by HR 63 would set our co-equal branches on a
15 collision course that makes a mighty mess of our carefully
16 balanced Constitution.
17 The most glaring danger in the current proposal,
18 however, is the strong possibility of a runaway convention.
19 There has not been a national Constitutional Convention in
20 this country since 1787 when it was composed of 13
21 semiautonomous States linked into a loose confederation to
22 protect trade, provide for a common defense, and improve
23 the ability of the national government to raise necessary
24 revenues.
25 When it became clear the confederation was not 79
1 working, the States sent delegates to Philadelphia to
2 tinker with the Articles of Confederation to make them work
3 more effectively. In fact, only two of the 12 States that
4 sent delegates to the convention in 1787 set no limits on
5 their delegates’ range of activities. However, the
6 delegates readily disregarded their States’ charges to
7 conduct a limited convention to amend the Articles of
8 Confederation.
9 This is the precedent upon which a convention
10 would be judged. History shows us, and most Constitutional
11 scholars agree, there is no way to guarantee the convention
12 of delegates won’t open the agenda to wide-ranging
13 amendments. A convention also would open up the
14 Constitution to revisions at a time of extreme
15 gerrymandering and in an environment of unlimited political
16 spending. That could be a recipe for disaster.
17 Simply put, there are no rules governing
18 Constitutional Conventions. A Constitutional Convention
19 would be an unpredictable Pandora’s Box. Several Supreme
20 Court Justices have warned about the dangers of
21 Constitutional Conventions. Former Chief Justice Warren
22 Burger wrote that "A Constitutional Convention today would
23 be a free-for-all for special interest groups.” And
24 current Justice Antonin Scalia has said that he "certainly
25 would not want a Constitutional Convention. Whoa! Who 80
1 knows what would come out of it?”
2 Since a convention has not been convened for over
3 220 years, Common Cause also has many concerns about how a
4 convention would be designed and managed and what its
5 operating rules would be. W e ’ve listed some of those
6 concerns in our written testimony.
7 Then there are the concerns about ratification.
8 The current Constitution requires ratification of
9 Congressionally initiated amendments by three-quarters of
10 the States. But as the 1787 Convention teaches us, the
11 convention could establish new rules for how amendments are
12 to be ratified. Might the convention put the amendment to
13 a vote with rules akin to the Electoral College or the one-
14 vote-per-State as we saw in 1787? And if the current rule
15 requiring ratification by the legislatures of three-
16 quarters of the States were to be maintained, what would be
17 the impact of highly gerrymandered states on achieving the
18 will of the people?
19 Common Cause has long-valued and supported the
20 deliberative processes contained in the design of our
21 national Constitution. Therefore, we oppose the call for a
22 Constitutional Convention in favor of the long tradition of
23 requiring an amendment to proceed through the careful
24 vetting of Congressional hearings, debates, and media
25 scrutiny that permits the timely responses by the general 81
1 public. And if an amendment should be approved by
2 Congress, it would again be vetted by State Legislatures
3 and the citizens of each State.
4 Every concern raised by HR 63 can be addressed
5 properly under the current standards and procedures of the
6 existing Federal Constitution. We don't need a
7 Constitutional Convention; we just need to engage in the
8 hard work of democracy. The most important thing that
9 Congress could do to reign in wasteful spending would be to
10 curtail the influence of special interest money in
11 elections and the legislative process. If the Members of
12 Congress were not beholden to campaign funders seeking
13 special interest and financial rewards and corporate
14 welfare that bloats Federal budgets, much of the dilemma
15 cited HR 63 would disappear. Tight campaign funding rules
16 along with comprehensive and timely disclosure rules might
17 just liberate officials to allow them to make the fiscal
18 decisions that are needed to properly serve our citizens.
19 Common Cause's entire history has been devoted to
20 government accountability. We fully recognize the concerns
21 raised by HR 63, but HR 63 is not an appropriate or
22 effective approach for remedying the cited problems. It
23 may in fact be a dangerous approach.
24 Thank you again for providing this opportunity to
25 address HR 63, and I'd be happy to address any questions 82
1 you may have.
2 HOUSE MAJORITY CHAIRMAN METCALFE: thank you,
3 Mr. Kauffman.
4 Senator Folmer?
5 SENATE MAJORITY CHAIRMAN FOLMER: Thank you. And
6 thank you, Mr. Kauffman, for addressing us today.
7 I have a bunch of questions but I ’m going to just
8 ask one because of limited time.
9 MR. KAUFFMAN: Sure.
10 SENATE MAJORITY CHAIRMAN FOLMER: Do you believe
11 the President of the United States and the U.S. Congress
12 follows the U.S. Constitution? And I ’m especially
13 interested in your thoughts on various Presidents and not
14 just this present Administration but Presidents of past
15 Administrations and Congresses of past Administrations on
16 the use of Executive Orders to go around Congress and both
17 his and their compliance with the 10th amendment, which
18 basically says the power is not delegated to the United
19 States by the Constitution, nor prohibited by it to the
20 States or reserved to the States respectively or to the
21 people?
22 MR. KAUFFMAN: Yes, that’s a great question. And
23 once people get in power, they understand power is to be
24 exercised. And I think every President has tried to push
25 his limits as to what he can accomplish to attempt to meet 83
1 the goals that he campaigned on. So the answer to your
2 first part of your question is yes. I think from time to
3 time the executives under the Constitution have pushed the
4 limits of that authority and that’s where it’s up to the
5 citizens through elections and through the courts to reign
6 that in when they have exceeded that authority.
7 SENATE MAJORITY CHAIRMAN FOLMER: But my real
8 concern is that when it’s obvious that even maybe through
9 the courts that you’re not getting -- where does the power
10 of the people come in? You talk about democracy, which
11 really w e ’re a republic -
12 MR. KAUFFMAN: Yes.
13 SENATE MAJORITY CHAIRMAN FOLMER: — but when
14 you’re talking about the power of the people, we the
15 people, and Article I, Section 2, I read that earlier,
16 which basically states that we have that right and it
17 starts from the bottom on up through. When w e ’re seeing
18 that the present system is not working, what is an
19 alternative outside of a Convention of States according to
20 Article V of our U.S. Constitution.
21 MR. KAUFFMAN: Well, although Common Cause itself
22 has been frustrated many times, the process for which we’ve
23 gotten the 20 some amendments -- I forget the number w e ’re
24 up to now -- has gone through the Congress and the results
25 sometimes take a lot longer than people would hope for. 84
1 But we have had our Constitution amended and we have had it
2 improved over the years. I mean we started out with a
3 women not being permitted to vote, we started out with
4 African Americans not being considered citizens. That was
5 a long process. It took 100 years for women to get the
6 right to vote.
7 So while it's frustratingly slow sometimes, we do
8 very serious support the deliberative process of
9 legislative bodies because as you mentioned, we are a
10 republic. We're not a pure democracy, and we think that's
11 important.
12 SENATE MAJORITY CHAIRMAN FOLMER: Okay. Thank
13 you.
14 HOUSE MAJORITY CHAIRMAN METCALFE: Thank you,
15 Senator Folmer.
16 Representative Pashinski.
17 REPRESENTATIVE PASHINSKI: Thank you,
18 Mr. Chairman.
19 And thank you, sir, for your testimony.
20 I think Jefferson said the people deserve the
21 government they elect. So the people did have a voice and
22 the people will continue to have a voice. And I liked your
23 comment about democracy is a very slow, deliberative
24 process because the consequences of doing something without
25 thinking it through could be really grave. 85
1 In your experience you have indicated that it’s
2 taken a lot of time in order to move various issues. To
3 what degree do you see this time frame since there have
4 been people working on this concept for a while?
5 MR. KAUFFMAN: That’s again difficult. It
6 depends what the scope of this actually is. I don’t want
7 to sound like Bill Clinton here, but to determine what the
8 meaning of "this" is, the proposal for the compact for the
9 States is really pretty undefined. We know they’re talking
10 about term limits but then they talk about unspecified
11 writing in of the powers of the Federal Government and they
12 talk about the Balanced Budget Amendment. I ’m not sure
13 what the "this" is yet and I don’t think we would get that
14 answer until the gavel was brought down at the convention
15 and we find out what they actually want to do.
16 I note that I am the only witness here from
17 Pennsylvania today, so I think part of our goal is to speak
18 truth to power, and part of that speaking truth to power is
19 speaking the truth to the citizens of this State. What we
20 really need is for our elected Representatives to get some
21 courage and follow the laws which are in place and follow
22 the Constitution’s standards which are already there. And
23 if we actually did that, there would be no need for an
24 amendment. But there is an amendatory process and we think
25 we should pursue that. 86
1 REPRESENTATIVE PASHINSKI: I do feel that if the
2 people have the right information, they will make the right
3 choice. The question is there is so much information
4 that’s thrown out there that is misinformation that it does
5 confuse the people out in the audience and throughout the
6 country.
7 MR. KAUFFMAN: Yes.
8 REPRESENTATIVE PASHINSKI: But w e ’ve come this
9 far, created the greatest country in the world, through
10 this process based upon our Constitution and what our
11 Forefathers laid down, and it is a sacred document. And
12 there is grave concern that we could have this runaway
13 convention. So I believe -
14 HOUSE MAJORITY CHAIRMAN METCALFE: Representative
15 Pashinski, is there a question there still?
16 REPRESENTATIVE PASHINSKI: I ’m sorry. No, I
17 thank you very much, Mr. Chairman.
18 HOUSE MAJORITY CHAIRMAN METCALFE: Thank you.
19 REPRESENTATIVE PASHINSKI: Thank you,
20 Mr. Kauffman.
21 HOUSE MAJORITY CHAIRMAN METCALFE: Thank you,
22 Representative Pashinski.
23 Representative Gabler.
24 REPRESENTATIVE GABLER: Thank you for your
25 testimony. I ’m told that my microphone isn’t working so 87
1 I ’m going to borrow Gwenn’s.
2 MR. KAUFFMAN: Okay.
3 REPRESENTATIVE GABLER: Hopefully, I don’t look
4 too silly leaning this far.
5 Here’s what I want to ask -
6 MR. KAUFFMAN: You’re leaning to the left, too.
7 REPRESENTATIVE GABLER: Touche. Here’s my
8 question is your letterhead even says "Holding Power
9 Accountable” -
10 MR. KAUFFMAN: Yes, sir.
11 REPRESENTATIVE GABLER: — and my thought on this
12 is that this is an issue where we have a lot of
13 unaccountability in power.
14 MR. KAUFFMAN: Yes.
15 REPRESENTATIVE GABLER: And specifically when I
16 think of the fact that we have a State Government that
17 charges a 3.07 percent income tax -
18 HOUSE MAJORITY CHAIRMAN METCALFE: Representative
19 Gabler, w e ’re going to get to a question, though, right?
20 REPRESENTATIVE GABLER: Yes, we are, real quick.
21 HOUSE MAJORITY CHAIRMAN METCALFE: Thank you.
22 REPRESENTATIVE GABLER: And here’s what I ’m going
23 to say. But yet we have a Federal Government that charges
24 you 15, 25, 35, or 39.6. Don’t you think that there’s an
25 imbalance of accountability there. Couldn’t we hold more 88
1 local governments as in at the State level more accountable
2 for our money than having 3, 4 trillion dollars a year -
3 MR. KAUFFMAN: Yes.
4 REPRESENTATIVE GABLER: — flowing through
5 Washington?
6 MR. KAUFFMAN: Sure.
7 REPRESENTATIVE GABLER: Wouldn’t it be a more
8 accountable thing to have more of the money managed at the
9 State level rather than the Federal level?
10 MR. KAUFFMAN: I ’m not an expert on tax policy so
11 I won’t try to be today either. I think there are
12 certainly better ways of accomplishing what has been done.
13 And with regard to that specifically, as one of
14 the earlier witnesses said, possibly one-third of the
15 State’s resources are coming from the Federal Government.
16 That means if you parse it out, if we would lose all those
17 Federal funds, State taxes and local taxes would probably
18 have to increase by 50 percent. It’s still the people’s
19 money whether it’s taxed at the State level or the local
20 level or the Federal level. You might make a case against
21 the bureaucracy. But if you’re reducing one-third of the
22 tax revenues that come in the State, you have to increase
23 State revenues by 50 percent. I ’m not sure if that answers
24 your question.
25 HOUSE MAJORITY CHAIRMAN METCALFE: I think he 89
1 could probably go back and forth with you for a while on
2 that one but -
3 MR. KAUFFMAN: Yes.
4 HOUSE MAJORITY CHAIRMAN METCALFE: — we'll move
5 on to Representative DeLissio.
6 Thank you, Representative Gabler.
7 REPRESENTATIVE DELISSIO: Thank you,
8 Mr. Chairman. I had to step out for a bit for a Government
9 Reform Caucus meeting so I hope this isn't out of context.
10 I'm going to assume not.
11 I'm a root-cause type of person so we have a 200
12 and almost 39-year-old experiment going on here called the
13 United States of America, pretty cool. And from my
14 observations both as an elected official over the past five
15 years and previous to that for my entire adult life -- and
16 I've never missed voting in an election -- I'm kind of
17 struck by some situations that we've been responsible for
18 creating whereby, for instance, we have very dismal -- not
19 low -- dismal voter turnout. We have this little concept
20 known as gerrymandering.
21 And I would have asked this question of any
22 testifier. So the concept of something big like a
23 Constitutional Convention may or may not have its place.
24 I'm a very contemplative person. This hearing will be the
25 start of my contemplation of that. I've gotten email on 90
1 both sides of it as well. But are there other things that
2 we can do that better engage and encourage engagement of
3 our citizens that will therefore lead to the corrections we
4 seek following the process that w e ’ve already outlined? I
5 mean I think w e ’ve disenfranchised people in my own
6 personal opinion. I think reengaging them should be job
7 one. Your thoughts?
8 MR. KAUFFMAN: I guess that could be an
9 extremely, extremely long discussion. And we talked about
10 some of the things, about campaign financing. Let me just
11 respond to your question to point out that Common Cause is
12 very -- we try to be very candid and we try to also be very
13 true to our values. Common Cause, to partly answer your
14 question, strongly supports campaign finance reforms.
15 That’s one thing that can elevate the voices of regular
16 people.
17 But we found ourselves last week in Maryland
18 opposing a call for a Constitutional amendment and a
19 Constitutional Convention to overturn the Citizens United
20 decision. So here we were having to be in a position to
21 oppose something we dearly want to achieve and quite
22 frankly really tick off quite a few of our allies because
23 we don’t think the Constitutional Convention route is the
24 proper way to go. We try to be true to those values even
25 if it might put up a short-term roadblock to what we want 91
1 to accomplish.
2 HOUSE MAJORITY CHAIRMAN METCALFE: Thank you.
3 Thank you, Representative DeLissio.
4 Thank you, sir, for your testimony today.
5 MR. KAUFFMAN: Thank you.
6 HOUSE MAJORITY CHAIRMAN METCALFE: Have a great
7 day.
8 MR. KAUFFMAN: Thank you.
9 SENATE MAJORITY CHAIRMAN FOLMER: Our next
10 testifier will be Mr. Nick Dranias, President and Executive
11 Director of Compact for America Educational Foundation,
12 Incorporated.
13 Welcome, Mr. Dranias.
14 MR. DRANIAS: Thank you, Mr. Chairman, both
15 Chairmen.
16 I am a 19-year attorney. I've been practicing
17 exclusively Constitutional law for 10 years. Compact for
18 America Educational Foundation is devoted to solving the
19 Article V problem in a new way that takes serious the
20 concerns that we've heard expressed by the opposition.
21 And let me also emphasize that what's great about
22 Article V is that it's a cross partisan issue. You can
23 find opponents on the left and the right; you can find
24 supporters on the left and the right. And that means that
25 this Committee, Mr. Chairman, has the unique opportunity to 92
1 decide as a matter of principle where you stand. And that
2 principle is this: Are you more accessible to your
3 constituents or is your Congressman? Do your constituents
4 have a greater impact on their own lives and their own
5 governance with power closer to them or further away?
6 Whether you’re on the left or the right, if you
7 believe in bringing power home and decentralizing it from a
8 political class in Washington, Article V is your ultimate
9 tool.
10 So the real question is if you believe that, how
11 should we use Article V? The Compact approach, which is
12 now the law in four States, has an active Compact
13 Commission. The Compact for America Educational Foundation
14 serves as the Compact administrator as a public official
15 exists, and its job is to solve the problem of Article V by
16 putting all of the flesh on the bones that w e ’ve heard
17 folks say can’t be found.
18 What is it? Use an agreement. Mr. Chairman,
19 Members of this Committee, I ’m sure some of your attorneys.
20 It seems to happen that way in elected office a lot. What
21 do you do for a client when you have an uncertain business
22 proposition? What do you do in a divorce when you need to
23 settle differences? You reach an agreement. Pennsylvania
24 is a party to 30 or more interstate agreements. They’re
25 called compacts. They’re designed for handling problems of 93
1 collective action between the States.
2 What is the ultimate problem of collective action
3 among the States, as w e ’ve heard today? It’s Article V.
4 So what the Compact for America approach is all about is
5 settling that issue up front, transparently, and with
6 complete certainty, safety, and speed.
7 So let me walk you through the certainty of the
8 Compact approach where you use an agreement among the
9 States to settle all questions about Article V in advance.
10 One of the basic problems with Article V is even when you
11 have a limited topic, how do you know what the amendment is
12 going to be? That’s a legitimate question. And it’s not a
13 legitimate question because we should be fearful of
14 amendments. Look, Congress, as w e ’ve heard, sits in
15 session with the power to amend all sorts of crazy things,
16 if they had the political will to do so, every day. But
17 the real problem with Article V is how do you know it’s
18 worth the effort? I mean this is a massive political
19 undertaking. How do you know it’s worth the effort without
20 having an amendment?
21 The nice thing about using a Compact, an
22 agreement among the States, is you can actually settle in
23 advance what the amendment will be, and if you look at the
24 Compact for a Balanced Budget, which currently exists in
25 four States, it specifies in complete detail what that 94
1 amendment will be. A Compact for a Balanced Budget is
2 about advancing a specific Balanced Budget Amendment. That
3 amendment has components that have poll-tested, vetted by
4 19 think tanks, endorsed by people like George Will on the
5 right and the vehicle endorsed as safe by Lawrence Lessig
6 on the left.
7 What is this Compact? Well, first of all, it’s a
8 Compact for America, not for conservatives. It’s a Compact
9 to deliver and ratify an amendment that can secure support
10 in 38 States. So you have to have politically plausible
11 support from the left, right, and center.
12 What does this Balanced Budget Amendment say?
13 First of all, impose a limit on debt. Right now, we have a
14 debt escalation that is absolutely beyond control. Do it
15 very simply. Limit spending to cash on hand with an
16 exception for a specific revolving line of credit. Have
17 that revolving line of credit be in dollar terms so you
18 can’t cheat it. Don’t rely on fancy formulas.
19 To avoid the game of chicken, require the
20 President designate how he’s going to enforce that debt
21 limit when he’s running low on borrowing capacity long in
22 advance of the midnight hour so you don’t have the gun to
23 grandma’s head and her Social Security check. The
24 amendment provides for that process. But don’t leave
25 Congress at the mercy of the President. Give Congress the 95
1 ability to override the President’s curtailment of spending
2 to stay within the limit with simple majorities and then
3 let the budget debate begin.
4 If you need more borrowing capacity for
5 emergencies or for wars, don’t leave the power to borrow in
6 the hands of the debt addict. Engage the States. Forty-
7 four States have debt limits or balanced budget amendments
8 in their Constitution. You guys know what it looks like to
9 have a balanced budget on paper. Congress doesn’t
10 remember. It’s been since 1997 since we had anything like
11 one.
12 So bring the debate for any more borrowing
13 capacity to you. Have States approve in a referendum any
14 increase in that initial debt limit. Twenty-six States,
15 it’s not an insurmountable number and sometimes Congress
16 will get what it wants but it won’t always get what it
17 wants, which will change the dynamic in Washington where
18 you suddenly have to prioritize.
19 Lastly, there needs to be some sort of tax limit
20 not because Grover Norquist likes this amendment, and he
21 does, but because we don’t want to destroy the seed corn of
22 future economic growth. Look, if push comes to shove and
23 we have to impose taxes on ourselves to pay for our current
24 government rather than our kids, then it’s the right thing
25 to do. And that should be an option on the table, but we 96
1 shouldn't jump to that option at the expense of future
2 economic growth.
3 So what is this tax limit? It says that you have
4 a default rule of two-thirds of each House of Congress or
5 any new income or sales tax but you preserve the simple
6 majority rule that currently exists for closing loopholes.
7 Trillions of dollars could be raised by closing loopholes.
8 You'd preserve the simple majorities for switching
9 completely to a consumption tax. You can raise trillions
10 of dollars doing that with less damage to our capital. And
11 then you preserve simple majorities for fees and tariffs.
12 So that's the certainty of the Compact approach.
13 You know what you're getting up front. The States are
14 agreeing to advance this. And what's more is this is not
15 insignificant in terms of a reform. Thomas Jefferson said
16 in 1798 he was already getting anxious that if there was
17 one amendment to the Constitution that would restore the
18 Constitution, it would be taking away the power of
19 borrowing. Why did he say this? Why did it take us 200
20 years to learn? He said this because he understood that
21 unlimited borrowing means that you can spend or you can set
22 tax policy without regard to the political costs because
23 there are none. Future generations who aren't voting, they
24 get stuck with the bill.
25 Think about what this means structurally. It 97
1 means that there’s taxation without representation baked
2 into the political cake. And no matter how much we love
3 our kids, just like husbands, no matter how much they love
4 their wives, if you don’t have those interests existing in
5 the political dynamic, you can’t check and balance our
6 decisions. You can’t represent your kids as well as they
7 will when they’re hit with the bill, just like husbands
8 could never represent their wives as well as they could
9 when they got the right to vote.
10 This is a failure of democracy. This is a
11 structural problem. This is why left, right, and center,
12 44 States limit debt in some way in their State
13 Constitutions. This used to be basic commonsense good
14 governance. So I call T.J. T.J. because he deserves credit
15 for this. He saw this coming 200 years ago.
16 So that’s the advantage of the Compact approach.
17 The question is can you do it? W e ’ve heard all this
18 testimony that maybe you can’t limit a convention. Look,
19 what you haven’t heard is any testimony on what the meaning
20 of "application" is. And Mr. Stern actually wrote a great
21 law review article on this. So did Michael Rappaport of
22 the University of San Diego. I ’ve written a few policy
23 reports on it as well.
24 All the answers about Article V are contained in
25 the meaning of "application." The application is the 98
1 petition. The application, if you look at the usage of
2 applications at the time of the founding could be as
3 specific as the States want. You could have specific
4 amendments specified, you could have a specific subject
5 matter specified. There's no reason why you can't, because
6 if you look at the historical evidence, and we could walk
7 through this in the question phase, there is absolutely no
8 question, no doubt, it is irrefutable that the Founders
9 thought the application could specify as much detail as
10 they wanted.
11 So the answer is the application. I encourage
12 you to ask me a question about this. We have lots of
13 evidence to talk about.
14 Now, we've heard about safety. Here's a problem
15 with safety. It's not that I'm afraid that people will do
16 crazy things and get around the ratification hurdle. It's
17 because there are people who believe this, right? Whether
18 I believe it or not, it doesn't change the fact that there
19 are people who do. So in politics what do you do when you
20 can't reach an agreement on a question of taste? You
21 settle your differences, again the Compact.
22 The Compact targets the problem of safety by
23 specifically defining every process involved in the
24 amendment, everything from the amendment to the delegates
25 to the rules to the convention logistics, even pre 99
1 committing the States to ratifying it, even committing the
2 States to not going to the convention unless Congress plays
3 along. And then you include numerous kill switches that
4 shut down the process if anything goes awry. And you know
5 what else you do? Mr. Chairman, you enable States to
6 enforce against other States in a common venue.
7 HOUSE MAJORITY CHAIRMAN METCALFE: Mr. Dranias?
8 MR. DRANIAS: Mr. Chairman.
9 HOUSE MAJORITY CHAIRMAN METCALFE: W e ’re kind of
10 at the end of the 10-minute presentation.
11 MR. DRANIAS: Oh, okay.
12 HOUSE MAJORITY CHAIRMAN METCALFE: So if you
13 don’t mind, we could jump into the Q&A.
14 MR. DRANIAS: That’s fine.
15 HOUSE MAJORITY CHAIRMAN METCALFE: And I
16 appreciate your help with trying to get one of those
17 questions asked.
18 Senator Folmer.
19 SENATE MAJORITY CHAIRMAN FOLMER: Thank you very
20 much, Mr. Dranias, for your testimony and with your idea of
21 the Compacts and such.
22 Real quick, how do you square your
23 recommendations with George Washington’s farewell address
24 where he said, "If in the opinion of the people the
25 distribution or modification of the Constitutional powers 100
1 be in any particular wrong, let it be corrected by an
2 amendment in the way in which the Constitution designates,
3 but let there be no change by usurpation for though this in
4 one instance may be the instrument of good, it is the
5 customary weapon by which free governments are destroyed.”
6 MR. DRANIAS: Mr. Chairman, I completely agree
7 with that. There’s no reason for usurpation because the
8 convention for proposing amendments allows for a clear
9 process of proposing amendments in parallel to Congress.
10 And again, it all hinges on the meaning of "application."
11 What I ’ve thrown up is a slide showing the next-
12 to-final version of Article V. Just before the final
13 version was settled upon, Congress was the one proposing
14 amendments on the application of two-thirds of the States.
15 Where was Congress going to get the amendments? It had to
16 come out of the application. All they did was switch out a
17 convention for Congress. They didn’t change the meaning of
18 application, they didn’t indicate anything differently
19 about the process.
20 And here’s what George Washington said, by the
21 way, to a friend named John Armstrong who opposed
22 ratification. And George Washington wrote to him and said,
23 hey, the States can obtain any amendments they want as long
24 as nine of them ask for them. What was nine? That was the
25 two-thirds threshold for the application. So George 101
1 Washington, indeed all the Founders if we want to go
2 through these slides, all the Founders who talked about
3 Article V recognized the application targets the process.
4 SENATE MAJORITY CHAIRMAN FOLMER: Just real quick
5 and just your quick thoughts on two points I ’m going to
6 bring out to you, just your opinion. What are your
7 thoughts on the "living Constitution" idea, and finally,
8 what are your thoughts on a national popular vote effort
9 that’s been going on?
10 MR. DRANIAS: Well, Mr. Chairman, Members of the
11 Committee, I believe in enforcing the original meaning of
12 the document, but I also as an attorney understand that
13 people intentionally build out degrees of flexibility in
14 documents because life is needing of some degree of
15 flexibility. We can’t anticipate everything.
16 SENATE MAJORITY CHAIRMAN FOLMER: Well, I think
17 George Washington said that in his farewell address -
18 MR. DRANIAS: That’s correct.
19 SENATE MAJORITY CHAIRMAN FOLMER: — but it
20 should be done through the amendment process or else you’re
21 going to be usurping -
22 MR. DRANIAS: Absolutely. The living
23 Constitution, to the extent there is one, is one to be
24 found in the amendment process, a structured process with
25 checks and balances. 102
1 SENATE MAJORITY CHAIRMAN FOLMER: And real quick
2 on the popular vote thing real quick, there’s an effort
3 going across the country -
4 MR. DRANIAS: I ’m familiar with it. The
5 underlying legalities of it is I think Constitutional. Is
6 it a good policy or not, I don’t know.
7 SENATE MAJORITY CHAIRMAN FOLMER: Okay. Thank
8 you. Thank you for your -
9 HOUSE MAJORITY CHAIRMAN METCALFE: Thank you,
10 Senator Folmer.
11 Representative Daley.
12 REPRESENTATIVE DALEY: Thank you, Mr. Chairman.
13 And, Mr. Dranias, it’s been good to have you here
14 today. Thank you very much.
15 I want to go back a little bit to what the last
16 speaker talked about and the hard work of democracy, and
17 one of my concerns with the Constitutional Convention, and
18 I just would be interested in hearing a response to this,
19 is that we already have a system where people elect their
20 representatives, Senators, Congress, President, State
21 Representative, State Senators, on down to local levels.
22 So voting is really a way that people can be very involved
23 in their government, and w e ’re supposed to be responsive to
24 the people who vote us there.
25 So to set up a system where you’re going to have 103
1 a Constitutional Convention by people -- I'm not sure how
2 they're going to get appointed or put onto this -- one
3 person for each State is some of the talk that I've heard.
4 And I'm not sure how they're actually then responsive to
5 people. So I'm just having a very hard time understanding
6 how a Constitutional Convention with all of the unknowns
7 that we have are actually better than really involving
8 people in the democratic process that they already have.
9 They already have the right to vote. And to me we devalue
10 that right to vote when sounding like we need another group
11 to come in and make things better, whatever those things
12 are, in the case of a balanced budget or whatever.
13 And I just would make one comment that we have a
14 balanced budget in Pennsylvania but that doesn't mean that
15 we actually always balance the books.
16 But my concern is I never want to see people's
17 vote devalued and I see that this potentially has the
18 effect of doing that. Do you have any response to that?
19 MR. DRANIAS: Mr. Chairman, Members of the
20 Committee, I don't think that's an unreasonable concern,
21 which is why it's great to settle all these differences up
22 front and transparently with an agreement among the States,
23 a Compact.
24 And let me just walk you through how the Compact
25 answers all of these questions should this body ever 104
1 consider the Compact for a balanced budget. On the one
2 hand you have the agreement among the States. On the other
3 hand you have the Congressional Resolution that activates
4 it. In the agreement is the proposed amendment w e ’ve
5 discussed. In the agreement is a commission to oversee the
6 process, provide logistical support, basically herd the
7 cats. In the agreement is the application required by
8 Article V specifically saying w e ’re calling for this kind
9 of convention, an up-or-down vote on that amendment. That
10 application only goes live when 38 States join the Compact.
11 It doesn’t do anything. And we chose 38 States for two
12 years. It’s the ratification number. We figure there’s no
13 point starting the process if you can’t finish it.
14 Number two, 38 States make it pretty much
15 guaranteed that you’re going to have a majority of the
16 American population behind it, alongside the number of
17 States. When that happens, the call is triggered, the call
18 goes live. Inside the Compact you trigger the delegate
19 appointments. You specific up to three delegates of any
20 identity you want. The default is the Governor of your
21 State. They’re instructed to vote rules into place as the
22 first order of business or they’re disqualified limiting
23 the convention to an up-or-down vote on that amendment. If
24 they do anything else, they’re disqualified. They’re void
25 ab initio in their actions. 105
1 Those rules are reinforced by an agreement by all
2 38 States that they will not participate in the convention
3 that does anything else and they will not ratify any
4 amendment other than the one contemplated.
5 Assuming the convention proposes the amendment,
6 then in the Congressional Resolution already front-loaded
7 at the beginning is the selection of legislative
8 ratification. It goes live and then the ratification that
9 the State’s committed to doing in the Compact already
10 preloaded goes live.
11 That is the Compact approach. And what it does
12 is it transforms Article V into something more like a
13 ballot measure just like we see ballot measures in many
14 Western States decide many fundamental issues of
15 Constitutional law.
16 Now, it shouldn’t be used for every issue. The
17 Balanced Budget Amendment is a great issue because in our
18 democratic process, voting can never protect our kids as
19 well as they can, so we need to have a structural
20 protection to ensure that the bill is not sent to them.
21 That’s what you want to look for in a good amendment. You
22 want to look for structural problems in democracy where all
23 of the stakeholders are not being represented. Unlimited
24 borrowing is one of those areas.
25 REPRESENTATIVE DALEY: I ’m not sure how that 106
1 really answered the question about people actually going to
2 the polls and voting because I still believe that that's a
3 pretty simple process. We have elections, too, every year
4 that we have an opportunity. So I don't want to debate you
5 on that but I'm not sure that you really answered by my
6 question. But thank you.
7 MR. DRANIAS: Mr. Chairman, I don't want to
8 debate but I think this is an important issue. There were
9 elections before women had the right to vote. People
10 recognized eventually that their interests were not being
11 represented. It was not enough to have elections by men.
12 And similarly, when we're borrowing at the levels we're
13 borrowing and shifting the bill to our kids and we don't
14 have time machines to bring them in to vote, we have to
15 have some sort of comparable structural reform to protect
16 their interests. It's the only right thing to do.
17 REPRESENTATIVE DALEY: And women have the right
18 to vote. I'm not saying I agreed with the original but I
19 think there were compromises made in the original
20 Constitution and I don't necessarily agree with them but it
21 was how things got done. Democracy is hard work. I think
22 that's the bottom line for all of us. Democracy is hard
23 work and voting is a real part of it and people have a say.
24 So thanks.
25 HOUSE MAJORITY CHAIRMAN METCALFE: Thank you, 107
1 Representative Daley. I would add preserving the republic
2 is very hard work, especially when people talk about it
3 being a democracy all the time. She means a representative
4 democracy. I mean a Constitutional republic. Topic for
5 another hearing.
6 Mr. Dranias, thank you, sir, for coming today.
7 I ’d met you in DC back in December and asked you at the
8 time if you’d be willing to come up along with Mr. Farris
9 and you both graciously agreed to make the trip to
10 Pennsylvania.
11 You had mentioned, which I thought was a good
12 point that was pointed out and I know it came out through
13 other testimony today but that all of this hinges on the
14 application. And I think the Compact, I think out of
15 everything w e ’ve talked about, if w e ’re not going to do a
16 single amendment process, I like the idea of a Compact to
17 take out the Congressional jockeying possibilities when
18 they get a number of applications that aren’t necessarily
19 the same and then claim that they haven’t received the same
20 application and the right number of applications. So I
21 think the Compact actually deals with that as long as the
22 Compacts are all the same, which by nature of Compact, they
23 need to be.
24 So do you have any additional thoughts on that
25 part, that application that you didn’t get to share because 108
1 we ran out of time because we have -
2 MR. DRANIAS: Absolutely.
3 HOUSE MAJORITY CHAIRMAN METCALFE: -- about 30
4 seconds left.
5 MR. DRANIAS: Mr. Chairman, Members of the
6 Committee, the benefit of a Compact is they have to be
7 substantively identical and we say completely identical to
8 avoid any legal argument. And so you are guaranteed to
9 have the same application in order to have a valid Compact.
10 The four States that have joined so far, Alaska, Georgia,
11 North Dakota, and Mississippi, have substantively identical
12 Compacts.
13 HOUSE MAJORITY CHAIRMAN METCALFE: Thank you,
14 sir. Thanks for being with us. Thanks for making the trip
15 to Pennsylvania today.
16 MR. DRANIAS: Thank you. My pleasure.
17 SENATE MAJORITY CHAIRMAN FOLMER: Our final
18 testifier will be Dr. Matthew Spalding, Associate Vice
19 President and Deal of Educational Programs at Hillsdale
20 College, Allen P. Kirby, Jr. Center for Constitutional
21 Studies and Citizenship.
22 Welcome, Dr. Spalding.
23 DR. SPALDING: Thank you, Mr. Chairman, Chairmen.
24 Thank you for your time and I ’m very happy to assist you in
25 your deliberations today. 109
1 Prior to being at Hillsdale College I was 19
2 years at the Heritage Foundation where I was Vice President
3 of American Studies where, among other things, I did the
4 Heritage Guide to the Constitution, and my longer testimony
5 is taken from that book.
6 Let me immediately stipulate our country faces
7 great and grave dangers: out-of-control spending, endless
8 debt, entitlement regime on an unsustained trajectory,
9 growth of the modern bureaucratic state, along with a
10 judiciary that increasingly legislates, and we can now add
11 an executive that prefers not to be bound by the rule of
12 law.
13 But let’s not be fooled. An Article V convention
14 is not a silver bullet, some silver bullet left there by
15 James Madison or George Mason put in the Constitution just
16 for this moment. It’s a last-minute compromise that
17 Madison himself opposed not only because it left many
18 things unsettled but also because it might well likely
19 undermine the Constitution just as much as it might save
20 it.
21 My larger testimony is in my written testimony,
22 but stemming from that analysis and taking into
23 consideration the circumstances under which we are now
24 operating, I don’t believe an Article V Convention is the
25 answer to our problems, especially not at this time. The 110
1 lack of precedent, extensive unknowns, considerable risk of
2 an Article V amendments convention should bring sober pause
3 to advocates of Constitutional reform.
4 This should come as no surprise. While the
5 Congressional method of proposing amendments is
6 unambiguous, things get very murky with an Article V
7 Convention. The vagueness of this method is why Madison
8 opposed the proposal at the Constitutional Convention. And
9 when it was proposed for use, to create the Bill of Rights,
10 combining that with the fact that no such amending
11 convention has ever occurred, and too many serious
12 questions are left open and unanswered.
13 Nevertheless, I think we can understand something
14 from a natural reading of the clause, which is implicit in
15 the idea of the convention itself. An amendments
16 convention was not intended to be a pass-through but rather
17 open and deliberative, restricted to this subject matter,
18 but otherwise an independent body, organized to propose
19 amendments to solve problems the States faced as a country.
20 It was intended to be an alternative to Congress; Congress
21 here is not the deliberative body.
22 This reading of Article V is supported by the two
23 occasions on which a convention was proposed. Madison did
24 propose an amendments convention during the nullification
25 crisis of 1832 as a last ditch effort to prevent 111
1 nullification from destroying the union. Likewise, Abraham
2 Lincoln sought to resolve the slavery controversy in the
3 midst of the Civil War. He argued that the convention mode
4 "seems preferable" because it allowed for broad
5 deliberation.
6 In both cases the amendments convention idea was
7 soon withdrawn, and in both cases, an amendments convention
8 was understood to be free to propose whatever amendments
9 thought necessary to address the questions at issue. The
10 broad subject matter of an amendments convention could be
11 defined, and the States could coordinate their efforts, but
12 it was understood to be a place where the States could
13 deliberate, hash out the Nation’s problems without so many
14 restrictions to prevent arguments, deliberation, and, yes,
15 compromise. This is just what makes us nervous today.
16 History suggests an amendments convention is an
17 option in extremis, but today we want to use it as a policy
18 tool, hence, the pension seen in the opinions on this
19 question. The Convention of the States wants a broad
20 subject matter convention and lists at least eight possible
21 amendments to control the size and scope of the Federal
22 Government. On the right, Mark Levin has a dozen or so he
23 wants. On the mainstream left, Larry Sabato of the
24 University of Virginia has more than 20.
25 Defenders of the Constitution may well rue the 112
1 day when they open up this can of worms. Does creating a
2 Compact among the States solve the problems? It’s a very
3 interesting idea. But it strikes me as too clever by half:
4 full of assumptions and detailed planning to get around the
5 inherent nature of Article V. It narrows the amendments to
6 be proposed to one specific amendment that is already been
7 written to be voted up or down. That is, it turns an open
8 amendments convention into a closed ratifying convention.
9 It looks to me like the Compact restricts or at least tries
10 to control Congress’ power under Article V to call a
11 convention.
12 I think there are also questions about
13 presentment, not concerning the Article V process, but
14 quite possibly the Compact itself. My concern with the
15 Compact proposal is that it assumes politics can be planned
16 and controlled in detail. But politics will abound, and so
17 will litigation, endless litigation.
18 That said, advocating an Article V Convention as
19 a part of a State-based strategy to press Congress to pass
20 a Constitutional amendment is not unreasonable, precisely
21 because of the potential chaos of the process. That’s what
22 happened in the 1980s with the unsuccessful push for a
23 Balanced Budget Amendment, a good example which this
24 Legislature supported, but also during the progressive era
25 when the successful push for the direct election of 113
1 senators passed, a bad example.
2 Scholars will continue to debate and speculate,
3 but the argument that, as a matter of course, we should
4 spend considerable time, money, and effort right now to
5 design, plan, and implement a convention, despite those
6 unknowns and risks, is both imprudent and potentially
7 dangerous. It’s a distraction that inevitably gets bogged
8 down in debate over technical details, taking valuable time
9 and focus away from the substance of the reforms
10 themselves.
11 In my opinion, the answer to our problems is
12 politics. We don’t need more technical legalisms but
13 Constitutional politics: aggressive checks and balances,
14 debates about Constitutional authority and powers, more
15 politics about using Constitutional powers to achieve
16 political objectives. There is nothing in the Constitution
17 that needs to be fixed for us to solve our problems. A
18 broad restructuring of Madison’s Constitution, which is
19 what a general convention implies if you’re talking eight
20 to 12 amendments, is a dubious and dicey proposition.
21 We need more aggressive States, challenging,
22 coordinating, and engaging in checking the Federal
23 Government. We need a more dynamic politics, State and
24 Federal, within our Constitutional framework, one that
25 engages and realigns the American people into a new 114
1 governing coalition.
2 Too often we look at the Constitution as a legal
3 document, a technical contract with its own legal experts
4 and judicial administrators. In our attempt to solve our
5 problems, we are drawn as a result to technical fixes and
6 silver bullets to be enforced by judicial decree. Such
7 arguments might work well in the courtroom, and we should
8 pursue them in the courtroom. But they are usually not
9 good politics. There is an anti-political sense to them
10 indeed, a sense that politics is litigation.
11 But jurisprudence is not the same as political
12 prudence, both in the cautious, as well as the bold sense
13 of the term. The imprudence of an Article V convention is
14 that we get tied up in narrow legalisms, get lost in the
15 weeds, absorb our time and treasure, all the while
16 alienating voters from the problems that are destroying our
17 country, the clarity and fight over which is the key to the
18 outcome at the ballot box.
19 Thank you for your time.
20 HOUSE MAJORITY CHAIRMAN METCALFE: Thank you,
21 sir, for taking time to be with us. We appreciate you
22 coming here to Pennsylvania today.
23 Senator Folmer for the first question.
24 SENATE MAJORITY CHAIRMAN FOLMER: Yes, and I'm
25 going to tie three real quick together here. 115
1 Your testimony does a nice job in outlining the
2 history of the U.S. Constitution. Do you believe there is
3 a need for amendments, and if yes, what would you recommend
4 to be done to amend the Constitution?
5 And then I ’m going to tie that into -- I asked
6 this to other members that testified. Do you believe that
7 Congress and the President are adhering to the 10th
8 Amendment of the U.S. Constitution?
9 And then finally, tying all that together is that
10 understanding your deep concerns with a Convention of
11 States, what’s your alternative to the overreach of Federal
12 Government?
13 DR. SPALDING: If I could answer them slightly
14 out of order to make more sense of it, I complete agree
15 with your second point. The current Congress is way away
16 from the Constitution. The current President and previous
17 I would suggest are acting way outside their Constitutional
18 powers, absolutely. The question is what do you do about
19 it?
20 An amendment, there’s a lot of confusion about
21 the amendment process. An amendment closes debate; it
22 doesn’t open debate. It’s the end of the sentence, not the
23 opening. You get an amendment once you’ve won the
24 politics. W e ’ve not won the politics yet. You’ve got to
25 convince the American people moving it through politics. 116
1 That is Madison’s solution. That was the objective. When
2 there’s a disagreement within a government, where does it
3 go? It drives towards elections, realigning elections.
4 That’s what Jefferson and Madison did going into the
5 election of 1800. That’s what the Republicans did in the
6 1890s, the Democrats in the 1930s, and Reagan in the 1980s.
7 That’s the solution.
8 And at a time when politics is becoming divided,
9 which suggests that there’s a real debate going on about
10 being ruled by bureaucrats that could be a political tool,
11 that’s the time when you want folks on the politics of it
12 as opposed to getting caught up and drawn down into the
13 narrow weeds of legalisms. W e ’ll spend most of its time in
14 the courts in my opinion.
15 SENATE MAJORITY CHAIRMAN FOLMER: I would like to
16 further this discussion as we go forward.
17 I ’m going to yield my time now so other folks can
18 ask questions.
19 DR. SPALDING: I ’d be happy to.
20 SENATE MAJORITY CHAIRMAN FOLMER: Sure.
21 HOUSE MAJORITY CHAIRMAN METCALFE: Thank you,
22 Senator Folmer.
23 Representative Cohen.
24 HOUSE DEMOCRATIC CHAIRMAN COHEN: Thank you. I
25 really like the line "jurisprudence is not the same as 117
1 political prudence.” It's just full of wisdom.
2 I agree with the idea that you're not going to
3 solve basically a political problem of an unbalanced budget
4 through a Constitutional amendment. The late James
5 Mandarino, a long-time Democratic leader in the House and
6 he served a brief half-term as Speaker, used to say when
7 this subject came up that we don't need a Balanced Budget
8 Amendment; we need a balanced budget. And there's nothing
9 really stopping Congress from adopting a balanced budget
10 right now and there's nothing stopping State Legislatures
11 from recommending a balanced budget. And I think a
12 balanced budget would obviously include more taxes and
13 people don't want to be on record as voting for more taxes,
14 so we don't have it. So that's my feeling.
15 Besides that obvious suggestion that Congress
16 should just balance the budget, what other suggestions do
17 you have?
18 DR. SPALDING: Well, first of all, I'd just point
19 out for the record that the last time Congress considered a
20 balanced budget, the people who advocate a balanced budget
21 could not agree on a text. It's very hard to do.
22 Number two, I would point out that once you get
23 into balanced budgets, you get into difficult political
24 territory. I would use the analogy of the pro-life
25 amendment. After Roe v. Wade, many critics of that 118
1 decision wanted an amendment to the Constitution. That
2 essentially delayed and drove off that debate for quite
3 some time because it changes the nature of the debate.
4 There are all sorts of things States can do.
5 They can drag their feet, they can sue Congress, they can
6 sue the Federal Government. The Supreme Court says that
7 States cannot be commandeers. The Federal Government
8 cannot make you enforce their laws for them. There are all
9 sorts of options. The fallacy here is that it’s either
10 this or it’s nothing and w e ’ve lost. That’s a straw man
11 argument. It’s politics. This is a legislative question.
12 You need to use your legislative ideas. Find clever ways.
13 The State of Pennsylvania can do one thing. The State of
14 Utah or Arizona can do another thing. That’s politics and
15 that’s Madison’s plan. That’s what Jefferson and Madison
16 did. And that’s how you change things.
17 And if you’re going to try to convince the
18 American people to go along with us, which is the objective
19 of politics, you need to go that way because it’s going to
20 draw them in. Going this way, going into the courts, you
21 lose the American people like that.
22 HOUSE DEMOCRATIC CHAIRMAN COHEN: Thank you.
23 HOUSE MAJORITY CHAIRMAN METCALFE: Thank you,
24 Representative Cohen.
25 Representative Dush. 119
1 REPRESENTATIVE DUSH: Thank you, Chairman.
2 You had mentioned earlier that -- you suggested
3 that the States take a more active role in what the Federal
4 Government is doing, and you also went on to cite the 17th
5 Amendment being a bad example of the amendment process,
6 which that amendment effectively stripped the States of its
7 ability to do so, nullifying the 10th Amendment in effect.
8 Now, Madison, as you said, went on to actually
9 consider convention with the situation with the -
10 DR. SPALDING: During nullification.
11 REPRESENTATIVE DUSH: — nullification. This
12 type of in extremis position, where we are now, if not now,
13 when would an Article V Convention actually be appropriate
14 given the fact that the people that we had put in there or
15 who actually drafted this thing were students of history,
16 understood the rise and fall of nations, and thought it
17 appropriate to put this in here.
18 DR. SPALDING: Precisely, you could look back to
19 the historical examples to give us the answer to that,
20 which is at the point at which you need a compromise, both
21 Lincoln and Madison looked to Article V when the States
22 could not agree and they left it open to figure out how to
23 solve secession, how to solve nullification.
24 What w e ’re trying to do here is use a process and
25 control it down to the minor detail. That’s not a recipe 120
1 for success in general, number one; and number two, this is
2 not the time for a Hail Mary pass. Politics in the country
3 are still an open field. A lot of things are not settled.
4 The progressive reformation of our country has not won, and
5 until that is the case, until you think w e ’ve lost
6 politics, throwing our hands up and rolling the dice for an
7 Article V Convention I think is not yet the answer, and I
8 think that’s what Madison and Lincoln would say as well.
9 HOUSE MAJORITY CHAIRMAN METCALFE: Thank you,
10 Representative Dush.
11 Representative Daley for our final question.
12 REPRESENTATIVE DALEY: Thank you, Mr. Chairman.
13 Dr. Spalding, thank you for being here today.
14 I had the opportunity last week, I had some time
15 to kill and the National Constitution Center was
16 practically across the street or at least a few blocks away
17 so I stopped in there and went to a dramatic piece that
18 they have and they do on a regular basis every single day
19 five times a day down there. And what it did was it took
20 the news of the day and the Constitution. And I happened
21 to be there with a class of probably sophomores in high
22 school. And it really brought the Constitution alive with
23 how you would deal with issues like gun rights, free
24 speech, and it was a very, very interesting 25 minutes that
25 I spent down there. 121
1 And it was interesting because it brought it
2 alive to kids and it brought Supreme Court cases alive to
3 kids. And they had a question-and-answer period
4 afterwards, and I do promise, this is going to be pretty
5 short, but at the end of it, one of the questions that they
6 threw out to the kids was do you believe that you have a
7 role in government? And this one young man raised his hand
8 and they said, you know, what was his answer, and he said
9 voting. And I know that I sound like a broken record
10 today, but I think voting to me is just such an important
11 thing. But he said voting is really important and he said
12 not just for the President and for Congress but vote in the
13 local elections also because those people really do things
14 that make a difference to us.
15 And I spoke to him afterwards to just thank him
16 but I mean is that also the kind of politics you're talking
17 about, the politics that you have in an election, the
18 politics that you have when you discuss an issue, the
19 politics and the things that you have to do to get things
20 done to move things forward?
21 DR. SPALDING: Yes and no. And we might well
22 come from different approaches to this question.
23 REPRESENTATIVE DALEY: We may.
24 DR. SPALDING: But voting ultimately is the right
25 of a supreme people. That's their final say. But in 122
1 between there is something else, namely, you legislators.
2 These are legislative questions, all of these for Congress
3 and the States are legislative questions. That’s where
4 deliberation occurs. That’s where the nullification crisis
5 was solved, not by going to a convention. It’s that kind
6 of deliberation and discussion and debate to which you’re
7 responsible to election to the people in which you make
8 Constitutional decisions about your power, about your
9 understanding of politics in Pennsylvania, about their
10 interests, and about your Constitutional role and duty to
11 the Pennsylvania Constitution and the U.S. Constitution.
12 That’s the kind of politics I ’m talking about,
13 Constitutional politics that emphasizes deliberation and
14 legislation.
15 REPRESENTATIVE DALEY: And compromise?
16 DR. SPALDING: And a lot of times that’s going to
17 require compromise, especially in a day in which the
18 American people are right on the edge about going way or
19 the other. You can’t alienate them, because if you do,
20 this could turn against you no matter which way you’re
21 going. The role of politics -- study Lincoln, study
22 Madison, study Washington and the Founders -- is to lead
23 the American people but lead them by explaining to them,
24 not hiding some secret plan to restore something and change
25 the Constitution but openly deliberating and telling them 123
1 and arguing and convincing. That’s the kind of politics we
2 need.
3 REPRESENTATIVE DALEY: Thank you.
4 HOUSE MAJORITY CHAIRMAN METCALFE: Thank you.
5 Thank you, Representative Daley.
6 And, Dr. Spalding, thank you for making the trip
7 here today. I found your testimony was excelling. I know
8 there’s more there that we can read that you kind of
9 summarized a little bit of it.
10 DR. SPALDING: I ’d be happy to assist you in your
11 deliberations any time.
12 HOUSE MAJORITY CHAIRMAN METCALFE: I appreciate
13 that. As you were testifying and I was reading through
14 some of your testimony, it kind of struck me that what
15 you’re talking about, the politics to resolve the issues
16 takes a lot of work, takes a lot of time, takes a lot of
17 commitment. I think our culture has shifted toward an
18 immediate desire to have whatever you want when you want
19 it. And a lot of times when I ’ve talked to people about
20 changing the Constitution I’ve said the Constitution is not
21 the problem. It’s people raising their hand like we do to
22 swear to uphold and defend it and then they don’t. They’re
23 the problem. In order to deal with them, you have to deal
24 with them politically through what Representative Daley was
25 talking about, through the election process. 124
1 So do you believe that the shift in our culture
2 leads to this kind of a call? And it seems like when
3 Representative Dush was asking you about when's the right
4 time, it seems like this was put in the Constitution for a
5 time when you'd turn the Constitution upside down on its
6 head rather than just amending it. I mean when we the
7 people decided that this government no longer -
8 DR. SPALDING: Right.
9 HOUSE MAJORITY CHAIRMAN METCALFE: — served us
10 or served what they were supposed to do, then that would be
11 when you would call one of those. It seems like what the
12 intent of it was.
13 DR. SPALDING: Well, if you recall that the first
14 time Madison vehemently opposed an Article V Convention was
15 right after the Constitutional Convention when the anti
16 federalists wanted a Bill of Rights. They demanded a Bill
17 of Rights. He feared opening that up again, which is why
18 he did what? He wrote them himself and he did it through
19 Congress.
20 I mean one of the requirements of statesmanship,
21 and we need statesmen today, is to think clearly and argue
22 and deliberate and build a consensus. It is politics. Our
23 Constitution is not designed for legalized fixes. The
24 separation of powers allows for politics and deliberation.
25 That's got to be the answer, because otherwise, you're not 125
1 allowing for the American people, the sovereign, the
2 republic that you represent to come with you.
3 And if they don’t see the need for this kind of
4 reform of this magnitude, they’re going to oppose it
5 vehemently, rightly so because they might have forgotten a
6 lot about the Constitution but I don’t think they’re in a
7 position of wanting to wholesale restructure it at the whim
8 of some small number of people they don’t quite understand
9 what they’re doing.
10 HOUSE MAJORITY CHAIRMAN METCALFE: Thank you,
11 Doctor.
12 DR. SPALDING: Thank you.
13 HOUSE MAJORITY CHAIRMAN METCALFE: I appreciate
14 you being with us today.
15 Just to kind of wrap up with a final thought
16 here, I didn’t ask too many questions throughout the
17 morning here as we received the testimony, but I know
18 Representative Gabler, as we talked about this even last
19 session with his resolution and we talked about holding a
20 hearing this session as last session came to a close. And
21 in the beginning of his resolution one of the lynchpins of
22 why he’s proposing this, I believe, from talking to him is
23 it says, "whereas the Federal Government has created a
24 crushing national debt through improper and imprudent
25 spending." 126
1 And I know we talked about the fiscal issues that
2 we face here in the State of Pennsylvania with our current
3 Governor now coming in and proposing to spend almost $5
4 billion more than we have in the past, $5 billion more,
5 $4.7 billion in new tax and spending that this Governor
6 wants and he’s been putting up a fagade of he doesn’t want
7 to compromise at all. He wants it all even though the
8 people might not want to see their taxes go up by $4.7
9 billion.
10 So this is an important issue and it was very -
11 the Federal Government is out of control fiscally, and our
12 State Government has a Balanced Budget Amendment that
13 requires that we have more control, which has been good for
14 the citizens of Pennsylvania. But it was very proper to
15 hold this hearing today because today is former President
16 Thomas Jefferson’s 272nd birthday today. And he was quoted
17 in the handout that w e ’d received here today as ”I wish it
18 were possible to obtain a single amendment to our
19 Constitution. I would be willing to depend on that alone
20 for the reduction of the administration of our government
21 to the genuine principles of its Constitution; I mean an
22 additional article taking from the Federal Government the
23 power of borrowing.”
24 So as I ’ve looked at this issue, I agree with
25 Representative Gabler and many of the audience and many of 127
1 the presenters that we need to fix this problem. But I
2 also don’t believe that there’s a quick fix. I don’t
3 believe that our fast-food culture should be what
4 determines what we try to find as an answer. I don’t
5 believe that sound bite should be the way that we
6 deliberate and then we come to the right decisions.
7 And this hearing today was being broadcast on the
8 web. I hope that a lot of folks had time to listen to it
9 because I know I talked to several people back in my
10 district about this issue while I ’ve been out knocking on
11 doors. I ’ve received hundreds and hundreds of emails over
12 the weekend from people concerned about this, most of them
13 against; I had a handful that were for. I had over 500
14 that were against over the weekend specifically because of
15 the Second Amendment issue that they’re concerned about
16 with potentially having that taken away in some form.
17 And I think as an American people, as the
18 American people, we the people need to rule our government,
19 and I think so many don’t do their own due diligence and
20 don’t exercise their civic responsibility to reign in the
21 government’s out-of-control actions. And that’s why this
22 is being proposed, because w e ’re trying to fix it.
23 I agree with the previous testifier that it isn’t
24 this or nothing. I mean some of the emails that I had
25 received advocating for this was this is our last hope. If 128
1 we don’t do this, it’s all lost. And that’s nonsense.
2 It’s not lost. We live in the greatest nation in the
3 world, we have the greatest Constitution in the world, and
4 we as a people have the ability to still exercise our power
5 as we the people and take our freedoms back that government
6 has eroded and take back the irresponsible actions of those
7 who have made bad decisions.
8 So this was a great hearing today. Thank you to
9 Karen for all of the work to set up the testifiers. Thank
10 you for all the testifiers that traveled in from out of
11 town to provide us with their expertise. We look forward
12 to continued debate on this.
13 Thank you to Representative Gabler for authoring
14 the resolution so we could debate it.
15 And Senator Folmer I really would like to thank
16 for making this a joint Senate and House hearing. It was a
17 good exercise for us as he comes into the new Chairmanship
18 there, the State Government Committee. We look forward to
19 doing more work together across the chambers.
20 And thank you to our audience for being so
21 attentive and so well ruled.
22 And just a final thought, a happy thought. As I
23 sat here toward the end, I was noticing the mom with the
24 young baby in the back there and I noticed a couple of
25 little citizens running around, probably two, three, five, 129
1 six years old, and I don’t think I ’ve ever had a family
2 hearing before. I don’t remember having so many children
3 in the hearing. So today making this a family event shows
4 how much all of you that came today care, and thank you for
5 bringing your kids because if we don’t resolve the issues
6 with the out-of-control debt that they’re going to be
7 burdened with, our kids are going to have a real hard time
8 in the future. So we need to resolve the spending issues
9 of our Federal Government and our State Government to
10 protect those youngsters that were running around here
11 today from being enslaved to continuing to pay for
12 something that they never even received services from
13 because their former generation made bad decisions.
14 So thank you all.
15 Motion to Adjourn, Representative Gabler.
16 Seconded by Senator Folmer.
17 SENATE MAJORITY CHAIRMAN FOLMER: Yes.
18 HOUSE MAJORITY CHAIRMAN METCALFE: This hearing’s
19 adjourned.
20
21 (The hearing concluded at 12:37 p.m.) 130
1 I hereby certify that the foregoing proceedings
2 are a true and accurate transcription produced from audio
3 on the said proceedings and that this is a correct
4 transcript of the same.
5
6
7 Christy Snyder
8 Transcriptionist
9 Diaz Transcription Services