COMMONWEALTH OF 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 , MAJORITY CHAIRMAN HONORABLE GEORGE DUNBAR HONORABLE CRIS DUSH HONORABLE HONORABLE KRISTIN HILL HONORABLE HONORABLE HONORABLE BRETT MILLER HONORABLE HONORABLE RICK SACCONE HONORABLE THOMAS SANKEY HONORABLE DAN TRUITT HONORABLE JUDITH WARD HONORABLE HONORABLE MARK COHEN, DEMOCRATIC CHAIRMAN HONORABLE LESLIE ACOSTA HONORABLE HONORABLE PAMELA DELISSIO HONORABLE STEPHEN MCCARTER HONORABLE MICHAEL O ’BRIEN HONORABLE 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