March 2020 Newsletter

• National Poll of Legislators and Public Just Released –  Significant Information on Article V and Federalism
• Could the ERA Movement Impact the BBA Effort?
• CBO Outlook: Trillion Dollar Fed Deficits are Here to Stay
• Convention of States Project Keeps Pressing Forward
• Congressional Term Limits Proposal Chugs Along
• Will the Electoral College be Subverted by the NPVIC?
• Recommended Reading by Thoughtful, Little-Known Writers

Former Colorado State Senator Kevin Lundberg, Co-chair of the Caucus said, “We thank the 332 legislators who took the time to complete this significant poll. 1025 citizens also completed the survey.”

For the most part the general public showed somewhat less knowledge than the state legislators, but it is significant to note that when the question of who can initiate an amendment to the US Constitution (Article V), there was a radical difference. Three times as many legislators (74%) knew that answer (both Congress and the state legislatures) than did the general public (26%).

Lundberg says, “This tells us that our outreach and the efforts of other Article V advocates to state legislators is working!  More and more of our leaders in state government have come to understand that the power to control the supreme law of the land is indeed in the hands of our state legislatures.”

The poll and polling results are to be used by all.  “Put it to work,” says Lundberg. “It contains a great deal of information on state legislators’ understanding of the relationship between their level of governance and the Federal Government.  It also gives a good baseline on what the people of our nation know and understand about the balance and division of powers between the state and federal levet.”

Could the ERA Movement Impact the BBA Effort? –
On February 11 Josh Blackman of The Volokh Conspiracy talked about current efforts to put the Equal Rights Amendment (ERA) in the Constitution and postulated, “If states cannot rescind their ratification proposals, then 2/3 of the states may have already voted to call an Article V Constitutional Convention for the Balanced Budget Amendment.”

The Volokh Conspiracy is a blog site affiliated with monthly magazine Reason.  The blog describes itself as “Mostly law professors | Sometimes contrarian | Often libertarian | Always independent.”  The Blackman article was also published in The Libertarian Hub.

There are a couple of court cases currently being litigated about the ERA proposal.  Blackman notes that among other things, representatives of the state of Virginia argue “that states cannot rescind their ratifications of the Equal Rights Amendment.  If Virginia is correct, and ratifications cannot be rescinded, then we may be standing on the precipice of an Article V constitutional convention” because “[a]ccording to the Balanced Budget Amendment Task Force, 28 states have passed resolutions calling for an Article V convention to propose a balanced budget amendment,” and “several states that voted to call for [a BBA-focused] convention subsequently repealed their resolutions.”

If, as Virginia argues, states cannot rescind their prior Article V ratifications, the BBA movement has well more than the 34 states needed.  Stay tuned.  Read Blackman’s piece HERE.

Meanwhile the “staleness” of the ERA ratification process is a separate legal question.  Many constitutional scholars believe the 1972 Congressional proposal of the ERA expired in 1979 based on its wording.

Also on February 11, National Review carried a piece by Ed Whelan of the Ethics and Public Policy Center entitled Justice Ginsburg Slays the ERA Zombie.  The article points to remarks made the day before by Supreme Court Justice Ruth Bader Ginsberg.

Whelan says, “Ginsburg declared the plain reality that Virginia’s recent purported ratification of the ERA came ‘long after the deadline passed.’  Observing further that ‘a number of states have withdrawn their ratification,’ Ginsburg wondered how those who maintain otherwise could ‘count a latecomer on the plus side’ yet fail to subtract rescinding states.  Ginsburg made similar remarks last September, when she noted that any effort to adopt the ERA would require ‘starting over again’.”

Whelan also deals extensively with the rescissions question.  Read his article HERE.

On January 20 the Verdict blog carried a related story by Michael C. Dorf, a law professor at Cornell University, wherein he laments his belief that Article V of the Constitution is “ambiguous.”  Read his thoughts HERE.  On January 31 the editors of National Review described the belated ERA effort as an attempt “to subvert Article V of the Constitution.”  Read that editorial HERE.

CBO Outlook: Trillion Dollar Fed Deficits are Here to Stay –
On February 6 Peter Klensch, writing on the WasteWatcher blog, reported on the January 28 report released by the Congressional Budget Office (CBO)… its annual Budget and Economic Outlook for 2020 to 2030.

Klensch summarizes the CBO report as follows:  “CBO estimates a 2020 deficit of $1 trillion, a $103 billion increase from January 2019.  Trillion-dollar deficits will remain and reach all-time highs by the end of the 10-year budget period.  From 4.6 percent in 2020, budget deficits will rise to 5.4 percent of gross domestic product (GDP) in 2030 and never dip below 4.3 percent of GDP.  Only during World War II has the debt remained above 4.0 percent of GDP for more than five consecutive years.  Total deficits over the decade will reach $13.1 trillion, raising the national debt to roughly $31 trillion by 2030.”  Read his report HERE.

Meanwhile the Heritage Foundation produced its own review of the CBO report, written by Justin Bogie.

Bogie says, “The latest report confirms what the Congressional Budget Office has been telling lawmakers for years: The nation is hurtling toward a spending-driven debt crisis.  Without major reforms to mandatory spending programs, it is not a question of if, but when, all Americans will feel the financial impacts of Congress’ spending addiction.”  Read Heritage’s 5 Takeaways From the Latest Budget ProjectionsHERE.

Convention of States Project Keeps Pressing Forward –
The Convention of States Project (CoSP) with 15 of the needed 34 state-approved applications is currently most active in 4 states:
Pennsylvania – HR206 (32 sponsors) carried over from 2019.  Passed out of the House State Government Committee by a vote of 13 to 11 on December 16.
South Carolina – SJR112 (20 sponsors including SC Senate Majority Leader Shane Massey) and HJR3125 (48 sponsors including SC Speaker of the House Jay Lucas).
South Dakota – HJR5001 (35 sponsors) was defeated on February 12 by a vote of 32 to 37.  Side Note:  On February 6 SJR503 was introduced with 20 sponsors, seeking to rescind a 2015 resolution calling for a BBA-focused Article V convention of states.
Wisconsin – HJR77 (33 sponsors) where the bill passed out of the Assembly on February 18 on a vote of 60 to 38.  The Senate bill, SJR57, has 33 sponsors.

CoSP has its proposal pending in 10 other states:
Kansas – HCR5009 carried over from 2019.
Michigan – SJR0 (1 sponsor) carried over from 2019.
Missouri – SCR37 (1 sponsor) introduced for sunset removal on February 18, 2020.
New Jersey – SCR14 (7 sponsors) introduced on January 14, 2020 and ACR98 (7 sponsors) introduced on February 3, 2020.
New Mexico – SJR4 (2 sponsors) introduced on January 21, 2020.
New York – SR240 and AR63 (2 sponsors each) carried over from 2019.
Ohio – SJR2 carried over from 2019.
Rhode Island – HJR7630 (1 sponsor) was introduced on February 14, 2020.
Washington – SJM8007 (12 sponsors) and HJM4002 (21 sponsors) both introduced on January 13, 2020.
West Virginia – HCR48 (11 sponsors).

Although bills have not yet been introduced, CoSP reports that it is also active in California, Colorado, Idaho and Kentucky.

Congressional Term Limits Proposal Chugs Along –
So far three states have adopted the US Term Limits (USTL) application for an Article V convention of states to deal with the stand-alone question of congressional term limits.  USTL is currently active here:
Arizona – HCR2016 was approved by the House Federal Relations Committee on February 17 (vote 4 to 3) and is now pending in the House Rules Committee.
Maryland – HJR5 (19 sponsors) was introduced January 31, 2020.
New York – ACR796 and SR2697 (1 sponsor each) carried over from 2019.
West Virginia – SCR4 (15 sponsors) was approved by the Senate in a vote of 20 to 10 on January 22.  Last year the WV state Senate blocked a similar bill through a filibuster.
Companion bill HCR22 (44 sponsors) is currently being considered in the House of Delegates.

Will the Electoral College be Subverted by the NPVIC? –
The Electoral College and attempts to circumvent it continue in the news and in state legislative discussions.  On February 11 the Virginia House of Delegates adopted HB177 (vote 51 to 45), in an attempt to join the National Popular Vote Interstate Compact (NPVIC).  The future is uncertain for the Senate’s companion bill, SB399.  If passed, that would take the total committed Compact votes from 196 to 209… toward their goal of 270.  Eleven other state legislatures are also considering the NPVIC proposal this year.

But the February 13 edition of the National Review carried a story headlined A National Popular Vote for President Isn’t as Close as You Might Think.   It points out the obstacles ahead for the NPVIC movement.  Read it HERE.  What isn’t mentioned is the additional requirement in the Constitution’s Article 1, Section 10, subsection 3 which prohibits states from entering compacts “without the Consent of Congress.”

Meanwhile in South Dakota, Senator Jim Stalzer introduced SB103 (with 19 sponsors) in an attempt to join New Hampshire’s effort (HB1531, reported in last month’s Caucus newsletter) in an attempt to make the proposed NPVIC unworkable.

SB103 would prohibit state officials from disclosing “the number of votes cast in the general election for president of the United States, until after the time set by law for the meeting and voting of presidential electors has passed in all states.  The secretary of state may disclose, as soon as the information becomes available, the percentage of statewide votes cast for each presidential candidate, to the nearest tenth of a percentage point, a list of presidential candidates in order of increasing or decreasing percentage totals, and the winner of the election.”

Unfortunately Stalzer’s bill has been temporarily tabled while the SD legislature considers HCR6003 (with 61 sponsors), a rather toothless resolution that says “the Legislature supports the Electoral College and believes the National Popular Vote Interstate Compact may be unconstitutional.”

As a side note, the Arizona House adopted HR2004 (similar to HCR6003 above) on February 18 (vote 31 to 29).

An editorial in the February 13 edition of Denver-based Intermountain Jewish News pointed out that recent Democratic vote counting in Iowa was a “Surprise Boost for the Electoral College.”  That experience demonstrated that a single nationwide vote for president could find itself entangled in a number of state vote counting problems and discrepancies.  The Electoral College system relies on 50 different election results wherein vote counting problems can be narrowed down… and dealt with… in single states.

It notes that vote counting methods, differences in voting systems, allowances for “vote harvesting” in certain states, variations in voter ID requirements, differences in voter role maintenance efforts in different states, etc. could throw many state totals into question as attempts are made to meld votes into a single “national popular vote total” (wording within the proposed Compact).  The editorial alleges: “Faith in the credibility of the election would be undermined. American democracy would be in crisis.”  Read it HERE.

A new piece in The Hill on February 11 by retired lawyer/historian Tara Ross is headlined Anti-Electoral College activists hope for chaos.  She suggests that activists seeking use of a NPVIC are hoping a Supreme Court decision dealing with “faithless electors” will bring about “panic, discontent and outrage.  They hope that voters will be scared into giving them what they’ve always wanted: a constitutional amendment eliminating the Electoral College.”  Read Ms. Ross’ new piece HERE.

Recommended Reading by Thoughtful, Little-Known Writers –
There are two little-known writers who keep pumping out worthy reads aimed at stimulating thought on the shortcomings of America, its government, and how to address governance problems.  Unknown or not, their work is worth reading.

Frank Keeney is a retired successful businessman and founder of Act 2 Movement (a non-partisan group that seeks to take “a big picture, common sense approach” to solving dysfunction and waste in the national government).  He is also a Policy Advisor for Constitutional Reform at The Heartland Institute.

During February Heartland published two essays by Keeney.  The American Experiment, Revisited addresses what Keeney calls “a hopeless muddle in a Washington that appears incapable of rational governance.”  He says, “It is time we acknowledged the true state of our affairs and took action to repair the republic.”

He contends, “[W]e must repair the obvious flaws in our republic and clearly demonstrate that a democracy can produce an effective, collegial government that solves problems on a sustained basis.”  He advocates for state leaders to convene and address these problems.  Read his essay HERE.

In a second essay entitled An Easy Choice, Keeney writes about the various governmental reform movements organized to convince state leaders to formally apply for an Article V convention to propose constitutional amendments on just one, two or three specific (limited) topics.  He says, “The creation of the limited-agenda convention, which appeared to be an effective response to the fear of a runaway convention, had a severe unintended consequence: it has crippled the Article V reform movements by complicating the problem of calling a convention.”

Keeney succinctly lays out the case for reform leaders working together to urge state lawmakers to apply for an unlimited (plenary) convention.  He suggests, “When calling on new states, the Reformers would not present specific reforms for approval; they would only need to convince the leaders that our dysfunctional federal government is ineffective, needs a thorough house-cleaning, and there are many serious reform proposals available to consider.  Since there is widespread agreement in the country that the federal government is broken, this should not be difficult.  There is no need to convince the leaders of the superiority of any single reform idea, which the limited-agenda approach requires.”

He says, “The process required to call a limited-agenda convention is daunting and gives a Reform Group little assurance of even getting to a convention.  Calling an open convention is much easier, more efficient, and holds the promise of better results.  An open convention is our obvious choice.”  Read this essay HERE.

Rodney Dodsworth has his own posting place called the Article V Blog.  He recently posted an essay entitled Article V – Assert our Sovereignty.  He says Americans must “[u]se it or lose it.”   Then he notes, “Article V opponents believe America is too corrupt to be trusted with a convention of the states.  They believe We The People fulfilled Ben Franklin’s fears and are no longer fit for self-government, which if true, means we don’t have any business voting either.  Nonsense.”

“Thanks to our collective failure to demand Article V conventions of the states when necessary,” Dodsworth concludes, “We The People slowly, over decades, relinquished our sovereign authority to SCOTUS.”  Read his thoughts on Article V HERE.

Then on February 10 he posted That Precious Jewel – American Citizenship, one man’s view of the utter importance of valuing US citizenship.  Read it HERE.

Most recently, Dodsworth challenged the John Birch Society on its belief that “Nothing is wrong with the Constitution as it currently exists” in a February 23 piece entitled The John Birch Society v. We the People.  Read it HERE.

A Quote to Ponder –