May 2016 Newsletter

by | May 10, 2016 | AVC Newsletter


  • New Report Challenges Constitutionality of ‘Compact’ Plan
  • Oklahoma Legislature Passes Both BBA & CoS Resolutions
  • Alaska is First State to Adopt the Countermand Resolution
  • Eagle Forum is Locked in an Intra-Organizational Dispute
  • Anti-Article V Activist Rebuffed in Colorado
  • Updated Debt, Deficits and the BBA Booklet Now Available
  • Senator Coats Calls for a Balanced Budget Amendment
  • US Term Limits Unveils a Quirky Article V Education Video
  • ALEC Confab Will Have Strong Article V Emphasis
  • Transfer of Public Lands Issue is Central in Utah Gov. Race
  • Heritage Releases an Article V Memorandum
  • CoS Application Passed by MO & VA House / NH Senate

New Report Challenges Constitutionality of ‘Compact’ Plan –
Professor Rob Natelson has issued a new “Law Report” dealing with the constitutionality of the Compact for America (CfA) plan.  Starting with the question “Is the ‘Compact for America’ Plan to Amend the Constitution Constitutional?”, Natelson concludes that the CfA proposal “is, unfortunately, almost wholly unconstitutional.”

The heavily documented review of Article V-related court decisions seems to support Natelson’s conclusion that “If CFA continues to gain traction, lawsuits challenging its procedures are virtually certain.  CFA is highly unlikely to prevail in those lawsuits.  Its approach relies too heavily on legal assumptions repeatedly rejected by the courts.  The scanty and refutable Founding Era evidence it offers in support is unlikely to persuade judges to overturn well-established case precedent.”

Natelson, regarded as one of the nation’s leading experts on Article V jurisprudence and other Constitutional issues, heads the Article V Information Center, a service of Denver-based Independence Institute.

Noting that some of his own research is quoted in CfA promotional materials, Natelson says his Article V Information Center “would not be fulfilling its mission as an information source if it did not report legal issues in particular approaches.  If activists solicit money and support for an approach that not even tenably complies with the law, the Center has an obligation to inform.  Initially, we do so privately.  If the campaign is not responsive, we do so publicly.”

His report went on to say, “We find the conclusion disappointing, because we encourage a variety of (Article V) approaches.  But in this instance, when state lawmakers and others have been contributing their time, support, and money to the ‘Compact,’ we thought public disclosure important.  Efforts to persuade the ‘Compact’ leadership to conform their plan to existing law have not been successful.”

It is in the best interests of state legislators to read Natelson’s thorough Law Report.  It can be found HERE.

Oklahoma Legislature Passes Both BBA & CoS Resolutions –
Oklahoma Senate Joint Resolution 4 (SJR4) was approved on April 18 by the OK House by a vote of 57 to 33.  On April 26 the OK Senate approved the bill 30 to 16.

SJR4 is a unique Article V resolution in that it simultaneously applies for two different conventions to proposed Constitutional amendments… a single-subject BBA convention, and a triple-topic convention as proposed by Convention of States (CoS).

The action by the Oklahoma legislature brings the count of BBA-focused state applications to 29, and the number of applications for the multiple-subject Convention of States proposal to seven.

In its own wording, it is “A Joint Resolution making two separate applications to the United States Congress to call a convention of the states under Article V of the United States Constitution for the purpose of proposing amendments to the United States Constitution related to balancing the federal budget, imposing fiscal restraints on the federal government, limiting the power and jurisdiction of the federal government and limiting the terms of office for its officials and for members of Congress; providing for construction of applications; directing transmission; and specifying that applications constitute continuing application for certain time period.”

OK State Rep. Gary Banz and several of his fellow legislators have been trying for several years to get a BBA application through the OK legislature.  Meanwhile, former US Senator Tom Coburn has been lobbying the OK legislature to approve the CoS application.  This past month the two groups managed to successfully combine the two application campaigns.

It is believed this is the first time any state legislature has adopted two applications for an Article V convention to propose Constitutional amendments within a single legislative action.

Upon passage in the House, David Guldenschuh, Heartland Institute Policy Advisor for Constitutional Reform said: “The Oklahoma House did a wonderful thing by combining the efforts of the Balanced Budget Amendment Task Force and Convention of States Project into one piece of legislation. This helped to pass the application for an Article V convention of the states and sets an example for how the different movements can work in the future.”

To read the combined bill, click HERE.

Alaska is First State to Adopt the Countermand Resolution –
During April the Alaska House and Senate approved HJR14, a resolution calling for an Article V “countermand amendment convention”, as proposed by the group known as Citizen Initiatives.  That legislature also adopted HCR4, a resolution dealing with the duties of delegates to an Article V convention.

Under the leadership of Rep. Shelly Hughes, the House initially approved HJR14 on April 10 by a vote of 24 to 15.  On April 16 the Senate voted 13 to 5 to approve a slightly modified version.  Later that day the House approved the modified version by a vote of 28 to 10.

HCR4, another Citizens Initiative-drafted bill which includes the proposed amendment, was adopted by the House 25 to 14, and by the Senate 15 to 5. The Countermand proposal is also currently under consideration in North Carolina and Pennsylvania.

The pre-worded proposed amendment says (in part): “State Legislatures in the several States shall have the authority to Countermand and rescind any Congressional Statute, Judicial decision, Executive Order, Treaty, government agency’s regulatory ruling, or any other government or non-government mandate (including excessive spending and credit) imposed on them when in the opinion of 60 percent of State Legislatures the law or ruling adversely affects their States’ interest. When the Countermand threshold has been reached, the law or ruling shall be immediately and automatically nullified and repealed. This Countermand authority shall also apply to existing laws and rulings.”

If the Countermand Amendment is enacted, 30 states would have to pass resolutions countermanding a specific action.  There would be an 18-month time limit.  If that time elapsed without enough supporting state resolutions, the countermand would not happen.

The Senate debate on HJR14 can be watched HERE (from minute 43 to 1:08).  For more information about the Countermand proposal, click HERE.

Eagle Forum is Locked in an Intra-Organizational Dispute –
During April six members of the Eagle Forum’s 11-member board held a special meeting geared toward wresting control of the organization from its founder, anti-Article V activist Phyllis Schlafly.  They purported to fire Ed Martin who has been managing the day-to-day activities of Eagle Forum since his appointment as president by Schlafly in August 2015.

The 2015 appointment of Martin occurred when the 91-year-old Schlafly stepped down as president of the Eagle Forum (which she founded in 1972) to make way for him to become  her chosen successor.  Martin is a former Missouri legislator.  Schlafly continues as CEO and board chairman of the respected conservative organization.Eagle Forum is composed of three separate organizations, one a 501(c)3 (the fundraising and volunteer development arm), one a 501(c)4 (the activist/education-oriented arm), and a political action committee (PAC).  Reportedly, the (c)4 group technically owns the Eagle Forum name, and it was the board of that organization that met over Schlafly’s objections on April 11 and purportedly fired Martin.

The dissident board members might not be done yet.  They have another special meeting scheduled for early May.  Some reports claim they intend to remove Schlafly herself as chairman of the board.  Schlafly’s daughter, Anne Cori, has apparently sided with the dissident faction.  Sons John and Andy are supporting their mother.  Some of the dissident board members believe that Schlafly is no longer competent enough to run the organization.

One of the issues driving the split was Schlafly’s personal endorsement of Donald Trump for President, over Ted Cruz, who many Eagles prefer.  Reportedly another significant reason for the split is Schlafly’s anti-Article V views and efforts.  One report quoted Schlafly’s son Andy as saying, “This battle is a lot more than a battle between Cruz and Trump.”

On April 25 Breitbart News carried an extensive report on the Eagle Forum problems.  That lengthy story focused mostly on the Trump-Cruz conflicts within Eagle Forum leadership.  It can be read HERE.

Anti-Article V Activist Rebuffed in Colorado –
Colorado State Senator Tim Neville was one of the early members of a Colorado group dedicated to promoting the use of Article V to correct shortcomings of the federal government.  But then he chose to follow anti-Article V activist and “puppet-master” Dudley Brown who is founder and president of Rocky Mountain Gun Owners (RMGO) and the National Association for Gun Rights (NAGR).

Mr. Brown, described as “a deep political operative in Colorado politics and nationwide,” has used his two organizations to coordinate anti-Article V mis-information campaigns in several states.

This year Neville announced that he was seeking the Republican nomination for a US Senate seat.  Many local political pundits thought he had a lock on the nomination.  Instead, at the recent Colorado Republican Convention Neville didn’t even get the minimum 30% of the vote to compete against another nominee on the primary ballot.  Actually, he didn’t even get 20% of the vote.

Former Colorado US Congressman Tom Tancredo has since written a scorching report about Neville’s loss.  Favorably describing Neville as having “conservative credentials in his tenure as a state legislator, consistently voting to uphold the people’s rights as guaranteed in the Constitution,” Tancredo suggested that the vote was really a referendum on his side-kick Dudley Brown.

“In this election cycle,” said Tancredo, “we are seeing a rejection by the people of all forms of insider politics… in Colorado this insider group also includes Dudley Brown and RMGO.”

Tancredo’s entire commentary can be read HERE.

Updated Debt, Deficits and the BBA Booklet Is Now Available – 
Economist/researcher Bill Fruth has just released an update on his popular Debt, Deficits and the BBA booklet.  The publication details the status of the Gross National Debt, compares it to the GDP, and illustrates why states need to exercise their powers under Article V to rein-in federal fiscal policies.

The updated booklet is Must Reading for all state legislators.  Read and/or download it HERE.

US Senator Coats Calls for a Balanced Budget Amendment –
In an opinion piece carried by The Hill on April 5, US Senator Dan Coats chided President Obama for not addressing America’s growing national debt.  Coats is the senior Senator from Indiana and chairman of the Joint Economic Committee.

Senator Coats noted that “According to a recently released report by the nonpartisan Congressional Budget Office, in 10 years spending on mandatory spending programs and interest on the debt will consume nearly 99 percent of all federal revenue. This will crowd out funding for other important priorities like national defense and medical research.”

Coats went on to say: “The good news is solutions do exist to address this situation before it is too late.  Passing a balanced-budget amendment to the US Constitution is a good first step to get our country’s fiscal house in order.  American families have to live within their means, and a majority of states operate under a balanced-budget requirement in their state constitutions — it is time the federal government does the same.”

Read his entire piece HERE.

A Florida group calling itself has posted a poignant 1-minute video about the national debt that it calls “Doorbell”.  It’s worth watching… HERE.

US Term Limits Unveils a Quirky Article V Education Video –
The US Term Limits campaign has released a 2½ minute fast-paced video that makes the case for retiring political dinosaurs from “Planet Congress”.

“I’ve never seen the problem outlined as clearly nor the solution explained more cogently,” said Nick Tomboulides, executive director of US Term Limits.  “The video makes it clear how members with the best intentions go to Washington, have their heads turned by lobbyists, and lose touch with the people.”

Watch the video HERE.

ALEC Confab Will Have Strong Article V Emphasis –
The May 5-7 American Legislative Exchange Council’s (ALEC) Spring Task Force Summit will include a heavy dose of Article V content.  The event will be at the Omni William Penn Hotel in Pittsburgh, PA.

On Friday the BBA Task Force (BBATF) will host a panel discussion entitled “How Can a State Drafted and Ratified Balanced Budget Amendment Save the American Dream of Peace and Prosperity?”  The session will be moderated by OK State Rep. Gary Banz.  Participants will include: Adm. William Owens, USN & Vice Chairman Joint Chiefs of Staff (Ret.); David M. Walker, CPA, US Comptroller General (Ret.); Bill Fruth, Economist & BBATF Co-founder; and David Guldenschuh, Special Counsel to BBATF.

That evening BBATF will host a reception and dinner.  Admiral Owens, David Walker and John Knubel will discuss “Why the states must act to prevent ‘The most predictable economic crisis in history’”.  That will be followed by a panel featuring three state legislators who have guided BBA resolutions through their state legislatures.

Saturday morning BBATF will host a breakfast, a panel discussion and two workshop sessions.  The panel will have the theme “Could a Balanced-Budget/Fiscal-Responsibility Amendment restore economic growth and prosperity without cutting spending…especially for national emergencies?”  It will be moderated by Lew Uhler, Co-founder BBATF and CEO of the National Tax Limitation Committee; and include these panelists: Dr. Barry Poulson, University of Colorado Professor of Economics (Ret.), and Author of “Can the debt growth be stopped?”; David Biddulph, Co-founder BBATF & Citizen-Campaigner for 3 Florida tax limitation amendments; and John Knubel, former Chief Financial Officer for HUD.

The workshops will focus on “Frequently Asked Questions About Article V”. Leaders will include Bill Fruth Co-founder BBA Task Force; Loren Enns, Director Western States Campaigns; Tom Llewellyn, Director Eastern States Campaigns; David Guldenschuh, Special Counsel-BBA Task Force; Mike Stern, Senior Counsel US Senate & House of Representatives (Ret.); and Scott Rogers, Executive Director BBA Task Force.

The second workshop will focus on the kind of fiscal rules a BBA/Fiscal-Responsibility Amendment should include to maximize America’s long term prosperity and security without cutting spending or increasing taxes.  It will be moderated by Lew Uhler and Dr. Barry Poulson.

Transfer of Public Lands Issue is Central in Utah Gov. Race –
Utah Governor Gary Herbert (R) is seeking re-election in November.  While he has expressed interest in seeing federal lands in Utah transferred back to the state, he thinks that can be accomplished by Congressional action.  He does not support legal action to bring it about.

His opponent disagrees.  “It’s time that the state brings a lawsuit to transfer land back to the state,” said challenger Jonathan Johnson at a recent gathering largely made up of Republicans. “I’m ready to bring that suit quickly when I am the governor.”

The proposed suit has been recommended by a legal team of top constitutional experts and explained in a detailed report they released last December.  That report can be read HERE.

The Transfer of Public Lands is considered an integral part of maintaining the sovereignty of each state, promised to each state upon its creation.  The issue is whether or not Utah should move forward in filing suit against the federal government to gain ownership of a large portion of public lands within the state.

Some state leaders, like Governor Abbott of Texas, see the use of Article V as the best way to restore sovereignty to the states and deal with issues such as transferring federal lands back to states.

Heritage Releases an Article V Memorandum –
The Center for Legal and Judicial Studies at The Heritage Foundation has released a new Legal Memorandum called “Consideration of a Convention to Propose Amendments Under Article V of the U.S. Constitution”.  It was prepared under the direction of Heritage legal scholar John Malcolm.

Ignoring research by other Constitutional experts that an Article V convention can be limited by the content of applications and by delegate instructions from state legislatures, the 13-page report repeats the time-worn fear that such a convention “could propose an amendment that diminishes the liberties of the American people”.  The report suggests that the ratification process only “decreases the likelihood of some radical proposal ultimately becoming part of our Constitution”.

The Malcolm report can be read HERE.

CoS Application Passed by MO & VA House / NH Senate –
On April 21 the Missouri House approved HCR57, the Convention of States application for an Article V convention.  The vote was 105 to 43.  The bill now moves to the Senate.

“The Missouri House of Representatives has taken an important step towards restraining Washington D.C.’s overreach by joining with several other states in calling for a convention. I am grateful for the leadership of Paul Curtman and Eric Burlison on this issue” said Ryan Johnson, president of the Missouri Alliance for Freedom.

The Virginia House passed HJR3, the CoS bill, in mid-February by a vote of 52 to 47.  It then went to the Senate where it has been languishing ever since in the Committee on Rules.

The New Hampshire Senate approved SCR4 by a vote of 15 to 9.  That measure is an application for an Article V convention that appears to support the CoS campaign in that it says it is to join “the applications of the states of Georgia (SR 736, 2014), Florida (SM 476, 2014), Alaska (HJR 22, 2014), and Alabama (HJR 112, 2015)”.  But the actual wording of the resolution says it is “to call a convention for the specific and exclusive purpose of proposing an amendment to the Constitution of the United States, for submission to the states for ratification, to impose fiscal restraints on the federal government.”  It does not appear to include the second and third planks of the CoS proposal.

SCR4 is currently in the House State-Federal Relations and Veterans Affairs Committee.

Who said it?

“(I) ardently wish to see incorporated as a fundamental maxim
in the system of public credit of the United States
that the creation of debt should always be accompanied
with the means of extinguishment.”
Alexander Hamilton – “Report on Public Credit” – 1789

Five years later Hamilton warned that progressive accumulation of debt “is perhaps the NATURAL DISEASE of all Governments.  And it is not easy to conceive anything more likely than this to lead to great and convulsive revolutions of Empire.”