2 days ago
Ohio ‘state to watch' for U.S. constitutional convention measures, concerned advocates say
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Ohio is one of the states where legislators are pushing for conventions that could make constitutional amendments related to term limits and other issues, but advocates are concerned about the free-for-all that could result.
These measures have garnered strong opinions on both sides of the issue.
Opponents, going back to James Madison, say constitutional conventions are risky because of their lack of regulation once a convention is called. This could allow for uncontrolled power-grabs that could result in amendments that may not be popular with the general public.
The U.S. Constitution can be amended in two ways: through Congress with amendments passed with two-thirds support of each chamber and then sent to the states for ratification; or through a constitutional convention invoked by Article V.
Article V is silent about rules and regulations once a convention is called.
In order to call a convention, two-thirds of states, or 34 of the 50, would have to pass their own resolutions applying for a constitutional convention for a certain purpose.
Past applications by states have aimed to force the federal government to balance their budget, but no such convention has happened in the history of the United States.
Recently, however, the draft of a lawsuit has been circulating to attorneys generals in some states, looking to make the convention happen based on a legal argument that applications from states — no matter the purpose or age of the request — can be combined and counted toward the 34 needed to bring about a constitutional convention, according to critics of the move.
'This is literally a rewrite of our Constitution,' said Viki Harrison, policy director for civil rights and civil liberties with Common Cause, a nonpartisan voting rights advocacy and government watchdog group with branches all over the country. 'There would be nothing safe, there would be no guardrails.'
Ohio has seen out-of-state interest in their measures, in what Common Cause Ohio's Catherine Turcer called a 'full-court press' this year of legislation and movement to see passage.
Former Pennsylvania Senator Rick Santorum appeared in March to support Senate Joint Resolution 3 in the Ohio Senate General Government Committee, and Florida Gov. Ron DeSantis came to Ohio to support House Joint Resolution 3.
'It is very clear that Ohio is a focus of moving an Article V convention, that it is in fact a priority, and we are a state to watch,' Turcer said in a media briefing with other Common Cause branches.
Santorum spoke on behalf of Convention of States Action, an advocacy group pushing for support of a constitutional convention, arguing that America's founders included the option of a constitutional convention 'to give the states a way to counteract the federal government if it became abusive with its powers.'
Convention of States Action said 19 states have passed resolutions for a constitutional convention, and 'we hope to see Ohio become state number 20,' according to state media liaison Diana Telles.
DeSantis argued that without term limits in Congress, 'incentives to do really good policy are just skewed away,' making a constitutional amendment necessary.
The resolution DeSantis came to support, HJR 3, specifically applies for a convention of the states to institute congressional term limits.
The measure and its Senate counterpart, SJR 6, look to piggyback on a 1992 amendment to the Ohio Constitution that instituted term limits for Ohio's members in Congress of two successive six-year terms in the U.S. Senate and four two-year terms in the U.S. House.
Those term limits aren't being enforced because of a U.S. Supreme Court ruling in 1996 that 'the states have no authority to change the qualifications for members of Congress,' according to an analysis of HJR 3 done by the Legislative Service Commission.
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While the resolutions spell out the necessary number of states needed to call a convention, they also point out that the Constitution 'does not specify how a convention to propose amendments to the U.S. Constitution must be conducted or how its delegates are to be chosen.'
'Further, the Constitution does not indicate whether the states that apply for a convention may limit the scope of amendments the convention is to propose,' the HJR 3 and SJR 6 resolution analyses state.
While term limits are attractive to many Americans, the opposition to constitutional conventions has less to do with the specific issues and more to do with the freedom convention attendees would have if it takes place.
'Whether you like term limits or not, (the problem is) the mechanism to get it,' Harrison said.
As for the other convention request currently working its way through the Ohio legislature, HJR 2 and its companion, SJR 3, also want to see a convention that touches on term limits, but go further, looking at amendments 'that impose fiscal restraints on the federal government' and 'limit the power and jurisdiction of the federal government.'
These measures go into more detail about the purported method through which conventions are formed, while also noting Congress 'does not have power beyond calling the convention and setting a reasonable time and place.'
The Ohio bills name the state legislatures as authority-bearers when it comes to naming delegates to the convention, instructing delegates, and recalling delegates for 'breach of a duty or a violation of the instructions provided.'
All four resolutions have seen hearings in their committees, but no votes have been cast on the measures yet, possibly because the legislature has had the main priority of passing a state operating budget by the end of June.
Some states have been working to repeal resolutions that requested a convention, which, according to Georgetown University law professor David Super, could be the reason a lawsuit to combine existing resolutions is being floated.
'Congress decided long ago that it can only count applications together when they're for the same purpose,' Super said, in the media briefing with Common Cause.
The Ohio resolutions on term limits specify that the application 'is valid only for the purpose of a convention that is limited to considering congressional term limits,' and say it 'should be aggregated with other state applications for a convention on term limits, but not with any applications on any other subject.'
The resolutions focused on federal fiscal responsibility say the measures are only valid if combined 'with other applications from state legislatures that call for a convention for substantially the same purpose.'
Telles said the movement for a constitutional convention would be for all of these issues. From the Convention of States Action point of view, 'it is necessary to address all of these areas, not just term limits or a balanced budget.'
'State amending conventions to propose amendments are a safe, civil and constitutional way for the states to flex their muscle and affect real change in Washington, D.C.,' Telles said. 'It's clear Washington is not going to fix itself.'
Even if the lawsuit is filed – it's still just a draft at this point – Super said previous cases like it have fallen apart in the past, and 'there are some really serious problems with it.'
'The reason that these cases have failed is … they operate on the premise that the federal courts can tell the legislature what to do,' Super said.
And while this issue has seen some momentum, according to Common Cause, the idea of implementing a constitutional convention isn't a universally supported issue by any means, even among the same political parties.
'This is not a standard red-blue issue, there are members of Congress who have strongly supported a constitutional convention,' Super said. 'But there are also members of Congress who are opposed to a convention.'
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