Infighting, Legal Questions Slow ALEC Push for Second Constitutional Convention

With Republicans in control of 32 state legislatures, the American Legislative Exchange Council (ALEC) has been actively pushing the idea of a second Constitutional Convention to rewrite the U.S. Constitution. The nation's first and only Constitutional Convention took place in Philadelphia in 1787 with George Washington presiding.

ALEC has cheered on the idea of a "Con Con" for years, passing multiple resolutions calling for changes to the constitution, hosting workshops and handbooks and even draft resolutions laying out proposed rules of procedure. Everything has been quite cordial and controlled.

However, documents obtained by the Center for Media and Democracy (CMD) reveal for the first time the backbiting between several competing factions vying for state approval of their convention proposals.

Most significantly, these documents reveal a new legal analysis that casts serious doubt on some proponents' claims that they are within striking distance of calling a convention to propose a balanced budget amendment to the Constitution.

If Congress Won't Act, 34 States Can Trigger a Convention

Under Article V of the Constitution, there are two processes for amending it: amendments may be proposed by Congress, or two-thirds of state legislatures (currently 34 states) may call for a convention for proposing amendments. Using either avenue, any proposed amendments must then be ratified by the legislatures of 3/4 of the states (currently 38 states) before they take effect. Because extreme Republican fiscal austerity advocates have not been able to get a "balanced budget" amendment through Congress, they have been pursuing the state-based avenue for several decades, with little success.

Right-wing convention backers mounted a strong push in this year's legislative season, but came up empty-handed in several of their target states and lost momentum when three states (Maryland, New Mexico, and Nevada) voted to rescind their balanced budget amendment convention calls.

Even Republican legislators are having doubts about the wisdom of launching another Constitutional Convention. Although there have been various proposals considered by states attempting to control the agenda, rules, and participants of any convention, there is nothing in the Constitution that limits what delegates can do once a convention has been called. The danger of a "runaway convention" has prompted right-wing groups and icons, like the John Birch Society and the late U.S. Supreme Court Justice Anthony Scalia, to denounce the idea. Idaho Republicans voted down a Constitutional Convention resolution this year and a convention bill was tabled in Kentucky as well.

But this hasn't dampened ALEC's support for the notion. ALEC is continuing to pursue a highly partisan, highly political agenda to rewrite the Constitution primarily for pursuing a fiscal austerity amendment that would effectuate steep cuts in popular programs such as Social Security, Medicare and Medicaid. ALEC has three model proposals and has held workshops at almost every meeting including its most recent meeting in Denver as Rep. Chris Taylor reported.

Factions Vie over Competing Convention Plans

Three groups are actively peddling the Constitutional Convention idea and competing for the attention of ALEC legislators.

The longest standing campaign is being pushed by the Balanced Budget Amendment Task Force (BBATF), started in 2010 and headed by David Biddulph. The ALEC model resolution "Resolution Calling for a Federal Balanced Budget Amendment" asks Congress, under Article V, to call a Constitutional Convention "for the sole and exclusive purpose" of proposing such an austerity amendment. To bolster its efforts, BBATF aggregates "convention calls" going back decades and claims to have 27 states of the 34 needed to convene a Constitutional Convention. The organization's website lists ALEC and the Heartland Institute among its partner organizations.

Compact for America (CFA) was formed in 2014 and is headed by Nick Dranias, a lawyer and former director of policy development at the Goldwater Institute. Its "Balanced Budget Compact Project" requires 38 state legislatures to join an interstate compact calling for a Constitutional Convention (in Dallas, TX) where each state's governor would serve as a delegate. Signing the compact in theory ratifies rules governing the convention, as well a pre-drafted amendment for a balanced budget and debt ceiling. ALEC's corresponding model bill is called "Compact for America: Balanced Budget Amendment." Currently, CFA claims to have five states of the necessary 38. Compact for America received $678,491 in 2015, up from $235,362 the previous year, the organization's initial year of operation.

Citizens for Self-Governance (CSG) is pushing the broadest of the three Article V applications, with a project called the "Convention of States." Created in 2012 by Tea Party Patriots co-founder Mark Meckler and chaired by Wisconsin's dark-money man Eric O'Keefe, CSG launched its ambitious effort to rewrite the Constitution in 2014. Its plan calls for a broad convention to propose multiple amendments to the Constitution that would give states the power to ignore federal laws and Supreme Court rulings they don't like, slash federal spending, and impose term limits. ALEC has adopted this idea as a model bill called the "Application for a Convention of the States Under Article V of the Constitution of the United States." CSG's budget more than tripled between 2011 and 2015 from $1.8 million in revenue to $5.7 million, and its proposal won passage in four states this year, for a total of 12 states.

Infighting Disclosed in ALEC Documents

At the Denver ALEC meeting, Meckler and former Senator Jim DeMint (who was recently ousted from the Heritage Foundation's Heritage Action) presented on behalf of the Convention of States application. Biddulph was also present, but for the first time in years, Nick Dranias was missing in action.

Now we know why. Documents obtained by CMD via open records disclose behind-the-scenes infighting between the competing campaigns and support the contention of critics that the state "counts" being promoted by proponents stand on shaky legal ground.

A 2016 memo from BBATF's Biddulph to ALEC's board exposes the level of hostility between the groups. Biddulph charges Dranias with launching a "full-on assault of the traditional Article V process" and attacking both BBATF and Convention of States, and formally asks the ALEC Board to revoke CFA's ALEC membership.

"As you know, there has been a long-instituted gentleman's agreement among the Article V campaigns supported by ALEC to refrain from publicly attacking each other or otherwise throwing each others' ALEC model legislation into disrepute. Mr. Dranias' has thoroughly and repeatedly violated that agreement through his multifaceted attacks on the Article V process and specific Article V campaigns. He has aimed these attacks at both state legislators and Congress," wrote Biddulph.

Biddulph details the criticism from Dranias:

"For instance, on January 16th, in an e-mail directed to members of Congress (see attached), Mr. Dranias openly attempts to discredit the 27 active BBA application count and the aggregation of ALEC model legislation with previous BBA applications. He asserts that the BBA Model Policy provisions in the ALEC Article V Handbook passed by 9 states 'don't add up' with the older BBA Resolutions. He will (sic) lobbied members of Congress February 10 and 11 with the message that the BBA only has 10 constitutionally valid applications, not 27…. Further (the Compact's attacks) damage the ability of their fellow Americans to save our great nation from Federal overreach and national bankruptcy."

Following Biddulph's letter, Mark Meckler of Citizens for Self-Governance also petitioned ALEC to bounce Dranias.

"Mr. Dranias is attacking the legal aggregation of the BBATF's applications, and is making ridiculous claims about the alleged cost of a traditional Article V Convention as proposed by COS," Meckler wrote, and went on to repeat Biddulph's argument about Dranias casting doubt on BBATF's state count. Compact for America had published a paper estimating that the limited convention it advocated would only cost taxpayers $41,000, as compared to $350 million for an unlimited convention along the lines of the Convention of States proposal.

Meckler asked ALEC to punt Dranias' group for undermining the other factions' efforts. "As a member in good standing of an organization to which we are proud to belong," he wrote, "we hereby request that the ALEC Board of Directors… revoke the membership of the Compact for America for attacking and undermining ALEC model Article V policies… Additionally, we request that the Board revoke ALEC's endorsement of the CFA model policy and any other endorsements of CFA."

Rather than backing down, Dranias wrote a vigorous response to ALEC National Chair Leah Vukmir denying any wrongdoing, doubling down on his assessment of the other groups' proposals, and accusing BBATF and Convention of States of being the ones to inappropriately attack his group.

Ultimately, the ALEC board drafted a letter in response to the quarreling groups declining to revoke anyone's membership and chastising them to "behave with civility and professionalism" and "honor their commitments to each other." CMD doesn't know if the draft response was sent to Dranias, but he was conspicuously lacking from the ALEC Annual Meeting in Denver where the other groups once again gave their Constitutional Convention presentations.

"Aggregation" Is a Major Legal Problem, Say Proponents and Experts

In his letter to Vukmir, Dranias notes that Biddulph and BBATF claim to have secured 27 state applications. But a January 2016 Compact for America report by attorney Jeff Kimball questioned this number, concluding that BBATF has at most 11 valid applying resolutions and possibly as few as nine.

"The issue in Kimble's report is whether the BBATF can aggregate 27 applying resolutions," Dranias wrote. "Attorney Kimble's research indicates that no more than 11 can be aggregated (possibly as few as 9). The good news for ALEC is that either count includes the resolutions that mirror ALEC model legislation."

Dranias argued that ALEC encouragement of discussion and debate over the aggregation issue was important and warned of the risk that Congress would disregard some states' resolutions if not addressed. But, Dranias wrote, "If there is no legal theory that can justify BBATF's position, I personally do believe it would be morally wrong to propagate it—especially to the exclusion of other efforts.

Experts agree that there are serious issues with aggregation.

"CFA's analysis flags important differences in the multiple versions of austerity resolutions passed by the states, and calls into serious question how close the Koch machine is to getting a crack at rewriting the Constitution," said Arn Pearson, CMD's General Counsel. "Even if Congress was willing to add them all together, a convention call based on this hodgepodge would be bogged down by court challenges."

An assessment of Constitutional Convention campaigns by the far right Heartland Institute also questioned the aggregation.

"There exists the question of whether these 16 applications passed primarily between 1976 and 1983 will aggregate with each other and with modern-era applications," wrote Heartland's policy advisor David Guldenschuh. "Congress will have the duty of initially making that assessment. To date, we have limited indications of how inclusive Congress will be in its counting of applications."

The overall effort being pushed by the hyper-partisan ALEC and its allies left law school professor David Super of Georgetown University shaking his head. "When you are pushing a narrow, partisan agenda for constitutional change, planning amendments when you can have the most partisan advantage, you do a lot of damage to the Constitution as a unifying force," said Super. "Everyone has things they don't like in the Constitution, but we should all agree that the Constitution is for all of us, bigger than any one political party."

While citing the groups' progress in some states, the Heartland Institute's Guldenschuh posed the hard question: "[C]an leaders within the movement coordinate their efforts and cooperate with each other" to win an Article V convention, "or will the movement devolve into a circular firing squad as unfortunately happens all too often among conservative groups?"

Judging from the ALEC documents obtained by CMD, along so Compact for America's conspicuous absence from this month's ALEC meeting, the answer appears to be "no."

CMD's research team, including Nick Surgey, contributed to this investigation.

Read all of the Article V Documents mentioned in this article, here.