George Will: A constitutional convention to limit Washington?BY GEORGE WILL
April 09. 2014 5:47PM
From the Goldwater Institute, the fertile frontal lobe of the conservative movement's brain, comes an innovative idea that is gaining traction in Alaska, Arizona and Georgia, and its advocates may bring it to at least 35 other states' legislatures. It would use the Constitution's Article V to move the nation back toward the limited government the Constitution's Framers thought their document guaranteed.
The Compact for America is the innovation of the Goldwater Institute's Nick Dranias, who proposes a constitutional convention carefully called under Article V to enact a balanced-budget amendment written precisely enough to preclude evasion by the political class. This class has powerful and permanent incentives for deficit spending, which delivers immediate benefits to constituents while deferring a significant portion of the benefits' costs. Here's what the compact's amendment would stipulate:
Total federal government outlays shall not exceed receipts unless the excess of outlays is financed exclusively by debt which initially shall be authorized to be 105 percent of outstanding debt on the date the amendment is ratified. Congress may increase the authorized debt only if a majority of state legislatures approve an unconditional, single-subject measure proposing the amount of such increase. Whenever outstanding debt exceeds 98 percent of the set limit, the President shall designate for impoundment specific expenditures sufficient to keep debt below the authorized level. The impoundment shall occur in 30 days unless Congress designates an alternative impoundment of the same or greater amount. Any bill for a new or increased general revenue tax shall require a two-thirds vote of both houses of Congress — except for a bill that reduces or eliminates an existing tax exemption, deduction or credit, or that "provides for a new end user sales tax which would completely replace every existing income tax levied by" the U.S. government.
Now, leave aside questions about this tax policy, or about the wisdom of constitutionalizing any tax policy. Do you believe a balanced-budget amendment is a required response to the nature of today's politics and governance, now that courts neglect to do their duty in enforcing Congress' adherence to the Constitution's enumeration of its powers? If so, the compact's amendment is remarkably resistant to evasion.
Congress, which relishes deficit spending, would not, unilaterally and unpressured, send this amendment to the states for ratification. Hence the Goldwater Institute's recourse to Article V.
It provides, in the same sentence, two amendment procedures, one of which has never been used — the calling of a convention by two-thirds of the state legislatures. Many prudent people — remembering that the 1787 Constitutional Convention's original purpose was merely to "remedy defects" of the Articles of Confederation — recoil from the possibility of a runaway convention and the certainty that James Madison would not be there to make it turn out well. The compact, however, would closely confine a convention: State legislatures can form a compact — a cooperative agreement — to call a convention for the codified, one-item agenda of ratifying the balanced-budget amendment precisely stipulated in advance.
The Constitution's Article I, Section 10 says: "No state shall, without the consent of Congress ... enter into any agreement or compact with another state." But court precedent makes clear that states do not need congressional consent for compacts that exercise state power without displacing federal power, such as the constitutionally stipulated power to apply for an Article V convention. States can join the Goldwater Institute's compact without waiting for Congress' approval.
Article V says Congress has no discretion — it "shall" call a convention "on the application of the legislatures of two thirds of the several states." A convention called in accordance with the institute's compact would adopt its limited agenda with the force of federal and state law, any deviation from which would render the convention — which is limited to a 24-hour session — void. The compact designates as the sole delegates to the convention the governors of participating states, officials who will not run the political risk of wrecking the convention by ignoring the law.
In the 85th and final of the Federalist Papers written to persuade Americans wary of centralized power to ratify the Constitution, Alexander Hamilton said: "We may safely rely on the disposition of the state legislatures to erect barriers against the encroachments of the national authority." States would be the prime movers of, and would be substantially empowered by, the institute's amendment-by-compact plan. Members of this nascent movement to use Article V have a name: Fivers.
George Will's email address is email@example.com.