Convention of States Application Follows Long Nebraska Tradition
By Senator Laura Ebke
On Christmas Eve, 2014, I was celebrating Christmas with my extended family, after my recent election to the Legislature, before taking office. My brother, Barry, looked up at me at one point and said “So, are you going to introduce a resolution for a convention of states?”
Even with my younger brother, I wasn’t quite ready to make that leap.
By Day 9 of the Legislative session in 2015, I was ready and we drafted a resolution based on the language that had been used in four states where the applications had been passed already, and introduced it on Day 10. By the end of the Legislative session, LR35 had moved onto General File from the Government, Military and Veterans Affairs Committee.
Through the interim, I embarked on a mission to talk with, educate (and sometimes be educated by) citizens of Nebraska. Some enthusiastically embraced the notion of a Convention of States and clarifying language for the Constitution; others were less than enthusiastic about a convention (fearful of a “runaway” that would open up other things for change); and still others objected to the goals of the convention. Briefly, here are the details.
Article V of the U.S. Constitution stipulates two ways in which amendments to the Constitution can be proposed:
1. By a vote of two-thirds of both houses of Congress;
2. By an amending convention called at the request of two-thirds of the states.
So far, of the 27 amendments to the Constitution, all have been proposed by Congress. However, over 400 applications on an assortment of topics have been proposed over time. None have achieved the requisite two-thirds of states number.
No matter how amendments are proposed—whether through the Congressional means, or through a convention—any amendments that emerge must still be ratified by 38 states. For all intents and purposes, any proposed amendment that is opposed in just one house in any 13 states, will be dead.
Historically, attempts at Article V Conventions seem to come in bunches—and then everyone forgets about that mechanism for a while. In the late 19th and early 20th century, there were three or four different versions of a “direct election of U.S. Senators” convention application floating around, including two that had been filed by Nebraska.
Congress apparently saw the handwriting on the wall, and decided to just send that out to the states themselves for ratification. This became the 17th Amendment.
In the mid-1960s, there were applications for conventions that would deal with apportionment of U.S. House seats, one that would call for proportional allocation of electoral votes by the states (not unlike what Nebraska and Maine currently do), and one that would have repealed the federal income tax contained in the 16th Amendment. Nebraska actually passed and filed applications for the first two. Both are generally considered to still be valid applications, should other states decide to jump on that bandwagon.
In the 1970s, the Balanced Budget Amendment applications were quite popular, as were applications for “right to life” amendments. Nebraska passed its application for a Balanced Budget Amendment convention in 1976, and one for a Right to Life amendment in 1978.
In 1979, the American Enterprise Institute held a forum which brought together constitutional law professors from Stanford University, the University of Chicago, and Harvard University. Key among the questions at that event was this: Is the use of an Article V Convention legitimate and safe?
All of the participants—while exhibiting varying positions on the need for a convention, acknowledged it as a legitimate remedy. One of the most colorful responses came from then-law school Professor Antonin Scalia, who said in response to a question about the risk of a convention to the Bill of Rights:
“All those things are possible, I suppose, just as it is possible that the Congress tomorrow might pass a law abolishing Social Security as of the next day, or eliminating Christmas. Such things are possible, remotely possible. I have no fear that such extreme proposals would come out of a constitutional convention. Surely, whether that risk is sufficient to cause anyone to be opposed to a constitutional convention depends on how high we think the risk is and how necessary we think the convention is.”
Nebraska’s application is identical to the applications that have been passed in five other states—Alabama, Alaska, Georgia, Florida and Tennessee—and which is in the process of being considered in more than 30 other state legislatures. The stated limits to the convention would be to consider amendments which would: 1) impose fiscal restraints on the federal government; 2) limit the power and jurisdiction of the federal government; and 3) limit the terms of office for federal officials and members of Congress.
LR35 will come up on General File on Monday, February 22.