There are two methods for proposing Constitutional Amendments. The first is for Congress to propose Amendments, which then go to the States for Ratification. The second is outlined in Article V of the Constitution, which says that Congress “on the application of the Legislatures of two-thirds of the several States, shall call a convention for proposing Amendments“.
The second method is known as an Article V Convention. If 34 states of the U.S. (currently) have their State Legislatures propose the calling of an Article V Convention, then Congress must call the Convention… and effectively loses any say in the process from that point forward. A very foresightful clause in the Constitution which would at any time over any issue allow a 2/3 majority of We The People to force Congress to either act in accordance with our wishes, or else effectively stage a Coup by ignoring the Constitution which empowers them to act lawfully.
Lawrence Lessig’s Article V Convention Call
Lawrence Lessig, Stanford Law Professor, author, internet activist, co-creator of the Creative Commons licensing structure, and recent bipartisan political activist bent on restoring Congress to the hands of We The People, not Them The Special-Interest Fundraisers, is now calling for an Article V Convention to propose a Constitutional Amendment.
According to Lessig & co.’s activist group Call A Convention‘s website, they propose the following Amendment as a topic to be included in the Article V Convention, and they have announced intentions to try and get the requisite motions passed in 34 State Legislatures. This is their own particular rallying point, but according to Lessig’s personal wiki explanation page for Article V Conventions he acknowledges that there are no statutes of limitations on any applications for Article V Conventions which have been made throughout history, so at least in theory Lessig is proposing a full-review Article V Convention where any and all points and applications might be brought up.
Here is the current draft of the Amendment text as put together by Lessig’s group and their legal expertise. (For updates and their explanatory notes, check the organization’s web page in case they change the language.)
- Congress shall have the power and obligation to protect its own independence, and the independence of the Executive, by assuring, through citizen vouchers or public funding, that the financing of federal elections does not produce any actual or reasonably perceived appearance of dependence, except upon the People.
- The Freedom of Speech and of the Press shall not be abridged by this Amendment, save that the First Amendment to this Constitution shall not be construed to limit the power of the People to restrict any significant and disproportionate non-party financial influence during the last 60 days before an election, where such influence would reasonably draw into doubt the integrity or independence of any elected official.
- Courts shall defer to factual judgments about an actual or reasonably perceived appearance of dependence, or the conditions under which a significant and disproportionate non-party financial influence would reasonably draw the integrity or independence of an official into doubt, when such judgments are made by independent, non-partisan commissions whose Members pledge not to enter elected office for a period of at least 10 years after service on the commission.
Please note… according to the current language, the Amendment does not try to install any one particular solution to the special interest funding problem. Instead it merely represents the mandate that Congress has an obligation to make sure that there is no dependence, real or ‘reasonably’ perceived, of Federal Elections on special interest funding, foreign funding, corporate funding, etc. They’re smart to include language in the Proposed Amendment which exempts that kind of restriction from being considered an abridgement of Free Speech. In fact, that single exemption is what provides the legal meat of this Amendment and removes in legal fashion the main barrier to current attempts to regulate election dependence on special interest funding and corporate speech. (See Citizens United v. Federal Election Committee).
The Significance of This Attempt
Politics and partisanship aside, what I find fascinating about this entire process is that several of the communication vehicles of the Internet are converging here. Just like in the 1760’s and on when portable printing presses made political pamphlets the communication vehicle through which Independence was born, the Internet is now acting in a like manner on our political process. Already we have our first President elected because of his mastery of the new medium in fundraising and grassroots efforts – President Obama wasn’t taken seriously until he tapped the internet to amass an unprecedented amount of grassroots campaign funding. If not for the Internet, Obama would not have cleared the early race’s fundraising needs to identify him as a serious candidate.
Let’s think about that for a second. Obama was elected because the Internet gave him the tools that he needed to actually throw his hat into the ring in the first place. Even if you hate President Obama, make damned sure you pay attention to that fact. Nothing that followed would have happened had it not been for the network of communication called the Internet.
And now that the Internet generation has made sweeping, global changes to the Executive Branch, activists on the Net are using it to try and make sweeping, global changes to the Legislative Branch. In history books in the year 3000, school podlings will hopefully study history and stifle yawns at the notion that a network of interlinked computers for the sake of communication did anything worthwhile. The same way that we ourselves kind of yawned through the less-than-stunning notion that affordable printing presses led to the United States of America.
Where I Stand … So Far
I must say as a matter of full disclosure, that after initial consideration of this issue I am joining with Lessig and have joined his group, and will most likely actively work to help this pass in Connecticut. I believe that this transcends partisan politics, because as Lessig himself has pointed out, 20 years of Republican rule in the U.S. hasn’t led them any closer to their own political goals (did Reagan give us smaller government? Nope, and if Super Republican couldn’t do it, Palin sure as hell won’t), so it’s not the parties, it’s the political system itself right now. In that light, I’m proud to call myself a Conventionist, in that I think it’s high time to revise this great document of ours to help carry forth the spirit of freedom and the republic into the modern era technologically and socially.
I said in a previous post that one of the dangers of convoking an Article V Convention was that there was a real chance in ending up with… let’s just call it a “Red” agenda. But in the grand scheme of things, I’d much rather clear the air and deal with an actual reality instead of a phantom possibility. I believe that the very spectre of radicalism will keep any Constitutional Convention rather more toward the middle of the road, since I do believe that it’s not the People who are extremists in general, it’s the media focusing only on the extreme fringes and trying to sell them as though they’re the only thing out there. It’s not malignant, it’s commercial. “Normal” doesn’t sell. And that’s the fundamental issue in Congress. Normal doesn’t sell, nor does Normal fundraise for elections. Why work to win the hearts of people when you can just focus on winning the debit cards of Corporations?
What I Think Lessig & Co Are Really Doing
I don’t think that the Article V Convention will actually get called. What I think that Lessig’s friends are doing is using the threat of an Article V Convention as a political motivator to get Congress to pass the Fair Elections Now Act, which is already on the books. The 20th century saw several applications for an Article V Convention, and in many of those cases when it became clear that there was a large amount of populist support, Congress moved quickly to pass other legislation which addressed the issue at hand causing the Article V Convention support.
Why would Congress do such a thing as suddenly move to placate the Popular Agenda instead of allowing an Article V Con to be convoked? Because Article V is designed specifically to completely and totally take ANY matter completely out of the hands of Congress. Once the 34th State Legislature passes the call for an Article V Convention, Congress is effectively no longer able to affect the outcome. Period. It’s in the hands of the People. We could amend the Constitution to require all government officials to submit to 100% transparency in all matters of finance, personal, private, or corporate. We could install a 2-term limit. We could remove their ability to redraw congressional districts to keep certain parties in power. We could require that effective upon Ratification, special Congressional elections would be called where no former member of the Federal Government was eligible for election to the new Congress for a period of 20 years.
Many of those ideas are lunacy and idiocy, but the fact remains that when an Article V Convention is called, EVERYTHING is up for redefinition and reinterpretation. And let me tell you, the very notion of We The People taking DIRECT control over our legal system once again is perhaps the scariest thing that we could ever propose to our current Government Caste. It would likely destroy the very fabric of their lives as it redefined the rules.
That’s what makes it a genius move. Congress on its own would never pass the kind of sweeping fundraising and election reforms which would take their Sugar Daddy Special Interest Funding out of the picture. Corporations would never allow them to do so. But when faced with the choice between voluntarily giving up Fundraising Crack or allowing the PEOPLE to take a direct hand in completely redefining the entire game… I think that Lessig & co. have finally found the stick that makes the bitter pill of real and lasting campaign finance reform actually look like a sweet carrot.