Federalism

The Arizona Balanced Budget Amendment Planning Convention

The views expressed are those of the author and do not necessarily reflect those of the American Legislative Exchange Council.

On September 12, 2017 in Phoenix, Arizona, the states will assemble in formal convention to create rules of procedure for a future convention to propose a balanced budget amendment (BBA) pursuant to Article V of the U.S. Constitution. A large number of legislative leaders have already or are in the process of choosing the delegation which will represent their state. Many are now beginning to understand how important the convention is and its historic significance.

Fear of the process

Over the last thirty years, there has been movement to convene a convention to propose a balanced budget amendment to the United States Constitution pursuant to Article V. While the American people overwhelmingly want a balanced budget amendment, the effort to convene a convention has met with resistance because of the lack of knowledge of how the convention will function.

Many groups which oppose an amendment convention claim that since there are “no rules” for a convention, the convention can do anything it desires once convened. They suggest that the convention can propose any amendment it wants and force the amendments upon the people by somehow changing the ratification process. Some have claimed the convention can unilaterally tear up the Bill of Rights and create a new Constitution.

Such claims have no merit as history provides evidence that a convention to propose a balanced budget amendment can only focus on a balanced budget amendment and typical rules for a convention of states are well documented.

Providing clarity for the process

The Arizona BBA Planning Convention is being called to prepare rules of procedure and to recommend to Congress criteria for the location of a future convention for proposing a balanced budget amendment pursuant to Article V of the Constitution.

Upon receiving applications from 34 states to call a convention limited to the subject of a balanced budget amendment, Congress shall “call a convention” for such. Presently the effort to secure the 34 states is approaching that threshold. Since there has never been a convention to propose an amendment to the Constitution, it is appropriate and necessary the states convene to discuss and recommend the rules of procedure for such a convention.

The Arizona BBA Planning Convention is a “convention of the states” but not a convention to propose a balanced budget amendment. It is not being called under any provision of the Constitution. It is a formal, national convention of the states being called in the tradition established over our 300 year history beginning in colonial America and stretching through the 1920s.

There have been more than 38 national and regional conventions of the states prior to and since our founding. The last national convention was called by the Virginia legislature and was held in 1861 in Washington, DC. It was called to discuss an amendment to the United States Constitution regarding slavery to head off the Civil War.

Since both the Arizona convention and a convention to propose a balanced budget amendment called pursuant to Article V of the Constitution are “conventions of the states,” the organizational structure of each is similar.

Pursuant to HCR 2022 passed by the Arizona legislature on March 31, 2017, each state is invited to send a delegation to the Arizona convention. Each state may decide the size of its delegation (not fewer than three but not more than seven is recommended). The convention will convene with each state having one vote.

Typically for a convention of the states, a legislature will pass a resolution to determine the size of its delegation, how it will be chosen and what specific instructions the delegation will be given when representing the state. HCR 2022 provides that in the absence of a resolution, the majority leadership of both houses of the legislature may jointly select a delegation.

Interest in convening a convention to propose an amendment has been keen among a large number of state legislators for a long time. As a result, over the last four years, several groups and organizations have prepared suggested rules of procedures for an Article V amendment convention.

While their work is appreciated, the rules created vary in content and detail and none of the groups had “official” authority to prepare such. The Arizona convention of the states will create an “official” recommendation of rules specific to a balanced budget amendment convention.

The rules prepared at the Arizona BBA Planning Convention are not binding upon a BBA amendment convention, as any convention can only recommend an action and every convention can adopt its own rules. However, since the political composition of the states attending the Arizona convention will likely be the same or similar to that at a BBA amendment convention, it is anticipated a preponderance or all of the rules created in Arizona will be adopted at the amendment convention.

Message to Congress

One of the main reasons to hold a planning convention limited to a balanced budget amendment is to demonstrate to Congress the states are prepared and ready for a convention to propose a balanced budget amendment.

In 1991, when 32 of the necessary 34 states had passed a resolution to convene a convention limited to proposing a balanced budget amendment and the convention seemed imminent, Senator Orrin Hatch (UT) filed SB 214. The bill, which never had a hearing, detailed the rules for the convention including electing delegates from congressional districts with each having a vote, the leadership of Congress opening the convention and each delegate being compensated by the federal government. In essence, Congress controlled how the convention would be assembled.

Senator Hatch stated he felt it was necessary for Congress to assist the states in planning for the amendment convention. He has since admitted that most of the rules and provisions contained in SB 214 were not appropriate for Congress to consider. He now believes it is the sole purview of the states to determine the rules for the convention and how each will chose its delegation and that Congress’ role in the convention is simply “ministerial.”

But a great deal of damage was done by SB 214 at that time as the Hatch bill provided ammunition for groups who opposed the convention who stated, “Congress will control it.” Today some groups still believe Congress will attempt to write the rule for the amendment convention.

However, there is no greater authority to create and recommend rules to an amendment convention than a formal convention of the states convened for that purpose. As a result of the Arizona convention, Congress will be hard pressed to believe it has such authority.


In Depth: Federalism

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