Draft Resolution Selecting and Instructing Commissioners to a Convention for Proposing Amendments

Summary

In the event that an amendments convention pursuant to Article V of the Constitution of the United States is called, this model resolution can serve as a starting point for state legislative bodies when selecting and instructing the commissioners to participate in the resulting convention of states.

Draft Resolution Selecting and Instructing Commissioners to a Convention for Proposing Amendments

Please see footnotes for explanation of various provisions)

 

Whereas Congress has called[1] a convention for proposing amendments pursuant to Article V of the Constitution of the United States to convene initially[2] at  ________________ on ____________, 20__;[3]

Whereas the subject of the call is a potential amendment requiring a balanced federal budget;[4]

Whereas the legislature of the state [commonwealth] of ____ has determined that the subject of the call duly and legally reflects the scope of the applications of at least two thirds of the state legislatures, as required by Article V of the U.S. Constitution;[5] and

Whereas it is the duty of the legislature of the state [commonwealth] of ____ to appoint and instruct a delegation of commissioners[6] to that convention;

Be it resolved by the Senate and the [insert name of lower chamber] of the State [Commonwealth] of _________as follows:

Section 1. That [insert names of commissioners] are hereby elected and commissioned as commissioners from this state to such convention.

Section 2. That [insert names of alternates] are hereby elected and commissioned as alternate, to serve as commissioners in the event of the inability of the commissioners to do so.

Section 3. The delegation shall choose its presiding officer and organize in the manner it desires.

Section 4. The Legislature shall provide the delegation all necessary support staff and shall pay the costs of attending the convention and any appropriate planning meetings, subject to available funding.

Section 5. The legislature hereby designates [here name individuals forming the committee] as its duly authorized Article V Convention Committee[7] to serve as an agent of the legislature and as a liaison and between the legislature and its commissioners and alternates. Subject to any supervening legislative action, the duties of the Article V Convention Committee include:

 

(a)          monitoring the delegation to determine if it is following legislative instructions and obeying convention rules;

(b)          advising the delegation on the legislature’s position on issues before the convention and issuing additional instructions not inconsistent with this resolution;

(c)           disciplining any commissioner who violates the oath of office or instructions or is otherwise guilty of malfeasance or nonfeasance, which discipline may include recall from the convention or demotion to alternate delegate;

(d)          notifying the convention that a commissioner has been recalled or converted to an alternate;

(e)          replacing any commissioner who is recalled or otherwise unable to perform his or her duties with an alternate; and

(f)           regularly reporting to the legislature on convention proceedings and issues and on its own actions, and seeking legislative guidance.

 

Section 6. The aforesaid commissioners and alternates are instructed as follows:

a. You are to proceed to [time and place of convention] and there present a certified copy of this resolution as your credentials to the convention. Consistent with your instructions, you are to consult and deliberate with the delegations from other states on whether the convention should propose a balanced budget amendment to the United States Constitution, and, if so, what the terms of such proposal should be. You are authorized to vote for proposal of an appropriate draft of such amendment, and to otherwise take part in convention proceedings, except as limited below.

b. You are instructed that as commissioners to this convention you are legal agents of the legislature of [insert name of state];[8] that under the law of agency the legislature is your principal; and that in common with agents generally you are bound by legal duties to your principal. These duties include but are not limited to the obligations to (i) to follow instructions faithfully, (ii) remain within the scope of your authority, (iii) act honestly and in good faith, (iv) act with reasonable care, and (v) act with loyalty to your principal, which includes, but is not limited to, avoiding all conflicts of interest.

c. When voting on or otherwise supporting any proposed convention rule or rules, whether in committee or on the floor, you are to vote for and otherwise support only rules consistent with the following principles:[9]

 

(i)            The convention is convened under the authority granted to the state legislatures of the several states by Article V of the Constitution of the United States.

(ii)           The only participants at this convention are the several state legislatures represented by their respective delegations duly selected in such manner as those legislatures have determined.

(iii)          The scope of the convention’s authority is defined by applications adopted by at least two thirds of the legislatures of the several states as embodied in the congressional call, which authority is limited to the subject of a balanced budget amendment. The convention has no authority to propose or discuss an amendment on any other subject.

(iv)   The convention may provide for disciplining a commissioner or delegation for exceeding the scope of the convention’s authority by raising subjects for discussion or debate that lie outside the convention’s authority.

(v)          The convention may not infringe on the respective state legislatures’ authority to instruct, discipline, recall and replace commissioners.

(vi)         Voting and quorum rules shall not enable the minority to obstruct the convention nor control its output.

(vii)        All voting at the Convention shall be by state with each state having one vote, without apportionment or division, and with each state determining the internal voting and quorum rules for casting the vote of its delegation.[10]

d. You are to report to the Article V Convention Committee at the end of each day on the proceedings of that day. In addition, you are particularly to report immediately any efforts by the convention or by any commissioners or delegations for the convention to exceed the scope of the subject of the congressional call, and you are not to cooperate with any efforts to exceed the congressional call through your vote or in any other manner.

e. If any of you learn of any violation of the oath or other misbehavior by a commissioner, you shall report it to the Article V Convention Committee.

f. Under the law of agency, the legislature of the State of [insert state name] and the Article V Convention Committee acting as the legislature’s agent have authority to re-instruct, remove, or recall you at any time. Upon receiving notice of removal or recall, you shall immediately notify the appropriate convention officer or officers and withdraw from all convention proceedings.

g. Before leaving this state for the convention, you are to swear or affirm before an official qualified to take oaths the following:

I [state your name], having been entrusted with the duty of representing the legislature of the state of [insert state name] at a convention for proposing amendments under the Constitution of the United States, under penalties of perjury,[11] solemnly swear [or affirm] that I will uphold the Constitution of the United States and the constitution and laws of this state; and that I will represent the aforesaid legislature in accordance with the legal rules pertaining to agents, and specifically, will act to the best of my ability and in good faith, with and in strict accordance with the instructions received or that I shall receive pursuant to  [insert identification numbers of this resolution], the terms of which I have read and fully understand.[12]

 

 

[1] This Model Resolution assumes Congress has, pursuant to the applications of at least 34 states, already called a convention.

[2] By historical practice, the convention call sets the subject matter and the initial time and place of meeting. Once the convention organizes, it may not alter the subject matter, but it may alter place(s) of meeting, and set its own time schedule.

[3] This Model Resolution relies heavily on previously-adopted ALEC model policies. It also owes much to a document entitled “Model Resolution Selecting and Instructing Commissioners to a Convention for Proposing a Balanced Budget Amendment to the U.S. Constitution,” previously drafted by Robert G. Natelson and William Fruth. There are, however, some differences from previous documents, partly as a result of lessons learned and partly because this Resolution serves different purposes. For example, the earlier resolution was to be adopted before a congressional call.

[4] As is true of several other ALEC forms, the subject in this Model Resolution is a balanced budget amendment. As in the case of other ALEC forms, this Resolution may be altered for use after a congressional call on any other topic.

[5] This Model Resolution recites that the legislature has checked the call against the applications and finds the call accurate. Thus, it relieves the commissioners and alternates of the obligation to scrutinize 34 or more legislative applications.

[6] This Model Resolution uses the term “commissioner” in preference to historical synonyms, such as “deputy,” “delegate,” “agent,” and “representative.” It does so partly because the other words have acquired potentially-misleading meanings and connotations. For example, modern Americans sometimes call any convention attendee a “delegate,” whether or not serving in an agency capacity. Additionally, “delegate” conjures up images of screaming, placard-waving “delegates” to national party conventions.

[7] Compare the practice during the Founding Era of choosing and instructing commissioners though the legislature’s Committee of Safety.

[8] Convention commissioners are legal agents of the legislature, and subject to the law of agency. Confusion sometimes arises because people do not understand that fact. Indeed, many of the questions cited by alarmist groups as “unanswerable” derive from ignorance of the commissioners’ status as agents.

To forestall confusion, therefore, this Resolution states explicitly the commissioners’ legal status as agents. Commissioners may learn the well-settled principles of agency law from any of the freely-available books on the subject, and for difficult questions they may consult legal counsel. Of course, the duty to follow agency rules would exist whether or not this Resolution mentioned the subject.

[9] The general principles governing rules for which a commissioner must vote are derived from an ALEC model policy dated March 8, 2016. This Model Resolution does not require that commissioners insist the convention adopt rules embodying all these principles; it requires only that commissioners support proposed rules that further the principles and oppose proposed rules that contradict them.

[10] Equal state suffrage has been the universally-prevailing rule in previous conventions of states in plenary session and in the committee of the whole. Generally, however, it has not prevailed in most committees. One reason is practical: A one state/one vote rule for all committees would require that every committee, no matter how unimportant, include a member from every state.

Experience from the Citizens for Self-Governance Simulated Convention held in Williamsburg, Virginia in October, 2016 confirms that 50-person committees are too unwieldy for more than sparing use. Therefore, this Resolution does not follow the 2016 ALEC model policy in mandating that all committees follow the rule of one state/one vote.

[11] The oath relies on the local law of perjury for its enforcement. This forestalls charges that the legislature is creating any new law. One must recognize, however, that it might be difficult to convict a person of perjury who has merely changed his mind. In that event, however, removal should be a sufficient response.

The legislature almost certainly does not have authority to change or expunge convention votes once they are cast, as sometimes suggested.

[12] Unlike some former versions of the oath, the oath here does not repeat all instructions. Rather, the oath incorporates them, along with a statement that the commissioner has read and understands them. In addition to greater efficiency, this approach forestalls media efforts to ridicule a long, complicated oath.