Try this nightmare on for size: A group of the 1 percent gather in secret, sent by all 50 states to amend the Constitution. But instead of amending it, they decide to rewrite it, enshrining in law their ability to rule and govern regardless of the expressed wishes of the American people.
Sounds like dystopian fiction, right? Like, who would possibly vote for that? And how could someone just rewrite the Constitution without any say from the People?
Actually, according to legal scholars, it’s pretty easy, particularly in the current political climate.
A group called ALEC, or the American Legislative Exchange Council, which is backed by the Koch Brothers, is spearheading the effort. The organization, a corporate lobbying effort that’s curiously registered as a charity, mostly stays busy pushing model legislation through state legislatures, while also advocating for an inert-sounding balanced-budget Constitutional amendment, and a congruent amendment to limit the size of government. The balanced-budget amendment already has 28 out of the 34 states necessary to call a Constitutional convention. ALEC is very optimistic that they’ll pick up the remaining six in 2019 or 2020.
You’ve likely heard little to nothing about this because it’s considered by many to be something of a Constitutional sneak attack — a secret plan that’s happening right out in the open, disguised as a wonky political mechanism. In fact, the only reason the American people became the least bit aware of ALEC’s efforts was because of a website called ALEC Exposed, created by the Center for Media and Democracy. In particular, the website comprehensively tracks the model legislation proposed by ALEC on behalf of its corporate members — e.g., stand-your-ground laws — as the bills make their way through different state legislatures and are passed.
Given that we’re on the precipice of a major midterm election that will have all sorts of policy ramifications — as well as the fact that ALEC is so close to being able to trigger a Constitutional convention because of the outcome of such elections — I recently reached out to Jay Riestenberg from Common Cause, a nonpartisan democratic watchdog “founded in 1970 by John Gardner, a Republican who was the Secretary of Health, Education and Welfare, under President Lyndon B. Johnson.” Both he and Common Cause have been paying very specific attention to ALEC, and its partner organizations — the Convention of States and the Balanced Budget Amendment Task Force (BBATF).
How exactly does one go about rewriting the Constitution?
There’s two ways you can amend the Constitution. You can do it how we’ve always done it, and pass the amendment through Congress first, and then send it out to the states for ratification. But there’s also a second way, which we’ve never used before, which is when two-thirds of state legislatures call for a convention to propose amendments to the Constitution. That’s all we know. The Constitution literally says nothing else about how the process would work. That’s the main reason why Common Cause is raising the alarm about this.
What’s the biggest threat you see in a Constitutional convention for a specific amendment?
Basically, our view is, since the Constitution provides no rules or guidelines, once a convention is called anything could come up. Most legal scholars agree with us. There’s no real limits that delegates could put on a convention. The original Constitutional convention was to make amendments to the Articles of Confederation and what ended up happening is they wrote the Constitution and threw out the old government. I’m not saying that would happen in this instance, but also, no one thought Donald Trump would be elected. Political realities have been thrown out the window the last few years. So anything’s possible.
If the powerful groups behind these convention groups, people like the Koch Brothers, manage to pull it off, they’ll do so perfectly legally. Is that really their deep, dark plan: Act reasonably, lobby state legislatures, ratify amendments and then once the Constitutional convention is called, go buck wild?
Oh yeah, once a convention is called you’re going to have every wealthy special interest group lining up to push their agenda. And without any rules or limits on what the delegates can do, it’s gonna be wild. The delegates to these conventions, however they’d be chosen, which isn’t clear — what ethics rules would they be beholden to? Can they accept gifts? Can they accept bribes? Can the Koch Brothers go in and start buying up delegates? I mean, these delegates aren’t going to be subject to the same sort of ethics laws that legislators and members of Congress are subject to — and still often break.
I see this convention push by the extreme right as the next — and maybe final — step to embolden and embed their radical agenda in the Constitution. They’ve done gerrymandering, they’ve done Citizens United, they’ve pretty much overturned every meaningful campaign finance law, they’ve rigged voting rules to stop black and brown voters from showing up. Now, they’re gonna try to put this all in the Constitution and make it permanent. That’s the real danger.
The supporters of these movements are varied. BBATF is a small operation, taking in about $43,000 in donations in 2015. But the Convention of States is a massive organization. They claim 2.2 million volunteers. Who’s backing these groups? We know the Koch Brothers are officially backing CoS. But who else?
With BBA Task Force, they don’t raise a lot of resources. Mostly the folks who run it are self-contributing. I haven’t spent a lot of time looking at their finances because they don’t really have any.
But the Convention of States is really interesting. They were founded with a $500,000 grant from the Mercer family, which are known for their connections to Steve Bannon, Breitbart and the Trump campaign. In their most recent tax form, a mystery donor produced one-third of their funding. Because they’re a 501(c)(4), they’re not required to disclose their donors. So we don’t know who’s currently funding them. But we know the vast majority of their funding is coming from a handful of wealthy donors. That’s kinda the fraud of this whole thing. The Convention of States presents itself as a grassroots organization and that it’s all about everyday people, but in truth, it’s completely funded by a handful of very wealthy people who have a radical agenda. And it’ll ultimately lead to all the people that they put forward as their face having less power in government.
It seems like ALEC embodies the conservative ideal of rolling back the last hundred years, or more, of progressive gains. They appear to want to return to the laissez-faire era of robber barons, that we saw during the Gilded Age of the 1890s.
When you go to an ALEC conference, you’re in a completely different world. It’s dominated by old white men who are usually wealthy, or come from wealth. In fact, you’re surrounded by wealth, whether it’s personal or some of the wealthiest corporations in the world. It’s just a complete out-of-touch reality for who makes up America, and the reality of what the public interest is.
Meanwhile, on the left, there are those who have similar goals to ALEC. Like, Harvard professor Lawrence Lessig. He thinks if there’s a Constitutional convention, Democrats and Progressives could team up to draft a new Constitution that grants “electoral integrity” in exchange for “fiscal integrity.” This seems powerfully naive, both of American politics and the willingness of mainstream Democrats to stand up and fight.
Using the word naive to describe Larry Lessig is pretty accurate. Look, Larry Lessig is a Harvard professor and he doesn’t work in the reality of politics where you have 31 state legislatures completely controlled by Republicans. The Republican Party has moved away from the center, further right, and has shown less interest in promoting and advancing an agenda that’s supported by its constituents. So the idea that you’ll have a convention in the next five to ten years, or even today, that Lessig wants is nonsense. It’s absolute nonsense.
The notion that we’ll have this convention where Republicans will suddenly start supporting strong campaign finance or electoral college reform is very naive. The fact that Larry Lessig is saying let’s have a convention where you can do multiple things to make everyone happy, actually shows that Larry Lessig, a brilliant legal mind, is admitting that you can’t control a convention, and that the threat of a runaway convention is real.
If it’s naive to go the way Lessig suggests, by trying to control the chaos of the process, should there be an effort to create left-leaning amendments and compete at the state level, even though the political reality is obviously heavily stacked against that working?
You’re absolutely right, those on the left, the center-left or even the center who want to see a change on issues like campaign finance, voting rights or the electoral college, shouldn’t shy away from talking about changing the Constitution to make it more equitable for Americans. Because, the fact of the matter is, the Founding Fathers left us with a Constitution that was extremely flawed. Think of the U.S. Senate and how undemocratic that entire institution is. Wyoming and Rhode Island get the same amount of power as California and Texas. But again, such a convention at this moment, isn’t a good idea based on who controls power in this country.
What are the chances a Constitutional convention actually happens? In the past, you’ve said 50/50. Have you since revised your prediction, because 50/50 isn’t exactly optimistic?
(laughs) I’m an optimist. There are a couple things. First, we’ve seen a growing consensus, or movement amongst Republican legislatures to oppose this. I think Republican legislators are opposing it because they don’t want to see a bunch of changes to the Constitution. And they don’t like these groups that fly into their state, say pass this, and then fly out. So recently seeing so many Republicans vote no or oppose this has been great. And that’s been the case in a number of states.
Second, seeing the increased level of public engagement in politics since Trump, and now, possibly a blue wave election that could turn some of these state legislatures into more progressive state legislatures, or at least into legislatures that are less likely to back a Koch-backed initiative, could be really positive — and helpful. After all, every time I talk about this issue, once I get over the hump of convincing people that it’s a real thing, they’re always on my side.
If sunshine is the greatest disinfectant, it seems like you guys are trying to throw all the sunshine you can at the issue.
That’s what we were created to do.
Zaron Burnett III
Zaron Burnett is an investigative journalist and longform features writer based in Los Angeles. He covers culture, politics, race, and other perplexing mysteries for MEL.
