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Getting a Balanced Budget via Article V Constitutional Convention: 2.0

Nick Dranias of the "Compact for America" Explains How 38 States Could Force Congress to Spend Within Its Means.

Forcing the federal government to keep to a balanced budget has been a dream of the fiscally conservative, or those just worried about ruinous debt, for decades. “Force” is the operative word—there seems little hope that Congress will embrace consistent fiscal discipline on its own. Various organizations and movements are working to restrain government spending (and sometimes pursue other goals) via an “Article V convention.”

What’s that? Most of us are familiar with the way the Constitution actually has been amended in the past—via 2/3 votes of both houses of Congress followed by ratification by ¾ of the states. But Article V says there is another way: “Congress…on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments” which again have to be approved by ¾ of the states. The “shall” is interpreted by many legal scholars to mean that Congress has no real say in the matter at that point: if the states ask them to set up that convention, they legally must.

One such group pushing for a such a convention, working under the name “Compact for America” combines that obscure procedural method with another one: the interstate compact, which the Compact for America website explains thus: “When states enter into a formal contract to legally obligate themselves among each other in an organized effort to achieve a common goal, such a contract is called a ‘compact.’ Currently, there are over 200 compacts in existence, and each state is typically a member of 20 or more compacts.”

Nick Dranias is president of the Compact for America Educational Foundation, Inc. He’s previous been general counsel and constitutional policy director for the Arizona-based Goldwater institute, as well as previously working as an attorney with the Institute for Justice for three years and in private practice in Chicago.

Dranias and his group are working to get 38 states to pass a bill entering into a compact that not only calls for a constitutional convention, but locks them into the one thing that convention can do. As  their website states, “The Compact approach allows for the specification of the text of the amendment to be advanced by the limited convention it organizes under Article V of the U.S. Constitution--avoiding the very difficult sales pitch that ‘we have to organize a convention to find out what it might propose.’”

Many fear that there is no legal way to prevent such a convention, once it starts, from doing whatever the hell it wants (see: how the convention that formed our own current constitution was just supposed to amend the Articles of Confederation). A collection of concerns and opposition to any attempt to craft a new constitutional convention, even for conservative or libertarian goals, can be found from the John Birch Society’s New American magazine. On Compact for America’s website can be found detailed discussions about their goals, their safeguards, as well as a copy of the introduced congressional resolution to call the convention when 38 states demand it. [UPDATE: Dranias and his team don't use, or like anyone else using, the term "constitutional convention" for what they are trying to do, since they are not trying to craft a new constitution, but merely to make one amendment to our existing one. As a term of art for a convention designed to affect the constitution, this writer considers the adjective "constitutional" to be apt enough in informing a lay reader about what sort of convention is being called for by Article V.]

Senior Editor Brian Doherty interviewed Dranias by hone earlier this week about the Compact, what it hopes to accomplish, its procedural safeguards, and how far along it has gotten. Following are edited excerpts from that conversation.

Reason: What problem are you trying to solve with the Compact for America?

Nick Dranias: The abuse of unlimited borrowing capacity by the federal government is the root cause of unlimited federal power. Unlimited borrowing creates the illusion of unlimited resources, and that illusion in a mostly non-philosophical society is a propellant for the growth of government without bounds.

Against someone willing to give everyone what they want for no immediate cost on the federal credit card, the limited government politician will be outcompeted and is going to lose. That is my personal motivation in tackling national debt.

Right after the TARP debate with 80-90 percent of citizens opposed to the bailout of banks and corporations across party lines being ignored by Washington, it became readily apparent to me it didn’t matter what the will of the people is [with the current spending process]. The only solution I could find that could tackle the structural flaw of unlimited borrowing would be a constitutional amendment, done away from Washington and closer to the people, via Article V.

But Article V amendment [via a convention called by the states directly] has never worked. [Calls for such conventions] have prompted Congress to act [to pass amendments itself that the states later ratified]. Why in 220 years has no one succeeded in convening, much less passing an amendment, via a convention called by the states? I realized that the process is kind of ridiculous.

It’s a Rube Goldberg machine, a series of contingent speculative events [including 2/3 of states applying for a convention, all passing laws to send delegates, sending them and having the convention actually occur and hoping something good results, having Congress pass resolutions to call the convention and hoping 38 states will ratify the result] and for anyone to succeed in that process would seem to be virtually impossible. So I asked myself how to fix that, and the answer was to use the Compact process, which is already used to make formal binding contracts between states. This would get all of them pre-committed to doing what they are supposed to do and pass that one agreement to get it down legislatively in one fell swoop with just one bill.

That is the genesis of the Compact for America approach to Article V conventions. It consolidates all the different stages into a single bill on the state side and then into one resolution for Congress and one convention to meet and vote up or down on one amendment in one day. It makes Article V user friendly. I call the original way [of calling an Article V convention] without the Compact the “legacy” approach, and the Compact approach is 2.0.

Reason: One of the biggest fears you hear even from people sympathetic to the notion of binding Congress to a balanced budget is a “runaway convention” that once convened might just do whatever they want.

Dranias: Most runaway convention fears are fear of the unknown. But the compact precommits all states to everything that will happen in complete detail.  Compacts have already seen 200 years of case law and I’ve never seen case law this uniform, I researched them for five years and I’ve never seen any compact overturned. The Compact process has been thoroughly tested. If opponents of Article V tried to undermine a Compact, they’d create a legal precedent that undermines hundreds of existing compacts [involving things from metro transit authorities to dealing with hazardous waste].

Reason: How does the Compact approach lock in what a constitutional convention can do?

Dranias: First benefit of the Compact approach is it [predefines] the amendment it is committing states to advancing and ratifying; you know the policy product in advance which makes it more like a ballot measure. But unlike a ballot measure, the [amount of people] you need to persuade to get behind it is comparatively very small. We’re looking at a target of 7,500 state legislators, then targeting their staff so multiply that by four then target key influencers around them, think tanks and the like so multiply by two then you’re looking at 50-60,000 [people] in states [to convince]. Looking at the Congress side, 435 congressmen and their staff and the concentric circle of influencers and think tanks around them, it might be 20-30,000 people so a total of 100,000 [nationally] you have to persuade it’s good policy [to pass the Balanced Budget Amendment]. So you have a known and smaller universe of people to persuade than in any major state [for passing a ballot measure].

The Compact approach consolidates in one piece of legislation everything we are trying to do. You don’t have to come back separately and have the legislature pick delegates [to send to the Convention]. The Compact for America involves every state precommitting to ratifying [the amendment if the convention passes it and Congress chooses legislative ratification]. The compact when signed on commits everything [in the process] from beginning to end once we jump that initial educational hurdle [on convincing states to sign on to the Compact].

The default setting [of the Compact], we recommend the governor [of any given state] be selected as [delegate to the convention]. And [at the convention] the first order of business before anything else happens is every delegate must vote into place rules that limit the convention to 24 hours and one up or down vote on this particular amendment. Anything else as the first order disqualifies that state automatically and everything they do is void and every state attorney general is mandated to get an injunction in state or federal court in the northern district of Texas to stop the convention. So we will know before anything is done if we have a runaway convention, the moment they vote [for anything other than adopting the set rules confining them to voting on the one balanced budget amendment.] That is the most important structural protection the Compact provides.

Reason: How is your amendment structured to enforce a balanced budget?

Dranias: We’re trying to create a structure that incentivizes the wrong people to do the right thing, to enforce a balanced budget by requiring a limit on borrowing without relying on the good grace or morality or character of those in power. We don’t want to depend on an estimate they can game all day and night or debate accounting methods. A clean spending limit, a pay-as-you-go spending limit is the backbone to a balanced budget.

Recognizing there can be volatility in cash flow sometimes [from taxes], we recognize in order to make pay-as-you-go work ironically you must have borrowing capacity. [We’d limit borrowing to] a very specific line of credit. We suggest an absolute dollar amount. Things like formulas based on GDP can be gamed so we limited spending to what taxes bring in at all points in time except for borrowing from this limited line of credit, set initially at 105 percent of what’s outstanding in federal bonds on ratification [of the amendment]. So if $20 trillion is outstanding [in debt] you get $21 trillion, a one trillion cushion at current borrowing rates, that’s 1-2 years of additional borrowing at current levels. It gives a transition period, Congress will see it coming as [ratification] gets to the last few states [needed to trigger the constitutional convention].

The backbone of the amendment is not complicated: you can’t spend more than taxes bring in, but you can borrow from this line of credit, and if you run out of that [borrowing] capacity, then [spend] no more than taxes bring in. If that’s not enough flexibility and we run out of borrowing capacity for whatever reason, irresponsibility, a war happens, aliens attack, whatever, well, you might overshoot borrowing capacity given spending habits that exist and you get hit with a crisis, then we built in flexibility [through one exception] but not one Congress controls. It’s a fundamental conflict of interest that Congress is both appropriator and the guy setting credit limits. The guy agreeing to spend money will of course agree to lend himself money to spend. So we can’t have Congress in the position of controlling any exception.

So our solution is to engage the states. Any increase in that fixed debt limit requires approval of a majority of state legislatures within 60 days. That’s not to say that states aren’t influenced by federal grants, but their conflict of interest is far more attenuated than anyone in Congress. We think that will encourage Congress to have an entirely different perspective on borrowing capacity if Congress is no longer able to guarantee itself whatever borrowing it wants. It will dispel the illusion of unlimited resources and give them a narrowly self-interested reason to pay down debt so they don’t have to go hat in hand to the states. We are aligning the interests of the political class with husbanding borrowing capacity and we believe the incentive will be strong enough for a balanced budget to be the norm.

The last element is a tax limit. This is not meant to be a right wing wet dream, it can’t be, as much as I’d like, we have to get 38 states in play, can’t just do “no new taxes” in the amendment. We devised a tax limit based on only allowing taxes to be raised when it’s a choice between a bill to our kids and a bill to us, if we have exhausted all plausible spending reductions.

Two-thirds of each house of Congress must approve any new income or sales tax of any kind, which is a very high hurdle. A simple majority vote would still apply to closing loopholes, deductions, but lots of loopholes are defended by powerful special interests, so it will still make spending reductions much more attractive even with a simple majority. Another exception is they can get rid of the income tax entirely and replace it with a consumption or user non-VAT sales tax and raise revenue through the roof if you want. But the price is to give up income taxes. We also don’t apply the supermajority rule to duties, excises, fees, fines, we believe those are better sources of revenue; they are more voluntary, consumption based, and more transparent. All taxes suck, all are bad, but there are worse and better so we incentivize the push for revenue through a narrow gap where [Congress would] encounter strongest special interest [opposition] and if you get through those, then you do the least damage.

Reason: Where does your effort stand now?

Dranias: We got four states in so far [Georgia, Mississippi, Alaska, and North Dakota], after 16 months working on this, just six months with me working full time. We have six more states in play [with the bill in active consideration] at the moment. [Missouri, Texas, North Carolina, Michigan, Alabama, and Ohio] We hope to have filed later this year in Maine and Wisconsin. [In a few states, including Arizona, Arkansas, and Wyoming, they passed one house of the legislature but not the other].

We want eight [to have passed] by the end of the year, as we want to average 7-8 states a year [signing on to meet the current sunset provision deadline of the bill of 2021].

All the states where it has passed are Republican controlled, though we have bipartisan support to some extent. The challenge has been [opponents] framing anybody for a Balanced Budget Amendment as a radical right wing person even though we know many Democrats [also support a BBA]. When a fiscal crisis rears its head it will become obviously a nonpartisan problem and we think we can break through in bringing on reasonable Democrats who don’t want to see the system crash and burn. We’ve divided 40 states into three tiers, and then a tier beyond that we aren’t focusing much on, California would be one of those, but that can change. We are focusing our resources opportunistically, and not spending much time on [for example] Vermont, Connecticut, or Rhode Island.

An interesting thing about the legislative process we are finding out, a third of the time, the outcome is completely unrelated to the merits of the policies or anything else we can anticipate. [Dranias says in at least one state sheer antipathy toward the legislator who sponsored their bill got it choked in committee by other legislators, and in other states they were stymied by what he considers rather paranoid fears of the “runaway convention” leading to a veritable coup d’etat.] But we pulled ahead of [an alternate effort to create a new constitutional convention called] Convention of States whose resources are 10-30fold ours and with them playing in 38 states while we focused on 12 states. We lost four after getting through one chamber and picked up two [this year] then got six more in play and we suspect by the end of year end we end up batting .500, not bad for an innovative policy proposal.

Reason: How’s your fund raising?

Dranias: We’ve raised nearly $1 million since October when I left the Goldwater Institute. We can’t disclose most of our donors; they want their identities protected. One donor that I have permission to identify publicly is the Rodney Fund, which made made seed money possible. Back in July I was writing for the Heartland Institute [the Fund's founder] saw a white paper I published there and started calling, leaving messages about how he wanted to do this, to save the country. He made it clear he wanted to support the Compact approach to Article V, he believed that Article V 2.0 made the whole process plausible. And if the concept is proven for a Balanced Budget Amendment, maybe the same process could get us subsidy bans, NSA snooping bans, all kinds of things you can find cross-party supermajority support to get through 38 states.

The challenge is we need realistically to do this with maximum effect, we need to raise $14-15 million more. The upside is if think about the cost of an average ballot measure in California they average $15-20 million. By virtue of the consolidated nature of the Compact approach, to get an amendment to the U.S. Constitution as long as your political product crosses party lines and ideology, you can get to that with no more the cost of a ballot measure in California.

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  • Notorious G.K.C.||

    "Most of us are familiar with the way the Constitution actually has been amended in the past—via 2/3 votes of both houses of Congress followed by ratification by ¾ of the states."

    We are? Because whenever Jay Leno or one of those guys does person-on-the-street interviews, the respondents seem to be somewhat...lacking...in basic civic knowledge. It's lucky if they can identify Congress, much less describe how Congress can submit amendments to the states.

  • Sevo||

    And not one, not even the President, can name all 57 states!

  • Beautiful Bean Footage||

    Well, we established earlier that Kennesaw and Ball were two of the 57 states. I'd also go ahead and add East Carolina to that list.

  • RussianPrimeMinister||

    Is that Left Ball or Right Ball?

  • ||

    Well, to be fair, the only way that most people have seen the constitution changed is with a pen or a phone.

  • See Double You||

    Where's my Obama phone?!

  • EWM||

    That's because most people know that "States" are as real and the "Constitution" as legitimate as unicorns.

  • Adans smith||

    It's a horrible idea.A convention could turn into page after page of positive rights and keeping us 'safe'.. Think things are bad now with useless,harmful ,overly broad laws.Open it all up to the whims of progs and necons..It would make a zombie apocalypse seem like a good thing.

  • robc||

    Did you read the article? It is designed to (try to) prevent a runaway convention.

  • Scarecrow Repair||

    He also hasn't got the ability to think ahead for even the next step, that all convention amendments have to go to Congress, and the step after that where 38 states have to approve each proposed amendment that makes it out of Congress.

  • Mr. Bourgeoisie||

    From what I understand, congress has no say in the matter. But, you are correct, proposed amendments would have to be ratified by 3/4 of the states.

  • Scarecrow Repair||

    Ah. I was confusing it with Congress having to call the convention.

  • ||

    Under the CFA approach, you don't have to go back to the states. The initial legislation locks in the terms/scope of the convention, the BBA language and the delegate-selection process. Congress does have to pass enabling legislation pre-convention, but that doesn't require presidential signature.

  • Mickey Rat||

    So was the convention that led to the current Constitution. It did not work.

  • CFA Nick Dranias||

    Article V conventions cannot lawfully do anything other than propose amendments. Nothing in Article V prohibits states from laser targeting an Article V convention to proposing specific amendments. States retain that power by virtue of the fact that their "application" triggers the convention call and thereby determines the agenda and by virtue of the fact that the Tenth Amendment reserves to the states their traditional convention agenda-setting power. Additionally, our Compact for a Balanced Budget ensures that 38 states agree in advance to cease participating in any convention that does anything other than vote up-or-down a specific federal Balanced Budget Amendment in 24 hours. It mandates attorneys general from all 38 states to shut down the convention if it does anything else. It is safer than waiting on Congress to stop borrowing the money needed to fund the appropriations they have chosen to make.

  • ||

    Why is there a picture of Daniel Radcliffe on this article? Will the convention take place at Hogwarts? I assume it will be chaired by Voldemort?

  • Adans smith||

    Worst ALGORE.

  • Quincy, 12D||

    And what's up the stack of plastic cups? Will beer pong matches be used to break tie votes at the convention?

  • ||

    We can only hope, brah!

  • Quincy, 12D||

    I'm not your brah, dude.

  • Scarecrow Repair||

    I'm not your dude, bro.

  • CFA Nick Dranias||

    Hey, I'm usually compared to Charlie Sheen!

  • Greg F||

    I am quite sure the federal government will adhere to a new amendment with the same diligence they adhere to the Constitution now.

  • C. Anacreon||

    Hey Rufus T, Cytotoxic, and all other Canadians :

    Just flew into Toronto and my hotel is across the street from the Blue Jays stadium (hotel address is Blue Jay Way). Now what the hell am I supposed to do? Any restaurant recommendations, etc? Other than going to the top of the CN Tower and walking on its scary glass floor, that is.

  • Plàya Manhattan.||

    Have some animal fries or whatever they call them in Canada. Poutine, I think.

    Rufus owes me a drink, and I hereby transfer those rights to you. Email him. I want to know if he's as good looking as he thinks he is. Probably not.

  • ||

    -Steam Whistle brewery tour at the roundhouse. Walking distance from you.
    - Hockey Hall of Fame. Also walking distance.
    - People watch on Queen St West, or better yet, in Kensington Market.
    - Go over to Toronto Island, rent a bicycle, take in views of the lake.
    - And yes, poutine. Can be acquired almost anywhere.
    - Don't drink Tim Hortons coffee. It's an abomination.

  • ||

    If the weather is nice, The Black Bull pub at Queen and Soho. One of the better downtown patio bars.

  • C. Anacreon||

    Great tips, thanks! It was a beautiful day in Toronto, we walked along Queens Street West and people watched as you suggested -- quite the colorful crowd! Had dinner at an outdoor vegan restaurant, which wasn't my first choice but ended up being pretty good . I must say your town is pretty cool.

    Going to Second City with a big group tomorrow, and a Jays game on Monday.

  • ||

    Toronto ain't my town (I'm from across the lake, east of Hamilton) but I've spent a fair bit of time there.

    There is plenty to see and do, for sure.

    Enjoy the Jays game. I've been to Skydome 3 times, but either for concerts or football. Hopefully they have the dome open.

  • Notorious G.K.C.||

    Here is what I suggest if you want to avoid a runaway convention.

    Have Congress submit any convention-approved amendments to a state legislature (Congress can do that), then have state legislative bodies modify their parliamentary rules so non-balanced-budget-related proposals will be out of order.

    That would be better than telling the constitutional convention, "don't propose anything beyond these topics!" Because what if they propose a "right to health care" and 38 states vote to ratify? Will you then challenge that putative constitutional amendment in the courts, after such evidence of massive public support?

  • Notorious G.K.C.||

    Seriously, I'm no fan of William of Occam, but his razor appeals to me - which constitutional interpretation sounds more plausible, that a constitutional convention can only propose amendments agreed on in advance by the state even if those same states later change their mind and vote to ratify "off-topic" amendments? Or that a constitutional convention proposes amendments and the states decide whether to ratify or not?

  • CFA Nick Dranias||

    Which is more plausible: the founders promised the states the ability to obtain the amendments they desired, but instead gave them only the ability to organize a convention they can't control and which can do whatever it wants OR the founders promised the states the ability to obtain the amendments they desired, and anticipated that the states applying for a convention would agree upon the amendments they desired in advance, target their application for a convention call to those amendments, resulting in a convention call that was limited to considering and proposing only those amendments? I respectfully submit to you Occam favors the latter.

  • CFA Nick Dranias||

    The Compact for a Balanced Budget precommits 38 states to advancing a specific pre-drafted balanced budget amendment. It is not topic focused. Get more facts at www.CompactforAmerica.org

  • Vampire||

    They don't follow the constitution as it is. No matter of convening is going to make government on any level behave or be constrained. Nothing will address central banking and legal tender laws, and even if it did, they would still find ways to get around the constitution as they've already told the people FYTY.

    Why in the hell do people want to fix a failed experiment, with new amendments? Fund your own government, and lick their boots as they tell you how much more free they will allow you to be by robbing you and taking your stuff against your will. Leave others alone. Gov't doesn't coincide with liberty or the NAP.

  • Libertarian||

    Didn't you see all the comments on the immigration posting several nights ago? The NAP is dead around here.

  • CFA Nick Dranias||

    Constitutions are enforced for a period of time--and as they are torn down (usually because of flaws in the constitution) it is our job to restore and rebuild. Politics is a tug of war. The idea that you just give up on restoring the rules of the game because the political class cheats only guarantees the victory of the political class. Stop the cynicism and get in their and fight for your rights! The Compact for a Balanced Budget is just the first iteration. We prove that concept and more will follow.

  • Vampire||

    Oh bullshit. Flaws?? What part of shall not be infringed haven't these morons understood? What part of shall be secure in their person, papers, and effects do they not understand???? Because you wish to delude yourself with the belief that these douchebags in fancy clothes can protect your rights, doesn't mean you should be able to enslave others by continuing with the nonsense "if we only had the right people, and if the law was written better" bullshit they've been saying in excuse for every government.

    How can I fight for my rights, when you want to force the failed experiment of government on folks?

  • CFA Nick Dranias||

    Unlimited borrowing capacity is a flaw. Not giving blacks and women the right to vote was an earlier flaw. The 16th Amendment and 17th Amendment in my personal view are flaws. All of these flaws will produce a suboptimal political environment for protecting individual freedom and all of them can only be fixed with an amendment. So it's time for action, not words. Help us organize the states to effectively advance the necessary amendments!

  • EWM||

    Paying for it all with stolen money is the main flaw. If you don't fix that, you will never be able to make your case..

  • DaveSs||

    Illinois has a balanced budget amendment in its Constitution.

    Every year since I've been paying attention (about 12 years) the budget has been declared 'balanced' upon its passage.

    In order to declare these budgets balanced, they had to borrow from suckers, defer payments to pensions, defer payments to vendors that provide services to the government until the next fiscal year, shift money from special funds into the general fund (special funds are established with their own funding sources for specific purposes, ex: wildlife related funds are for conservation and funded by fees on hunters), and probably a few other shady things.

    Congress will do the same.

  • Sevo||

    "In order to declare these budgets balanced, they had to borrow from suckers, defer payments to pensions, defer payments to vendors that provide services to the government until the next fiscal year, shift money from special funds into the general fund (special funds are established with their own funding sources for specific purposes, ex: wildlife related funds are for conservation and funded by fees on hunters), and probably a few other shady things."

    I was wondering where moonbeam learned that stuff. On top of the gaming you mention, I heard, he was rooting around under the sofa cushions to find enough change to finally claim the CA budget is 'balanced'.

  • CFA Nick Dranias||

    Our Balanced Budget Amendment is based on our study of how BBAs are cheated in the states. This Amendment cannot be cheated by any known method. Why? Because it is a simple pay-as-you-go spending limit coupled to a specific debt limit. You can't cheat it with accounting tricks or estimate cooking. You either have the money to spend or you don't. Very simple.

  • Vampire||

    "This Amendment cannot be cheated by any known method. Why? Because it is a simple pay-as-you-go spending limit coupled to a specific debt limit. You can't cheat it with accounting tricks or estimate cooking. You either have the money to spend or you don't."

    Lol. They'll just print it. What is in your amendment that prevents currency devauchery? Nothing. They don't care for the constitution, yet because you throw more paper in their faces they are going to listen this time.....

  • CFA Nick Dranias||

    Actually, no. Our amendment limits available borrowing capacity to a specific dollar amount. If they "just print" dollars and destroy the value of said dollars through inflation, then the real economic value of their available borrowing capacity will likewise diminish. This will give the federal government an incentive to maintain the value of the dollar, not dilute it. This is how you make the wrong guys do the right thing.

  • Vampire||

    The dollar has so eroded already. Compare the dollar to the 12 dollars of equivalent purchasing power to 4 pre 1965 quarters. Your new addition to the constitution still has the central banks in control of the money supply, along with legal tender laws that are enforced at gunpoint.

    Your amendment is yet another poorly conceived notion to add to a piece of paper that has eroded throughout its history.

  • CFA Nick Dranias||

    Your opinion basically boils down to let the system burn down. We reject that! It is time to restore the Republic with the best tool we have that strikes at the best point of leverage: the Compact for a Balanced Budget! Visit www.CompactforAmerica.org for the facts.

  • Marty Feldman's Eyes||

    oh man, Krugman will shed many salty ham tears if this actually came to pass.

  • James Anderson Merritt||

    From Article I, Section 10, U.S.C.: "No State shall, without the Consent of Congress, ... enter into any Agreement or Compact with another State..."

    If Congress has to give permission for interstate Compacts, then how did we get so many of them? And what makes anyone think that Congress will approve this particular one if it won't agree to simply pass the Amendment that inspired the Compact?

  • CFA Nick Dranias||

    Current case law limits the reach of the prohibition of Article I, section 10 to only those Compacts that threaten or displace the power or supremacy of the federal government. This interpretation is based on a robust understanding of the reserved powers of the states--that the purpose of Article I, section 10 is only to preserve the delegated powers of the federal government, not to disable states from acting cooperatively. The Compact for a Balanced Budget does not require congressional consent to be formed because it merely exercises powers conferred on or reserved to the states by Article V of Constitution and therefore does not threaten federal supremacy as contemplated by the Constitution nor trench upon the powers of Congress or the federal government. The commitment to advance and, if proposed, ratify the contemplated Balanced Budget Amendment cannot be regarded as trenching on federal power or supremacy because conditional enactments ensure that this commitment does not have any legal effect until a convention is called by Congress in accordance with its terms, the contemplated amendment is effectively proposed, and Congress selects legislative ratification, all of which would imply congressional consent before any alteration of federal power occurred.

  • CFA Nick Dranias||

    Why would Congress play along? Because the numbers exist from time-to-time for simple majority approval of the necessary resolution. In fact, numerous BBA proposals originated by Congress have received simple majority approval and failed only for not reaching the 2/3rds of each house threshold required for direct congressional proposals. We can get it done. Learn more at www.CompactforAmerica.org

  • James Anderson Merritt||

    There is also a "compact" movement to obligate the States to give their electoral votes for President to the nationwide winner of the popular vote, without even the pretense of amending the Constitution: http://nationalpopularvote.com/. But again, I think Article I, Section 10 stands in the way. At least, I hope so, as my own State of California very unwisely joined the Compact. If that's not the case, what am I missing?

  • James Anderson Merritt||

    Oh, was I missing something! Can you believe that the US Supreme Court has actually ruled that the Constitution "cannot be read literally"? They did, in 1893, in Virginia v. Tennessee. The Court ruled that a literal reading of the Compacts clause would obligate the States to always and forever get Congress' consent before making any agreements between them at all. And this ... this ... would just not DO, dontcha see! So the Court interpreted the plain language of the Constitution as requiring Congressional consent only for compacts that enabled States to gang together to amass political power that would challenge the Federal government's supremacy. In the case of the National Popular Vote, it is well established that State legislatures can allocate their electors in any way they see fit: Their authority to do so is one reason why popular vote that is binding on the electoral allocation process could be arranged separately by each State. For the Balanced Budget Amendment, however, the water seems murkier to me, since the Compact seems designed to twist Congress' arm, both in terms of calling the Constitutional Convention, and then making sure that convention delivers a result that clips Congress' wings. It would seem like the kind of Compact that would naturally require Congress' consent, and why would they give it?

  • James Anderson Merritt||

    And lest you think that the neutering of the Compacts Clause was merely the product of the era of jurisprudence that also established by fiat that there were inherent powers of national sovereignty that did not NEED to be mentioned in the Constitution in order to be wielded by the National Government (yes they did, look it up!), let me add that a MODERN Supreme Court also agreed that the Constitution should not be read literally. In 1978, the Court said this in the US Steel Corporation v. Multistate Tax Commission opinion: “Appellants urge us to abandon Virginia v. Tennessee and New Hampshire v. Maine, but provide no effective alternative other than a literal reading of the Compact Clause. At this late date, we are reluctant to accept this invitation to circumscribe modes of interstate cooperation that do not enhance state power to the detriment of federal supremacy.” (emphasis mine)

    WTF!?!? I haven't seen such a blatant barn wall whitewashing in years, maybe ever. (Orwell readers will know what I am talking about.)

  • James Anderson Merritt||

    I took a look at Virginia v. Tennessee. The opinion does seem to include the idea that Art. I, Sec. 10, was generally concerned with States neither individually nor collectively acquiring political power that would threaten Federal supremacy. But in the specific case, the Court noted that the interstate boundary in question did bring the issue into the sphere of the Compacts clause, requiring Congressional consent. On the other hand, the Court recognized that, in relying on the boundaries determined under the Compact to situate certain areas of land within Virginia or Tennessee, respectively, for purposes of representation apportionment, tax assessing/collecting, etc., Congress gave implied consent to the compact by honoring it over a significant span of time. (continued in next msg)

  • James Anderson Merritt||

    (continued from prev msg)

    In modern times, the purveyors of Interstate Compacts (including, apparently, the Burger Supreme Court) rely on what seems to me to be almost an aside in the Opinion -- something that was mentioned but not specifically used by the Court to come to a decision. If the VA v. TN court had found that Congress had given no consent, but that the Compact at issue didn't NEED consent because it didn't threaten Federal supremacy, then I think the Burger court could have more correctly concluded that its predecessor court had, through non-literal interpretation, weakened the Compacts clause. As it is, the VA v. TN opinion provides guidance to modern day justices, but I think that it was Burger's court that actually (and erroneously) enshrined the non-literal reading of the Compacts clause into case law, by choosing not to invalidate long-established agreements or tie the hands of States as much as relying on the plain text of the Constitution would necessarily have done.

  • CFA Nick Dranias||

    Current case law limits the reach of the prohibition of Article I, section 10 to only those Compacts that threaten or displace the power or supremacy of the federal government. This interpretation is based on a robust understanding of the reserved powers of the states--that the purpose of Article I, section 10 is only to preserve the delegated powers of the federal government, not to disable states from acting cooperatively. That is actually a reasonable interpretation of Article I, section 10 in light of the overall context of the Compact Clause and the principle of the Tenth Amendment. If you read the overall context of the section containing the consent requirement, it is targeting things like treaties, military alliances, etc. It is directed to state combines that directly undercut the union. Further, remember that Congress does not have free standing power to act. It only has power as delegated in Article I or otherwise specifically delegated elsewhere. So a requisite of triggering Congress' power to consent to a compact must be a compact that invades an Article I power of Congress or some other specifically delegated power. And since Congress' power to consent is only triggered by a compact that invades a power that it has the power to defend, it follows that the prohibition on compacts only applies to those compacts that invade a congressional power.

  • CFA Nick Dranias||

    You are conflating the Compact itself with the effect of the Compact's Balanced Budget Amendment IF a convention is called by Congress, the amendment proposed by the convention, and legislative ratification selected by Congress. All three of those contingencies have not and will not happen without Congress taking action that is consistent with and therefore that impliedly consents to the Compact. Before they happen, the Compact itself does nothing at all to affect congressional power or the federal government.

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  • EWM||

    Inasmuch as the Constitution was never signed, nor agreed to, by anybody, as a contract, and therefore never bound anybody, and is now binding upon nobody; and is, moreover, such an one as no people can ever hereafter be expected to consent to, except as they may be forced to do so at the point of the bayonet, it is perhaps of no importance what its true legal meaning, as a contract, is. Nevertheless, the writer thinks it proper to say that, in his opinion, the Constitution is no such instrument as it has generally been assumed to be; but that by false interpretations, and naked usurpations, the government has been made in practice a very widely, and almost wholly, different thing from what the Constitution itself purports to authorize. He has heretofore written much, and could write much more, to prove that such is the truth. But whether the Constitution really be one thing, or another, this much is certain — that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist. ~ Lysander Spooner

  • CFA Nick Dranias||

    The alternative to a written constitution is to abandon a "no trespass sign" for government officials. That is hardly a superior strategy for preserving freedom, even if posting our rights does not guarantee our rights all the time.

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