Posted: Jan. 30, 2015
THE SORCERER'S AMENDMENT
By Celia Cohen
Delawareans have always had kind of a personal regard for the Constitution. This comes from being the first state to embrace it way back when.
Not only that, but the Constitution has done right by Delaware in return. It kept it from being lost in a crowd of big states, which was the idea all along.
The Constitution gave Delaware equal representation in the Senate. It gave the state a voice, even if it was a tiny one, in the Electoral College. It let Delaware have influential Senate committee chairs like Bill Roth, the Republican who made his mark in taxes and savings with the Roth-Kemp tax cut and the Roth IRA. It arguably let Delaware get a vice president.
Now there is talk in Legislative Hall in Dover that the Constitution could use some doctoring up.
Like another constitutional convention.
The call is being made by Bryan Townsend, a Democratic state senator who lives south of Newark, and Bryon Short, a Democratic state representative from Brandywine Hundred.
They want a convention so it could craft an amendment empowering the Congress and the states to enact laws covering campaign financing. The idea is to undo recent Supreme Court rulings, like Citizens United, that have led to a sense that anything goes.
The timing was good. Townsend and Short brought up the idea this week as news reports circulated that the Koch brothers, the billionaire conservatives, intend to spend $889 million on the 2016 election and Larry Wilmore devoted an episode of "The Nightly Show," his new program on Comedy Central, to the political money that cannot be tracked.
"Billionaires are making it rain, and for once it's not acid rainfall by the nearby chemical plant. We're talking dark money," Wilmore quipped.
The proposal, Senate Concurrent Resolution 6, is expected to be considered after the General Assembly returns in March from its winter break, which began Thursday.
Still, a constitutional convention?
The Constitution actually envisions a convention as a possible way to amend itself. It is in Article V.
Amendments can come either from the Congress with a two-thirds vote of the Senate and the House of Representatives and the ratification of three-quarters of the states, or from a convention called by the Congress at the application of two-thirds of the states and the ratification by three-quarters of the states. That would be 34 states to get a convention and 38 states to ratify what came out.
So the conventional way of amending the Constitution does not call for a convention, but the unconventional way does.
"Congress is deadlocked on so many issues. This is essentially the biggest step we can take at the state level," Townsend said.
There has never been a constitutional convention since the first one in 1787 and with good reason. Nobody knows what might happen if there was one. It could be called with a specific purpose in mind, but once it got going, who knows what it would take up?
There is all manner of constitutional stuff floating out there. Eliminating the Electoral College. Reinstating the election of senators by the state legislatures. Granting personhood to a fetus. There could be mission creep.
It would be like "The Sorcerer's Apprentice." It was fine at first when Mickey enchanted the broom to fetch buckets of water, but it could not be stopped, and when Mickey tried to, it only made it worse.
Constitutional scholars call this the fear of a "runaway convention."
After all, it happened the only time there was one. The delegates were sent to Philadelphia 228 years ago with strict congressional direction -- "for the sole and express purpose of revising the Articles of Confederation" -- and look what they did.
This was with George Washington presiding. There is no telling who would preside at another one. Sarah Palin?
Townsend says he is not worried, because the requirement for ratification by three-quarters of the states would be a safeguard. Short is not concerned, either, explaining he sees the call for a convention essentially as a prod to get the Congress to move on a campaign finance amendment.
"My suspicion is it probably will not play out," Short said.
Chris Coons, the Democratic senator, is all in on a constitutional amendment on campaign financing. He co-sponsored one and spoke in the Senate last May about what he called "the corrupting power of money in our national politics and the tragic impact of a whole series of decisions by the Supreme Court that has steadily strengthened that power." But a convention?
"I appreciate the role they [state legislators] are playing," Coons said. "The appropriate response would be for Congress to take up and pass a constitutional amendment."
Joe Pika, a political scientist from the University of Delaware, also has questions.
"This is a well-intentioned effort to address a national problem of major significance. Proponents reasonably believe that Congress will take no action, because it is the product of what is now a corrupt system of big money," Pika said.
"There has also been the concern that a convention called to amend the Constitution might not limit itself to a single issue. History suggests such fears are not misplaced. Proponents should realize that once used, this route would open the door for other initiatives that might be distasteful to them either at this convention or future conventions," he added.
"Believers in direct democracy would praise such efforts. Others argue that it's possible to have 'too much democracy.' I'm on the side of caution on this one."
By Townsend's count, three states -- Vermont, California and Illinois -- have called for a constitutional convention on campaign finance and 10 states are working on it.
That leaves a long way to go to 34 states. The states nearly did get there in 1969, when 33 states wanted a constitutional convention to do something about legislative redistricting to restore seats to rural areas, according to the Congressional Research Service, but the threat of a runaway convention scared it off.
The only thing Article V forbids at a convention is an amendment that could take away the states' equal representation in the Senate. If it could, count on Delaware to get out of there in a hurry.