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April 5, 2019

Two Methods to Pass an Amendment: Pros, Cons and Our Point of View

Two Methods to Pass an Amendment: Pros, Cons and Our Point of View

April 5, 2019
Published By American Promise
The Constitution outlines two paths to propose amendments: through a vote of 2/3 of both houses of Congress, or through a convention of state delegates convened when 2/3 of state legislatures call for one.

The Constitution outlines two methods by which a Constitutional amendment can be proposed, and 28th Amendment supporters debate the merits of the two approaches. Learn more about the pros and cons of these options, and how you can support the amendment to get big money out of politics, no matter your view on the potential methods.

It sometimes feels as if there is nothing our nation can agree on. But in fact, most Americans do agree on the urgent need to address the unlimited election spending unleashed by the Supreme Court’s extreme conclusion that unlimited money—no matter the source—is protected “free speech.” When asked, most Americans support a Constitutional amendment to secure political equality for every citizen—not just the wealthiest among us. For most Americans, the big question isn’t whether we should pass this amendment but how.

The Constitution outlines the amendment process in Article V, which provides two paths to propose amendments: through a vote of 2/3 of both houses of Congress, or through a convention of state delegates convened when 2/3 of state legislatures call for one. In either case, any amendment proposed must be ratified by 3/4 of the states before it becomes part of the Constitution. All 27 of our amendments so far have been proposed by Congress and ratified by the states. The alternative path to proposing the amendment is through an Amendments Convention, which some amendment advocates support and others oppose.

Article V reads: The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

Below, we’ll first explain what an Amendments Convention is, outline some of the arguments for and against the convention, and then explain how American Promise is leading the way for all to work together to advance the amendment, regardless of what we think about the convention approach.

What is an Amendments Convention?

A convention to propose amendments to the United States Constitution is variously referred to as an Article V convention, Amendments Convention or convention of the states. We have never held an Amendments Convention under Article V, though states have filed hundreds of applications to Congress to hold a convention on a number of issues. Article V is silent on whether calls for a convention on different issues should be counted together to qualify for the 2/3 threshold, but the fact that a convention has never been called despite applications far in excess of the requisite number filed makes clear that calls for a convention on different issues have not been aggregated.

An Amendments Convention is also sometimes referred to as a “Constitutional convention” but this can be misleading, as that phrase also refers to the broader concept of proposing an entirely new Constitution, as happened at the 1787 Philadelphia Convention where our original Constitution was drafted. Article V creates a path to a different kind of convention, one specifically for the purpose of proposing amendments to the existing Constitution. It’s worth noting that an Amendments Convention is also distinct from a state ratifying convention, one way that states can ratify amendments that have already been proposed by Congress or an Amendments Convention.

Before examining the pros and cons of the convention approach, it is important to reiterate that the amendment and the convention are separate questions. The amendment is a goal; the convention is only one path to achieve that goal. One can be opposed to a convention and still support passing the amendment through Congress. Some people prefer one path over the other, while others support an amendment no matter how it is proposed. American Promise works with advocates of all of these approaches to advance our shared goal of passing the 28th Amendment.

What are the arguments in favor of an Amendments Convention?

Even though Americans overwhelmingly support this amendment, our challenge is to translate that support into votes in Congress or state legislatures. Some advocates of the amendment argue that state legislatures are more accountable to the will of the people than Congress is because they have smaller districts and fewer constituents, and therefore our efforts are better directed at that level. This argument appeals to those who are cynical about the prospect of Congress passing any substantial reform in its current state.

Perhaps the most persuasive argument for advocating for an Amendments Convention is that the closer we get to the 2/3 of states necessary to call the convention, the more likely Congress is to act. As evidence of this effect, supporters of the convention approach point to the 17th Amendment, which established the direct election of U.S. Senators and was only a couple states short of an Amendments Convention before Congress voted to send it to the states for ratification.

Another advantage of the convention path is that advocates can go state by state, chalk up wins along the way, and make incremental progress toward a convention. So far, Vermont, California, Illinois, New Jersey and Rhode Island have formally called for a convention on this issue.

What are the arguments against an Amendments Convention?

Those who are concerned about the convention path point to the uncertainty and potential for unintended consequences surrounding the convention. Because we have never called for a convention under Article V, and all 27 amendments so far have been proposed through Congress, there are many unanswered questions about the rules and process that would govern a convention.

One of the biggest concerns raised is the possibility of a “runaway” convention—the possibility of a convention that is called for one reason but results in the proposal of other, unrelated amendment proposals, or even the complete rewriting of the Constitution. Some advocates for the amendment are concerned about this, while others argue those concerns are misplaced. Regardless of whether a runaway convention is possible, one safeguard against any sweeping changes is that any amendments proposed through a convention must still be ratified by 3/4 of state legislatures.

Those who argue against the convention approach also point to opposition on both sides of the political spectrum. Conservatives and liberals alike have concerns that the other side would try to use a convention as a vehicle to pass partisan amendments, such as repealing the 2nd Amendment or passing a balanced budget amendment. However, of all of these proposals, the amendment to limit the influence of big money in politics is the only amendment proposal with the broad cross-partisan support necessary to get the 3/4 of state legislatures necessary to ratify it.

So I can still support the amendment if I’m for/against the convention?

Absolutely! Regardless of how you feel about the convention approach, you can get involved with American Promise and help advance the amendment. If you are supportive of an Amendments Convention, you can get involved in helping to advance those calls in state legislatures. If you are opposed to the convention, you can advocate for the passage of the amendment through Congress, without supporting the convention method.

Passing an amendment to guarantee political equality for all Americans is a goal we should all work for, even those who adamantly oppose a convention. If one opposes the convention tactic, the single best way to stop a convention is to work hard to get the Amendment through Congress and on to ratification in the states. All 27 amendments to date have been proposed by 2/3 of Congress and ratified by 3/4 of the states, with no convention, and the 28th is on its way.

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