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Robert Reich: The Biggest Threat To Our Democracy That You Haven’t Heard Of – OpEd

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The biggest threat to our democracy that nobody is talking about is the real possibility of a rogue Constitutional convention – empowering extremists to radically reshape the Constitution, our laws, and our country.

If just a few more states sign on to what’s called an “Article V convention” for a balanced budget amendment, there’s no limit to the damage they might do.

Let me explain.

There are 2 ways to amend the United States Constitution: One way – the way we’ve passed every amendment since the Bill of Rights – is for two-thirds of the House and two-thirds of the Senate to vote for a proposed amendment, and then have it ratified by at least three quarters of the states – now 38 in number.

But there’s a second way to amend the Constitution. Two thirds of the states may demand that Congress form a constitutional convention to propose amendments.

Once such a constitutional convention is convened, there are no rules to limit or constrain what comes next.

Amendments proposed by an Article V convention are supposed to be ratified by 38 states. But convention delegates could hijack the process and change the ratification process itself, tossing out the 38 state requirement.

A balanced budget amendment would be crazy enough. But nothing would be safe. A woman’s right to choose. Marriage equality. First Amendment protections for free speech and a free press. Equal protection of the laws. Checks and balances.

An Article V convention would allow delegates to write their own agenda into our Constitution.

Already 28 states have called for a constitutional convention. They only need 6 more to succeed.

Unlimited money in politics and partisan gerrymandering have already given Republicans control of a majority of state legislatures. Big money interests like the Koch Brothers and ALEC are investing heavily in the push for a constitutional convention – which means that they’d be calling the shots if one takes place.

You’re probably already overwhelmed with political actions you need to take. But, believe me, this is important. With just a few states to go, your voice is needed. Please tell your state lawmakers to reject calls for an Article V convention.


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Robert Reich

Robert Reich

Robert B. Reich is Chancellor's Professor of Public Policy at the University of California at Berkeley and Senior Fellow at the Blum Center for Developing Economies. He served as Secretary of Labor in the Clinton administration, for which Time Magazine named him one of the ten most effective cabinet secretaries of the twentieth century. He has written fifteen books, including the best sellers "Aftershock", "The Work of Nations," and"Beyond Outrage," and, his most recent, "The Common Good," which is available in bookstores now. He is also a founding editor of the American Prospect magazine, chairman of Common Cause, a member of the American Academy of Arts and Sciences, and co-creator of the award-winning documentary, "Inequality For All." He's co-creator of the Netflix original documentary "Saving Capitalism," which is streaming now.

5 thoughts on “Robert Reich: The Biggest Threat To Our Democracy That You Haven’t Heard Of – OpEd

  • August 6, 2018 at 5:25 am
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    I’ve always appreciated Robert Reich’s videos, especially those exposing the lopsided U.S. economy, and the ones that put the current concentration of wealth into perspective as a corrupting influence on our society. This piece however is entirely misguided as evidenced in several inaccuracies, a couple of which I’ll try to clarify:

    First of all, Article V doesn’t provide for a “Constitutional Convention”. This is a misnomer. Article V allows for “a convention for proposing amendments”, amendments that subsequently require 75% of states to ratify. Mistakenly calling an Article V Amendment Convention a “Constitutional Convention” leads to a serious misconception; that the Constitution could be re-written without the consent of the States. Claims that extreme policies such as those Mr. Reich presents in this fear mongering video (I’ve heard similar establishment opposition expressing fears of slavery being re-instated!) could become law as a result of an Article V Amendment Convention is a misconception. Such radical amendments would be un-Constitutional under the authority of the convention (Article V), and would be opposed by the U.S. Supreme Court (for starters). Claiming that radical amendments to the Constitution would be ratified without the consent of the States is irresponsible and is disparaging of States’ Rights.

    Next, Mr. Reich is misleading in sounding an alarm that 28 states have passed resolutions calling for an Article V Amendment Convention, and that this threatens our Democracy. There have in fact been hundreds of Article V Convention resolutions passed in state legislatures. The reason there has not yet been an Article V Convention called, despite nearly 100% of states having passed resolutions calling for an Article V convention, is that an Article V Convention call must be limited in scope so that the issue is demonstrably congruent among those (2/3) states initiating Article V. This is the first precedent in place that limits the scope of an Article V Convention. Article V is not an open opportunity for delegates to introduce errant issues such as those used in the fear mongering video, and such claims needlessly denigrate Article V and our Constitution.

    There are more well-articulated examples of the limitations and enforcement of limitations for an Article V Convention presented by our nation’s legal authorities, including the U.S. Department of Justice, the American Bar Association and the Congressional Research Service all of whom agree that the idea of a “runaway convention” is erroneous. The idea that a few conventioneers would hijack and re-write the Constitution is unfounded and disregards the proven success of conventions throughout our history. This fear mongering is nonetheless used by an established campaign industry that profits off of the sponsorship of our elections by special interests.

    The fact is that our Constitution is already being hijacked by Congress and the Supreme Court under the corrupting influence of a donor class that is being allowed to pervert our 1st Amendment and drown out the voice of citizens. in both elections and in policy making our government has given more power to money than to citizen voices. Article V is an example of our founders’ understanding that the time comes when the people need a mechanism for going around a corrupt Congress and Supreme Court to institute Amendments to the Constitution that will protect the Republic. That time has come. It has come before. Calls for convention have been instrumental in brining about more than half of our existing Amendments, including the Bill of Rights. Calls for an Article V Convention, when the corruption of Congress became untenable, provided the pressure required for Congress to propose the 17th Amendment providing for direct election of Senators when the appointment process had become corrupt and those corrupted (Congress) refused to fix the issue.

    As for Mr. Reich’s justification for attacking Article V of our Constitution, I think it’s like the coal industry executive who attacks the value of renewable energy. Mr. Reich’s organization, with its prominent position in the established political party structure – dependent upon the ever-expanding political campaign industry with its undisclosed and unlimited funding of elections – is attacking this threat to its business model. This is also the playbook of other establishment organizations deeply embedded in the election campaign industry while duping that they support progressive values. The established election campaign industry, working for the donor class, is using misinformation to diminish Article V of our Constitution and our States’ Rights for redress under Article V.

    Reply
  • August 6, 2018 at 2:55 pm
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    Old stuff, silly lad. Long discussed by your enemies Limbaugh and Levin and assorted deplorables. However, in your thrashing about for topics of importance you could extoll the virtues of a thriving economy, increased border security and the lowest unemployment rate in decades. That none of this is on your agenda, I suppose we’ll just have to let you resuscitate yesterday’s dross else you’ll lose your publish or perish stipend provided by the citizens of the State of Commyfornia for refugee Clitonites. Ain’t a dumb public wonderful! It’ll gobble up this trash and have something to discuss over a martini while trying to forget that
    WE WON and you lost

    Reply
  • August 6, 2018 at 3:11 pm
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    Mr. Reich is a very respected economist, and I think his insight on what damage a Balanced Budget Amendment (BBA) would do to our economy is extremely valid, which is why I am disheartened that his tactic is to delegitimize the constitutional right being invoked. His fears have been debunked in a memo by the DOJ in 1987, and some of the evidence is summarized below.

    Simply put, a convention under Article V is equally empowered as Congress to “propose amendments.” Reich somehow believes the convention could throw out the ratification threshold of 38 states and ratify whatever amendment was proposed at a convention without ever sending it to the states. Where he gets this idea is unclear, but if we are to believe the convention so empowered, so is Congress. Shall we take steps to remove Article V altogether, lest Congress decide to change the ratification threshold and declare themselves the all-powerful oligarchs of the nation? Shall we nullify every amendment so far ratified, as their existence sets the precedent by which Congress or the convention might unilaterally tear apart our fundamental rights? Unlikely, but this is the logic applied to the convention by alarmists.

    The idea that the convention would be empowered to follow its own agenda ignores part of Article V, which states, “on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments.” There have been several hundred applications, 36 in the years of 1975-1985 alone. Since Congress has never called a convention, the question is why, and the answer is never has the two-thirds threshold been met on a single subject. Therefore, if the Constitution means anything, the convention called forth must be called forth for the subject determined by the state legislatures. The states, having determined a need for an amendment, would be unlikely to allow their delegates to go off topic, and the delegates, having accepted the duty, would be unlikely to waste their own time. However, in the event that they did, Congress would have the power to withhold the proposed amendment, as it is empowered by Article I Section 8 Clause 18 (the “Necessary and Proper Clause”) to pass any laws Necessary and Proper to carry out its powers, such as distributing an amendment proposed for the pre-determined subject to the states for ratification. Moreover, should Congress, the states and the delegates fail in their duty, the SCOTUS would be able to adjudicate on whether the convention held to its mandate. There are five cases upholding the right of the Court to rule on amendment issues (not the subject), Hollingsworth v. Virginia, Hawke v. Smith No. 1, National Prohibition Cases, Dillon v. Gloss and United States v. Sprague. The only case where the court has ever decided it can’t rule on amendment issues is Coleman v. Miller, and due to the other five cases which occurred before and after CvM, and the fact that CvM is a plurality decision, not a clear majority, its is never used as precedent by legal scholars.

    Finally, the idea that there are no rules is not completely accurate. Madison believed setting down rules as to the quorum, etc. of the convention would be inappropriate (Records of the 1787 Convention vol II, Farrand), but conventions are nothing new. We have one on the national level every four years to determine the president of the US, and prior to those are the party conventions where delegates decide the nominees. On the state level, conventions have ratified and amended constitutions over 230 times. And of course, as calling the convention is a power of Congress, the Necessary and Proper Clause would allow Congress to set any rules deemed unclear (as Sam Ervin tried to do in previous Senate sessions).

    I am completely in agreement that a BBA is a terrible idea, but by attacking not the policy, but the tactic, Mr. Reich risks insinuating a BBA is simply a partisan disagreement, and would therefore be acceptable under a more familiar mechanism, such as legislation, SCOTUS decision or Congressionally-proposed amendment. Further, should a good idea come through the states (there is a Free and Fair Elections resolution being called for which addresses the purchase of our government by donors, an issue Reich brings up in his piece), Reich and other opponents guarantee the people must wait on an intractable Congress rather than take action through their states. If Congress won’t act, the convention is supposed to allow the people to get around them, as they nearly did with the 17th amendment, a detail conveniently omitted here. The states came within two of calling a convention, and Congress proposed the amendment ahead of them. How do we go around, or pressure Congress without the convention?

    By allowing fear of the unknown to overthrow reason and facts, Reich has endangered the very rights he believes he is protecting by denying a constitutional right. A convention for a BBA should be opposed on the grounds that a BBA would be detrimental, whether proposed by the states or by the Congress. Instead of cowering with our heads in the sand, let’s actually take steps to make the Constitution work as it was intended.

    Reply
  • August 6, 2018 at 6:04 pm
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    The author is incorrect on several counts. The most important is the fact the states have already satisfied the requirements of Article V several times and Congress is counting the applications. See: http://www.foavc.org for the actual facts of public record. What the author is actually saying is the government should have the right to veto the Constitution. Is that what we really want? Seems he believes so.

    Reply
  • August 6, 2018 at 8:20 pm
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    The bankruptcy of the United States would change many things, including all its social programs. The nation’s debt is equal a billion dollars times 21,000. That is a problem. Reich may want to ignore the inevitable consequences of out of control debt, but leaving America’s children a bankrupt nation is something reasonable people want to avoid. A convention of the states can only propose an amendment. They have no power to do more. Reich deliberately distorts the process. The Constitution requires that 38 states ratify a draft amendment for it to become law. Only a needed amendment has any chance of passage.

    Reply

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