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Monkeyshines: Conservatives Agitating for Article V Convention Legislation

Conservatives in the South Dakota Legislature are agitating to change the United States Constitution while limiting our ability to make such changes. Seeking to amend the highest law of the land and limiting debate and voting seems the opposite of conservatism.

Rep. Jim Stalzer (R-11/Sioux Falls) and Sen. Ernie Otten (R-6/Tea) lead a group of mostly hard conservatives in sponsoring two pieces of legislation relating to an Article V convention. Article V of the Constitution creates two methods for amending the Constitution: Congress can propose amendments, or two-thirds of state legislatures can call a convention. ALEC, which has been stacking up chips in state legislatures to pass pro-corporate legislation, has been pushing for an Article V convention. Stalzer, Otten, and many of their co-sponsors have traveled to ALEC's national meetings.

Stalzer, Otten, et al. propose House Joint Resolution 1001, calling for an Article V convention to propose a federal balanced budget amendment. A balanced budget amendment is bad fiscal and economic policy, reducing the government's ability to respond to economic crises with deficit spending. Besides, such an amendment should be anathema to these conservative legislators: why rewrite the Constitution to achieve a goal that can be achieved by simple personal responsibility? Don't vote for an unbalanced budget, and you won't have an unbalanced budget, right? If we need to stop Congress from spending like drunken sailors, we don't amend the Constitution to outlaw drinking (hey, didn't we try that?); we just elect Congressmen who don't get drunk... on booze or on corporate welfare.

Attempting to stem the critique that an Article V convention opens the door to repealing and rewriting the Constitution, Stalzer, Otten, et al. propose House Bill 1069 to shackle delegates to an Article V convention to these legislators' narrow agenda. HB 1069 would make it a crime for any Article V convention delegate to vote for an "unauthorized amendment"—i.e., any measure outside of the subject matter prescribed by the state's call for a convention. In this case, the ALEC sponsors of HJR 1001 want a convention that considers nothing but a balanced budget amendment, and they want to impose a fine of $5,000 on anyone who goes to such a convention and says, "Hey, while we're here, why don't we...?"

Telling citizens they cannot vote according to their conscience seems a mean and overreaching restriction on Article V and the First Amendment. Worse, like the balanced budget amendment itself, HB 1069 is unnecessary. In a 2007 Harvard Journal of Law & Public Policy article that largely defends the legality of such state restrictions, James Kenneth Rogers says a runaway convention can't really run away: amendments still have to be ratified by three fourths of the states. If the South Dakota Legislature doesn't like the amendments delegates approve, it can simply not ratify those amendments.

An Article V convention is a fun excursion into national politics and Constitutional interpretation. However, it's not paving any roads or paying any teachers in South Dakota. Stalzer's and Otten's colleagues should quickly shut down both HJR 1001 and HB 1069 and get back to the practical business of solving real South Dakota problems.


  1. Nick Nemec 2015.01.23

    Which of these idiots is Don Quixote and which is Sancho Panza? What a waste of time and effort, thankfully the windmill that is the US Constitution will withstand the efforts of these two wanna be knights.

    Maybe the more time they spend tilting at the US Constitution the less time they will have to really muck things up.

  2. Bob 2015.01.23

    Expect Stalzer, Otten, and company to hammer home the provision that 3/4 of the states are needed to ratify any amendment and the idea that the Convention provision of Article V was put in there to allow states to assert their power and put the feds back in their place. If the latter is true, then the Convention is an extremely poor way to assert this power. For conservatives, it means that the 13 most liberal states can stop any amendment from becoming part of the Constitution simply by refusing to ratify.

  3. caheidelberger Post author | 2015.01.23

    Nick, they aren't Don Quixote and Sancho; they are Rocinante and the donkey, poor dumb animals being ridden by ALEC to their desired destination.

  4. caheidelberger Post author | 2015.01.23

    "Bob", how does hammering home that point help justify their placing restrictions on delegates to the convention? Delegates aren't tools of the Congress, and the 3/4-ratification requirement makes HB 1069 irrelevant, right?

  5. Roger Elgersma 2015.01.23

    When Bush was pres, he did the war off budget. Conservatives will find their own ways to subvert their own ideas anytime they please.

  6. Roger Elgersma 2015.01.23

    It is necessary to do a little deficit spending in a down economy. The republicans gave money to bankers who had made bad decisions who then went on a half million dollar party for getting government help. The democrats built roads and other infrastructure things like Lewis and Clark which are projects that actually build the economy. So why should we trust republicans to know how to run an economy or a budget?

  7. Liberty Dick 2015.01.23

    Best parts are the exceptions already built in like warfare. One legislator assured me war spending would be exempt. Like that won't be abused to the fullest. Besides when was the last time we were not fighting a war???

  8. bob 2015.01.23

    Cory, I have no idea how the idea of a Convention being a good tool to put the feds back in their place would lead one to believe that delegates to a convention should be limited by their state governments in how they vote at such a convention. It would seem quite the opposite would be the case, that the States would send their delegates with a note that says "do whatever you can to stick it to the feds."

    But the last part of HB 1069 would imply that SD wouldn't send ANY delegates if voting is not weighted to one equal vote per state. Good luck with that. And even if South Dakota were to boycott the Convention because, for example, it has an equal number of votes as it does in the Electoral College, the boycott would only be an ironic asterisk in history in the attempt to balance the federal budget by way of constitutional amendment... something like this...

    **South Dakota didn't send delegates to the Convention at all due to a dispute over the "one-man-one-vote" vs "one-state-one-vote" principles. In doing so, the state lost its chance to cast 3 votes out of 538, but eventually agreed to all the proposed changes to the Constitution after being threatened with the loss of all federal dollars.

  9. caheidelberger Post author | 2015.01.23

    I'm with you, LibDick! A Constitutional amendment is a distraction and a weak alternative to simply developing political will and fiscal discipline.

  10. caheidelberger Post author | 2015.01.23

    Interesting point, "Bob"—a Constitutional convention would set its own rules of procedure, right? Is there any obligation that the convention adopt one-state-one-vote rules? What were the rules at the last (the only!) Constitutional convention?

  11. caheidelberger Post author | 2015.01.23

    Rule #3 of 1787 Constitutional Convention also dictated that "Every member, rising to speak, shall address the President; and whilst he shall be speaking, none shall pass between them, or hold discourse with another, or read a book, pamphlet or paper, printed or manuscript...." I wonder: should we pass a rule for the next Constitutional convention requiring such total attention, with no texting or checking Twitter?

  12. caheidelberger Post author | 2015.01.23

    The 1787 convention also imposed a secrecy rule. If an Article V convention followed that rule, delegates breaking HB 1069 could do their damage, then make a break for the Bahamas. ;-)

    By the way, the guy whose article I read on the secrecy clause also thinks the Article V convention push is really a socialist plot.

  13. Steve Sibson 2015.01.23

    Cory, yes these conservatives have the right intention, but a wrong approach. They are playing right into the hands of the socialists. And more important, the socialists have already gotten around the original constitutional and their plot is being implemented as we speak. If we want to reverse that, we need to reverse the 14th Amendment, and several others. No way that will happen.

  14. Roger Cornelius 2015.01.23

    What is a "socialist plot", Sibson?

  15. Nick Nemec 2015.01.23

    Sib, you've mentioned many times that you're opposed to the 14th Amendment, what specifically do you oppose about the 14th Amendment? Which other amendments do you oppose, and why?

    I'm not trying to be a jerk but just trying to learn the basis of your opposition to 150 year old changes to the Constitution.

  16. larry kurtz 2015.01.23

    Aw, geez, Nick: why not just let a lying dog sleep?

  17. Steve Sibson 2015.01.23

    Nick, the 14th Amendment has been used by the SCOTUS since 1947 to remove the original bill of rights. For example, the First Amendment was suppose to only apply to the US Congress, and the Tenth prevented the First from being applied to the states. It was also used to legalize killing an unborn person without due process.

    The 17th Amendment that changed the election of Senators is the reason why Senators today buy their re-election by spending borrowed money like drunk socialists.

    Do I really need to explain the problems created by the 16th...income taxes?

  18. JeniW 2015.01.23

    If the balanced budget thingie were to be adopted, that would mean that the U.S. cannot enter into or continue to participate in war activities after the budgeted amount has been spent?

    Would it mean, that if a certain area is struck by a tornado which destroys a community, FEMA and disaster aid could not be allocated after the budgeted amount has already be spent?

  19. Bill Fleming 2015.01.23

    Steve, so to review, you want to either revise or eliminate the 10th, 14th, 16th and 17th Amendments? Or is it that you want to keep the 10th as is, but ensure that the States don't have to honor the 1st by revising or eliminating the 14th? Just looking for clarity. Your overview was a little vague.

  20. mike from iowa 2015.01.23

    This is a back door assault on social welfare programs for everyone except the koch bros.

  21. Bill Fleming 2015.01.23

    Nice StarTrek vid, Larry. I like how when the nukes go off there is no sound.

  22. Disgusted Dakotan 2015.01.23

    Okay, a Constitutional Convention is called.. they pass the proposed balanced budget amendment without tax increase protection. Congress would then have a mandate to raise taxes. They are forgetting that nationally, Democrats have ran the boards up until this election. liberals will have a major presence, if not a potential majority, at the convention with actual registered Democrats and moderates. Do they really want to open the whole US Constitution up for a process that has never been utilized?

    SD has a balanced budget amendment, as reported in the media last year, the legislature and governor passed a budget that admittedly overspent more than What Jason Dilges estimated tax revenues to be. Curious if the sponsors of this legislation voted for an unbalanced budget?

  23. Bill Fleming 2015.01.23

    A while back, I read Larry Sabato's book about revising the Constitution and thought he had some worthwhile ideas.

    I just reviewed them today and noticed that a balanced budget amendment wasn't among them. I'm generally supportive of our reviewing and updating the document from time to time as per the suggestion of the Founders (especially Jefferson).

    But I don't suppose they were thinking about a process anywhere near as anal retentive as what Stalzer and Otten are proposing.

    Anyway, here's a link to Sabato's site:

  24. larry kurtz 2015.01.23

    Pretty radical, Bill: does Sabato say how the existing body of law would be treated?

  25. Bill Fleming 2015.01.23

    It's been a while since I've read the book, Larry. Presumably any changes in the Constitution that require changes to the body of law (or our current interpretation of it) would be dealt with as needed. As you know, there are plenty of "dead" laws on the books right now. Depending on what finally emerges from a Constitutional Convention, there would doubtless be a few more. Maybe quite a few. Lesson being, maybe we shouldn't wait so long between tune-ups. ;-)

  26. Steve Sibson 2015.01.23

    Larry, Marbury v. Madison was not directed at the states, but the federal government. That supports my premise that the 14th took out the 10th as being applied by the courts today. So how do you remedy a Supreme Court that violates the 10th Amendment. It has not been officially removed.

    And the Federal Reserve is finishing the destruction of the original constitution via the power of money thanks to the 16th and 17th Amendments.

    And as I have been saying the courts use equal protection of the 14th to kill unborn babies, by denying equal protection and due process for the unborn person. What hypocrites.

  27. larry kurtz 2015.01.23

    It was in 1819 when the Marshall court affirmed federal power over the states in McCulloch v. Maryland long before the 14th Amendment was ratified.

  28. Steve Sibson 2015.01.23

    Larry McCulloch v. Maryland was based on those powers given to the feds under Article I Section 8.

  29. CLCJM 2015.01.24

    I should look for a graph that anight economist and professor from Kansas handed out a few months ago at the Democratic Forum. She said the federal government is a different entity than the states and doesn't need to have a balancedue budget. The graph was vertical and showed that every time that the federal government increased spending the economy grew.Investing in development and things like infrastructure, research development and innovation are a good return on our tax dollars. All a balanced budget amendment would do is give conservatives the tools to further privatize virtually everything so they can line their own pockets at the expense of the most vulnerable in our society.

  30. caheidelberger Post author | 2015.01.24

    JeniW, the balanced budget amendments floating around usually include a "national emergency" clause. HJR 1001 has one. one would assume war would constitute a national emergency, but what else? Big hurricane of tsunami on the East Coast? The 2008 housing/banking collapse? An OPEC embargo?

  31. caheidelberger Post author | 2015.01.24

    CLCJM, I agree, deficit spending is not the problem these balanced-budget amenders think it is. The whole economy is built on spending money we don't have at the moment. It makes as much sense to ban Uncle Sam's deficit spending as it does to ban home mortgages or loans in general.

  32. Steve Sibson 2015.01.24

    "It makes as much sense to ban Uncle Sam's deficit spending as it does to ban home mortgages or loans in general."

    Cory, the crony capitalists are very happy you are promoting that myth.

  33. CLCJM 2015.01.24

    Actually, Steve, the crony capitalist are playing you like a fiddle. It's the opposite. They are trying to break every part of government so they can claim government is the problem and needs to be privatized so they can waltz in and buy every service that the government SHOULD provide for their own personal gain. Huge water resources are being bought up, the Congress is again trying to destroy the post office, much of what is being done to education is to make everyone want to take their kids out of the public schools to destroy them, many probation and collection of fines are being privatized, etc., etc., Hate to break it to you, Steve, but you've got the cart before the horse.

  34. Bill Fleming 2015.01.24

    Not to put too fine a point on it, Cory, but if you make more money per month than your mortgage and loan payments total, you're technically not "deficit spending."

    Which brings up a question about balanced budgets, I suppose. Are they a measure of money in balancing money out (accrued cash flow and/or P&L) or liabilities vs assets (Balance sheet/net worth)? I'm thinking more the former than the latter, but US Government accounting always baffles me.

    The thing that really bugs me though is when people try to compare Federal budgeting to family budgeting, or even State Budgeting. Because there really is no comparison. None of us can print money in our basement (legally), not even our Governor. Whereas when the Federal Government does it, it's not only legal, but it sets the value of every other form of currency on the planet.

    Like my good professor friend likes to say, "Money is a vague, philosophical concept." To which I'll add, "and a lot more so when it comes to Uncle Sam's checkbook as opposed to mine."

  35. Steve Sibson 2015.01.25

    "Congress is again trying to destroy the post office'

    I think emails and text messaging is doing that.

    "much of what is being done to education is to make everyone want to take their kids out of the public schools to destroy them"

    Common Core s doing that, and Common Core is a crony capitalist agenda. Research "Business Roundtable".

  36. jerry 2015.01.25

    Sibson, your thought pattern is what is destroying not only the post office, but the planet itself. The post office sends you stuff that you are not gonna get electronically. Think of this next time you get the inexpensive shipping right to your mailbox. If you really want to see how sending a small parcel or letter is through Fed Ex, be my guest and use that form for your commerce.

    The problem with the post office is that it is not doing what it could really do very well and that is banking. By the way, the only balanced budget that this country has ever seen was by William Jefferson Clinton.

  37. mike from iowa 2015.01.25

    We don't have a spending problem,we have a party in power that refuses to accept fiscal responsibility and raise taxes to pay for their pet wars and prescription drug program and then they won't allow the Potus to do so,either.

  38. CLCJM 2015.01.26

    Actually, jerry, the problem with the post office isn't the post office but Congress. Congress loaded them up with phony debt like making them pay, I think it's healthcare costs for all its workers up front for the next 75 years. I caught just a snippet of something else they're trying to do right now but didn't get the whole story. They're deliberately trying to bankrupt them and privatize it just like I said. I'm guessing Fed Ex or UPS are drooling...unless the Koch brothers plan on swooping in directly and running it themselves. They have their fingers in the pie in, I think, all 50 states, now.

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