'Absurd': Pro-Trump effort to force Congress to hold 'Constitutional convention' blasted

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17 March

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A behind-the-scenes legal effort to force Congress to call a convention to amend the Constitution could end up helping President Donald Trump in his push to expand presidential power.

While the convention effort is focused on the national debt, legal experts say it could open the door to other changes, such as limiting who can be a U.S. citizen, allowing the president to overrule Congress’ spending decisions or even making it legal for Trump to run for a third term.

Wisconsin Watch and ProPublica have obtained a draft version of a proposed lawsuit being floated to attorneys general in several states, revealing new details about who’s involved and their efforts to advance legal arguments that liberal and conservative legal scholars alike have criticized, calling them “wild,” “completely illegitimate” and “deeply flawed.”

The endeavor predates Trump’s second term but carries new weight as several members of Trump’s inner circle and House Speaker Mike Johnson have previously expressed support for a convention to limit federal government spending and power.

Article V of the Constitution requires Congress to call a convention to propose and pass amendments if two-thirds of states, or 34, request one. This type of convention has never happened in U.S. history, and a decadeslong effort to advance a so-called balanced budget amendment, which would prohibit the government from running a deficit, has stalled at 28.

Despite that, the lawsuit being circulated claims that Congress must hold a convention now because the states reached the two-thirds threshold in 1979. To get there, these activists count various calls for a convention dating back to the late 1700s. Wisconsin’s petition, for example, was written in 1929 and was an effort to repeal Prohibition. The oldest petition they cite, from New York, predates the Bill of Rights. Some others came on the eve of the Civil War.

“It is absurd, on the face of it, that they could count something that had to do with Prohibition as a call for a constitutional convention in 2025,” said Russ Feingold, a former Democratic senator from Wisconsin who co-wrote a book critical of convention efforts like this one. “They’re just playing games to try to pretend that the founders of this country wanted you to be able to mix and match resolutions from all different times in American history.”

To avoid the threat of a convention, the legislatures in some states like Colorado and Illinois have passed resolutions withdrawing their petitions. The draft lawsuit says those actions don’t count because “once the Article V bell has been rung, it cannot be unrung.” Nearly half the states the draft counts have rescinded their petitions.

The draft lawsuit is the work of the Federal Fiscal Sustainability Foundation, a low-profile nonprofit that has drawn support from balanced budget advocates and the conservative American Legislative Exchange Council. The group’s chair, David M. Walker, oversaw government accountability as U.S. comptroller general during both the Clinton and Bush administrations. The draft lawsuit is signed by Charles “Chuck” Cooper, a high-powered conservative lawyer in Washington, D.C., who represented Trump’s previous attorney general during the special counsel’s investigation into Russian interference in the 2016 election.

Walker and his team have shopped the lawsuit to over a dozen state attorneys general and Republican-controlled legislatures seeking to find states to serve as plaintiffs, according to emails obtained through records requests, public testimony and interviews. Alongside ALEC’s CEO, they met with members of the Utah attorney general’s office in 2023, trying to recruit the state to take the lead, and planned to meet with Texas Attorney General Ken Paxton, emails show. Lawmakers in Utah, Arizona, South Carolina and West Virginia have sought to get their states to join the lawsuit.

Walker declined to confirm the authenticity of the draft complaint and wouldn’t say which states have signed onto the lawsuit. But it mirrors the legal arguments Walker and his group have made, and the document’s metadata shows Cooper’s firm authored it. Neither Cooper nor his firm returned repeated requests for comment. An ALEC spokesperson said the group has merely provided a “forum” to “exchange ideas.”

Walker said an attorney general’s office has written its own version with “modifications.” He said he hopes the states will announce their intent to sue within the next two months and file shortly after.

Walker and the draft complaint say the convention is necessary to confront the national debt and would be limited to discussing fiscal responsibility.

“Some people think that the convention would get together to basically rewrite the Constitution. That’s totally false,” Walker said. “That has nothing to do with what we’re proposing. Under Article V, it’s just a separate way to get an amendment to the existing constitution.”

Dozens of legal scholars and hundreds of civil society groups, organized by the government watchdog Common Cause, have warned that it would be exceedingly difficult to constrain a convention to just one idea and that calling one would expose the entire Constitution to revision. Some of them say the risk has grown under Trump.

“Nobody is observing any restraints on their power,” Georgetown law professor and convention critic David Super said. “If he continues to lose in the courts, one can imagine he will be trying to get a convention to adopt his view of presidential powers.”

Asked to respond, White House spokesperson Anna Kelly accused Wisconsin Watch of having “TDS” (Trump derangement syndrome) and being a “dark money” group. (Wisconsin Watch makes its donors public here.)

Sam Fieldman, of the campaign finance reform group Wolf-PAC, has individually worked with the foundation on the lawsuit. He said the process empowers states to check the federal government and change the Constitution if Congress fails to act.

“People who are claiming that this process will lead to tyranny are sitting here twiddling their thumbs while we are heading toward tyranny like a rocket right now,” Fieldman said.

“Fuzzy Math” and a “Time Machine”

Throughout history, the Constitution has been amended 27 times, including to abolish slavery and provide women with the right to vote. An amendment must be approved by two-thirds of both houses of Congress. It then must be ratified by three-quarters of the states to become law.

The Constitution also offers another way: Congress can call a convention after two-thirds of state legislatures request one.

But Article V provides few other details. It does not say what constitutes a valid application or how to add them together to reach 34. Nor does it say how a convention should run. It does not enumerate specifics on delegates, such as who can serve and how states should select them, nor whether each state gets one vote or votes relative to population. And it does not specify whether a convention can be limited to specific issues.

As of now, the three-fourths ratification requirement still stands. Critics fear delegates could take the extreme step of lowering the threshold to make it easier for the amendments to pass, a scenario that proponents dismiss as “fear mongering.”

Fewer than half the states have laws or policies governing convention procedures. The majority of those would give state legislators, rather than voters, the ability to select delegates. They’d also permit each state one vote, according to a 2025 review by the Center for Media and Democracy, a progressive government watchdog.

The center obtained audio of former Republican Sen. Rick Santorum of Pennsylvania at a private ALEC workshop saying that because “most states are going to be controlled by Republicans,” rural and Republican voters will have “an outsize granted power” in a convention.

“We have the opportunity as a result of that to have a supermajority,” he said, even though “we may not even be in an absolute majority when it comes to the people who agree with us.”

Santorum did not return emails seeking comment.

Over the years, people from across the political spectrum have attempted to call conventions for various topics, such as campaign finance reform and congressional term limits. None of the advocates have tried to use states’ old calls that didn’t specify a topic to reach the required 34.

But during a 2020 ALEC presentation, a balanced budget activist named David Biddulph debuted a new theory: By combining old resolutions that generally called for a convention with ones for a balanced budget amendment, the nation already surpassed the threshold.

Biddulph said he based his theory on a paper authored by Robert Natelson, a former law professor who focuses on Article V, and published by the Federalist Society in 2018. But Natelson’s paper did not claim the threshold had been reached, and in an interview, he said he disagrees with activists claiming otherwise.

During the presentation, moderated by former Wisconsin Gov. Scott Walker, Biddulph announced that his organization, which became the Federal Fiscal Sustainability Foundation, was encouraging attorneys general to file suit against Congress.

Biddulph did not respond to repeated calls and emails seeking comment.

That same theory forms the basis of the draft lawsuit, which counts six petitions that called for a convention without stating a specific purpose alongside balanced budget ones to support their claim for a convention.

“They realize they will never get to 34 honestly now, so they are talking about a new math,” said Nancy MacLean, a historian whose book “Democracy in Chains” discusses the dangers of a convention. Some convention opponents, like Super, refer to this as the “fuzzy math” theory.

During a legislative hearing in Utah, Sharon Anderson, a conservative opponent of a convention, used a metaphor to criticize the counting method.

“A certain team, discouraged that they hadn’t scored the winning touchdown yet, devised a way to win the game,” Anderson said. “Instead of actually getting the ball into the end zone, they would basically add up all the yards they had gained until they totaled a distance needed to cross the goal line.”

But Natelson, a member of ALEC’s board of scholars who is cited repeatedly in the lawsuit, said if lawmakers had wanted to limit their calls to specific topics, they could have done so.

The second key part of the foundation’s legal argument is timing, which opponents like Super refer to as the “time machine” theory. Wisconsin passed a balanced budget amendment resolution in 2017, yet the draft instead includes the state’s Prohibition-era petition because it’s counting applications on the books between 1979 and 1998 — a period when the draft argues at least 34 existed.

Unmentioned, however, is that almost nobody during that period claimed that the nation had surpassed the threshold.

This is unlike recent debates over the Equal Rights Amendment, which would prohibit discrimination based on sex. Some argue that enough states have now approved the amendment, but the U.S. archivist declined to certify it because Congress explicitly set a deadline for ratification that states did not meet.

Getting States on Board

Biddulph and others began to enlist state support in 2022 with an email that announced: “The historic milestone of 34 Article V state resolutions calling for an amendment convention to propose a Balanced Budget Amendment (BBA) has finally been achieved, and surprisingly it happened over 40 years ago.”

The message, obtained by the Center for Media and Democracy and provided to Wisconsin Watch and ProPublica, asked states to pass a resolution demanding Congress call a convention and directing the state’s legislature and attorney general to “take such actions as will require Congress’s compliance.”

Republican state lawmakers in Utah and South Carolina responded within days, introducing measures incorporating some of the proposed language.

“We have a tremendous opportunity as a state to deal with an issue that is a very serious and grave moment in our nation,” Utah state Rep. Ken Ivory, a Republican who introduced the measure, said at a legislative hearing in February 2022. “It’s the power of the state to be able to deal with the excessive debt and the financial explosion and the swindling, as Thomas Jefferson said, the swindling of the future on a massive scale.”

Since the Utah hearing, Arizona and West Virginia have also introduced measures demanding Congress call a convention. West Virginia’s was the most explicit, resolving to “commence federal court action” against Congress, and advanced the furthest, passing the state House of Delegates before stalling in its Senate. So far, none of the resolutions has been adopted. West Virginia’s was reintroduced last month.

In February 2024, activists believed they were close to filing the lawsuit, emails obtained through a public records request show. The Senate presidents and House speakers in Utah and Arizona signed letters expressing their interest in joining a federal lawsuit against Congress to force a convention on fiscal issues.

In an email that was cc’d to the Arizona lawmaker who sponsored the state’s resolution, convention supporter Mike Kapic celebrated Utah’s and Arizona’s interest as a “win.”

“One more and UT says they’ll lead the filing in federal court,” Kapic wrote. “Then watch other states rush to file.”

It still hasn’t happened. The Arizona Legislature does not have standing to file a lawsuit on its own, a spokesperson for the state attorney general said, and the Democratic attorney general has not agreed to take the case.

A spokesperson for the Utah attorney general’s office declined to comment on whether the state had agreed to file the suit.

Ivory said by email that he is unaware whether Utah has any current plans to sue Congress. “New AG, New Congress, New President,” he wrote, adding that he believes “negotiations” may be taking place with Congress “with potential promising results,” but that he is not involved.

Alaska is the only state listed on the draft complaint, but the state attorney general’s office would not confirm whether it has joined.

In Congress, Texas Republican Rep. Jodey Arrington has also introduced resolutions to trigger a convention, including one he put forward last month. His office did not agree to an interview.

If Congress does call a convention, it would likely be up to delegates to keep it from creeping into other parts of the Constitution.

Historians generally agree that the 1787 constitutional convention itself was a runaway convention. Delegates met in Philadelphia to amend the Articles of Confederation, a process that required unanimity among states. Instead, they scrapped the entire document and drafted the Constitution, proposing a lower threshold for states to ratify amendments.

Mollie Simon contributed research.

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