Grace Panetta and Brent D. Griffiths
Jul 31, 2022, 6:55 AM
As former Republican senator Rick Santorum addressed Republican lawmakers gathered in San Diego at the American Legislative Exchange Council policy summit, he detailed a plan to fundamentally remake the United States.
It would become a conservative nation.
And the transformation, Santorum said, culminates with an unprecedented event: a first-of-its-kind convention to rewrite the Constitution.
"You take this grenade and you pull the pin, you've got a live piece of ammo in your hands," Santorum, a two-time GOP presidential candidate and former CNN commentator, explained in audio of his remarks obtained by the left-leaning watchdog group the Center for Media and Democracy and shared with Insider. "34 states — if every Republican legislator votes for this, we have a constitutional convention."
The December 2021 ALEC meeting represents a flashpoint in a movement spearheaded by powerful conservative interests, some of whom are tied to Trumpworld and share many of Trump's goals, to alter the nation's bedrock legal text since 1788. It's an effort that has largely taken place out of public view.
But interviews with a dozen people involved in the constitutional convention movement, along with documents and audio recordings reviewed by Insider, reveal a sprawling, well-funded — at least partly by cryptocurrency — and impassioned campaign taking root across multiple states.
Notably fueling them: success.
During an extraordinary few weeks in June, the Supreme Court's three new Trump appointees powered the reversal of Roe v. Wade. They fortified gun rights and bolstered religious freedoms. Future presidents now have less power to confront the climate crisis. Each win is the product of a steady, and in some cases, decades-long quest by conservatives to bend the arc of history rightward.
This isn't an exercise, either. State lawmakers are invited to huddle in Denver starting on Sunday to learn more about the inner workings of a possible constitutional convention at Academy of States 3.0, the third installment of a boot camp preparing state lawmakers "in anticipation of an imminent Article V Convention."
Rob Natelson, a constitutional scholar and senior fellow at the Independence Institute who closely studies Article V of the Constitution, predicted to Insider there's a 50% chance that the United States will witness a constitutional convention in the next five years. Whether it happens, he said, is highly dependent on Republicans' success winning state legislatures during the 2022 midterm elections.
But not everyone in the conservative constitutional convention movement believes such a gathering is so imminent. It will likely take years more work to reach their goal, if they ever do. At minimum, Republicans will need to flip several Democratic-controlled state legislatures and convince remaining GOP holdouts of the necessity for a convention.
But during the past several decades, they've made progress. Lately, a lot.
And now, they have a plan.
Conservatives are pushing a never-before-tested convention
Article V to the US Constitution provides two ways to amend the nation's organizing document — the most difficult, but most dramatic way to alter American society's very foundation.
The first is for a two-thirds majority of Congress to propose an amendment, with three-fourths of states ratifying it. This is how all 27 of the current amendments to the Constitution were added, but it's a path that today is largely blocked because of intractable partisan divisions. No American under 30 has experienced the nation amending the Constitution in his or her lifetime.
The second method — never before accomplished — involves two-thirds of US states to call a convention. The power to call for a convention belongs solely to state legislatures, who would pass and ratify amendments without a governor's signature, Congress' intervention, or any input from the president.
Some states have tried and tried — without result — to prompt a constitutional convention. They've together issued hundreds of pro-convention resolutions or calls over 200 years to reroute constitutional amendment powers away from Washington. What's new now is the ever-evolving power coupling of a corporation-backed ideological juggernaut led by ALEC, a nonprofit organization with close ties to large tobacco and drug companies, and a determined Republican Party increasingly dominating many of the nation's 50 statehouses.
If they were successful, a constitutional convention led by conservatives could trigger sweeping changes to the Constitution.
Their goals include gutting federal environmental standards, nixing nationwide education requirements, and creating an incredibly high threshold for Washington, DC, or a territory to earn statehood. Some would like to make it difficult, if not impossible, for someone — National Institute of Allergy and Infectious Diseases Director Anthony
Fauci, for example — to work for decades within the federal government.
Former President Donald Trump, close to announcing a campaign for a second term in office, would find much to love about the convention movement.
He's argued that Article II gave him sweeping presidential powers akin to Richard Nixon's famous declaration that "when the president does it, that means that it is not illegal." Trump also attempted to claim that he could unilaterally end birthright citizenship (he could not) and repeatedly argued the White House didn't have to comply with congressional subpoenas.
The planks of the Convention of States' movement — such as term limits for federal bureaucrats in addition to members of Congress — stand to attract acolytes of Trumpism savoring the means to MAGA-fy the Constitution, and therefore, the nation.
In fact, it already has. Constitutional convention boosters include many of Trump's current and former allies, including conservative legal scholar John Eastman, Florida Gov. Ron DeSantis, and Fox News personalities like Sean Hannity and Mark Levin.
Eastman, who recently had his phone seized by federal agents investigating Trump's attempts to overturn the 2020 presidential election results, attended a 2016 mock convention hosted by the Convention of States.
"It's the most extraordinary thing in my career that I've ever been a part of," Eastman said in a video produced by the convention simulation organizers. "The process actually works."
Six years later, the Academy of States 3.0 is taking place Sunday ahead of the National Conference of State Legislatures' 2022 summit in Denver. On its website, the group boldly forecasts that a new constitutional convention could take place in 24 months and quotes former President Barack Obama in emphasizing, "You can't change Washington from the inside."
"It's a heavy lift, but it's not out of reach," Arn Pearson, the Center for Media and Democracy's executive director and a close watcher of the convention movement, told Insider. "I think it's a real threat."
Conservative activists are playing the long game
Conservatives have embraced the political long game in achieving their most prized policy goals, like the overturning of Roe v. Wade — and the movement to call a convention may be no different.
"For the last 25 years, people in the pro-life movement did the blocking and tackling necessary for this day to come," Santorum said at the December 2021 ALEC summit. "No one five years ago would have said that Roe vs Wade would be overturned. No one in this room."
The GOP spent decades investing in control of state legislatures through well-funded and resourced groups like the Republican State Leadership Committee, which has spent tens of millions over the last few decades locking down GOP control of state legislatures, statewide offices, and judgeships.
Those sustained investments have secured GOP dominance in state legislatures for a generation — and guarantee the GOP would also have the upper hand in a convention.
A new report by the Center for Media and Democracy first shared with Insider finds that Republicans would control at least 27 and up to 31 out of 50 delegations to a convention, based on delegate selection processes in applications passed thus far.
That's still a tad short of what would ultimately be needed to make any changes: two-thirds of the state legislatures are needed to call a convention and three-fourths must vote to ratify any amendments. Notably, governors, Congress, and the White House have no role in this specific process.
But the movement's most devoted supporters, like Santorum, say they are in for the long haul — and they argue that changing the Constitution is a goal existential to America's existence that looms larger than a single election cycle.
"Yeah, we'll have a good election. But the movement is inextricable. Why? Because every institution in America is against us," Santorum said, invoking the founders and their vision of federalism. "I say to you, as Republican state legislators, that you actually have the key."
Activists also say that with Congress sharply divided, a convention would send an unmistakable message to Washington that lawmakers need to change their way — or be prepared to get run over.
"The states have sort of lost their voice, and all we can do now is beg from the cheap seats and say, 'Hey, don't do that," said state Rep. Bill Taylor of South Carolina, who led his state's push to pass a call for a convention.
Faced with a Washington dominated by Democrats, many conservatives want to unleash a force to put the nation's Capitol on notice.
"The idea of states coming together is going to scare the living hell out of Washington," Taylor told Insider. "They are going to be terrified of the states."
The right isn't alone in pursuing a convention. On the left, Cenk Uygur, a progressive commentator, founded Wolf PAC in the wake of the Supreme Court's landmark 2010 decision in Citizens United v. Federal Election Commission that accelerated an era of big-money politics. Five Democratic states passed Wolf PAC's call for a campaign finance reform-focused convention: California, New Jersey, Illinois, Vermont, and Rhode Island.
Uygur's organization is pressing forward even as Illinois and New Jersey rescinded their calls out of fear of a conservative-dominated convention. Wolf PAC's early momentum also spooked some on the right, an illustration of the unusual alliances on both sides of the movement. In 2012, the Republican National Committee went so far as to pass a resolution formally opposing the convention movement.
But now in 2022, convention proponents have political winds at their backs.
"The movement right now seems to be gaining steam. And what's interesting is it seems to be gaining steam on both left and right," Karla Jones, senior director of international relations and federalism at ALEC, told Insider. "The feeling that Washington, DC, has become a cause for the nation's problems rather than a solution … is becoming universal on both sides of the aisle."
A convention is gaining momentum but still far away
So far, 19 GOP-controlled states, including four in 2022 alone (Nebraska, South Carolina, West Virginia, and Wisconsin), have passed applications and calls for a constitutional convention under the model pushed by the conservative nonprofit group Convention of States, an offshoot of Citizens for Self Governance.
Because of their efforts, "it's the first time any of these applications have had this much movement in quite some time," Viki Harrison, director of Constitutional Convention and Protecting Dissent Programs at Common Cause, told Insider. She called the passage of four new convention calls in states including South Carolina "a brutal loss."
Citizens for Self Governance and Convention of States, led by former Tea Party activist and ex-Parler CEO Mark Meckler, are relatively newer and well-funded players on the scene with connections to wealthy and powerful conservative interests.
Tax filings obtained by the Center for Media and Democracy reveal the groups, which are not required to disclose their donors, have received millions from the Koch-connected DonorsTrust, the Mercer family, and groups linked to powerful conservative lawyer Leonard Leo. A 2020 internal audit of Convention of States obtained by the group revealed that a $1.3 million donation made in Bitcoin made up 16% of the group's budget in 2019. Two donations totaling $2.5 million accounted for 36% of the group's 2020 budget.
While the various offshoots of the movement may have momentum on their side, they don't yet have the math to get to 34 states, as would be necessary to call a convention. Some are skeptical they ever will, no matter how well Republicans do at the polls in 2022 and beyond.
"It's clear to everybody working on this that the convention proponents have no honest path to 34 states," David Super, a professor, and constitutional law expert at Georgetown University Law Center, told Insider. "They've reached their limit."
But several convention organizers and supporters say they don't even need a convention to change the Constitution. They point to how fed-up states pushed for a convention to directly elect US senators after the Senate, for years, refused to consider resolutions calling for direct election. The 17th amendment, ratified in 1912, is a testament to that strategy.
More than a century later, one prominent Republican sees history — at least procedurally — repeating itself.
"What is most likely is that as we move closer to a convention of the states that at the last minute, Congress will blink and pass the underlying amendments. That's what history shows us is likely to happen," GOP Sen. Ted Cruz of Texas, a former presidential candidate who is eyeing another run in 2024, told Insider.
Cruz, who is himself pushing a term-limits amendment, also did not express definitive support for a convention.
The fear of a 'runaway' convention looms large in the debate
Because the states have never called a convention under Article V since the Constitution's creation, the exact mechanics are the subject of intense debates between legal scholars and activists
The prospect of a free-for-all convention has scared lawmakers away from other historic efforts to rewrite the nation's Constitution, fearing that a debate on imposing term limits or a balanced budget could
quickly morph into a full-fledged redesigning of gun, abortion, religious, or free speech rights.
Right-wing organizations such as the John Birch Society oppose a convention out of fear that it could open the door to weakening constitutional rights.
So does Rep. Andy Biggs of Arizona, a staunch Trump defender who wrote an entire book, "The Con of the Con-Con," about the dangers of conventions.
"In states where you would have expected this to pass because they have Republican leadership, they're firmly on our side because they're scared about losing guns," Harrison said.
Natelson, who has published numerous writings and academic articles on Article V, charged that people who fear a runaway convention "don't know what they're talking about" and GOP legislatures that have resisted calling a convention out of those worries "have been sold a bill of goods."
"Those academics who go before the legislature and say things like, 'we don't know anything about the process, it could be a runaway convention' without exception, are people who have never published any scholarship on the subject," he said.
And advocates for a constitutional convention have pushed narrow visions for a convention that they say would bind future delegates from passing extreme amendments. Natelson argued that not a single convention of colonies, compact of states, or simulated convention held since the nation's founding has "run away" from its mandate.
At the Convention of the States' 2016 mock convention in Williamsburg, Virginia, delegates, including Eastman, voted out six amendments, including a proposal that would eviscerate the 16th Amendment, which grants Congress the ability to impose an income tax.
The resolution the group is pushing would limit a convention to amendments that "impose fiscal restraints on the federal government, limit its power and jurisdiction, and impose term limits on its officials and members of Congress."
But limiting "the power and jurisdiction" of the federal government is an expansive mandate that could encompass virtually anything and enable delegates to pass extreme amendments while technically staying within the bounds of the convention.
"I defy you to name a Constitutional amendment that you might want that I couldn't characterize as one of the three things in the Convention of States," Super said. "You want to repeal the 14th Amendment Equal Protection Clause? That's limiting the power of the federal government to interfere with state laws. Almost anything you want, you can characterize as one of those things."
'A brilliant strategy for controlling a political agenda'
Recent blog posts on the Convention of States' website explicitly reference the need for a convention to limit federal overreach on abortion, guns, and immigration.
"The Supreme Court has said that amending the Constitution is a political question in which the federal courts cannot get involved," Super said. "The president has no role at all in the process. And the whole point of the convention route is to sideline Congress. So Congress can't overrule the convention … there's no one to intervene. There's no one to stop a convention from doing whatever they want to do."
States have the flexibility to caveat their calls for a convention, and some have included penalties to keep delegates in line. Indiana and Florida have even made it a felony for convention delegates to defy the legislature's intent, measures they passed alongside their pro-convention resolutions.
Super, however, said that criminal penalties punishing rogue delegates are not "constitutional" or "enforceable" because of the Supreme Court's 2000 ruling in Bush v. Gore that their home state's laws don't bind state officers performing national duties.
Legal constraints aside, Natelson argued that a runaway convention could only happen in "horse and buggy times" with minimal communication between delegates and legislatures, and would be "practically impossible" in 2022, a world driven by a 24-hour news cycle and instant methods of communication like calling and texting.
"They're going to be under the glare of publicity, and everybody's going to be watching every minute," Natelson said.
The framers also added a second buffer to the process. Conventions or Congress can propose a constitutional amendment, but three-fourths of the state legislatures, 38, need to ratify it into the Constitution, a process that is also not subject to a governor or president's veto.
Conservatives and liberals alike say this requirement would doom hyperpartisan or plain loony amendments.
"The convention has way more safeguards than Congress itself," Nick Tomouldies, executive director of US Term Limits, a group pushing for a convention solely focused on imposing congressional term limits, told Insider. "Controversial issues like taxes and guns and abortion need not apply, because you're never going to get through that gauntlet."
But Pearson countered that a convention just passing a polarizing amendment would allow conservatives to play the long game and "dominate the political debate in the country for the next decade" with contentious ratification battles in the states.
"It's a brilliant strategy for controlling a political agenda for quite some time," he said.
The Convention of States movement is 'the full package'
Behind closed doors, Meckler, Santorum, and Natelson pitched a convention to GOP lawmakers gathered at a December 2021 ALEC workshop as a way for ordinary citizens to force sweeping changes to every facet of government.
"We would be aiming at the Deep State and potentially the federal judiciary as well," Meckler told lawmakers in the closed-door session, a recording of which was obtained by the Center for Media and Democracy and shared with Insider.
Meckler argued in the session that a convention focused on only term limits, which he criticized as "dangerous," or only a balanced budget amendment, wouldn't be enough to rein in the federal government — or to mobilize enough people behind the convention movement.
"We have to be able to show people that they have a chance to get their hands around the throat of the federal government and put it back in the Constitutional box," he said in the audio obtained by the Center for Media and Democracy. "None of the individual efforts do that. The only thing that provides the narrative that drives 5 million people to participate in Convention of States … is the full package."
Moments later, Meckler said his effort could be judged by its "enemies," railing against a slew of "leftist" advocacy groups who oppose a convention.
"It's every leftist group in America, radical leftist group in America that stands for, I would argue, the destruction of America, the destruction of babies in the womb, the destruction of life itself," he said. "They hate America, they want to destroy America, and they're against Convention of States."
Santorum also assured lawmakers that conservative interests would be strongly represented in a one-vote-per-state convention due to the outsize influence of lower-population states, saying, "we have the opportunity, as a result of that, to have a supermajority, even though…we may not even be in an absolute majority when it comes to the people who we agree with."
The conservative movement isn't resting on the laurels of its victories in the Supreme Court arena but is aggressively pioneering new frontiers to reshape every aspect of American law and society.
And while a no-holds-barred Constitution convention may seem far-off, the ideological fervor driving the convention movement and the ambitious aims of its proponents guarantee it won't be going away anytime soon.
"This is the opportunity the founders gave you, state legislators. They gave you the power to fix this country," Santorum told lawmakers gathered at the 2021 ALEC meeting, his voice booming. "With all due respect, how dare you not try? How dare you, in the face of what's going on in this country?"
https://www.businessinsider.com/constitutional-convention-conservatives-republicans-constitution-supreme-court-2022-7
