The Wisconsin Assembly passed a resolution calling for a rewrite of the U.S. Constitution on February 18 by a 60-38 vote, almost entirely along party lines. The measure, Assembly Joint Resolution (AJR) 77, now heads to the Senate, where its companion, Senate Joint Resolution (SJR) 57, has yet to move out of committee.
If passed, Wisconsin would become the 16th state to back right-wing efforts to call for a constitutional convention to propose sweeping amendments to the Constitution to curtail the powers of the federal government. Under Article V of the Constitution, at least two-thirds of the States must submit applications in order to convene a constitutional convention.
The effort is being spearheaded by Convention of State Action (COSA), a project founded by Mark Meckler and Eric O’Keefe and promoted by the American Legislative Exchange Council (ALEC). ALEC is a pay-to-play operation where legislators and corporate lobbyists meet behind closed doors to adopt model legislation on a broad range of public policy issues.
If this sounds familiar, it should. In 2017, Wisconsin lawmakers passed a similar resolution based off of an ALEC model that they claimed would limit a constitutional convention to requiring the federal government to balance its budget. Twenty-eight states of the 34 needed have passed similar measures to date.
In 2020, seven balanced budget amendment resolutions have been introduced in five states, and 35 Convention of States (COS) resolutions have been introduced in 22 states.
The COS resolutions claim that “the federal government has ceased to live under a proper interpretation of the Constitution of the United States,” and call for radical changes to the Constitution, from imposing “fiscal restraints” and term limits to limiting “the power and jurisdiction of the federal government.”
The Senate resolution was introduced by ALEC Senators Kathleen Bernier (R-Chippewa), André Jacque (R-DePere), and Stephen Nass (R-Whitewater), along with Thomas Tiffany (R-Minocqua), Duey Stroebel (R-Saukville), and Howard Marklein (R-Spring Green).
“This joint resolution is much vaguer and broader, and would open up the door of any Convention of the States even faster and wider for a wholesale rewrite of our founding document, thus jeopardizing our fundamental rights,” Matt Rothschild, Executive Director of the Wisconsin Democracy Campaign testified at the October 3, 2019 public hearing on the resolution.
Legal experts note that there is nothing in the Constitution that limits the scope of a constitutional convention once called and warn that a runaway convention could generate major changes to the balance of power between the states and federal government and undermine many rights and protections currently enjoyed by citizens of all states.
“[T]here is no way to effectively limit or muzzle the actions of a Constitutional Convention,” wrote former Justice of the United States Supreme Court Warren Burger. “The Convention could make its own rules and set its own agenda. Congress might try to limit the Convention to one amendment or one issue, but there is no way to assure that the Convention would obey. After a Convention is convened, it will be too late to stop the Convention if we don’t like its agenda.”
At the October committee hearing on SJR 57, Legislative Counsel could not offer certainty to Sen. Lena Taylor (D-Milwaukee) that delegates at a convention would not act outside their directed scope, saying, “Most of these questions about scope, are questions that are up to some debate.”
Sen. Taylor then turned to the authors of the bill, saying, “Gentlemen, show me the guard rails. Show me the guard rails that make sure that we do not have a runaway convention with individuals and states that clearly show by their policies, disparate and racist treatment.”
Rob Kelly, staff counsel at Convention of States Action, the sole group that has registered in favor of this bill, attempted to quell fears of a runaway convention at the hearing, saying, “It says limit the power of the federal government. Limit the power and jurisdiction of the federal government. There is a directional limitation, which is absolutely critical. It would be absolutely inappropriate and be out of the scope of this application for the legislatures, for a convention to propose amendments that expanded the scope of the federal government.”
Following the Senate hearing, a public hearing was held in the Assembly’s Committee on Federalism and Interstate Relations on November 13, 2019.
Meckler believes that the Constitution itself is the supreme law of the land, not how the courts interpret it. “[R]unaway courts do not provide the ‘rule of law,’ and they are not the ‘checks and balances’ our Founders envisioned,” Meckler has written. His vision of constitutional revision is one in which states can defy Supreme Court rulings they believe stray from the Constitution’s original intent. The upshot is that, if a right-wing constitutional convention is held, voting rights, the Civil Rights Act, the Environmental Protection Agency, the federal minimum wage, abortion rights, marriage equality, and many other rights could be placed at risk.
In the Assembly hearing, Representative Chris Taylor (D-Madison) asked questions of the COS volunteers and Meckler as to what they hoped to achieve if a constitutional convention is convened.
Meckler stated that it was not his intention to curtail any particular power of the federal government, but the intent is “to create a convention where the American people can have a discussion of these issues.” Meckler added that, he does not “propose, support, or oppose, any particular amendments,” and that COS “doesn’t have a particular agenda.”
However, a 2016 Convention of States mock convention passed amendments on the rightwing’s bucket list, such as easing the process to repeal federal regulations, requiring approval to increase the national debt, imposing congressional term limits, repealing the 16th Amendment’s authorization for an income tax, limiting the Commerce Clause, and requiring a supermajority to impose federal taxes.
A nearly seven-hour video of the “historic simulation” is available on the organization’s YouTube channel.
Taylor must have a touched a nerve with Meckler, because in a blog post on the hearing, he boasts that he, “OWNS ‘disrespectful’ state legislator who harassed Convention of States volunteers,” referring to Taylor, and that her “questions were attempting to trick Convention of States volunteers into saying something that could be construed as racist or bigoted.”
CMD asked Taylor to respond to Meckler’s post. “I have nothing but respect for the people of Wisconsin who come to the Capitol to testify on various bills and issues and not one of them stated otherwise,” Taylor stated. “Mr. Meckler did not like my questions because he doesn’t like the answers–and that is that his Tea Party effort to eviscerate our Constitution is an attempt to roll back civil rights, environmental protections and safety net programs that are popular and supported by the actual people of this state.”
Meckler “refused to identify the out-of-state corporate interests that funds his efforts to elevate the power of corporate America over the power of everyday citizens,” Taylor said.
Meckler is working very hard to get the COS resolution passed in the states. In August, COSA held its first Leadership Summit with “hundreds” of activists, state directors, and coordinators from all 50 states.
Meckler’s COS Nonprofits
Meckler leads three nonprofits around the COS effort: Convention of States Foundation (COSF), formerly Citizens for Self-Governance/John Hancock Committee of the States, Convention of States Action (COSA), and CSG Action (CSGA).
Wisconsin”s Eric O’Keefe serves on the board of all three organizations. O’Keefe is a right-wing political operative with strong ties to Charles and the late David Koch.
In state, O’Keefe is well known for being a target of the 2012-2015 “John Doe” criminal investigation into possible illegal campaign coordination between Wisconsin Governor Scott Walker, Wisconsin Club for Growth (of which O’Keefe is a director), and numerous other dark money groups, until it was ended by the Wisconsin Supreme Court in July 2015.
Funding sources for COSA are hard to uncover, but through a search of IRS filings, CMD found that COSF received $14.7 million from 13 foundations, donor conduits, and other nonprofits between 2010 and 2018. Over $12 million was funneled through three donor advised funds: Vanguard Charitable Endowment Program ($7.6 million), the Koch network-tied Donors Capital Fund ($2.5 million), and the Greater Houston Community Foundation ($2 million).
CSGA has three known donors, including two groups associated with Leonard Leo, Trump’s point person for stacking the federal courts with conservative activists, In 2016, Leo’s Freedom and Opportunity Fund gave $2 million to CSGA, and the Judicial Crisis Network gave $110,000. The Koch-founded and funded Citizens for a Strong Economy contributed $10,000 in 2015.
Leo’s Judicial Education Project also contributed $950,000 in 2016 to COSF.
New Poll Shows Majority of GOP Voters Oppose a Constitutional Convention
The COS resolution passing the Assembly comes two weeks after a new national poll demonstrated that close to 60 percent of Republicans surveyed oppose changing the Constitution through an Article V convention.
Further, 70 percent of Republicans, and 60 percent overall of those surveyed, become less likely to support an Article V convention once they learn that it could result in changes to fundamental rights they hold close.
A date has not been set for a floor vote on the COS resolution in the Senate.
Arn Pearson contributed to this report.