This article was first published by The Progressive.
Frustrated by the surprise defeat of Mitt Romney in the 2012 presidential race, a group of breathtakingly rich and highly strategic actors on the radical right, including the Koch brothers, quietly launched an ambitious new campaign to lock in their political control once and for all. They had used their immense wealth and institution-building savvy to capture a majority of state legislatures in 2010, so the groundwork was already in place.
This campaign would be spearheaded by a corporate pay-to-play group they had long funded to influence state laws—the American Legislative Exchange Council (ALEC)—and a dark money group with deep ties to Charles and the late David Koch (who died in 2019), as well as the Tea Party movement—Citizens for Self-Governance (CSG). When legislators arrived at ALEC’s annual meeting in August 2013, they were given detailed instructions and model text to bring back to their statehouses for a resolution demanding the first Constitutional convention since 1787.
These donors and operatives are aiming to radically rewrite the U.S. Constitution, so they incentivized complicity from needed allies. “State legislators were promised bundled campaign contributions and grassroots support if they joined this effort to amend the federal Constitution,” wrote Chris Taylor, a Democrat who was serving at the time as a Wisconsin state representative, after attending the meeting. (Taylor is now a judge on the Wisconsin Court of Appeals.)
When legislators returned for ALEC’s policy summit at the Grand Hyatt Washington hotel that December, Tea Party Patriots co-founder Mark Meckler led a workshop on the plan, organized by his newly formed Convention of States, a project of CSG, over which he also presides. Immediately following that meeting, 100 legislators from across the country headed to Mount Vernon—George Washington’s former plantation in Virginia—for a four-hour planning session on how to win the thirty-four states needed to make the plan a reality.
In the decade since those first secretive meetings, Meckler’s Convention of States has managed to rack up wins in nineteen states for a convention that would address sweeping proposals to radically curtail the powers of the federal government. ALEC-led groups also claim to have twenty-eight states behind their call for a more limited convention to propose a balanced budget amendment to the U.S. Constitution.
Should a convention be convened, what is it that the ultra-rich backers want? Their chosen so-called grassroots leaders mince no words when speaking to friendly audiences. Meckler has declared that the purpose is “to reverse 115 years of progressivism.” In fact, the endgame is even more consequential: to return this nation to its pre-Constitution roots under the Articles of Confederation, with a weak central government and sovereign states.
What exactly would that entail? Stunned by what she witnessed during ALEC’s 2013 meetings, Taylor reported that the campaign aimed “to rewrite our federal Constitution,” not just “to prevent the federal government from responding to national emergencies and economic downturns, but to roll back clean drinking water protections, civil rights, anti-discrimination laws, and our most valued social safety nets like Social Security.”
According to former U.S. Senator Russ Feingold, Democrat of Wisconsin, “They have an agenda that is pretty clear.” He added, “They want to really gut the ability of the federal government potentially to protect the environment, to protect civil rights laws, to protect voting rights. They could ban abortion in the Constitution.” Feingold is now president of the American Constitution Society and recently co-authored the book The Constitution in Jeopardy with Stanford Law fellow Peter Prindiville.
A Constitutional convention dress rehearsal held by Convention of States at Colonial Williamsburg in Virginia earlier this year showed exactly what the right has in mind. At the end of the three-day meeting, Republican legislators from forty-nine states acting as “delegates” voted to propose six amendments to the Constitution that would lock in conservative control of the U.S. Supreme Court, impose Congressional term limits, hamstring federal spending, severely limit the Commerce Clause (the basis for most federal environmental, labor, consumer, and civil rights protections), and allow a simple majority of states to overturn any federal law, Executive Order, or administrative ruling they don’t like.
“The Convention of States project’s proposed Commerce Clause Constitutional amendment would eliminate wide swaths of civil rights and environmental laws and regulations,” Georgetown law professor David Super tells The Progressive in an email.
The pivotal Supreme Court case upholding the Civil Rights Act of 1964—Heart of Atlanta Motel, Inc. v. United States—was based on a broad reading of the clause. “The Convention of States project’s unwillingness to acknowledge the radical sweep of its proposal amplifies the danger of a covert attack on our Constitution, relying on opaque drafting and dishonest arguments to advance an agenda that thegreat majority of people oppose,” Super adds.
Similarly, giving twenty-six of the smallest states, which represent less than 20 percent of the population, veto power over federal protections would take the “united” out of the United States and turn the country into a new confederacy under permanent minority rule.
And, lest anyone forget the Big Oil money behind the campaign to rewrite the Constitution, the delegates approved an amendment that would bar the federal government from owning lands or mineral rights without approval of the home state’s legislature. That would open vast tracts of land in the West to extractive industries that exercise tremendous influence at the state level. They would no longer be restrained by the “troublesome” feds.
The far right’s Constitutional convention is a dagger aimed at the heart of most of what we look to Washington for: vital programs like Social Security and Medicare, and protection from economic catastrophes, pandemics, and climate disasters. But that’s not all, because convention boosters have never reconciled themselves to the human rights reforms of the twentieth and twenty-first centuries such as civil rights for racial minorities, women’s rights, and protections against anti-LGBTQ+ discrimination.
Indeed, most of what ALEC, CSG, and their billionaire backers want to achieve flies in the face of public opinion. And that’s what makes their plan so devious. “Voters have no role to play in the right’s vision of a Constitutional convention,” a report by the Center for Media and Democracy (CMD) concluded. Delegates would be handpicked by legislative leaders, and here’s the kicker: The votes taken at such a convention would be based not on population but on one vote per state in order to grossly underrepresent the majority of Americans.
In audio obtained by CMD, former U.S. Senator Rick Santorum, Republican of Pennsylvania, told an ALEC audience in 2021 how this strategy could be used to circumvent what most Americans want. “Because their [Democrats’] population is concentrated and ours isn’t,” Santorum said, “rural voters [Republicans] . . . actually have an outsized power granted under this process.”
He added, “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 agree with us.”
Translation: The process would grossly overrepresent more conservative white people at the expense of the nation’s multiracial urban and suburban majority. These Republican-run states include the least-populated ones in the country, such as Alaska, Wyoming, Montana, and North and South Dakota. Some of them have fewer total residents than single cities in Democratic-leaning states.
Given the absence of any guidelines or limitations in the Constitution on how a Constitutional convention would work, if ALEC and its allies get enough state legislatures on board, there is actually nothing the rest of us can do to stop the process from going forward or to limit its scope. Once the advocates get to thirty-four states, Meckler gloats in an email appeal to supporters,“Congress can’t stop us. The President can’t stop us. SCOTUS can’t stop us.”
Nor can the American people.
Thanks to efforts by Common Cause and its allies, eight states have rescinded their calls for a convention in the past decade, keeping the far right from reaching the thirty-four state resolutions they need. As a result, some convention advocates—who once assured critics that any convention would be strictly limited to the amendments named in the convention call—have gotten creative.
Former Wisconsin Governor Scott Walker, a Republican, presented a new strategy at ALEC’s 2020 annual meeting. It urges combining the twenty-eight balanced budget amendment resolutions with six unrelated convention calls over the past two centuries, and then getting Republican attorneys general to force the issue in federal court. In the most shameless power grab, Walker and ALEC even include in their count New York’s 1789 application, which is still on the books and sought a convention to add a Bill of Rights to the Constitution.
In documents obtained by CMD in 2022, ALEC used this theory to claim to its member legislators that the requisite thirty-four-state threshold had been met and that Congress was required to immediately convene a Constitutional convention. ALEC’s allies filed a lawsuit in Texas, McCall v. Pelosi, to compel Congress to do just that, but it was dismissed in November 2022 for lack of standing. Undeterred, ALEC has now teamed up with former Virginia Attorney General Ken Cuccinelli and a handful of allies in Congress to push the theory.
Either way, the far right is playing the long game. “America is a blue state right now,” rightwing radio host and Constitutional convention enthusiast Mark Levin told the Values Voter Summit in 2013, at the start of the campaign for a convention. The only way to change that, Levin said, is to get thirty-four state legislatures to call for a Constitutional convention. “It took us a century to get here, and so it may take us twenty or thirty years to get out of this,” he added. “But we have no options. This is the only option.”
He might have added that the convention is the only option for a minority that knows it will never attract the support of the majority to its unpopular agenda.
And while it would take thirty-eight states to ratify any proposed amendments, the right’s plan is to use a Constitutional convention—and the billions of dollars in dark money spending it would inevitably unleash—to dominate the political agenda of the United States for years to come.
“Once we begin taking over state legislatures and passing some of these amendments, we can force all viable candidates to support these proposals, the same way we have forced all viable candidates to support defunding Obamacare and opposing tax increases,” Daniel Horowitz, a rightwing writer and activist, wrote in 2013.
Convention of States embarked on this electoral path in 2022, hiring Walker’s former political strategist R.J.Johnson to create a web of political action committees and dark money groups to raise more than $1.4 million to influence legislative elections in eight states. Much of that money flowed from the billionaire Texas oil magnate Tim Dunn, a prominent Tea Party financier and a founding board member of the Convention of States’ parent organization.
All this makes the stakes of the 2024 elections far higher than most people realize. If the right prevails in the House and retakes the Senate, a radicalized Republican Congress could use whatever math and rules it wants to rig a Constitutional convention, and the Supreme Court would most likely decline to intervene.
Will this strategy succeed? The answer depends onthe American people—and whether they can be alerted to the imminent danger of a Constitutional convention in time to make protecting the Constitution a top priority in the states in the coming year.
“The challenges to our democracy feel so overwhelming,” California Common Cause Executive Director Jonathan Mehta Stein recently told a webinar audience. But it’s vital to keep our eyes on the Constitutional convention threat and “reach deep” for the energy to defeat it.
The stakes are enormous: preserving more than a century’s worth of popular policy victories and preventing ecological collapse from climate change.