Rubio’s convention call is an invitation to legal chaos
This year’s presidential elec- tion has seen more than its share of bad ideas — deporting 11 million people, bombing ISIL until the sand glows, and enacting massive tax cuts or equally massive spending hikes.
The latest: Sen. Marco Rubio’s call for a constitutional convention to draft amendments to balance the federal budget and impose term limits on judges and members of Congress.
Rubio’s convention is an invitation to constitutional mayhem. Even if it went as planned, his proposals could further poison our politics and hobble American leaders at moments of crisis.
There is a good reason why no such convention has been called since the original one in 1787, and why all 27 existing amendments have been approved through the standard method — a two-thirds vote in Congress and ratification by three-quarters of the states.
A convention would be impossible to control. Nothing in the Constitution gives Congress or the Supreme Court power to tell conventioneers what to do, or not do. A convention tasked to draft a balanced budget amendment would nevertheless have nearly unfettered powers to tinker with the DNA of America’s 240-yearold democracy. As Justice Antonin Scalia puts it: “Who knows what would come out of it?”
Once the convention drafts its amendments, 38 states would be needed for ratification. But the Constitution provides no time limit on this process. The 27th Amendment — affecting congressional pay — was proposed in 1789 and ratified in 1992.
This raises the possibility that the Constitution could be amended by states that have long since changed their minds. The issue of whether a state may rescind ratification has never been settled.
There are also good reasons why amendments requiring a balanced budget or imposing term limits have not gotten out of Congress. Term limits on lawmakers would empower lobbyists and congressional staff. If all members of Congress were rookies, Washington old-timers would have even greater influence than they already do. A balanced budget amendment sounds like a good way of forcing politicians to do what they promise and rarely produce. But tying the government’s hands could have serious consequences during wartime, when spending surges, or during an economic downturn, when government borrowing can stop a recession from becoming a depression, as it did in 2007-09.
The possibility that such a convention could materialize is not as far-fetched as it might seem. In the 1980s, 32 states had adopted resolutions calling for a convention for the purpose of a balanced budget amendment, just two shy of the 34 needed. That effort petered out, but a recent push by conservatives has put the number back at 27, including states that passed their resolutions decades ago and ones that did so recently. As many as 13 more states may take up the matter this year.
State legislators should resist Rubio’s call. If an amendment can’t get through Congress, it doesn’t have the necessary support of the people. Calling a convention won’t create broad public support, and the unfettered process could create bigger problems than the ones the senator from Florida is trying to solve.