Title: Two Article V Movements: One Clear Choice
Original CoS Document (slug): article-8-why-a-state-should-adopt-an-article-v-application-for-a-convention-of-states-if-it-has-already-adopted-a-bba
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Attached File: Two_Article_V_Movements_One_Clear_Choice.pdf
In this piece, Michael Farris summarizes why it is still essential for states that have adopted a balanced budget amendment to fight for a convention of states
Created: 2017-07-06 07:08:58
Updated: 2021-10-19 23:00:00
Published: 2017-07-17 19:00:00
Converted: 2025-04-14T19:23:26.443009388
By Michael Farris, J.D., L.L.M.1—
Article V provides two methods
to propose constitutional
amendments—one controlled by
Congress and one controlled by the
state legislatures. In the last two
years, there has been a significant
renewal of interest in employing the
state-based method for proposing
amendments to the Constitution.
This newfound interest in Article V
arises largely from the belief that
the Congress will never propose
amendments that impose meaningful
restrictions on federal power.
There are only two “Article V”
movements that have made
significant progress: the Balanced
Budget Amendment and the
Convention of States Project.
The first (BBA) seeks one single
amendment requiring the federal
1 This article was written in 2014.
2 Since Mr. Farris wrote the article, the COS Project resolution has passed in 12 additional states (Alabama, Tennessee, Indiana, Missouri, Louisiana,
Oklahoma, North Dakota, Texas, Arizona, Utah, Arkansas, and Mississippi), for a current total of 15.
government to adopt a balanced
budget. The second (COS) seeks
broad limitations on federal
power—specifically, “imposing
fiscal restraints on the federal
government, limiting the power
and jurisdiction of the federal
government, and imposing term
limits on federal officials.”
The COS Project was launched
in the fall of 2013, and in its first
year secured passage of a formal
application from the legislatures of
Georgia, Florida, and Alaska.2
The BBA project has been underway
for over forty years and has secured
a variety of applications in a great
number of states. However,
determining the current number of
states that have a valid, pending BBA
application presents a challenge. Two
issues make counting difficult.
One Clear Choice
First, there is significant variance
among the language of the various
BBA applications, which
raises potential problems with
aggregation. Second, many states
have rescinded their prior BBA
applications. We will discuss these
legal issues below in Section 4.
The COS Project is working to pass
applications with identical operative
language in 34 states. This ensures
that no issues of aggregation can
arise. Moreover, no states have
rescinded a COS application.
There are at least five significant
reasons why a state legislature
should adopt a COS application
even if it has already adopted a valid
BBA application.
CONVENTION OF STATES ACTION
BBA VS. COS
The COS Project is working to pass applications with
identical operative language in 34 states. This ensures
that no issues of aggregation can arise. Moreover, no
states have rescinded a COS application.
TWO ARTICLE V MOVEMENTS
1. There is no rule against
a state passing two or
more applications.
Every Article V application from
a state legislature must identify
its purpose. There have been over
400 applications in the history of
the Republic, and yet there has
never been an Article V Convention
because two-thirds of the states have
never agreed on the subject matter.
There have been countless occasions
when a state has passed a second or
third application for a Convention on
a different topic, even while a prior
application was still pending.
This historical practice reflects
common sense. There may be
multiple issues that states want
to see addressed through a
constitutional amendment. And the
process of building a coalition of 34
states is sufficiently daunting that the
states see the wisdom in supporting
multiple efforts that use varying
approaches to accomplish their goals.
2. Only the COS application
seeks to restore federalism.
The BBA seeks to prohibit the
federal government from taking the
nation even deeper into debt. This
is, of course, a worthy goal, and one
that COS supports. However, we
also seek to address the root cause of
the problem. The root cause of debt
is excessive federal spending. And
the cause of excessive spending is, at
least in significant part, entitlement
and other domestic programs that
are within the exclusive jurisdiction
of the states under the original
meaning of the Constitution.
By 2020, 89% of the federal budget
will need to be devoted to just four
items: interest on the national debt,
Medicare,Medicaid, and Social
Security. This is untenable and
leaves our nation’s infrastructure and
defense at great risk. A BBA alone
will not cure this problem. We
must restrict Congress’ virtually
unlimited power to spend.
In the Obamacare decision, Chief
Justice Roberts’ majority ruling
held that there is no constitutional
limitation on the power of Congress
to tax and spend. This is the core
problem. And, we must fix it. This
means a return to the states of
exclusive jurisdiction for several
areas of government expenditure.
Not only has Congress invaded the
province of the states with regard to
domestic spending, it has increasingly
taken charge of state governments
by means of conditional federal
grants. Congress coerces the states
to do its bidding by taking money
from taxpayers (current or future),
and then offering federal funding for
mandated programs. This leaves the
state legislatures in the structural
position of being unable to achieve
their central mission—representing
the voters of their own states. Rather,
state legislators are effectively
required to do the will of Congress.
This is a clear violation of the principles
of a Republican form of government.
Regaining true federalism is
not just a matter of insisting on
adherence to the original meaning
of the Constitution. If freedom
is to survive, we must return to
the structural designs of a robust
federalism, with a truly limited
federal government. Only the COS
seeks to address this core issue.
3. There are other structural
issues with the federal
government that require
immediate attention.
Article I, Section 1 of the
Constitution commands that all
federal laws must be made by
Congress. But the Executive Branch,
through both executive orders and
bureaucratic regulations, makes an
ever-escalating percentage of the
federal laws that are crippling our
economy. This problem is persistent
regardless of which political party
controls the White House.
CONVENTION OF STATES ACTION
BBA VS. COS
The root cause of debt is excessive federal spending. And
the cause of excessive spending is, at least in significant
part, entitlement and other domestic programs that are
within the exclusive jurisdiction of the states under the
original meaning of the Constitution.
The Supreme Court has, on
approximately thirty occasions,
acknowledged that the only
limitation on its power is the
Court’s own sense of self-restraint.
We must apply appropriate checks
and balances to the Supreme Court.
We see the State Department
and many in the United States
Senate increasingly enamored
with the idea that international law
should govern the domestic policy
of the United States. Under the
Supremacy Clause, all state laws
and state constitutions must yield
to any ratified international treaty.
We need to limit the treaty power
to the international sphere and
not allow it to invade the domestic
authority of the states.
The chief reasons for the growth
of the federal government involve
misuse of the General Welfare
Clause and the Commerce Clause.
Both of these need to be returned
to their original meaning.
We need to have a serious
discussion on the issue of term
limits for members of Congress
and the federal judiciary. (For
example, federal judges could be
limited to one eight-year term
without reappointment. A single
term would continue to guarantee
judicial independence without
creating a sense of permanent
judicial supremacy.)
All of these issues can be effectively
addressed under the language of the
model COS application. None of
these issues can be addressed
under the BBA application.
4. The COS Project avoids
legal issues presented by the
BBA which will likely result in
lengthy delays.
At one time or another, 34 state
legislatures have applied for a
BBA convention. However, 10 of
these applications have since been
rescinded.3 Moreover, there is
considerable variation in the
language of BBA applications.
Consider some examples:
The 2014 application from Ohio
calls for a convention limited to
“proposing an amendment to
the United States Constitution
requiring that in the absence of a
national emergency the total of all
federal appropriations made by the
Congress for any fiscal year may
not exceed the total of all estimated
federal revenues for that fiscal
year, together with any related and
appropriate fiscal restraints.”
On the other hand, the current
Maryland application4 calls for a
convention to propose a specific
amendment, providing that “The total
of all Federal appropriations made by
the Congress for any fiscal year may
not exceed the total of the estimated
Federal revenues for that fiscal year,
excluding any revenues derived
from borrowing; and this prohibition
extends to all Federal appropriations
and all estimated Federal revenues,
excluding any revenues derived from
3 Since Mr. Farris wrote this article an additional two states have rescinded their BBA applications.
4 Maryland is one of the states that has rescinded its application since this article was written.
CONVENTION OF STATES ACTION
BBA VS. COS
Congress coerces the states to do its bidding by taking money from taxpayers (current or future), and
then offering federal funding for mandated programs. This leaves the state legislatures in the structural
position of being unable to achieve their central mission—representing the voters of their own states.
borrowing.” It goes on to specify
circumstances under which the
requirement could be suspended.
Mississippi’s application also calls for
the proposal of a specifically-worded
amendment, but its language is
different from Maryland’s proposal.
Mississippi’s language would prohibit
congressional appropriations that
would exceed revenues in a given fiscal
year, but also requires that the national
debt be repaid within a specified
timeline at a specified rate, etc.
Still other states’ resolutions for
a BBA demonstrate additional
variations on the theme.
This raises a very serious concern
about aggregation. While Congress
has a very limited role in the state-
initiated process of proposing
amendments, legislative practice
and the text of Article V suggest
that Congress determines when 34
states have applied for a convention
on the same subject.
The reality is that if the state
applications are not uniform or
essentially uniform (as to their
operative language), Congress
will be entitled to make a political
judgment about whether the
applications should be aggregated.
If there is a simple majority in both
houses of Congress that favor an
Article V Convention to consider
a BBA, then Congress will likely
grant a great deal of latitude on the
issue of aggregation. However, if a
majority of either house of Congress
is opposed to either the idea of
a Balanced Budget Amendment
or the convening of an Article V
Convention in general, Congress
would “interpret” the applications
very narrowly and conclude that
34 states have not applied for a
convention on the same subject.
Regardless of which way
the vote goes, litigation
will certainly follow
to test the question
of aggregation. And
while good substantive
arguments can be made
to bolster the notion that
aggregation should be
broadly accepted rather
than narrowly confined, the
courts would likely avoid
deciding this question. In
fact, it is very likely that
the Supreme Court will take
the position that the question
of aggregation is a political
question whenever the state
applications are not identical
CONVENTION OF STATES ACTION
BBA VS. COS
or essentially identical as to their
operative language.
Litigation on this point would add
two to four years to the process of
calling a BBA convention, because
the legal issues will be viewed as
important and sufficiently close to
merit full Consideration.
In short, litigation will prolong the
process, and whatever Congress
decides on the BBA aggregation
issue is likely to be affirmed in
the courts. The Convention of
States Project avoids this problem
altogether. Our strategy is for 34
states to commit to adopting our
model language for the operative
portion of their applications, thus
precluding any legitimate question
about aggregation. Congress will
have no cause to make a political
judgment, and the courts will
enforce the direct language of
Article V forcefully upon such facts.
5. Our nation doesn’t have time
to wait and see what will happen
with a BBA before it tackles the
issues raised by the COS.
The problem our nations are
complex and urgent. If we are going
to preserve liberty, restore self-
governance and prevent an economic
collapse, we must act promptly.
Under the best case scenario for the
BBA, sufficient applications will be
amassed in 2016. If we add just two
years for litigation, we will be at 2018
before a convention could be held.
Then there will be the ratification
fight that will surely last until 2020…
CONVENTION OF STATES ACTION
BBA VS. COS
DATE PASSED
OPERATIVE
LANGUAGE
STILL
PENDING?
ALABAMA
JUNE 1, 2011
YES
“for the specific and exclusive purpose of proposing an
amendment to that Constitution requiring that, in the
absence of a national emergency . . . the total of all federal
appropriations made by Congress for any fiscal year not
exceed the total revenue for that fiscal year.”
2017
YES
“limited to proposing an amendment to the Constitution
requiring that, in the absence of a national emergency, the
total of all federal appropriations made by the Congress for
any fiscal year may not exceed the total of all estimated
federal revenues for that fiscal year, together with any
related and appropriate fiscal restraints.”
APR 5, 1978
YES
“for the specific and exclusive purpose of proposing an
amendment to the federal constitution prohibiting deficit
spending except under conditions specified in such
amendment.”
FEB 24, 1982
YES
“for the sole and exclusive purpose of proposing an
amendment to the Constitution of the United States which
would require that, In the absence of a national emergency,
the total of all appropriations made by Congress for a fiscal
year shall not exceed the total of all estimated federal
revenues for that fiscal year.”
ALASKA
MAR 5, 1979
YES
ARIZONA
ARKANSAS
“for the specific and exclusive purpose of proposing an
amendment to the Federal Constitution requiring in the
absence of a national emergency that the total of all
Federal appropriations made by the Congress for any fiscal
year may not exceed the total of all estimated Federal
revenues for that ficsal[sic] year”
—
NO
Rescinded
COLORADO
DELAWARE
APR 21, 2014
YES
“limited to proposing an amendment to the Constitution
requiring that, in the absence of a national emergency, the
total of all federal appropriations made by the Congress for
any fiscal year may not exceed the total of all estimated
federal revenues for that fiscal year, together with any
related and appropriate fiscal restraints.”
FLORIDA
STATE APPLICATIONS FOR ARTICLE V CONVENTION
TO PROPOSE A BALANCED BUDGET AMENDMENT
CONVENTION OF STATES ACTION
BBA VS. COS
FEB 20, 2014
YES
“limited to consideration and proposal of an amendment
requiring that in the absence of a national emergency the
total of all federal appropriations made by the Congress for
any fiscal year may not exceed the total of all estimated
federal revenues for that fiscal year.”
MAR 12, 1957
YES
“for proposing the following article as an amendment to the
Constitution of the United States: 'ARTICLE “'SECTION
1. On or before the 15th day after the beginning of each
regular session of the Congress, the President shall transmit
to the Congress a budget which shall set forth his estimates
of the receipts of the Government, other than trust funds,
during the ensuing fiscal year under the laws then existing
and his recommendations with respect to expenditures to be
made from funds other than trust funds during such
ensuing fiscal year, which shall not exceed such estimate of
receipts. If the Congress shall authorize expenditures to be
made during such ensuing fiscal year in excess of such
estimated receipts, it shall not adjourn for more than 3 days
at a time until action has been taken necessary to balance
the budget for such ensuing fiscal year. In case of war or
other grave national emergency, if the President shall so
recommend, the Congress by a vote of three-fourths of all
the Members of each House may suspend the foregoing
provisions for balancing the budget for periods, either
successive or otherwise, not exceeding 1 year each.”
—
NO
Rescinded
MAR 22, 1979
YES
“for the specific and exclusive purpose of proposing an
amendment to the Constitution to the effect that, in the
absence of a national emergency, the total of all Federal
appropriations made by the Congress for any fiscal year
may not exceed the total of all estimated Federal revenues
for that fiscal year.”
GEORGIA
IDAHO
INDIANA
INDIANA
DATE PASSED
OPERATIVE
LANGUAGE
STILL
PENDING?
JULY 1, 1980
YES
“for the specific and exclusive purpose of proposing an
amendment to the Constitution of the United States to
require a balanced federal budget and to make certain
exceptions with respect thereto.”
IOWA
STATE APPLICATIONS FOR ARTICLE V CONVENTION
TO PROPOSE A BALANCED BUDGET AMENDMENT
CONVENTION OF STATES ACTION
BBA VS. COS
FEB 8, 1979
YES
“for the sole and exclusive purpose of proposing an
amendment to the Constitution of the United States which
would require that, in the absence of a national emergency,
the total of all appropriations made by the Congress for a
fiscal year shall not exceed the total of all estimated federal
revenues for such fiscal year.”
KANSAS
“for the specific and exclusive purpose of proposing an
amendment to the Constitution of the United States, for
submission to the states for ratification, to require that in the
absence of a national emergency the total of all federal
outlays made by congress for any fiscal year may not exceed
the total of all estimated federal revenues for that fiscal year,
together with any related and appropriate fiscal restraints.”
MAY 14, 2014
YES
LOUISIANA
—
NO
Rescinded
MARYLAND
MAR 26, 2014
YES
“limited to proposing an amendment to the constitution of
the United States requiring that in the absence of a national
emergency, including, but not limited to, an attack by a
foreign nation or terrorist organization within the United
States of America, the total of all federal appropriations
made by the congress for any fiscal year may not exceed the
total of all estimated federal revenues for that fiscal year,
together with any related and appropriate fiscal restraints.”
MICHIGAN
DATE PASSED
OPERATIVE
LANGUAGE
STILL
PENDING?
JULY 21, 1983
YES
“for the specific and exclusive purpose of proposing an
amendment to the Constitution of the United States to
require a balanced federal budget and to make certain
exceptions with respect thereto;”
MISSOURI
FEB 8, 1979
YES
“for the specific and exclusive purpose of proposing an
amendment to the Constitution of the United States
requiring in the absence of a national emergency that the
total of all federal appropriations made by the Congress for
any fiscal year may not exceed the total of all estimated
federal revenue for that fiscal year.”
NEBRASKA
STATE APPLICATIONS FOR ARTICLE V CONVENTION
TO PROPOSE A BALANCED BUDGET AMENDMENT
CONVENTION OF STATES ACTION
BBA VS. COS
DATE PASSED
OPERATIVE
LANGUAGE
STILL
PENDING?
APR 29, 1975
YES
“for the proposing of the following amendment to the
Constitution of the United States: 'Article ”'Section 1. Except
as provided in Section 3, the Congress shall make no
appropriation for any fiscal year if the resulting total of
appropriations for such fiscal year would exceed the total
revenues of the United States for such fiscal year. “'Section 2.
There shall be no increase in the national debt and such debt,
as it exists on the date on which this article is ratified, shall be
repaid during the one-hundred-year period beginning with
the first fiscal year which begins after the date on, which this
article is ratified. The rate of repayment shall be such that
one-tenth (1/10) of such debt shall be repaid during each
ten-year interval of such one-hundred-year period. ”'Section
3. In time of war or national emergency, as declared by the
Congress, the application of Section 1 or Section 2 of this
article, or both such sections, may be suspended by a
concurrent resolution which has passed the Senate and the
House of Representatives by an affirmative vote of
three-fourths (3/4) of the authorized membership of each
such house. Such suspension shall not be effective past the
two-year term of the Congress which passes such resolution,
and if war or an emergency continues to exist such
suspension, must be reenacted in the same manner as
provided herein. “'Section 4. This article shall apply only with
respect to fiscal years which begin more than, six (6) months
after the date on which this article is ratified.'”
MISSISSIPPI
—
NO
Rescinded
NEVADA
MAY 16, 2012
YES
“for the specific and exclusive purpose of proposing an
amendment to the Constitution of the United States, for
submission to the states for ratification, requiring, with
certain exceptions, that for each fiscal year the president of
the United States submit and the Congress of the United
States adopt a balanced federal budget;”
NEW HAMPSHIRE
—
NO
Rescinded
NEW MEXICO
STATE APPLICATIONS FOR ARTICLE V CONVENTION
TO PROPOSE A BALANCED BUDGET AMENDMENT
CONVENTION OF STATES ACTION
BBA VS. COS
DATE PASSED
OPERATIVE
LANGUAGE
STILL
PENDING?
JAN 1, 1979
YES
“for the exclusive purpose of proposing an amendment to
the Constitution of the United States to require a balanced
federal budget in the absence of a national emergency.”
—
NO
Rescinded
2015
YES
“limited to proposing an amendment to the Constitution of
the United States requiring that in the absence of a national
emergency the total of all Federal appropriations made by
the Congress for any fiscal year may not exceed the total of
all estimated Federal revenues for that fiscal year, together
with any related and appropriate fiscal restraints.”
NORTH
CAROLINA
2014
YES
“limited to proposing an amendment to the Constitution of
the United States requiring that in the absence of a national
emergency the total of all Federal appropriations made by
the Congress for any fiscal yearmay not exceed the total of
all estimated Federal revenues for that fiscal year, together
with any related and appropriate fiscal restraints.”
NORTH
DAKOTA
2016
YES
“limited to proposing an amendment to the Constitution
requiring that, in the absence of a national emergency, the
total of all federal appropriations made by the Congress for
any fiscal year may not exceed the total of all estimated
federal revenues for that fiscal year, together with any
related and appropriate fiscal restraints.”
OHIO
OKLAHOMA
OREGON
FEB 8, 1979
YES
“for the specific and exclusive purpose of proposing an
amendment to the Federal Constitution requiring in the
absence of a national emergency that the total of all
Federal appropriations made by the Congress for any fiscal
year may not exceed the total of all estimated Federal
revenues for that fiscal year;”
PENNSYLVANIA
—
NO
Rescinded
SOUTH CAROLINA
STATE APPLICATIONS FOR ARTICLE V CONVENTION
TO PROPOSE A BALANCED BUDGET AMENDMENT
ConventionofStates.com info@conventionofstates.com 540-441-7227
Support the only solution that is as big as the problem.
Sign the petition at ConventionofStates.com.
DATE PASSED
OPERATIVE
LANGUAGE
STILL
PENDING?
2015
YES
“limited to proposing an amendment to the Constitution of
the United States requiring that in the absence of a national
emergency the total of all Federal appropriations made by
the Congress for any fiscal year may not exceed the total of
all estimated Federal revenues for that fiscal year, together
with any related and appropriate fiscal restraints.”
—
NO
Rescinded
MAR 10, 2014
YES
“limited to proposing an amendment to the Constitution of
the United States requiring that in the absence of a national
emergency the total of all Federal appropriations made by the
Congress for any fiscal year may not exceed the total of all
estimated Federal revenues for that fiscal year, together with
any related and appropriate fiscal restraints.”
MAR 15, 1979
YES
“for the specific and exclusive purpose of proposing an
amendment to the federal constitution requiring in the
absence of a national emergency that the total of all federal
appropriations made by the congress for any fiscal year
may not exceed the total of all estimated federal revenues
for that fiscal year;”
2015
YES
“limited to proposing an amendment to the Constitution of
the United States requiring that in the absence of a national
emergency the total of all Federal appropriations made by
the Congress for any fiscal year may not exceed the total of
all estimated Federal revenues for that fiscal year, together
with any related and appropriate fiscal restraints.”
SOUTH
DAKOTA
TENNESSEE
TEXAS
UTAH
2017
NO
“limited to proposing an amendment to the Constitution of
the United States requiring that in the absence of a national
emergency, including, but not limited to, an attack by a
foreign nation or terrorist organization within the United
States of America, the total of all federal appropriations
made by the Congress for any fiscal year may not exceed the
total of all estimated federal revenues for that fiscal year,
together with any related and appropriate fiscal restraints.”
VIRGINIA
WYOMING
STATE APPLICATIONS FOR ARTICLE V CONVENTION
TO PROPOSE A BALANCED BUDGET AMENDMENT