Monday, September 19, 2016

Congress Nears 34 AVC Count

Article V Convention (AVC):

Article V of the U.S. Constitution: The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

In a May 24, 2016 press release Indiana Republican Congressman Luke Messer announced the submission of a historic piece of Legislation in Congress. After being signed into law H.R. 5306 will create the first official list of State Article V Convention applications in United States history.

The bill enjoys wide bi-partisan support in Congress. Supporters include: Rep. Jared Polis (D-CO); Rep. Dan Lipinski (D-IL); House Republican Conference Chair Cathy McMorris Rodgers (R-WA); the Judiciary Subcommittee Chair on the Constitution and Civil Justice Trent Franks (R-AZ); the Rules Subcommittee Chair on the Rules and Organization of the House Steve Stivers (R-OH); Rep. Bradley Byrne (R-AL); and Rep. John Ratcliffe (R-TX).

In 2015 Congressman Stivers introduced a rule change in the House of Representatives (House Rule Section 3c) which created a collection of Article V Convention applications through the House Judiciary Committee but not an official list. This was the first time in United States history Congress created any process for counting State applications. Before the rule was implemented, the official count of State applications by Congress stood at zero. In the two years since rule was instigated the Committee has managed to gather 37 applications.

According to the FOAVC website, which, for the first time in U.S. history gathered the State applications into a single list in 2008-09, as of May 28, 2016, 49 states have submitted 573 applications to Congress dating back to 1789. At its current rate of collection, the Judiciary Committee will require 30 more years to gather all the applications into a single list assuming the rule is renewed by the House at the beginning of each new session of Congress, by no means a certainty. Congressman Messer’s Legislation creates a permanent solution to the issue of cataloging Article V applications by formalizing the process under Federal law and creating a process whereby the applications will be gathered by the National Archives and Record Administration (NARA) from its archival records in two years.

According to Congressional Research Service (CRS) report R42592 (July 10, 2012), “Between 1973 and 1992, 22 bills and resolutions to enact Congressional procedures that would be implemented in response to a successful call for an Article V Convention were introduced in the House of Representatives, while 17 were introduced in the Senate.” Not one of the proposed Legislation contained any procedure to collect the State applications and create an official Government list of applications in order to serve as the official basis for a Convention call. Without such a provision not one of these proposed Legislations could actually cause a Convention call to occur because there was no official basis for Congress to make a Convention call. As a result of this oversight by Congress, throughout U.S. history, a total chaotic mess of hundreds of applications has been allowed to accumulate in the files of NARA making them Constitutionally useless.

The CRS report also stated, “Congress has addressed the convention issue with study and legislative proposals in the past, particularly in the 1970s and 1980s, when it seemed possible that enough states would petition for a convention to consider a balanced budget amendment.” The absolute need for an official list becomes bluntly obvious when it is realized according to officials records of Congress (which were used by FOAVC to create its list and are available to Congress at all times) the states have already submitted sufficient applications to cause TEN convention calls and in so far as a balanced budget amendment is concerned sufficient applications to cause a Convention call were reached in 1979.

The major difference between Congressman Messer’s bill and previous proposed Legislation is Congressman Messer’s bill requires NARA to gather the applications from its files, an action NARA has previously refused to do. Congressman Messer requested for NARA to voluntarily produce the necessary application list but were refused late last year. NARA asserted its interpretation of Federal law as well as bureaucratic inconvenience as the basis for refusing to permit Congress to obey the Constitution.

In its basic form the official list will resemble the FOAVC list. Like the FOAVC list it will be published on the Internet through the two judiciary Committees of Congress. The electronic list will present textual copies of the applications just like the FOAVC list. Under the terms of the proposed Legislation NARA is obligated to use all means to locate all “missing” applications not found in the NARA files but which evidence shows do exist. Such evidence of course includes any application showing on the FOAVC list or in State records. The bill requires NARA to submit a report to Congress to explain “why” official State applications sent from State Legislatures to Congress could be missing from Government files.

Of course Congress cannot know how this will all officially play out when the list is completed two years after enactment but everyone, including Congress, already knows because of the FOAVC list. Thus the FOAVC list becomes a checklist for the Government. This checklist also means NARA will be able to proceed at a much faster pace to complete the task assigned them meaning it may take less than two years to complete. The FOAVC list gives the date and location of the State application in the Congressional Record meaning NARA will know where to look in its files. Hence, knowing which box to open will speed the process immensely.

Preparing this proposed Legislation was not an easy achievement. Congressman Messer and his staff was working since last October to bring about this widely supported Legislation. While the scope of the bill is quite narrow—creation of an official list of applying states and the date they applied, it still required countless hours of work to create its few pages. As with all Legislation, contrary to popular belief, proposed Congressional laws are read repeatedly and parsed literally by the word if necessary by numerous individuals in Congress in order to produce the exact intent and purpose of the proposed law.

Compromise is always the word with Congress which is why many have said whenever someone wants a piece of Legislation proposed in Congress they must be prepared to accept not getting all that they set out to get.

Nearly all of the major Article V interest groups and several individuals in the Article V Convention movement have come together to support this bill. This really is no surprise. Without an official list there can never be a Convention call.

The mainstream press and the ever present opposition to an Article V Convention, the Eagle Forum and the John Birch Society (JBS) all has thus far been silent.

Besides a letter of support from FOAVC, Congressman Messer has received letters of support from the American Legislative Council (ALEC), the Assembly of State Legislatures, Compact for America, Compact for a Balanced Budget, Lawrence Lessig, Professor of Law, Harvard Law School, and Robert Natelson.

As of August 20, 2016, the Committee's official list shows 29 Applying States. So-called Rescissions do not count as no provision in the Constitution allows States to rescind applications. Further, Federal law prohibits removal of Federal records by Federal officials. Therefore the Committee has already collected sufficient applications to cause a Convention call. Indeed the full public record of State applications shows the States have submitted sufficient applications to cause TEN Convention calls. Based on the total number of applications in the public record and the fact the Committee posts approximately 12 new applications about once a month, the magic “34” applications, or two thirds of the State Legislatures needed to cause Congress to call a Convention should be reached in two to four weeks regardless whether so-called "Recessions" are counted or not.

For example, the public record shows that in 1979, Seven States: Colorado, Maryland, New Mexico, North Carolina, Indiana, Washington, and Iowa, submitted applications for an Article V Convention.

Between the years 2016-1973 the current range of the Committee count, the Committee has failed to record 124 applications thus far showing in the public record. These 124 applications not counted by the Committee include all of the states in the Union except for California, Connecticut, Hawaii, Illinois, Kentucky, Maine, Montana, New York, Ohio, Rhode Island, Vermont and Wisconsin, a total of 12 states leaving 38 states. Thus, it is mathematically impossible that the Committee cannot discover the remaining necessary applications except by deliberate device.

On September 12, 2016: The House Judiciary Committee released its latest count of applications. The count included the State of New Mexico bringing its count to 30 States. It is likely the Committee will shortly record the 2016 application from West Virginia bringing the total number of applying states to 31 States. The Committee appears to have skipped the year 1979 in its tabulations but when counted will easily raise the number of applying States above the required 34 applying States required by Article V of the Constitution to cause a convention call.

CLICK HERE for more information about Friends Of the Article V Convention (FOAVC).

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