There seems to be only one point of consensus in the debate over Wisconsin joining an effort to add a balanced budget amendment to the U.S. Constitution: that nobody agrees on anything. For starters, even the name and nature of the mechanism to be used to accomplish this goal is in dispute(as is the goal itself, but more on that later). Are Wisconsin Republicans attempting to join 29 other states (34 are needed) in a call for a “Convention of The States,” or a “Constitutional Convention?” This is far more than a matter of semantics. Critics on both the right and left claim a Constitutional Convention would open the entire founding document of the United States to revision. Advocates say they are calling for a “Convention of the States” and law requires that such a gathering be limited to a specific amendment request or requests.
Republican State Senator Chris Kapenga, a driving force behind the effort to have Wisconsin become one of the 34 states needed to call the convention, told Media Trackers Friday there are “false rumors being spread that the constitution allows a convention to again rewrite the Constitution, which is considered a constitutional convention.” Kapenga says the framers of the Constitution worded Article V specifically so any future conventions were limited to an amendments convention. “So that’s where the confusion is, if you look at the history and the facts it would be impossible and illegal for us to do a re-write of the constitution.”
Despite the assurances of Kapenga and others, pundits on both the left and the right say the threat of a constitutional overhaul is real. The Milwaukee Journal-Sentinel has published several cautionary opinion pieces warning of the dangers of exposing the Constitution to a potential rewrite. One of them was from conservative columnist Christian Schneider. Schneider argues that conservatives should be plenty worried about a convention:
But cracking open the Constitution in 2017 could be as horrifying as when the Germans cracked open the Ark of the Covenant at the end of “Raiders of the Lost Ark.” Once you’re inside, there’s no telling what you’ll find. As the late Supreme Court Justice Antonin Scalia once counseled, “I certainly would not want a constitutional convention. Whoa! Who knows what would come out of it?”
That’s because no matter how many promises conservative convention enthusiasts make, there is no way to limit the scope of any convention that is called. Article V provides no mechanism for reining in the topics of a convention — once you’re in, the full menu is available.
Among liberals, this stokes fear of a “runaway convention” where the Koch brothers sit at a table and rewrite the Bill of Rights.
But it’s conservatives who should be worried.
While a balanced budget amendment could garner enough public support for passage, Republicans would put at risk all the other existing amendments that have defined America for centuries. Just within the past three years, Senate Democrats introduced a proposed amendment that would have drastically altered the freedom of political speech provided by the First Amendment. A recent Pew poll found that 40% of Americans between the ages of 18 and 34 thought “offensive” statements made in public should be outlawed. Do we really think the First Amendment needs “updating?”
In fact, no less than conservative icon, the late Supreme Court Justice Antonin Scalia, expressed concern about the prospect of convention.
The next point of contention is where legislative leadership is on the Wisconsin effort to join the call for a convention. It was reported Friday that Senate Majority Leader Scott Fitzgerald and Assembly Speaker Robin Vos are at odds over the issue. Several outlets reported that Fitzgerald “put the brakes” on Wisconsin joining the effort and that Vos favored it. Kapenga told Media Trackers that it’s a mischaracterization of what happened Thursday to say Fitzgerald “put the brakes on it.” As the Wisconsin State Journal reported:
Fitzgerald, R-Juneau, said Thursday that senators are not yet “up to speed on implications” of the Republican-backed proposals. His comments came just minutes after a Senate committee voted along party lines to advance the measures.
Fitzgerald says backers need to walk senators through what the measures would do and “we’ll see if there is momentum.”
Fitzgerald says he has questions about the scope of what a constitutional convention would look like.
Kapenga told Media Trackers that what is happening with the bill is standard operating procedure:
“Senator Fitzgerald said ‘we newly just passed this out of executive committee on Thursday. So we passed it out and all the Republicans on the Senate committee voted for it. So what happens now is we go through the process of discussion in caucus, and then we bring it to the floor, which would be a May floor session.
So the question is why isn’t it coming up on the calendar (for a vote) this Tuesday. Well the reason is that we haven’t had a chance to talk to the caucus yet. So, that’s, again, the story seems like it’s been twisted, so oh, all of the sudden the Senate is not going to pass it.
Well, we have to have that discussion, because, as you know, this is amending the Constitution of the United States, and the senators want to make sure they have all the facts in front of them…Do you know what would have happened if they would have scheduled it for Tuesday, do you know what the headline would have been? Senate rushes and jams this through in the middle of the night.”
Meanwhile, there are some in Wisconsin who support the idea of a convention of states who do not support the effort Kapenga champions. Joanne Laufenberg, the State Director of Conventionofstates.com, would rather see Wisconsin join a separate convention effort:
“We’ve been asking for them to introduce and pass our legislation that has passed in ten states before now. It’s three pronged: fiscal restraint, limiting the scope and jurisdiction of federal government, and term limits on federal officials. As we understand it, there aren’t many calls for asking for a balanced budget amendment.”
As for concerns the convention could exceed its intended scope, Kapenga doesn’t doubt there are those who would attempt to make mischief:
“Let’s say somebody goes to this convention that’s called…and does something that’s outside their legal authority, they are breaking the law. We have a law that rides along with our bill, that makes it specifically clear that you are breaking the law of the state of Wisconsin, if you discuss and vote on things that are not within the scope of things that we are sending you there for.”
The next month or so will determine if Kapenga and other supporters of the effort can convince enough Republicans that those safeguards are enough to protect the Constitution from a wide-open convention that could drastically change the document upon which our nation is founded.
You can hear our entire interview with Kapenga here: