Our campaign finance laws can't be solved by a constitutional convention

Our campaign finance laws can't be solved by a constitutional convention
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It’s flown under the radar, but at a time when the nation’s commitment to democracy seems under attack, a growing effort from groups on the right and the left to open up the U.S. Constitution to changes, including radical ones, has taken hold.

In the last several years, a number of states have passed resolutions calling for a constitutional convention to propose amendments to our nation’s founding document. One such effort — to adopt a constitutional requirement for a federal balanced budget — claims to have resolutions from 28 of the 34 states needed for a convention. Other groups are urging a convention to approve an amendment to address problems caused by the Supreme Court’s Citizen United decision on campaign finance.

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As someone who has advocated to strengthen campaign finance laws for more than 45 years, I cede to no one in the depth of my concerns about our current destructive campaign finance system. The fight over calling a constitutional convention, however, is not a fight about any single amendment or fundamental issue. It is a battle to preserve the whole Constitution — our foundational charter.

 

More than 225 national, state, and local organizations, including Democracy 21, are opposing this effort. We believe that calling a new constitutional convention under Article V of the U.S. Constitution is a threat to every American’s constitutional rights and civil liberties and a descent into entirely new, scary territory for our nation.

A convention held today would be radically different from the first and only convention in our history — the one held by our Founding Fathers in 1787 to propose amendments to the Articles of Confederation. It’s worth noting, during that convention, the delegates threw out the Articles and wrote a whole new Constitution instead. We won’t be dealing with the extraordinary foresight of such founders as George Washington, Benjamin Franklin, James Madison and Alexander Hamilton today — they will not be available to serve as delegates.

In fact, it’s not entirely clear who would serve, or what they’d vote on. There are no rules for the functioning of a constitutional convention or setting its agenda. The convention’s delegates have all the power to select a convention’s decision-making process and its voting system, among everything else, and there is no way to set binding rules in advance.

Moreover, the convention’s very nature would run counter to the aims of those wishing to call a convention to address campaign finance. Since there are no convention-specific campaign finance rules, vast amounts of money from wealthy donors, corporations and special interest groups could influence the selection of delegates, the amendments that are considered and the ensuing votes on proposed amendments.

As for what could come out of it? Harvard Law professor and constitutional scholar Laurence Tribe has stated that once a constitutional convention has been called, “the whole Constitution (is) up for grabs.” The late Supreme Court Chief Justice Warren Berger held the same view, stating, “There is no way to effectively limit or muzzle the actions of a Constitutional Convention. The Convention could make its own rules and set its own agenda.” The USA TODAY editorial board has deemed a potential convention “an invitation to constitutional mayhem.”

Calling a convention today would jeopardize individual rights and protections embodied in the Constitution — civil liberties, civil rights, privacy rights, freedom of the press, freedom of religion and freedom of speech, among many others. The separation of powers would also be at risk, as would the separation of church and state.

A constitutional convention would wreak havoc in the country. It would open up the nation’s charter to unlimited changes and endanger fundamental rights during a period of excessive polarization and partisanship. While any amendments proposed by the Convention would need ratification by three-quarters of the states, the convention and its aftermath would be highly disruptive and tie the country in knots for years.

And if things seem polarizing now, just wait. There could hardly be a recipe for greater national dysfunction than a convention on our nation’s foundational document.

Fred Wertheimer is president of Democracy 21, a nonprofit that works to eliminate the undue influence of big money in American politics.