Bloomberg: Obscure Rule Change Made in House May Ease Way for Constitutional Convention

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By Jonathan Nicholson

A little-noticed change in the rules of the House may make it easier to change the U.S. Constitution to require a balanced federal budget.

The change centers on Article V of the Constitution, which governs the amendment process. Aside from the usual process of a constitutional amendment getting the approval of two-thirds of each chamber of Congress before being sent to the states for ratification, two-thirds of the states can also petition Congress to force it to convene a constitutional convention for proposed amendments. Amendments from such a convention would still have to be ratified.

All 27 of the constitutional amendments enacted so far have proceeded only through the first method and no convention has ever been called. But the change in the House rules may make it easier for states to call a constitutional convention to use the second, as-yet-untested, method of modifying the Constitution.

Inserted at the behest of Rep. Steve Stivers (R-Ohio) and adopted with H. Res. 5 on the opening day of the 114th Congress, the rule change made Jan. 6 requires any requests from state legislatures calling for a constitutional convention to be made publicly available by the Clerk of the House, organized by state and year of receipt. The change also requires the chairman of the House Judiciary Committee to formally designate a request, called a "memorial," from a state received in the 114th Congress, or, optionally, in the past, to be listed by the clerk.

"I am pleased my colleagues supported my addition to the House Rules this week," Stivers said in a statement Jan. 8. "I believe a balanced budget amendment is the only way to stop out-of-control government spending. I hope the passage of this rule will put us one step closer to fiscal responsibility and the inclusion of the BBA in the United States Constitution."

Focus on Franklin and Jefferson

Notably, Stivers is from Ohio, where its Legislature in November 2013 passed a call for a constitutional convention to consider a balanced budget amendment to the Constitution. Ohio Gov. John Kasich (R), who once headed the House Budget Committee, has also pushed for a balanced budget amendment.

"Just think about a convention," Kasich said in a televised interview on "Fox News Sunday" on Jan. 25. "If we would go to a convention instead of kids focusing on Justin Bieber and Tom Brady and deflated footballs, maybe they would start thinking about Ben Franklin and Jefferson and Madison and Monroe and we can renew our country. This is not a new thing for me. I have been pushing this since I was 27 years old and I'm going to keep pushing it."

Stivers advocated for the change by saying it would help Congress to better track Article V efforts and that, prior to the change, there was no formal process for cataloging petitions.

The part of the Stivers rule allowing the chairman of the House Judiciary Committee to designate which requests are indeed memorials, regardless of when they were received, is potentially important, as it could determine whether Congress has received the 34 state petitions required by the Constitution.

An April 2014 report by the Congressional Research Service said the passage of requests by state legislatures in Ohio and later Michigan for consideration of a balanced budget amendment could be seen as meeting the 34-state threshold, but only if requests were assumed to both last indefinitely once passed and decisions by later legislatures to rescind requests, as has happened in some cases, were themselves unconstitutional.

"To summarize, if applications are valid indefinitely and rescission is unconstitutional, then the constitutional threshold for an Article V Convention has arguably been reached. If applications have a limited life span and/or rescission is constitutional, then the threshold has not been attained," the CRS said.

The CRS report said that among the unresolved issues of a modern day constitutional convention would be how wide its scope would be. One possibility, it said, is a "runaway convention" that would move beyond a limited scope originally set for it. On the other hand, the report said a convention set only to consider a specifically-worded amendment would probably be seen as being too narrow in scope compared to what the Constitution intended.

No Worry on "Hypothetical' Amendments

Don Wolfensberger, a congressional scholar at the Woodrow Wilson International Center for Scholars and a resident scholar with the Bipartisan Policy Center, said many details of any constitutional convention remain unclear.

However, he said both a balanced budget amendment and a convention itself could have unintended consequences. A budget amendment that didn't take into account whether to run deficits in times of wars or recession could be too rigid, for example.

Asked if a constitutional convention could be seen as playing with fire, Wolfensberger said, "It could be. It would if Congress doesn't agree to setting limits to one purpose."

Rob Nichols, press secretary for Kasich, dismissed such concerns. "We see an $18 trillion federal debt as a far greater threat to the stability and future of our nation than some hypothetical amendment that may or may not be offered, but that would require 38 states to ratify," Nichols said.

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