Senator Feingold Has Constitutional Opportunity

Like others promoting constitutional amendments, Senator Russ Feingold, Democrat, Wisconsin, apparently is unaware of the refusal by Congress to obey Article V of the Constitution. He has a fine idea: every senator must actually be elected rather than appointed to that position. In 1913 the 17th amendment created the potential for governors to make appointments to fill Senate seats until the next regular scheduled general election and 38 states allow this; there have been 185 such appointments. Feingold is right to condemn “decisions being made solely by the powerful, without the consent, or even the input, of the people.”

Congress is unlikely to propose the desired new amendment, however. All of the existing constitutional amendments were proposed by Congress. But many worthwhile ones have never been proposed and sent to the states for ratification. There is an alternative. Article V provides a convention route for proposing amendments. Interest in amendments has triggered over 700 applications from state legislatures to Congress for a convention of state delegates that could propose constitutional amendments. However an amendment is proposed, it still must be ratified by three fourths of the states and the constitutional limitations on Congress limiting it to propose amendments to our present constitution equally apply to a convention.

Senator Feingold and his amendment supporters from both parties, including Senators John McCain and Richard J. Durbin, Representatives James Sensenbrenner and David Dreier, and House Judiciary Committee Chairman John Conyers, Jr., know how difficult it has been for Congress to have the courage to propose amendments that could provide needed government reforms despite wide public support, such as a balanced budget amendment and one replacing the Electoral College with direct voting for the president.

Sadly, few Americans know that Congress has stubbornly refused to obey Article V and honor the fact that the one and only stated requirement to have a convention, namely that two-thirds of state legislatures apply for one, has long been satisfied by a huge margin with over 700 applications from all 50 states. It sounds a little nutty to say that Congress has been able for a very long time to get away with violating the Constitution and their oath of office to obey it. But that is exactly what has happened. The Supreme Court even turned down an opportunity to make Congress obey Article V. As a matter of public record, the government in that lawsuit did not dispute the fact that the single constitutional requirement was met. Nor did it dispute that members of Congress had violated their oath of office.

One reason why Congress has gotten away with this is that it has never established a system to collect and make publicly available all state applications. Out of sight has made it easy for politicians, the media, watchdog groups, academics and the public to remain ignorant of the congressional disgrace. Even more ridiculous is that states keep submitting applications for a convention as if more are needed, oblivious to the fact that they have just kept piling up and ignored by Congress. Even now there are efforts in several states to get a convention because of interest in some other types of constitutional amendments. Rather than expend energy on particular amendments what is critically needed is a focus on getting Congress to obey the Constitution and immediately call the first convention. Like many Supreme Court decisions, the inaction by Congress is an illegal form of changing the Constitution.

State applications have been buried in the voluminous Congressional Record over the history of our country. Finally, a private national, nonpartisan group spent its own money to find, collect and copy these hundreds of state applications for a convention and make them readily available. People can access them at www.foavc.org the site of Friends of the Article V Convention that has the single mission of making Congress obey the Constitution and call the first convention; it does not advocate for any specific amendments.

So, please Senator Feingold, as a true reformer and chair of the Senate's Constitution Subcommittee of the Judiciary Committee, take the opportunity to address the disappointing and nasty illegal behavior of Congress. Even more disturbing than people becoming senators without being elected to that high office, something impermissible for House Representatives, is this violation of Article V. Please shift your attention to getting Congress to call the first Article V convention by introducing a joint resolution demanding that action. This would require only a simple majority vote in both houses, in contrast to the two-thirds majority needed for a joint resolution proposing an amendment.

Also, implore President Obama, a former constitutional law professor, to publicly support making Congress, finally, obey the Constitution. This is surely a case of better late than never. For more than empty lip service to the principle that no one is above the law Congress must obey the supreme law of the land and honor the Article V provision for the convention option. This is necessary for credible, law-abiding American democracy. Justice demands this. Without fixing this problem there is even more reason for citizens to have little confidence in Congress and government as a whole.

[Contact Joel S. Hirschhorn through delusionaldemocracy.com. He is a cofounder of Friends of the Article V Convention.]