Push in Maine Legislature could lead to U.S. Constitution rewrite

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A pair of resolutions under consideration by the Legislature that lift much of their wording from model bills written by a secretive, corporation-funded group could help lead to a radical rewriting of the U.S. Constitution.

The resolutions seek to add Maine to the list of states that have called for the convening of a constitutional convention for the first time since the Constitution was drafted in 1787. Maine would become the 29th state to endorse the most successful of the two measures, which would put the effort just five states short of the 34 required to convene a convention under Article V of the U.S. Constitution at which delegates could set about amending the document in any way they wished, regardless of the purported purpose for which they had convened. The other state legislatures passed their resolutions over the past four decades, and there is no time limit to reach the required number.

Both of the bills were introduced by Rep. Nathan Wadsworth, R-Hiram, the Maine state co-chair of the American Legislative Exchange Council, or ALEC, an organization funded by corporations and conservative donors that allows businesses to write legislation and give it to state lawmakers to introduce at home. Each borrows much of its wording – often word for word – from ALEC’s model bills.

“These proposals are nakedly political,” said Arn Pearson, executive director of the Center for Media and Democracy, a Wisconsin-based nonprofit that tracks ALEC. “Republicans are at a high-water mark in their control of state legislatures, and they see this as an opportunity to make sweeping changes in how the government works.”

Wadsworth, who last year introduced another ALEC-modeled bill to prevent municipalities from building their own broadband networks, did not respond to interview requests. His effort closely resembles one last year when other legislators introduced another ALEC bill to convene a constitutional convention.

TWO CONVENTION DRIVES

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One of his current bills – H.P. 1251 – claims to limit the convention’s proceedings to the passing of a balanced-budget provision and has been adopted by 28 state legislatures. It received a little-noticed public hearing Feb. 21 before the Legislature’s Committee on State and Local Government, which is considering whether to endorse its passage by the full Legislature.

“For decades the American people have been demanding to restore our dysfunctional federal government by imploring Washington to manage their budget as most families do by balancing what they spend with what they earn,” Wadsworth testified before the panel.

One other lawmaker, Rep. Paula Sutton, R-Warren, testified that although she is a fiscal hawk, she did not think the effort would work in practice. Three people emailed their opposition to the bill, one their support, and one Maine resident appeared in person in favor.

Wadsworth’s other bill – H.P. 1232 – seeks to convene a convention that would be limited to enacting a constitutional amendment for congressional term limits. The same panel voted 7-5 to recommend it not pass, but because the vote was not a unanimous, the measure will likely receive a floor vote.

At that bill’s Feb. 14 hearing, Wadsworth used almost identical language to promote it. “For decades the American people have been demanding to restore our dysfunctional federal government by imposing term limits on Congress,” he testified. “Career politicians have dominated Congress for decades and it has prevented Congress from being what the Founders intended, the branch of government closest to the people.”

Opponents of the effort expressed alarm that Maine lawmakers might pass the balanced-budget version, because it would put proponents within striking distance of actually enacting it.

Critics fear that, once convened, a convention – where most delegates would likely be appointed by Republican governors and lawmakers, and each state would presumably have an equal vote, regardless of population – would be used as a vehicle to do an end run around the three branches of government to remake the country on a laissez faire footing, with minimal federal regulations, spending or taxes.

At a mock convention held in Williamsburg, Virginia, in 2016 and attended by state Sen. Garrett Mason, R-Lisbon, and 149 other state legislators from all 50 states, delegates passed an amendment that allowed any federal law, regulation or executive order to be vetoed if disliked by three-fifths of the states, a metric that could allow the Clean Air Act, the Affordable Care Act or the national immigration system to be toppled by a group of states constituting just over a third of the nation’s population.

Two other measures required a two-thirds majority in each House of Congress to increase the debt or impose taxes, but not to cut spending or taxes, a combination that would almost certainly result in a prompt dismantling of entitlements and social spending. The conventioneers – whose work has been touted by ALEC and other supporters of the Article V effort – also repealed the 16th Amendment, which allows the federal government to use income taxes for national priorities, rather than only in the states in which the taxes are collected, and rewrote the Commerce Clause “to its original meaning,” limiting congressional regulation to trade between states.

“If Maine passes this, then they have more than enough opportunities to get the rest on board, because there are six legislatures still out there that are fully controlled by the GOP,” said Jay Riestenberg, a strategist at Common Cause, a Washington-based watchdog group. “And if they can pass it in a purple state like Maine, that would really add fuel to the fire, build the pressure on those other states and be really dangerous.”

The Maine measures require a two-thirds majority to be approved, so they would require significant bipartisan support.

WARNING: ‘RUNAWAY CONVENTION’

Many constitutional experts have expressed deep concerns about anyone ever convening a convention under Article V, primarily because the Constitution offers little guidance as to how the convention would be conducted, including how delegates would be selected and how one would limit the scope of proposed changes once the meeting was convened.

In 2014, the late, staunch conservative Supreme Court Justice Antonin Scalia said he would never want to see an Article V convention held. “Whoa!” he explained. “Who knows what would come out of it?”

In a 1988 letter to conservative activist Phyllis Schlafly, retired Chief Justice Warren Burger also expressed opposition. “There is no effective way to limit or muzzle the actions of a constitutional convention,” he wrote.

Richard H. Fallon Jr., a constitutional law professor at Harvard University and alumnus of Augusta’s Cony High School, argued that state resolutions cannot place ironclad restraints on convention delegates. “The Constitution allows for the calling of conventions on a petition of enough states, but not limited conventions of enough states,” he told the Portland Press Herald. “If the delegates decide they don’t want to be bound by the (state) resolution, they are right that they can’t be bound.”

ALEC’s director for international relations and federalism, Karla Jones, disagreed, arguing that if delegates passed amendments that were outside the scope of the states’ instructions, they would be illegitimate and subject to rejection by Congress, states and courts.

A DEMOCRATIC DEFENDER

Both of Wadsworth’s bills are co-sponsored by a Democrat, Rep. Stephen Stanley of Medway, who also introduced a similar bill in 2017 that called for a open-ended constitutional convention.

In an interview, Stanley repeatedly said that because the Founders had included such a provision in the Constitution, it ought to be used to address the country’s problems.

“Our forefathers drafted the Constitution for a purpose down the road: If something happened you could call a convention and sit down and talk principles,” he said. “And we states have lost a lot of power to the federal government and thus (a convention) provides the states an opportunity to put out what should be out there.”

Asked whether he was concerned about the possibility of a “runaway convention,” Stanley said he was. “That has been a concern, but just like anything else, you can make what you want to make out of it and do what you want to do – basically the convention can do whatever they want,” he said. “There should be some discussion about some of this stuff (to ascertain) what the convention is going to do.”

Asked how he had come to be a co-sponsor of multiple ALEC bills over the past year, Stanley didn’t provide a clear answer. “I don’t know – you’re asked to sponsor a bill and you do it,” he said.

While ALEC claims to be a nonpartisan professional association for state legislators, virtually all of its funding comes from its corporate members – which include major energy, drug, mining, telecommunications and chemical companies – or private donors. The organization does not disclose the identities of the more than 1,700 state legislators who are members, but documents leaked to Common Cause showed that in 2011 they included Mike Thibodeau, R-Winterport, who is now president of the Maine Senate, and state Sens. James Hamper, R-Oxford, and Brian Langley, R-Ellsworth. Sen. Andre Cushing, R-Newport, a longtime state co-chairman, sits on the organization’s national board of directors.

Each state has a legislator and a private-sector representative who serve as co-chairs. An ALEC spokeswoman, Anna Tarnawski, confirmed that Wadsworth succeeded Cushing as Maine’s legislative co-chair in December 2016, but would not say who the other co-chair is. In 2011, that position was occupied by Ann Robinson, a corporate lobbyist who served as Gov. Paul LePage’s regulatory reform adviser while simultaneously representing her clients.

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