Runaway federal spending and congressional gridlock have prodded some state lawmakers to consider something that hasn’t been done since 1787: Call a convention of states to alter the U.S. Constitution.
“It’s kind of a Hail Mary, but we are at that point with the federal deficit and a number of other issues. The federal government just doesn’t work anymore,” Senate Majority Leader Shane Massey of Edgefield told Statehouse Report, Charleston City Paper‘s sister publication. “I know it’s a radical thing to do, but we’re in a radical period.”
Over the decades, there have been multiple attempts to call a convention of states, which is one of two ways the Constitution can be altered. The other way is by two-thirds vote by Congress and the U.S. Senate. Both methods require ratification by the states.
But not everyone thinks changing the Constitution is a good idea.
“In this climate of hatred and racial intolerance, it scares me about what might happen as a result,” Orangeburg Democratic Rep. Gilda Cobb-Hunter said.
The latest effort has been tied to conservative groups, such as the American Legislative Exchange Council (ALEC), and has so far seen 15 states ratify a convention of states provision. Twenty one more have legislation pending, including South Carolina, according to a website advocating for a convention. Thirty-four states need to ratify a call for a convention of states.
Several bills proposing a convention of states made progress this week in the S.C. General Assembly. A Senate Judiciary subcommittee took more than two hours of testimony last week from witnesses, all supporting calling a convention, and the House Judiciary recalled a similar proposal from subcommittee, slating it for full committee discussion.
A second testimony-gathering Senate panel is expected, but has not been announced.
“If there is anybody who wants to be heard, we want to hear them now,” said Great Falls Democratic Sen. Mike Fanning, who serves on the Judiciary panel.
But constitutional experts say it does not matter why a state calls a convention. Such conventions cannot be limited by state desires and could open a can of worms that change existing constitutional protections.
“A convention likely would be extremely contentious and highly politicized, and its results impossible to predict,” Michael Leachman and David A. Super wrote for the Center on Budget and Policy Priorities in 2017. “A convention could write its own rules.
“The Constitution provides no guidance whatsoever on the ground rules for a convention. This leaves wide open to political considerations and pressures such fundamental questions as how the delegates would be chosen, how many delegates each state would have, and whether a supermajority vote would be required to approve amendments.”
Caskey said he’s not worried about a “runaway” convention.
“Even if you take the assumption that those arguments are correct you still can’t get around the problem that you have to adopt whatever is done,” he said, adding that he doesn’t think anything too extreme could pass with 34 states ratifying changes.
House Majority Leader Gary Simrill (R-Rock Hill) said he supports the proposal, though he is not a cosponsor. He said he has worked behind the scenes to help prepare the proposal for committee and, hopefully, floor debate.
Cobb-Hunter sided with the constitutional experts.
“I oppose it because even though they claim it will be limited to what can be discussed the reality is that once you open it up … everything is on the table,” she said, adding that she recalled the Obama-era effort led by the tea party to call a convention of states. “Trust me when I tell you that in some communities in this state there may well be an interest in repealing the 13th, 14th, and maybe 15th amendments.”
The 13th Amendment abolished slavery, the 14th Amendment allows citizenship to those born in the United States, and the 15th Amendment establishes voting rights regardless of race or color.
Not all Democrats are opposed to the measure. Some have supported it, and others remain on the fence.
“At minimum, it’s worthy of debate by the Senate,” Fanning said. “There is a legitimate interest by a considerable number of people across all of South Carolina.”