Tag Archives: ALEC

A Constitutional Convention?

During the past couple of weeks, the subject of a Constitutional Convention has been raised twice: once during a question-and-answer session following a speech, and once via an email from a good friend. So it would seem reasonable to revisit the subject, and explain why I find that prospect–as proposed currently– horrifying.

Would it be possible to improve upon our centuries-old charter? Sure. We now see flaws that have emerged over the years, (If nothing else, there’s the Electoral College–a system used by no other country, for reasons that have become increasingly apparent…). If the idea of a reasonable review seems innocuous, however, we can be disabused of that conclusion simply by looking at the people pushing for a redo. The most prominent are ALEC (the far-Right American Legislative Exchange Council) and the Heritage Foundation. (Yes, the same Heritage Foundation that produced Project 2025.)

The goals of these and the other ideologues advocating such a convention are entirely inconsistent with the values of the U.S. Constitution and Bill of Rights.

Back in 2017, members of Indiana’s legislature were calling for such a convention, and I explained my opposition. As I wrote then, proponents clamoring for shortcuts to major change—revolution, a new constitution—always assume that the changes that ultimately emerge will reflect their own preferences and worldviews. History suggests that’s a naive assumption.

Indiana’s proponents wanted the state to join the calls for a Constitutional Convention. They claimed that a convention could be limited to budgetary matters–to devising “a framework for reigning in overspending, overtaxing and over-regulating by the federal government and moving toward a less centralized federal government.”

Constitutional scholars disagree with the assertion that such a convention could be limited to specified goals, but even if it could be, the specified matters would open a Pandora’s box. Think about it.

Wall Street bankers could argue that financial laws are “over-regulation.” One definition of “overspending” might be the massive subsidies enjoyed by (very profitable) U.S. oil companies; others might be Medicare or farm subsidies. Many Americans think we spend too much on the military; others target foreign aid. “Less centralization” could justify virtually any limitation of federal government authority, from FDA regulation of food and drug quality to laws against discrimination.

But the risk isn’t simply that a convention could rather easily be hijacked by people who disagree with the conveners about the nature and extent of needed changes. It isn’t even the likely influence of well-heeled special interests. The real danger is in calling together a presumably representative group of Americans and asking them to amend a document that few of them understand.

At the Center for Civic Literacy I founded at IUPUI (now IU Indy), we focused on the causes and consequences of what we’ve come to call America’s civic deficit. The data we accumulated was depressing. The last time I looked at survey results, only 36 percent of Americans could name the three branches of government, and only 21% of high school seniors could list two privileges that United States citizens have that noncitizens don’t. Etc. Even bright graduate students came into my classes with little or no knowledge of American history, episodic or intellectual. Most had never heard of the Enlightenment or John Locke. They certainly hadn’t read Adam Smith. A truly depressing percentage of undergraduates couldn’t explain what a government is, and they had no idea how ours operates. Separation of powers? Checks and balances? The counter-majoritarian purpose of the Bill of Rights? Blank stares.

Given the Trump administration’s current attacks on the Constitution and media attention to those attacks, those percentages have undoubtedly improved, but civic ignorance is still obviously widespread. Do we really want to turn over the task of rewriting our Constitution to people who don’t understand the one we have?

Common Cause has looked at the unanswered questions implicit in these calls for a convention–questions that lay bare the dangers involved: How will delegates be chosen? Will there be any limits placed on the role of well-funded special interests in influencing the selection of delegates? How will votes be allocated amongst delegates? One person one vote? One vote per state? Something else? What kinds of changes would the convention consider? Will the Convention start with the U.S. Constitution or write an entirely new document?

The civically-ignorant and clinically-insane megalomaniac who occupies the Oval Office is currently being restrained only by the existing U.S. Constitution, which he has clearly neither read nor understood. The likely result of a constitutional convention would be to empower him.

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Braun, Banks And ALEC

A reader has provided me with a copy of a letter sent by sitting Senators and Congresspersons–all Republican, so far as I could tell– to ALEC. ALEC stands for American Legislative Exchange Council. Among the signatories of that missive were Indiana culture warriors/Christian Nationalists, Mike Braun and Jim Banks.

The letter read in its entirety as follows:

Dear Founders, Leadership, Members, and Employees of the American Legislative Exchange Council,

We write to express our sincere congratulations as we commemorate the 50th anniversary of the American Legislative Exchange Council (ALEC). Since its inception in 1973, ALEC has remained a stalwart defender of limited government, free markets and a strong federalist system.

During its 50 years, ALEC has grown to become America’s largest voluntary membership organization of state lawmakers. Today, ALEC members represent more than 60 million Americans and provide jobs to more than 30 million people in the United States.

A true laboratory of democracy, ALEC enables lawmakers to share ideas and experiences with their peers from across the states and develops the most trusted policy solutions to the diverse challenges facing our communities.

We know that many of the critical policy questions of our time will be decided in the states: expanding educational opportunities for our children, unleashing principled entrepreneurship, protecting taxpayers, and lifting people out of poverty. As Members of Congress, we look to the states to inform our policy decisions. ALEC and its members provide us with valuable research and feedback which helps us build on previous successes or avoid unnecessary consequences.

Nearly 100 Members of Congress are ALEC Alumni, and they bring to Washington, DC the collaborative lessons they learned in their state legislatures. Noting that ALEC members adhere to the motto, “limited government, free markets and federalism,” ALEC Alumni in Congress work together to help make Washington more effective and accountable to the American people.

Finally, as we work to reduce federal regulations and interference in Americans’ everyday lives, we can confidently cede statutory power to the jurisdiction of the states, knowing ALEC members stand at the ready to lead the charge. We celebrate the generations of experience and success ALEC and its members have contributed at all levels of government, and we look forward to another 50 years of partnership in providing policy solutions for all Americans.

Here’s what Common Cause says about ALEC and those “trusted policy solutions:”

American Legislative Exchange Council (ALEC) is a corporate lobbying group that brings together corporate lobbyists and politicians to draft and vote — as equals and behind closed doors — on “model bills” that often benefit the corporations’ bottom line. These model bills, drafted without public input, are then introduced in state legislatures across the country, usually with ALEC’s involvement concealed. ALEC and ALEC-member corporations often pay for legislators’ travel expenses to go to ALEC conferences; when ALEC or the corporations are not paying for these so-called “scholarships,” the expense is often passed on to the taxpayers. ALEC lobbies on a variety  of issues, including taxes and budgets, climate change and the environment, workers’ rights and collective bargaining, healthcare, telecommunications policy, election laws, and education.

Common Cause has filed a “whistleblower” complaint against ALEC with the IRS, and provided evidence that the group has violated its tax-exempt status by operating as a lobby while claiming to be a charity.  (ALEC’s purported “charitable” status allows its corporate supporters to take the millions spent each year to support ALEC’s lobbying as tax deductions–meaning that we taxpayers are subsidizing that lobbying.)

After a raft of very unflattering stories about the organization emerged in 2011, a number of major companies left ALEC. Among those who remain are Altria, Koch Industries, UPS, FedEx, Pfizer, Duke Energy, Charter Communications, Comcast, and Anheuser-Busch.

I have written previously about ALEC–especially about its “leadership role” in gerrymandering, and in assisting the efforts of White Supremacists.The latter post quoted an article from The Guardian about a report by the Center for Constitutional Rights (CCR) and other civic organizations, charging ALEC with propagating White Supremacy.

In one of the sharpest criticisms yet leveled at the controversial “bill mill”, the authors warn that “conservative and corporate interests have captured our political process to harness profit, further entrench white supremacy in the law, and target the safety, human rights and self-governance of marginalized communities”

ALEC’s influence is sickening–but it shouldn’t be surprising. Braun and Banks–both endorsed by Trump–are full-throated devotees of and advocates for ALEC’s agenda.

Voters need to see to it that both of them are retired from public office in November.

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Another Looming Threat

Is it time to re-examine some aspects of the U.S. Constitution? Undoubtedly. Is it incredibly difficult to amend that document in today’s polarized political environment? Yes. Does the undeniable accuracy of those observations support the growing movement to convene a Constitutional Convention?

Absolutely not.

Every so often, a reader will remind me that there is a stealth movement by far-Right activists to call such a convention–a reminder that makes the hair on the back of my neck stand up, because the goals of those ideologues are entirely inconsistent with the values of the U.S. Constitution and Bill of Rights.

A recent article from the Intelligencer explained who those activists are and what they hope to achieve.

On a recent spring morning outside the Pennsylvania State Capitol, a group of activists gathered to terminate the Constitution. Around 100 people drove in to Harrisburg from all over the state, showing up clad in white T-shirts and buttons depicting an American flag that nests COS, short for Convention of States, in the star area. Claiming endorsements from the likes of John Eastman, Sean Hannity, and Ron DeSantis, COS is a deep-pocketed right-wing movement that is quietly campaigning for states to call a constitutional convention, the first since 1787. “The government is out of control,” said Roy Fickling, a construction-industry retiree sitting on the balustrade. “It’s the only way to stop them.”

Just after 9 a.m., Rick Santorum waded into the crowd to deliver a speech about the “complete destruction” of America and the urgent need for a convention to radically amend the nation’s supreme law. “This is an existential fight,” said the Republican former Pennsylvania senator who is now a COS senior adviser. “It’s not about politics. The people on the left do not want the same America as you do. This is about good and evil.” The crowd applauded. He then went on to talk about trans issues. “The reality is this is a moment where we need patriots, just like we did in 1776.”

This effort is marketed as a move to cure what these activists see as the most pressing problems of the nation: ballooning debt and a “tyrannical” federal government.

Article V of the Constitution lays out two amendment mechanisms. The first is the one with which we are familiar. It has been used successfully 27 times. Congress passes an amendment by a two-thirds vote in each chamber, and three-fourths of the states ratify it. The second process has never been used; it requires two-thirds of the states to pass resolutions calling for a convention where delegates from the states can propose amendments.

To anyone disheartened by congressional gridlock, Article V may seem like a seductive idea. While proposed amendments would theoretically also have to be ratified by 38 states, that is cold comfort to the legal scholars who see calling a convention as a constitutional crisis waiting to happen. “The only precedent is the Philadelphia convention from 1787, and they ended up junking the Articles of Confederation and writing a whole new constitution,” said David Super, a professor at Georgetown Law. So far, COS has won 19 states of the 34 necessary to force such a convention.

The last century saw three major Article V movements, two of which reached 33 and 32 states.

While the idea may seem too outlandish to catch on, so did others. The independent-state-legislature theory made it all the way to the Supreme Court. The Second Amendment was once viewed by legal scholars as a clause regulating militias.  Abortion was a constitutional right for half a century.

We live in unsettled times…

The article identifies Meckler–the head of COS– as part of a “vast web of billionaire-funded right-wing efforts pushing radical movements to consolidate power under the guise of populism.”

The article is lengthy, delving into the background of Meckler, who comes across as a talented con man. It documents his transformation from moderate Left to hard Right–a transformation that made him useful to right-wing donors and led in turn to COS.

Meckler pitched the idea to the American Legislative Exchange Council, a clearinghouse for conservative policy, which became a key proponent, and COS began racking up state resolutions in the South and endorsements from Marco Rubio, Mike Huckabee, and James O’Keefe. In 2016, COS hosted a mock convention, where over 100 state lawmakers adopted amendments that would, among others, repeal the income tax and allow a vote of 30 state legislatures to nullify federal laws. Critics of COS “actually said something truthful,” Meckler told Mark Levin, another supporter. “They said, ‘This is intended to reverse 115 years of progressivism,’ and we say, ‘Yes, it is.’”

The Convention of States is just one more threat–as if we needed another!– to the American Idea….

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An Idea Whose Time Has Definitely NOT Come

Periodically, I come across reports updating progress toward a so-called “Article V” Constitutional Conventions. The last time I looked, twenty-eight states had called for one; only thirty-four are needed.

I’ve shared my concerns about that movement previously–in mid-2014, in a column for the Indianapolis Business Journal, and again, on this blog,  in 2017. The major forces behind this effort to convene what proponents call an “Article V” convention are ALEC and the Koch brothers, which tells you pretty much everything you need to know about the motives of the proponents..

My original arguments against calling such a convention were rooted in history, which tells us that major changes in government rarely reflect the relatively benign and/or limited expectations of people who agitate for that change.

In this case, state lawmakers who favor a new constitutional convention argue that it would allow delegates to devise a framework for reigning in overspending, overtaxing and over-regulating by the federal government and would move the U.S. toward a less centralized federal government. Many of them insist that an Article V convention could be limited to consideration of those goals.

Warren Burger, former Chief Justice of the United States, begged to differ, writing

[T]here 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.  Congress might try to limit the Convention to one amendment or one issue, but there is no way to assure that the Convention would obey.  After a Convention is convened, it will be too late to stop the Convention if we don’t like its agenda.

But even if a convention could be limited, the enumerated goals are Pandora-box wide.

For example, Wall Street bankers argue that financial laws are “overregulation;” if polls are to be believed, most taxpayers view the same rules as barely adequate.

My definition of “overspending” would include the massive subsidies enjoyed by fossil fuel companies and the obscene amounts we spend on the military; yours might be Medicare or farm subsidies. 

“Less centralization” could justify virtually any limitation of federal government authority, from FDA regulation of food and drug quality to laws against discrimination.

I could go on. And on. But the risk isn’t simply that a Convention could rather easily be hijacked by people who disagree with the conveners about the nature and extent of needed changes, or even the  predictable influence of well-heeled special interests. The real danger is in calling together a representative group of Americans and asking them to amend a document that few of them understand.

Even bright graduate students came into my classes with little or no knowledge of American history or government. Most had never heard of the Enlightenment or John Locke or Adam Smith. A truly depressing percentage of my undergraduate students were unable to explain what a government is, and had no idea how ours operates. Separation of powers? Checks and balances? The counter-majoritarian purpose of the Bill of Rights? Blank stares.

The danger inherent in calling deeply polarized and depressingly under-educated politicians together to “improve” the Constitution should be obvious. Do we really want people like Marjorie Taylor Greene or Paul Gosar—or their Red-state-level clones–deciding how the American Constitution should be changed?

In the years since I first became aware of this effort, I have seen no reason to revisit my original concerns about such a convention. As Common Cause has warned,

With no rules and complete uncertainty about the constitutional process, an Article V convention would cause political and economic chaos. There is no language in the U.S. Constitution to limit a convention to one issue, no guidelines for rules to govern a convention, no rules on who picks the delegates and how they are selected, no guarantee that the American people would be equally represented, and no limits on corporate special interest influence.

I can only imagine what sorts of regulatory changes the Koch brothers hope to make, or what the armies of anti-journalism “Trumpers” would do to the freedoms of speech and press. Proponents of Pence-style “religious freedom” (a/k/a the privileging of fundamentalist Christianity) would see this as a God-given (!) chance to dismantle the Wall of Separation between Church and State.

We should also remind those who see such a convention as their chance to get rid of all those pesky constitutional provisions that keep them from installing a government more to their liking, that they are also at risk. A convention might also end up with participants reflecting  the majority of Americans who think it’s time to get rid of the Second Amendment and the Electoral College, and a great idea to outlaw gerrymandering…

In other words, such a convention would be a monumental crap-shoot.

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Um..What Happened To Support For “Limited Government”?

Remember when Republican politicians all ran on platforms endorsing “limited government”? Granted, a lot of them seemed to confuse the size of government with the intrusiveness of government, but to the extent the party actually stood for something, it was the principle that government’s authority over citizens should be limited.

As Barry Goldwater famously put it, “Government doesn’t belong in your boardroom or your bedroom.” (Old Barry is probably spinning in his grave, along with a sizable number of other former GOPers…)

Today’s Republicans are only too happy to invade your bedroom–not to mention your uterus, if you’re a woman. And given Party members’ homophobia, it’s pretty clear that a significant number of folks in today’s GOP would love to return to the time when government could outlaw same-sex marriage and criminalize gay sex. 

But what about that pious declaration that government “doesn’t belong in your boardroom?”

One of the few consistent themes of Republicanism has been the sanctity of the market, and the belief that even the most reasonable regulation of business is a semi-Satanic attack on economic freedom. Republicans have tended to define democracy as consumer choice–let the market decide! Keep government’s nose out of it! (Ignore those armies of lobbyists making sure there are official “thumbs on the scales…”)

Turns out that today’s GOP is just as willing to invite government into the boardroom as it is to insert government into our bedrooms. As the linked Guardian article reports,

A powerful rightwing pressure group, the American Legislative Exchange Council (Alec), is pushing states to adopt a new law shielding all US businesses from “political boycotts”.

Although primarily aimed at protecting controversial industries such as fossil fuel companies, big agriculture and gun manufacturers, the proposed legislation is written to prevent boycotts by investors, banks and other companies of any US business.

It comes amid rising consumer pressure on firms over whom they do business with, and follows the decision by major retail stores to stop selling MyPillow products after its chief executive allied himself with Donald Trump’s false claims of fraud in the 2020 presidential election.

Alec, which is funded by major corporations, intends to press state legislators to adopt the readymade law, the eliminate political boycotts act, at its closed-door States and Nation Policy Summit in Washington DC at the end of this month.

I’ve previously posted about Alec, and the fact that legislators in Republican-led states (very much including Indiana)  have enacted dozens, if not hundreds, of Alec’s “model” pieces of legislation–adopting the organization’s hard-Right agenda virtually word for word, in laws addressing “immigration, voting suppression, the environment, guns and energy policy.”

The new model legislation requires every “governmental entity”, which covers a wide array of bodies from state government to local police departments and public universities, to include a clause in contracts requiring businesses to pledge they “will not engage in economic boycotts”.

 
As with all of Alec’s “model laws,” the text of this one has been written by Alec’s lawyers to make it simple; all an obedient legislature has to do is fill in the name of its state. This one is aimed primarily at banks, investment funds and corporations that might refuse to do business with companies that damage the environment or otherwise engage in activities detrimental to democracy or civil society.

The huge investment company BlackRock is among nearly 400 financial firms to have sold off shares in big oil companies over their failure to pursue sufficiently climate-friendly policies.

Some corporations are increasingly concerned that consumer pressure will cause other companies to boycott them over their funding of rightwing politicians and causes, or social positions.

The model legislation follows an Alec meeting in Atlanta in the summer at which participants launched a push against “woke capitalism,” claiming that boycotts may break financial laws.

Hmm…what ever happened to “let the market decide”?

It seems to me that one of the genuine merits of capitalism and market economies is the ability of consumers to choose where to spend their dollars. If I want to confine my investments and purchases and/or those of my company to “woke” companies–or if I prefer to support crazy pillow guys–that’s my right, just as it is my right to hold religious beliefs different from those of Justice Alito and my right to decide who to marry and whether and when to procreate. 

The past few years have certainly illustrated the dishonesty of those “limited government” claims. If we dare to use our liberties to deviate from their preferred behaviors, the GOP will happily invite the government into our bedrooms and our boardrooms.

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