I’m compelled to respond to a dishonest attack from Convention of States (COS) against Idaho Republican Party Chairwoman Dorothy Moon. January 4, 2024, Idaho GOP Chair Moon wrote an opinion piece against the Convention of States Organization. A COS drone attacked her piece. Below we take it apart his attack and lay out truth.
COS has a habit of spreading unsupported information their minions “cut and paste,” as this attack author did, while failing to consider the truth. Much of the COS letter does not contain references just defective arguments. Let’s address that.
There is no such thing as a “convention of states” in the Constitution. That is a “doing business name” of a Texas corporation promoting this deception. [1] Article V of the Constitution specifically authorizes, “a convention for proposing amendments.” [2] COS uses their company name to mislead citizens into thinking states control a convention.
An Article V convention is not subject-limited as claimed. COS and COS-affiliated entities have stated the goal of, and acted on, consolidating article V applications regardless of subject, [3] [4] and Congress has legislation pending right now to do just that. [5]
Chair Moon rightly raised the threat of a “runaway convention,” an event where delegates to the convention exceed their authority as occurred during the 1787 convention. COS author ignorantly states, “No convention has ever been “runaway.”
Delegates attending the 1787 convention were given specific “commissions” containing their objective, authority, and limitations. [6] COS always ignores the limitations that were exceeded when discussing these commissions.
1787 delegates were charged with fixing the exigencies of the time (urgent needs), however, commissions of eleven states of the twelve that attended also required all thirteen state legislatures and Congress ratify any changes proposed. [6] Rhode Island did not attend but also sent a message highlighting the same restrictions.
Article VII of the draft Constitution [7] provided conventions of the people in each state, not the legislatures, and not congress, could ratify and only nine, not thirteen, were required to place the new Constitution into effect. The process of all thirteen legislatures required by the delegate commissions contrasted with Article VII is the clearest illustration that the 1787 Convention “ran away.” From its authority.
COS promoters respond to this by advancing the straw man argument that opponents therefore believe the Constitution was not properly ratified. We refer them to Federalist 49 which reads, “The people are the only legitimate fountain of power.” [8] As conventions of The People in each state ultimately ratified the Constitution, it was ratified by the highest authority.
COS will then quip, “well what is your problem then?” This move to deflect allows us to steer back to the original problem of a convention failing to remain within its constraints. COS claims Federalist 40 provides analysis that the 1787 delegates did not exceed their authority. It does not, It merely deceptively rationalizes the exceeding of power. [9] Our problem? This is a clear precedent the same thing could occur again when an ineffective and not needed Article V convention is called.
Such is boldly punctuated by the phrase, “It is time now to recollect that the powers were merely advisory and recommendatory; that they were so meant by the States, and so understood by the convention,” in Federalist 40. Let us be perfectly clear here: The authors of Federalist 40 are rationalizing exceeding their authority because it was necessary for them to do so, and because they are falsely stating that the delegate commission restrictions were only advisory?
Well, thankfully any Article V convention will remain limited as they state. Oh wait, this example plainly disproves their boldest claim, that a convention will not exceed its authority.
What happens when a convention does exceed their authority and an appeal is made to courts as COS asserts will protect the integrity of a convention? We have the Pennsylvania convention of 1873 to amend their state constitution as precedent too. Delegates exceeded their authority, the court agreed they had exceeded authority, but also stated there was nothing they could do. [10]
COS wrongly states no conventions have ever run away, yet this important 1873 state convention proves such is not true, and the 1787 example is the most stark example that conventions have exceeded their limits and assertions can be made an attitude to do such is not a small rebel faction, rather numerous delegates. [11] [12] [13]
COS author also writes, “An outside body may not dictate an Article V assembly’s rules and procedures,” citing Leser v. Garnett, US Supreme Court case. [14] He goes on to state, “Congress has no power over the Convention of States, once called.” Also, “The states can require their delegates to only address the subjects in the Resolution.” Leser v. Garnett is actually about ratification of amendments, not a convention, but as an unsettled area of law, some believe such might also apply to a convention.
Keeping the above paragraph in mind, we call to the COS theme that any convention will be “one state, one vote.” However, we have their favorite retired law professor stating, “…a convention is free to change the rule of suffrage.” [15] Well, if a convention changes the draft rules, and the legal case COS cites says the convention may not be interfered with, then the convention may change the weight of state’s votes, right?
How can COS state, “an outside body may not dictate an Article V assembly’s rules and procedures,” but then roll right into stating, “states can require their delegates to only address the subjects in the Resolution?” States either do, or do not, control delegates to a convention, not both.
COS cites the Chiafalo v. Washington Supreme Court case to claim delegates may be recalled and punished. [16] However, this case is related to presidential electors and has zero bearing on an Article V convention. Article II, Section I Electors are very different than Article V delegates.
The Federal Constitutional Convention Procedures Act of 1973 [17], and Constitutional Convention Implementation Act of 1984 [18], are two examples of the 41 times in total where Congress asserted their authority to define a convention, they often held that delegates would be immune from any federal or state punishment, immune from recall, and that Congress would define any subject matter limits. Neither delegates or the convention may be controlled.
COS author writes, COS is, “sponsoring legislators and other groups,” that such will influence the legislators….” “Sponsoring legislators” is often a more cordial way to describe the purchase of them. COS has a habit of doing such and in fact was accused of campaign law violations in Montana for doing so [19] as well as almost destroying the career and personal life of another in South Dakota by supporting slanderous accusations. [20]
Chair Moon rightly asserted: “The sad truth is that our country is not what it was at its founding.” She was addressing a modern lack of selfless statesmen to be up to the task of editing our Constitution versus the inspired men that authored it in 1787.
The COS respondent threw out some names to activate the deceptive logical fallacy “appeal to celebrity.” The intent is to mislead citizens into following the personality instead of what the personality is saying. They cite Rush Limbaugh as an endorser when he refused to even consider endorsing COS. [21]
COS then makes their claim that we are following the Constitution, but they trot out a 3,000 page book of Supreme Court opinions they claim are effectively amendments to the Constitution. This is a convincing optical trick to those unaware Article V gives the Court zero authority to amend the Constitution. The proper response is that while the Court has typically (not always) done a good job, when they get it wrong, it is up to each public official, at all levels, that swore an oath to the Constitution under Article VI, Clause 3 [22], to judge for themselves and act wisely, to include not acting unconstitutionally.
COS has quite the deceptive past. Former Idaho Representative Priscilla Giddings wrote an article about how they deceptively appropriated names of voters for their endorsements [23], these voters being unaware of this identity theft. Chair Moon herself spoke on this and there are numerous documented cases of legislators discovering these deceptions. [24]
In Kansas in recent years, COS worked with the Kansas Attorney General to issue an unconstitutional opinion that the specific 2/3 requirement in their state constitution for passage of an Article V application, is unconstitutional because states cannot put any restrictions on the Article V process. Some continue to push this flagrant disregard for a state constitutional amendment by the People of Kansas [25] If it is true then states cannot put any restrictions on their delegates either, right?
In Nebraska, they suspended the committee rules to get the COS bill out of committee to barely pass it on the full house. [26] They did this while claiming all convention rules will be followed. How could that be?
One of the best arguments against an Article V convention is that it won’t work. In 2008, during the housing crises, Senator Tom Coburn stated on the Senate floor that he knew the TARP bailout was unconstitutional but that he would vote for it anyway [27]. We ask our COS friends, exactly what amendment would prevent such from happening again?
A legislative tool shows COS and others have brought bills regularly to the Idaho Legislature, only to be turned away each time. [28] Perhaps the COS efforts of “sponsoring legislators and other groups” hadn’t gotten as far needed to leverage those “purchases” into passage of an Article V resolution?
Sadly, Senator Coburn, later a paid promoter of COS, while slandering Eagle Forum’s Phyllis Schlafly, wrote the following, “…a person or organization that will engage in this kind of deceitful innuendo can’t be trusted to tell the whole truth on anything….” Applies perfectly to COS.
Not following the Constitution is not an error in the Constitution, it is an error in We The People. Therefore, the solution is to fix We The People, not the Constitution.
End Notes:
1. https://projects.propublica.org/nonprofits/organizations/472245708
2. Text of Article V
https://www.archives.gov/federal-register/constitution/article-v.html
3. American Legislative Exchange Council (ALEC) attorney that testified in 2022 in South Carolina, David Biddulph, South Carolina Judiciary Hearing
Wednesday, April 14, 2021, in the 2:30 pm Senate Judiciary Subcommittee meeting on several directly related Article V bills, some significant non-factual testimony was offered. Hearing at: [https://www.scstatehouse.gov/video/archives.php], scroll to link titled, “Wednesday, April 14, 2021 2:30 pm Senate Judiciary Committee — Senate Judiciary Subcommittee”
At Timestamp 1:28:00, Attorney David Biddulph, clearly spoke about the planned aggregation of open Article V petitions by lawsuits from state attorneys general against Congress, to force them to call an Article V convention.
4. A Convention Strategy A New Strategy for the Article V Convention of States Movement. Principal author is Mr. Paul S Gardiner who served as Georgia Coalitions Director and National Veterans Coalitions Director for COS Project
[https://huntforliberty.com/a-convention-strategy/]
5. House Concurrent Resolution 24
Calling an Article V Convention for proposing a Fiscal Responsibility Amendment to the United States Constitution and stipulating ratification by a vote of We the People, and for other purposes.
https://www.congress.gov/bill/118th-congress/house-concurrent-resolution/24
6. Instructions to the Convention Delegates, Center for the Study of the American Constitution, University of Wisconsin-Madison
https://csac.history.wisc.edu/document-collections/the-constitutional-convention/convention-delegates/
7. Article. VII. “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same”
https://www.archives.gov/founding-docs/constitution-transcript#7
8. The Federalist Papers : No. 49
https://avalon.law.yale.edu/18th_century/fed49.asp
9. The Federalist Papers : No. 40
https://avalon.law.yale.edu/18th_century/fed40.asp
10. Pennsylvania convention of 1873
“When the Pennsylvania convention of 1873 proposed a new constitution, along with changes in the bill of rights that went beyond what was sanctioned in the enabling act, suit was filed to prevent submission of the constitution for popular ratification . The Pennsylvania supreme court admitted that the convention had acted ultra vires, but before the case was decided the constitution had been submitted to the voters and approved by a large majority. Said the court: “The change made by the people in their political institutions, by the adoption of the proposed Constitution … forbids an inquiry into the merits of this case. The question is no longer judicial.”
— Constitutional Brinkmanship, Amending the Constitution by National Convention, By Russell L. Caplan, Oxford University Press, 1988, Page 155
11. New York Convention of 1821
“In any event the idea that because a convention is in some sense “sovereign” it may override its commission flourished in the state conventions of the nineteenth century. After adoption of the federal Constitution, the states, both original and newly admitted, held conventions to draft and revise their constitutions. At the 1821 New York convention, delegate Peter R. Livingston denied all limitations in an effort to show that the convention had the authority to disenfranchise blacks (a ploy to dilute their voting strength in New York City):the people are here themselves. They are present in their delegates. No restriction limits our proceedings….”
12. Illinois convention of 1847
“At the Illinois convention of 1847, Onslow Peters added currency to Livingston’s doctrine: We are here the sovereignty of the state. We are what the people of the state would be if they were congregated here in one mass meeting. We are what Louis XIV said he was- “We are the state.” We can trample the constitution under our feet as waste paper, and no one can call us to an account save the people.”
— Constitutional Brinkmanship, Amending the Constitution by National Convention, By Russell L. Caplan, Oxford University Press, 1988, Preface xii.
13. Illinois convention of 1862
“The Illinois convention of 1862 was pivotal for convention scholarship. That body had been called to propose a new state constitution, but in addition to submitting a charter for ratification-which was rejected-the assembly engaged in numerous unauthorized acts that were highly publicized and profoundly alienating to its constituents. Among other measures, the convention ratified a proposed amendment to the federal Constitution that Congress had stipulated was to be approved by the state legislatures, reapportioned the state’s congressional districts, approved a bond issue to aid wounded Illinois soldiers in the Union army, and began investigating the conduct of the state governor’s office.
A select committee of the convention was assigned to determine whether the assembly was bound by the limitations of its enabling act. The committee, influenced by the proceedings of the 1847 convention, announced in its report (adopted by the full membership) that a convention represents “a peaceable revolution of the state government . . . a virtual assemblage of the people of the state, sovereign within its own boundaries.” Accordingly, “after due organization of the Convention, the law calling it is no longer binding” and “the Convention has supreme power in regard to all matters incident to the alteration and amendment of the constitution.”
— Constitutional Brinkmanship, Amending the Constitution by National Convention, By Russell L. Caplan, Oxford University Press, 1988
14. U.S. Supreme Court, Leser v. Garnett, 258 U.S. 130 (1922), No. 553, Argued January 23, 24, 1922, Decided February 27, 1922
https://supreme.justia.com/cases/federal/us/258/130/
15. “Interstate conventions traditionally have determined issues according to a “one state/one vote,” although a convention is free to change the rule of suffrage.” Dr. Natelson writing in the ALEC Handbook, “Proposing Constitutional Amendments by a Convention of the States,” a Handbook for State Lawmakers, 2013 version, Section E, page 15.
16. 19-465 Chiafalo v. Washington (07-06-2020)
https://www.supremecourt.gov/opinions/19pdf/19-465_i425.pdf
17. S. 119 (98th): Constitutional Convention Implementation Act of 1984
[https://www.govtrack.us/congress/bills/98/s119]
18. Federal Convention Act 1973
https://www.leg.state.nv.us/Session/78th2015/Exhibits/Assembly/LOE/ALOE1022F.pdf
19. An out-of-state super PAC that spent $126,752 supporting a trio of Republican legislative primary candidates in Montana this spring violated state campaign practice laws, according to a decision released late Friday by Commissioner of Political Practices Jeff Mangan.
https://montanafreepress.org/2022/06/20/convention-states-campaign-violation-in-montana/
20. South Dakota State Senator Senator Lynne DiSanto, a huge backer of Convention of States, had accused Representative David Johnson of threatening her, which security footage later proved was a false accusation.
California PAC Seeking Constitutional Convention Backed Shining Light Attack on David Johnson
https://dakotafreepress.com/2019/02/27/california-pac-seeking-constitutional-convention-backed-shining-light-attack-on-david-johnson/
At testimony against COS in South Carolina, a lobbyist revealed a recording of then Communications Director for COS, Tamara Colbert, voicing a recording against Johnson accusing him of this later-disproved attack.
Evan Mulch Confronts Mark Meckler For Kavanaughing South Dakota Representative David Johnson
https://www.youtube.com/watch?v=vcIX6iRasZA
21. Mark Meckler Lies About Rush Limbaugh Support Of The Convention Of States Project
https://www.youtube.com/watch?v=KRW9dsdLb68
22. Article VI, Clause 3
https://www.law.cornell.edu/constitution/articlevi
23. This article is a former Idaho state legislator that followed up on COS petition emails to learn many were not in fact knowingly submitted by allegedly-named supporters.
Rep. Priscilla Giddings: Should Idaho Support a Constitutional Convention? Post author By Rep. Priscilla Giddings (R-District 7):
“I have received many pre-formatted emails from citizens of District 7 saying they support the convention. Yet, when I have called some of those whose names were written on the emails, I found that they actually did not send the email; the emails were a high-tech fraud.”
https://gemstatepatriot.com/blog/idaho-constitutional-convention/
24. Former Idaho State Representative Dorothy Moon, now Chairwoman of the Idaho Republican Party, Exposes Fraud by Con-Con Peddlers. She makes the same argument that Rep. Gidings made that these petitions in favor of COS sent in to legislators were fraud.
https://thenewamerican.com/us/politics/alex-newman-dorothy-moon-exposes-fraud-by-con-con-peddlers/
26. On May 26, 2021, the Nebraska Senate voted to suspend its rules [https://www.nebraskalegislature.gov/bills/view_votes.php?KeyID=7317], under extreme constituent and lobbyist pressure, in a striking illustration of how rules become guidelines, then eventually trash, crumpled under our feet.
27. Coburn Senate Floor Voting for Unconstitutional Bill
https://www.youtube.com/watch?v=LDmOSxOZFtk&t=7s
28. Legiscan Idaho Article V related bills extend back to 2010