Calling for a Convention

by Lawrence Lessig

American Prospect
January 4, 2012

To keep money from corrupting our democratic politics, we need constitutional change. No doubt lots can be done by statute alone—meaningful transparency rules, such as the Disclose Act, and small-dollar public funding, such as the Fair Elections Now Act. The Supreme Court, however, has all but guaranteed that these won’t be enough. Transparency by itself won’t build trust; public funding can only be voluntary; and independent expenditures are all but certain to swamp even the best reforms tolerated by the Court. If we’re ever going to get a Congress “dependent,” as James Madison put it in Federalist Paper No. 52, “upon the People alone,” and not “the Funders,” it is clear that Congress will need new constitutional authority.

Yet it is also clear that Congress won’t ask for this authority itself. The chance that this Congress, or any Congress elected in the current environment, could muster 67 votes in the Senate to alter Washington’s economy of influence is zero. Congress is the problem. Fixing itself is just one of the items on a very long list of things that it simply cannot do. A whole industry of influence depends upon preserving the status quo. For that industry, blocking change is child’s play.

At some point, we reformers must consider the one way the framers gave us to revise the Constitution when Congress itself is the problem. This is the Article V convention. If 34 state legislatures apply, then Congress must “call a Convention for proposing Amendments.” The product of such a convention is just that—proposals, not constitutional change. As with amendments proposed by Congress, those put forward by the convention become law only if ratified by 38 states. But the convention is the one path to making such proposals that Congress can’t easily control, and the one path that could create enough of a mandate to force Congress to act.

Liberals and conservatives alike fear a convention. That fear is fair. In the 223 years since our Constitution was ratified, we’ve never had a convention (though we’ve gotten close). It’s not even completely clear how one would be organized or how it would be controlled. But any remaining uncertainty must be viewed practically, with a clear eye to the political constraints that would cabin any amending process.

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