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Convention of the States is Likely to Disappoint Conservatives

Convention of the States is Likely to Disappoint Conservatives

Fred Birnbaum
August 15, 2023
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August 15, 2023

Lawmakers from across the United States held a simulated Article V convention of states earlier this month, and the outcome settled nothing. The Convention of States organization, which organized the event, hailed it as a success, and while some of the amendments proposed by lawmakers in attendance have merit, two of the Convention of States’ major selling points — amendments covering term limits and restraining federal spending — lost the plot and should make anyone considering a constitutional convention even more skeptical about a convention’s potential to solve anything. 

The term limit proposal would limit U.S. House members to nine terms and U.S. Senators to three terms, with an overall limit of 24 years in Congress. It is easy to convince people Congress has a problem with career politicians, especially when they see Diane Feinstein wheeled about the U.S. Capitol or Mitch McConnell have a stroke on live TV or other members of the gerontocracy shuffle about the halls. But the term limits proposal the Convention of States came up with “limits” Congress to 24 years in Washington, D.C. That’s a career, by any definition.

Moreover, would the proposal change outcomes? Representative Alexandria Ocasio-Cortez is in her early 30s and has served only a few terms but has hardly been a strong constitutionalist. She defeated a 10-term incumbent, but she isn’t an upgrade.

Sixteen state legislatures have some form of term limits, including Arizona, California, Florida, Michigan, Nevada, Nebraska, and others. No one can argue that these states (except perhaps Florida) are legislating more conservatively than ever before. It is even less clear that term limits for Congress would force it to tame the bureaucratic state in D.C. with its over 2 million civilian employees. 

The fiscal restraint amendment proposal kicks the can down the road. The main clause states that appropriations can’t exceed the previous three years’ annual average revenues, excluding borrowing. Even with a provision requiring two-thirds of the Congress to raise revenues or exceed the spending limitation, there really is no consequence for doing so. The excuse could be another virus, a climate emergency, or another war. 

Importantly, the amendment would not go into effect until three years after the ratification, at minimum, four or five years away from today, giving the federal government more time to amass debt, which according to current projections from the Office of Management and Budget will exceed $40 trillion by FY27.  

The federal budget is clearly obese. It has grown over 40% since 2019, and the COVID largesse has now been repurposed into Green New Deal-style programs. But if conservatives think the problem is simply an out-of-touch federal Congress that spends money, think again. 

Idaho has had Republicans in control of the Legislature and Governor’s office since 1995. Much has been made of late that the flood of COVID money is being used for one-time spending and not ongoing spending. So in the spirit of this thought, let’s compare Idaho’s ongoing total state budget appropriation to the federal budget. 

Idaho’s ongoing spending data is readily available back to Fiscal Year 2008 (FY08). When we review Idaho’s total ongoing appropriations for the last 15 years, from FY08 to FY23, we see that they have increased 102%, effectively doubling. For the same period, federal spending has increased just slightly faster at 114%. Remember, we are comparing the change in the ongoing portion of total state appropriations, not including the one-time spending, to the change in all federal spending. If we included one-time spending, the comparison would make Idaho look worse. 

And Idaho’s own spending pattern before COVID would not meet the requirements of the fiscal restraint amendment proposal. In FY19, Idaho’s General Fund appropriations were $3.653 billion. But the average General Fund revenues for the prior three fiscal years — FY16, 17, and 18 — were $3.455 billion. So the FY19 spending was 6% greater in Idaho than would have been allowed under the fiscal restraint proposed amendment. 

We are sympathetic to those who observe the state of the nation and understand that the current system of government is not working as the Founders envisioned. And the Founders did clearly state in Article V that, “on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments.”

There are many examples of the Constitution being trampled upon and our rights being ignored. As I write this, the Idaho Freedom Foundation just went through its annual selection of a health insurance plan that foists 10 essential benefits on our employees; who don’t see them as essential. And we scratch our heads wondering where the Constitution gave Congress this sort of power. However, we don’t see the flaws in the document but rather in the men and women elected to Congress and those appointed to the U.S. Supreme Court who review these laws. The logic of getting the federal government to follow some new amendments to the Constitution when they won’t follow the plain language of the original document escapes us. 

But maybe you’re still convinced there’s no harm in trying a convention of states. Perhaps this path might yield better results. Well, let’s start with some numbers. Let’s assume 34 states can get on the same page to call a Convention. The difficulty is getting 38 states to ratify amendments favorable to conservative values. At this time, 22 states have Republican trifectas, meaning that the Governor and both houses of the Legislature are controlled by Republicans. Seventeen states have Democrat trifectas, and 11 states have divided state governments. When you look at the legislation passed by Democrat trifecta states like California, Washington, and Oregon, for example, and the people they send to Congress, it is nearly impossible to envision them agreeing to measures favored by Republican trifecta states. This means if you add all 22 Republican trifecta states and capture all 11 divided government states, you still fall short. There is no way to get around this math. You need 38 states to ratify an amendment. It is possible that Republicans could move several divided government states to the Republican column? Sure, but that still does not get you to 38 states. 

In summary, while we applaud the earnest efforts of those who feel something must be done to save the country from federal overreach, the results of the most recent attempt to write amendments to the U.S. Constitution don’t point to any timely solutions. We believe that it would make more sense for conservative activists to do something within their own states, today, and not years hence. Said differently, if Republicans have a trifecta at the statehouse, use it! Rein in spending, turn your backs on more borrowed federal funds, reassert your power of the purse, and take every step possible to resist federal overreach. 

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