Constitutional convention fraught with problems

Delaware Voice, courtesy Cape Gazette

Pete Schwartzkopf

May 9, 2015


As state legislators, we rarely wade into federal issues and federal lawmaking. Our focus typically is on issues that are within our power to address. Sometimes, however, federal issues have a severe impact on how things operate here in Delaware. One such concern that has created problems both at the state and federal level is the U.S. Supreme Court’s 2010 Citizens United decision.


Citizens United dramatically changed our campaign finance laws, vastly expanding monetary influence in political races – with little to no accountability. While some might think this is limited to presidential or other federal campaigns, we have seen this problem creep into Delaware politics in recent elections. Attempts to undo the Citizens United decision have failed at the Congressional level.

Currently, there is a proposal in the Delaware General Assembly to circumvent Congress by calling a constitutional convention to pass a constitutional amendment on campaign finance.
From an ideological standpoint, I agree with what the resolution’s supporters hope to accomplish: Citizens United has damaged – if not, broken – our political process by injecting nearly unlimited amounts of money into the system. But from a practical standpoint, I cannot support the resolution and will vote against it when it comes up for a House committee hearing.

The reason for my position is simple, and it’s rooted in an episode we all remember from high school history class. In 1787, delegates gathered in Philadelphia to hold a convention to address problems with our federal government by revising our country’s governing document, the Articles of Confederation. During the course of four months, the Articles were brushed aside in favor of a completely new governing document, the U.S Constitution.

While many of us agree that the Constitution is a far superior document, how it came about illustrates the problem with calling a constitutional convention: No matter the reason a state calls for a convention, once it starts, there is no telling what issues could get addressed. Article V of the Constitution does not spell out that a convention can be limited in scope.
Although supporters in a handful of states want to overturn Citizens United, there also have been calls for conventions for a balanced budget amendment, flag desecration, congressional term limits and the right to life. Once a convention gets started, the group could write its own rules, set its own agenda, even change its own ratification process. We could see amendments proposed defining personhood, broadening the Second Amendment
or defining marriage as one man, one woman.

But it’s not just the fact that we could be opening Pandora’s Box by calling a constitutional convention that concerns me. The last time we held such a convention was 228 years ago, and the process of holding a convention today is unclear. What are the qualifications for delegates in each state, how are they chosen, and can delegates be impeached or recalled? What are the ground rules and process for a convention? How long could a convention last? Does Congress continue to operate as business-as-usual while the convention is convened?

I don’t write this to criticize the spirit of the resolution, but to call attention to the potential problems we could face if we open a convention – because once a constitutional convention is opened, it is too late to stop or undo it if it goes down a path we don’t like. There is no mechanism to refocus or alter a convention, whereas members of Congress regularly stand for election.