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August 27, 2012

"Con Con" Carries Pros and Cons

By

What about a constitutional convention convened for the sole purpose of adding a balanced budget amendment (BBA) to the U.S. Constitution?

Many Tea Party-minded activists are taken with the idea of a “Con Con”—and there are some strong arguments in its favor. But there are some dangers, as well. Perhaps enough to outweigh the benefits.

Article V of the Constitution puts forth two ways to change the Constitution. Under the first, Congress passes an amendment, which is then ratified by two-thirds of the States. The second route provides that Congress, “on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments.”

Proponents of a “Con Con” argue that the history shows it is virtually impossible to pass a strong Balanced Budget Amendment through the usual ratification route. BBAs have garnered two-thirds approval margins in both the House and Senate—but never in the same Congress. In 1982, a BBA passed in the Senate, but failed in the House could not garner a two thirds majority to pass. A weaker version of the current BBA failed in the Senate (by one vote!) in both 1995 and 1997.

Neither chamber of the current Congress has passed a BBA. On November 18, 2011, the House fell a few votes shy (261 to 165). The next month, a strong BBA, with provisions to prevent tax hikes from being used to achieve balance, fell way short (47 to 53) in the Senate. It certainly seems that prospects of a BBA passing Congress in the near future are grim.

Enter the Con Con. Proponents say that the Founders provided this alternative route so that the will of the American people could not be thwarted by one chamber of Congress. Today, they argue, federal lawmakers are standing in the way of balancing the budget; it’s time to go directly to the states to get a badly needed amendment.

The Con Con is certainly one way to change the Constitution, but it has never been tried. Consequently, the approach is fraught with many unknowns. Many conservatives worry that it might be able to produce only a watered-down BBA, one more likely to result in massive tax hikes rather than meaningful spending cuts. Others worry that it might stampede out of control—a “runaway convention” that wreaks all sorts of constitutional changes ranging far beyond the notion of balancing the budget.

A worst-case scenario, they fear, is that liberals might “hijack” a convention. Matthew Spalding, director of The Heritage Foundation’s B. Kenneth Simon Center for American Studies, suggested last year that proponents of limited government activists should view a Con Con as a very risky bet:

Madison understood this when he argued at the Constitutional Convention that “difficulties might arise as to the form, the quorum etc. which in constitutional regulations ought to be as much as possible avoided.” He recorded some of these questions in his convention notes: “How was a Convention to be formed? By what rule decide? What the force of its acts?” Combine these with the fact that no such amending convention has ever occurred (that is, there is no precedent) and too many serious questions are left open and unanswered. This absence of guidelines or rules makes an Article V convention a risky venture, and one that legislators have historically avoided.
Beyond doubt, the conservative movement, though united on the goal of balancing the budget without tax increases, is split on the idea of getting there by means of a Constitutional Convention.

“Slow but steady” would seem to be the prudent way to proceed. The surest—albeit slow—way to achieve the objective is to elect enough federal (and state) lawmakers committed to passing a strong BBA. Just because the road ahead looms long and difficult doesn’t mean you abandon it for an untried detour—one that let’s you move faster but may not lead where you want to go.

First appeared in Townhall.com.

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