In Part 1, we discussed who is eligible to be a commissioner and how they are selected proposed by the Convention of States Action’s Commissioner Selection Bill (HB166/SB437). After the selection of commissioners, the Missouri Legislature (MoLeg) will issue instructions to our delegation. Some of these instructions are contained in our bill. Additional instructions will be provided by the MoLeg prior to the convention.
What binds Missouri’s commissioners to the instructions they are given is the legal principle of agency. This concept is where the principal (The State of Missouri) permits a third-party (the commissioner) to act on their behalf. There are two types of agents. There are general agents that have the authority to conduct all business on behalf of the principal. An example of a general agent is a partner of a business. A special agent is one who can only conduct business for the principal on a specific, limited basis. An Article V commissioner is a special agent.
A good example of a special agent is a real estate agent. Let’s say you give a real estate agent to find a condominium in the city priced between $250,000 and $300,000. You provide them the ability to negotiate on your behalf and sign an agreement. Your real estate agent brings back a contract for a 50-acre farm, 10 miles from town and priced at $1.5 million. That agent violated the terms of your agreement. The deal they negotiated is null.
Each commissioner will be sworn in to abide by the conditions set forth in SB437/HB166 and the specific instructions the Missouri Legislature provides to them. SB437/HB166 provides the following instructions to each of Missouri’s Article V commissioners and alternates.
- Missouri’s delegation can only agree to a voting process based upon one state, one vote. This is a convention of states. It is not a convention of delegates.
- There will be no voting by proxy.
- A majority vote on the Missouri delegation constitutes the one vote for Missouri.
- Each commissioner or alternate agrees to inform the Missouri Legislature in the even a Missouri commissioner casts a vote outside of their instructions from the legislature.
- Any vote cast that is outside the scope of the resolution calling for the Article V convention of states meeting is null and void.
What happens if a member of the Missouri delegation violates these conditions or their specific instructions provided by the Missouri Legislature or the Joint Legislative Committee?
The Joint Legislative Committee has primary oversight of the Missouri Delegation. They are a resource for our commissioners along with being the primary enforcement mechanism. The Joint Legislative Committee may allow the commissioner to correct their behavior. The Committee can also recall the commissioner and replace them with their alternate. In the event the Joint Legislative Committee fails to act to restrain or replace a rogue commissioner, the Missouri House and Senate can pass a joint resolution recalling the commissioner.
The Legislature may choose to pass a Faithful Commissioner Bill that may have additional penalties associated with a commissioner violating their commission. These may include criminal penalties. For example, Indiana’s Faithful Commissioner Law makes it a felony for an Article V commissioner to violate their commission. That means that person could no longer hold public office, purchase a firearm or vote. The consequences to a commissioner for acting outside their legal instructions can be as severe as the Legislature desires within the limits of criminal law. This will be tackled in a separate piece of legislation.
There are other protections that ensure an Article V convention of states meeting does not exceed its authority. Any proposals coming out of a convention of states meeting will likely face a legal challenge. Any activity that approaches the limit of the convention’s authority will likely be struck down. A proposed amendment that passes out of convention and exceeds the parameters of the convention would likely not be sent to the states for ratification. If it did somehow make it to ratification by the states, it is highly likely it would be defeated on that basis alone.
As you can see there are multiple layers of protections to ensure an Article V convention of states meeting operates within the authority given to it by their state. If you would like to see a convention of states meeting in action, the Convention of States Foundation hosted a simulated convention. You can see this process in action by going to www.cossimulation.org.
In liberty,
Brett
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