Brian Almon: Doubling Down on Misinformation

The following was written by Convention of States Senior Vice President for Legislative Affairs and attorney Rita Peters.

It was nice for Brian Almon at The Gem State Chronicle to publish my “open letter” to him as a guest op-ed. The gesture demonstrates, if not exactly open-mindedness, then at least a willingness to acknowledge an opposing viewpoint. Sadly, though, his follow-up piece doubles down on its misinformation, adds a petty complaint about how much high-profile national figures get paid, and then resorts to bald-faced, “sky-is-falling” type fear-mongering.

Now that Almon has re-published my letter, which directs him to objective, factual information that rebuts his anti-Article V arguments, we know for sure that he is aware that such factual information exists. And yet, he refuses to engage with it. In fact, he doesn’t even claim to have read it. Instead, he says, vaguely (and without citing any evidence):

“For every scholarly opinion in favor, there is an equally credible one against. This is not a debate that can be settled by appeals to authority or wishful thinking.” 

For starters, I believe the first sentence is incorrect, and I would challenge Almon to marshal his list of “credible” scholarly opinions for comparison with mine.

But here’s the real problem: I’m not interested, for the sake of this argument, in how many “opinions”–scholarly or not–there are in favor and opposed to holding an Article V convention. I’m interested in objective, factual, law- or history-based data about how the Article V process works. The sources I provided to Almon are replete with such data points. 

And yet, Almon doubles down on his claim that “there really would be no controlling or even predicting what might come of such an event.” It’s pure fear, unmitigated by fact, history, or even logic.

We know from James Madison’s Notes and multiple other writings that the reason the convention process was included in Article V was to allow the states to bypass Congress in proposing needed amendments. So the idea that the states cannot define and limit the scope of the convention makes no sense–unless you really think the Framers were blundering idiots. Moreover, we know how interstate conventions work because scores of them have been held throughout American history. The states define the agenda, the states instruct their delegates, and every state gets one vote.

In the Federalist Papers, both James Madison (Federalist #43) and Alexander Hamilton (Federalist #85) cited the states’ power under Article V for the proposition that the states retain ultimate authority over the federal system and could rein in an out-of-control federal government.

If there wasn’t already plenty of evidence that the delegates to an Article V convention are controlled and limited by the state legislatures that send them (I submit that there was), the Supreme Court’s decision in Chiafalo v. Washington put it beyond question. The Court concluded that “[a]mong the devices States have long used to achieve their object are pledge laws, designed to impress on electors their role as agents of others. A State follows in the same tradition if, like Washington, it chooses to sanction an elector for breaching his promise.” The same rationale applies to state delegates to an Article V convention.

Almon doesn’t deal with the impact of that case, even though it was highly influential in changing the thinking of John Malcolm at The Heritage Foundation.

Almon offers nothing but speculation to support his claims that an Article V convention can’t be limited. (Oh–and he tosses in a swipe at Sen. Rick Santorum for receiving a salary). I’ve offered mountains of historical precedents and caselaw, in the materials I provided.

While Almon offers plenty of fears to choose from, his newest nightmare is that at a convention called pursuant to 34 state legislature applications for a convention to propose amendments that “impose fiscal restraints on the federal government, limit the power and jurisdiction of the federal government, and set term limits for federal officials and members of Congress,” the convention will instead propose an amendment that abolishes the Electoral College. Huh?

Question for Almon: If Congress wanted to call a convention to abolish the Electoral College, and if the topics defined in the state applications don’t matter, why would it wait to receive 34 applications for a convention on 3 other topics? Why wouldn’t it just go ahead and call that convention now? [Answer: the topics in the application do matter, and they limit the convention].

Alternatively, if Congress wanted to abolish the Electoral College and thought 38 states would ratify such an amendment, why wouldn’t it just propose such an amendment through its own Article V power? [Answer: Congress knows such an amendment would never be ratified by 38 states].

Or how about this question for Almon: If the radical leftists were, as you suggest, drooling all over themselves for COS to pass 34 applications because they thought they could “take over” a convention and use it to abolish the Electoral College, why has COS not been able to secure the support of a single Democrat in Idaho? Why do the Democrat legislators and organizations (like League of Women Voters, to name one of 250) lobby hard against passing our resolution?

None of it makes any sense, Mr. Almon. Sorry.

Here’s the bottom line: no one can give Brain Almon a guarantee that the sun will rise tomorrow. And in that sense only, no one can give him the guarantee that he seeks: that an Article V convention will, in fact, operate according to law and precedent. 

I submit that is a terrible reason to leave the Article V convention process unused. By that logic, we should be afraid for Congress to ever meet or for elections to ever take place. No one can guarantee that they will do what they are supposed to do, either.

COS opponents all pay lip service to the belief that our Founders were brilliant, godly statesmen, who created a brilliant, nearly-perfect Constitution. The Article V convention for proposing amendments is part of that Constitution, given to the states for such a time as this. If you truly revere the Constitution, stop maligning it and trust the process it created.