Subject: TN COSP --TN FCL Part 2: Strengths and Gaps in TN’s Current Article V Convention Law
This is the second in a series of articles about how YOU can guarantee to have a voice throughout the Article V convention process.
In the first article, we discussed that NOW is the time to act – to not wait until a convention is called, which could be within just a few years. We also discussed how Tennessee should lead other states in expanding their Article V convention laws.
In this article, we discuss the strengths and weaknesses of Tennessee’s current law controlling Article V conventions.
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THREE MINUTE CLICK-BY-CLICK ACTION PLAN!
Please take three minutes now to identify and call your state rep and senator. Here are the click-by-click instructions:
Go to the Tennessee General Assembly website: http://wapp.capitol.tn.gov/Apps/fml/districts.aspx
Under “Find My Legislator” on the right, type in your street address and city and click “search”.
Pictures of your state representative and Senator will appear.
Click on the pictures of your state representative and senator and give them a quick call.
Tell them simply that you want them to expand Tennessee’s Article V Convention Law to guarantee you have a say in every step of the convention process. Tell them to contact the Convention of States Project leadership team for details about the law.
Forward this article to your friends and neighbors.
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In 2014, the General Assembly passed what is currently known as the “Faithful Delegate Law” (Tenn. Code. Ann. § 3-18-101, et seq.). The current version of the law is extremely valuable as it specifies:
Some qualifications for commissioners. (3-18-107)
The General Assembly selects the number of commissioners. (3-18-108)
The General Assembly appoints the commissioners. (3-18-108)
If the General Assembly is not in session when an Article V convention is called by Congress, the Governor must call the General Assembly into session for “the purpose of appointing delegates and alternate delegates”. (3-18-108)
The General Assembly instructs the commissioners. (3-18-103)
Commissioners take an oath. (3-18-111)
Commissioners are not paid, but their expenses are reimbursed. (3-18-110)
Commissioners can be recalled and replaced (3-18-109)
If a commissioner votes outside of their instructions, their vote is void and null. (3-18-104)
If a commissioner votes outside of their instructions, they forfeit their position. (3-18-104)
It is a Class E Felony punishable by up to six years in jail for a commissioner to vote outside of the resolution calling for the convention or the further instructions from the General Assembly. (3-18-106)
If all commissioners vote outside of their instructions, Tennessee’s application for the convention is rescinded. (3-18-105)
At the time it was passed, the law was “state of the art” among state legislatures. Only a few other states had passed such laws. We are grateful to Senator Mark Norris and many others for their vision in proposing and supporting this law, as it addressed some concerns of a few lawmakers and smoothed the way for the Tennessee General Assembly to start calling for Article V conventions again – using the Framer’s solution to rein in a runaway federal government!
The current law was more than sufficient for a time when Article V conventions were not imminent. It ensured that the commissioners can and will be controlled, which was all that was needed at that time. However, as we see Article V conventions drawing closer (in a matter of one to three years), it is now time to “fill in the details” of that law – and ensure YOU have a say in the process.
Here are some of the missing details of the current law and a quick summary of how the proposed TN COSP Faithful Commissioner law addresses them. In future articles, we will dive deeper into each area:
No specific provisions for citizen involvement at any step of the process.
The proposed TN COSP FCL requires a minimum number of hearings at each step of the process, including hearings on Saturdays. It requires that any Tennessee registered voter be allowed to testify at those hearings. It also requires a website devoted to the convention, that all documents related to the convention are published there and that registered voters in Tennessee be given the ability to comment on those documents.
No minimum number of commissioners nor consideration for the number of commissioners based on the number of topics at the convention.
The original 2014 law prescribed only two commissioners at the start of the convention, but allowed the General Assembly to send more during the convention. The law was updated in 2017 to remove the restriction of only two commissioners, allowing the General Assembly to decide the number. The proposed law specifies a minimum of five commissioners, that there be an odd number of commissioners (to help prevent deadlocks for votes taken within the delegation) and that the General Assembly should consider the number of possible committees at the convention, to ensure that Tennessee has at least one commissioner on each committee.
No details on how commissioners are nominated, compared and selected.
The proposed law establishes an open process to identify qualifications, allows any Tennessean to apply, requires that applicants have the signatures of 25 Tennessee registered voters, ranks the applicants in an open and objective scoring system and then requires that the General Assembly pick only from among the most highly qualified people.
Required qualifications for commissioners are weak.
The proposed law significantly expands the requirements to be a commissioner, particularly related to any current or prior relationships a person might have with the federal government.
No details on how the instructions to the commissioners are developed, including the amendments our commissioners should propose.
One of the most important parts of the convention is the proposal of amendments. The Tennessee delegation should be given a “Tennessee Plan” – a set of amendments to be proposed at a convention. The proposed law provides a minimum number of public hearings on proposed amendments.
Commissioners not required to follow open meetings and open records processes.
The proposed law requires hearings and any official meetings to be broadcast live, transcribed and posted on the website. It also requires that the communications of commissioners be made public. It also requires that any amendments proposed by other states be posted on the website for discussion.
General Assembly not required to be in session to monitor, direct and control the commissioners.
The proposed law requires that the General Assembly be in session at least 150 days prior to the start of the convention and remain in session for a few weeks after the convention. The General Assembly does not have to remain in Nashville throughout. The House and Senate can recess and only gather as needed. However, a special Convention of States Joint Committee is created to conduct regular hearings throughout the convention.
No quorum requirements for commissioners to take a vote at the convention.
The proposed law requires at least a majority of commissioners at the convention, or a majority of those assigned to a committee, to be present before the state issues a vote.
No research assistance is given to the commissioners.
Under the current law, the commissioners attend the convention on their own. If they need research conducted, they must do it themselves. The proposed law calls for official “advisors” who attend the convention, but do not have voting rights in the Tennessee delegation. They receive questions from the commissioners or any state lawmaker on issues being discussed at the convention, conduct research and reply with information pertinent to the issues at hand.
No compensation for commissioners.
The proposed law requires that commissioners (and advisors) be compensated at the same rate of pay as state Senators. May citizens would be prevented from serving as commissioners unless they receive some kind of compensation during what may be many months serving as commissioners.
We hope this list demonstrates why the current law was great for its time but is in need of significant expansion – and why you need to take three minutes out now to take the actions listed above to ensure YOUR State Representative and State Senator hear from you.
In the next few articles in the series, we will discuss key features of the proposed Faithful Commissioner Law.
-- The TN COSP Leadership Team
