Now that Constitution Day has passed, it is time to face reality. Only a fiscal responsibility constitutional amendment can force Congress to restore and sustain fiscal sanity. To light the fuse, it is time for a state attorney general to stand up and assert the rights of the states under Article V of the U.S. Constitution and hold Congress accountable for its failure to act. State attorneys general clearly have standing to sue and should do so.
Article V of the Constitution states that Congress “shall call” a convention when two-thirds of the states (34) file applications. As Alexander Hamilton emphatically declared in Federalist No. 85: “The words of this article are peremptory. The Congress ‘shall call a convention.’ Nothing in this particular is left to the discretion of that body.” Hamilton went to great lengths to make his point so that a compromise that protected states’ rights could be made to facilitate the ratification of the initial Constitution.
Over three years ago, the Federal Fiscal Sustainability Foundation (FFSF) determined that, as far back as 1979, a total of 39 states had active applications for an Article V amendments convention. Of the 39 states with active applications, 30 were limited to fiscal responsibility and nine were plenary applications. Total applications rose to 40 states in 1983, of which 32 were fiscal responsibility only applications. In addition, as recently as 2017, more than the required two-thirds of the states had active applications, but Congress failed to act. Importantly, rescinded applications are not included in these counts. These facts have been confirmed by the National Federalism Commission, an official interstate governmental body which is preparing for an Article V amendments convention.
Shockingly, it was not until 2015 that Congress assigned responsibility to the House Judiciary Committee for receiving, storing, making public, and counting state Article V applications. Even more shocking, the House Judiciary Committee has failed to effectively discharge its responsibilities.
As it turns out, when it comes to calling an Article V convention, the nation’s founders recognized that Congress has a clear conflict of interest. An Article V convention is only necessary when Congress fails to propose and pass amendments on matters that require action. These include such things as restoring fiscal sanity, campaign finance reform, and term limits. Given its conflict, Congress should assign the responsibility for receiving, storing, and counting state Article V applications to the Comptroller General of the United States, who heads the U.S. Government Accountability Office (GAO).
While there are clearly valid reasons to call a state-led Article V amendments convention to propose a fiscal responsibility amendment, there are groups who oppose any Article V convention. They include groups on the far right, such as the John Birch Society, and the far left, such as Common Cause. Both groups argue that an Article V convention would be a “runaway” convention, one that would invite a total revision of the U.S. Constitution. They are wrong. Once the convention convenes, the majority of states will decide on the scope of the convention. Today, a majority of the states have active applications that are limited to fiscal responsibility only. The majority will ensure that the Article V convention will be limited to fiscal responsibility only.
Some argue that the two-thirds (34-state) requirement has not been met because plenary applications should not count. Constitutional scholars on both the right and the left have agreed that such plenary (any subject) applications should be counted. In fact, when New Jersey rescinded its plenary application in 2021, it noted that one of the reasons it did so was because it would count in achieving the 34-state requirement.
Others argue that the courts will not consider a suit against Congress for its dereliction of duty, asserting that it is a political question or that it involves the Speech or Debate Clause. Such is not the case. Under Article V, calling a convention is an express, ministerial, and non-discretionary obligation of Congress. In addition, a suit would not be against any member of Congress, and the call does not involve speech or debate.
Some also assert that the filings for a convention are too late. But they are incorrect. None of the applicable state applications carry expiration dates. In addition, rescinded applications are not counted. However, once the thirty-four-state threshold is crossed, the obligation to call an Article V convention is immediately triggered. Congress must not be rewarded for its failure to act.
Importantly, the President and the executive branch would not be parties to a legal suit by a state’s attorney general. Indeed, a suit would focus on the failure of Congress to discharge its express, enumerated, non-discretionary, and ministerial responsibility under Article V of the Constitution.
It is time to hold Congress accountable for its failure to discharge its express constitutional duty. It has been derelict for far too long. A suit by the states is the only realistic remedy. Now is the time to act.
Steve H. Hanke is a senior contributing columnist at Fortune, a professor of applied economics at Johns Hopkins University, and a director of the Federal Fiscal Sustainability Foundation, which advocates for a fiscal responsibility amendment and a statutory fiscal commission. He is also co-editor, with Barry W. Poulson and John Merrifield, of Public Debt Sustainability: International Perspectives (Lexington Books, 2022). David M. Walker is the former Comptroller General of the United States and the chairman of the Federal Fiscal Sustainability Foundation. He is co-author, with Joe Penland, Sr., of the forthcoming Saving Social Security and America’s Future: Common Sense Solutions.
The opinions expressed in Fortune.com commentary pieces are solely the views of their authors and do not necessarily reflect the opinions and beliefs of Fortune.
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