Two legal scholars told a House subcommittee yesterday that Congress cannot control the agenda of a constitutional convention called by the states to propose a balanced-budget amendment.
The testimony by two constitutional law professors came eight days after the Senate Judiciary Committee unanimously approved legislation establishing procedures for a limited convention.
Stanford law professor Gerald Gunther and Duke law professor Walter Dellinger said Congress lacks the constitutional authority to control a convention, which was designed to function independently of Capitol Hill.
"What we have here is a classic case of constitutional bait-and-switch," Dellinger told the House Judiciary subcommittee on civil and constitutional rights.
"Starting in 1975, groups advocating a constitutional convention said, of course a convention can be limited to one issue," he explained. "Now even the supporters of the convention process are beginning to loosen up their definition of one issue."
Gunther said that attempts by Congress to bind a convention to one issue would be "profoundly unconstitutional" and that statements declaring congressional authority are misleading.
"It is snake oil to tell the country that Congress can limit or bind the convention," he said.
Article V of the Constitution states that Congress "shall call a convention for proposing amendments" upon the application of two-thirds of the states (or 34). The provision, which requires that all proposed amendments then be approved by three-fourths of the state legislatures (or 38), has never been invoked since the Constitution was ratified in 1789.
Since 1975, 32 states have passed legislation asking Congress to convene a convention to adopt an amendment requiring a balanced budget, but scholars have questioned the time limit on those applications.
Another important unresolved issue is the status of 11 state applications that say approval is to be withdrawn if issues besides a balanced budget are examined.
The Senate Judiciary bill, cosponsored by Sens. Orrin G. Hatch (R-Utah) and Dennis DeConcini (D-Ariz.), establishes procedures for the convention. One provision allows a 14-year application deadline for the current convention so that older state resolutions can be considered, but limits applications for future conventions to seven years.
"When the Senate says seven years, but then in this case makes a 14-year exception, it strikes me as a fairly sleazy way to make constitutional law," Dellinger said.
But Stephen J. Markman, chief counsel of the Senate Judiciary subcommittee on the Constitution, said in an interview that the provision was justified "because this is a special case."
Markman explained that a seven-year deadline would nullify two-thirds of the state applications, frustrating the consensus by the states to have a convention.
A 1973 report by a special committee of the American Bar Association concluded that Congress had the constitutional authority to limit the convention.
The report, summarized yesterday by committee member John D. Feerick, dean of Fordham University School of Law, stated that Congress is empowered to devise procedures for the convention and may screen state applications for content and timeliness.