Questions abound at hearing on Montana resolution seeking Article V Convention
Rick Santorum kicked off testimony in favor of measure
Rick Santorum, the Republican former U.S. senator from Pennsylvania and once-presidential candidate, testifies on Wednesday, Jan. 18, 2023, in favor of a measure that seeks to add Montana to a list of states that want to make an Article V Convention to write amendments to the U.S. Constitution. (Photo by Blair Miller, Daily Montanan)
Rick Santorum, the former U.S. Republican senator from Pennsylvania and once-presidential candidate, led testimony Wednesday in favor of a joint resolution seeking to add Montana to a coalition of states that wants to make amendments to the U.S. Constitution.
Another 26 proponents of Senate Joint Resolution 2 spoke after him – saying they were fed up with the federal government and the U.S. Congress. They said they are calling for a balanced federal budget, term limits for Congress and the federal government, and limitations to the federal government’s power.
“It’s gotten worse, and worse, and worse. It is time for us to act. It is our power; it is our duty to act,” said resolution sponsor Sen. Tom McGillvray, R-Billings.
Seventeen others testified in opposition to the resolution in the Senate Business, Labor, and Economic Affairs Committee, despite several of them sharing similar grievances about the federal government.
At the start of public comment, committee Chairman Sen. Jason Small, R-Busby, said he wanted to offer Santorum a couple of extra minutes to testify.
“I would like to give the first proponent five minutes just due to the fact that they came in from a long ways away,” said Small. “Then after that, we will cut testimony to three minutes.”
Don Lepinsky of Whitehall, who testified in opposition, said he wondered if the resolution was being pushed by out-of-state interests in what he called “a corral of propaganda.”
“At best, this call for a convention is political theater. At worst, this could be an opportunity for want-to-be oligarchs to undermine our democracy and individual liberties,” he said. “Who knows how this resolution will evolve?”
McGillvray sponsored a similar measure in 2021, which was tabled in the Senate Judiciary Committee. It was blasted to the Senate floor in a 26-24 vote but then tabled again.
This year’s measure seeks to make Montana the 20th state to request Congress call a convention of states, which would work to come up with amendments to the constitution to send back to the states to vote on.
How Article V works
Under the U.S. Constitution’s Article V, 34 state legislatures (or two-thirds of current states) would have to apply to Congress, which the constitution says “shall” call a convention if that threshold is met.
It is an alternative method to amend the constitution that has never been used. All 27 amendments made to the constitution were proposed under the commonly used method through Congress.
Since the Article V Convention has never been used to make amendments, and the constitution does not detail the process, there is uncertainty about how exactly amendments would be proposed, who would attend the convention, and if there would be a limited scope of amendments that would be considered.
An analysis of the Article V Convention from the Congressional Research Service says there is a minimalist interpretation of the article, in which Congress would call the convention, arrange the procedure of the convention “and then stand aside.”
But the report also says there are other interpretations that say Congress should exercise “broad authority” over the convention process.
Those different interpretations showed up throughout Wednesday’s hearing.
Different opinions and ongoing questions
McGillvray seemed to interpret Article V as saying legislatures could propose the amendments at a convention.
“When we see federal power run amok, when we see dysfunction in federal government, it is our duty to propose amendments under Article V,” he said.
Santorum, a senior adviser for the Convention of States Project, which is pushing states to pass these resolutions, decried what he said was the president and courts having more power at the expense of Congress.
He said the federalist system and original constitution created by the nation’s founders had been chipped away at – especially after the 17th Amendment was ratified in 1913 and gave voters, instead of legislators, the power to elect U.S. senators.
Santorum said the separation of powers in the federal government had eroded, and that presidents and the U.S. Supreme Court have too much power – which he believes can be fixed by states applying for an Article V Convention.
“You’re at the bottom of the food chain, but that’s not where you belong,” he said. “Article V is your power, and if you don’t use it and this country fails, it’s on you.”
Many gathered around Santorum after the hearing to snap pictures and try to chat.
Both proponents and opponents gave their interpretations of discussions at the constitutional convention and in the Federalist Papers as reasons why their arguments were correct.
Joe Hoseck, a proponent from Great Falls, argued a convention was the “last safe, nonviolent and constitutional solution for the problem of our Republic.”
Several opponents of the resolution, including multiple members of different county Republican central committees, said they agreed to some extent that the U.S. Constitution was not being followed.
Some, however, said they worried a “runaway” convention could move to make multiple amendments outside of what some proponents pushing these measures across the country say is their scope.
Last summer, the Montana Commissioner of Political Practices found the Convention of States Political Fund violated state campaign practice laws for not disclosing money it spent in Republican primaries, as the Montana Free Press reported. Another complaint filed in August was dismissed.
The Koch Brothers have funded Convention of States efforts outside of Montana, as Esquire previously reported.
Following public testimony Wednesday, questions asked by senators on the committee from both parties showed even they were uncertain how the process would work.
McGillvray and Santorum each fielded questions from members about who they felt would control such a convention, how delegates would be assigned and how many there would be, and if each state would get one vote or several based on their number of Electoral College electors.
Sen. Willis Curdy, D-Missoula, told Santorum he was not following his line of reasoning in how the convention would vote and that others had testified to the contrary.
“What you’re saying here doesn’t conform to what I read about what folks who propose a convention are saying,” Curdy said.
McGillvray said what issues will be proposed or discussed should be left up to the 34 state legislatures which would agree to call a convention.
“We have to have faith that ultimately men and women who take an oath to propose amendments for the salvation of this nation will do it right,” McGillvray said. “It’s, in a sense, likely our last resort.”
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