Philip Blumel: The term limits conspiracy.
Philip Blumel: Hi, Philip Blumel. Welcome to No Uncertain Terms, the official podcast of the term limits movement for the week of June 7, 2021.
Stacey Selleck Your sanctuary from partisan politics.
Philip Blumel: Given the popularity of term limits, few public officials or organizations wanna go out on a limb to publicly oppose the reform directly. Instead, we’ve seen attempts made to undermine the term limits movement by claiming that it is a conspiracy. Specifically, the claim is that term limits or a balanced budget or whatever is simply an excuse to call a convention. Once called, the conspirators would emerge to open up the convention to its secret purposes, usually to ban abortion or ban guns or something like that. US Term Limits Executive Director, Nick Tomboulides, has heard it all. So has Harvard law professor, Larry Lessig, whose ideas about the runaway convention, we’ll discuss in today’s podcast. Hey, Nick.
Nick Tomboulides: Hey, how’s it going, Phil?
Philip Blumel: So today we’re gonna talk about the runaway convention, the conspiracy convention, sometimes called the con con, and I think before we start, I think we should lay all our cards on the table here. Okay, Nick, are you ready?
Nick Tomboulides: Let’s do it. Lay ’em out.
Philip Blumel: Nick, are you now or have you ever been part of a conspiracy to overthrow the US government, or to install former President Trump into office, or Emperor Soros? [chuckle]
Nick Tomboulides: Member of a conspiracy. What on this flat earth are you talking about?
Nick Tomboulides: No.
Philip Blumel: Okay, silly question. Of course not.
Nick Tomboulides: No, I am not now nor have I ever been a member of any organized conspiracy.
Philip Blumel: Of course. Look, I will vouch for Nick.
Nick Tomboulides: I am a member of the nation’s best and greatest grassroots organization, working to put term limits on Congress. That’s what this is all about.
Philip Blumel: Of course it is. And I know Nick and Nick knows me, and we greatly respect the US Constitution, and the history of this country, and our system overall, even though we’re working for this reform of it that’s proven to be necessary. And the process by which we’re advocating adding term limits to the Constitution is a process that is included in the Constitution and has a long history, and so we don’t think it’s something that needs to be feared, and of course, we’re not part of any sort of destructive conspiracy, as often opponents of what we’re trying to do will claim. That’s not a joke. We hear this all the time.
Nick Tomboulides: Yeah, we do hear it all the time. We hear from people ranging from state legislators to just folks on the street to college professors. Law professors sometimes will make this argument. And when we first sought out this goal of trying to enact a Constitutional amendment for term limits, we did quite a bit of research on this topic, and we wanted to be absolutely certain that the process we’re using is safe. And having spent a year or so, at least doing the research, we came away with the impression that the Article V convention is there for a reason. Framers of the Constitution put it there so that folks could obtain Constitutional amendments that cut against the self-interest of Congress, and that the process is unequivocally very safe.
Philip Blumel: Yeah, we were slow to warm up to this idea, partly ’cause of concerns, but mainly those concerns were because we had not looked into it deeply yet. They were just things we heard it, and so now, we’re totally on board. And one thing we wanna talk about today in this podcast is someone who has looked at this issue deeply, and written about it, studied it and teaches on it, and that is Lawrence or Larry Lessig, who teaches Law and Political Science at Harvard University, and he wrote a letter to the Virginia legislature in 2014… The Virginia legislature was considering a Article V convention application… And he wrote this letter and he started out with this introduction. He said, “I am a Professor of Law at Harvard. I’ve taught courses about the Article V convention. I’ve studied its history. It is the subject of one of the chapters of my book, Republic Lost. I offer the following to help in the consideration of whether Virginia should adopt a resolution calling for an Article V convention. I’m happy to answer any questions. A concern has been raised that an Article V convention is dangerous because such a convention could run away. I do not believe an Article V convention is dangerous, and I don’t believe the fear that it could run away should concern anyone.” And he gives what he feels are the three main reasons, although there are more.
Nick Tomboulides: Yes, well, the first reason that he gives is it’s not a Constitutional convention. The term Constitutional convention is actually a misnomer that opponents of term limits are fond of using, but it in fact appears nowhere in Article V of the Constitution. The term that’s used in the Constitution, and the term that Lessig emphasizes here, is a convention for proposing amendments. That’s a key difference, because a Constitutional convention, as opponents would describe it, would have the power, would have the ability to make wholesale changes to the Constitution and confirm them, but in fact, the Article V convention, which we are seeking to call, has no power to make, alter or abolish any law.
Philip Blumel: Anything.
Nick Tomboulides: It’s just a proposing convention. It can issue proposals, nothing more, nothing less, and as Lessig puts it, “The convention’s proposals, they have the same value as an article in the Yale Law Journal.”
Philip Blumel: Right, right. It’s just a proposal, sure.
Nick Tomboulides: It’s just a proposal, and the Constitution makes that clear, and no proposal can become part of the Constitution Before being ratified by 38 states.
Philip Blumel: Right. Sometimes we’ll hear by the conspiracy theorists that, “Well, last time we tried this, they rewrote the Constitution,” but that sentence is so full of errors, it’d take an hour to take them all out, but the key one is that we did have a Constitutional convention one time in our history. It was called by the states outside of the structure of… Of the Articles of Confederation, which were in power at the time. It was certainly not called under Article V, which was not written yet, and since as it was called by the states which considered themselves sovereign, they felt they’d have the power to rewrite the Constitution. And in the Constitutional convention of 1787, there was actually a discussion in the committee that ended up writing Article V whether or not it should be written into the Constitution that a constitutional convention should be permitted, and it was voted down overwhelmingly. That was not a power that the Constitution grants. What it did instead was create a power for the states to propose amendments to the Constitution. Big difference.
Nick Tomboulides: Yes. And also you have to take into consideration the Constitutional convention of 1787 was not called under the US Constitution because the US Constitution hadn’t been written yet, so it was a completely different governing law. There was no mechanism in the law at the time to call a convention for proposing amendments… There now is… Which means that it’s what people in the legal world would call black letter law. It’s immutable, it’s there, it’s in the Constitution, and it’s enforceable.
Philip Blumel: So I think that Larry makes a great point there. It’s a very important distinction. It’s historical, it’s legal, and it’s really clear as day if you read Article V itself, rather than read conspiracy theorists’ punditry on the subject.
Speaker 4: This is a public service announcement.
Philip Blumel: After 47 years in politics, including 36 years in the US Senate, President Joe Biden is not surprisingly an opponent of congressional term limits, but Biden follows two different presidents from two different parties who both spoke forcefully in favor of the popular reform. In this first clip, we hear Barack Obama after the loss of Hillary Clinton in the 2016 presidential election.
Barack Obama: I think it’s a healthy thing for the Democratic Party to go through some reflection. I think it’s important for me not to be bigfooting that conversation. I think we wanna see new voices and new ideas emerge. That’s part of the reason why I think term limits are a really useful thing.
Philip Blumel: And now in the second clip, Barack Obama is speaking at the Global Citizen Forum in Sao Paolo, Brazil, in 2017.
Barack Obama: I think politics suffers when you have the same people staying in power over and over and over again for many years, and there’s never any new blood and there’s never any new ideas and they get more and more entrenched. So people have asked me, for example, “Do you wish you were still president?” And I say, “First of all, if I was still president, Michelle might not be with me anymore.”
Barack Obama: So I think eight years was… That’s it. But also, even despite obviously strong disagreements with the person who replaced me, I do believe that if you’re in power for too long, even with the best of intentions, that you become stale, and your government becomes stale, and over time you will not do what’s best for the country, and the country will suffer. And so I see sometimes in the US Congress, people who’ve been there for 20, 30, 40 years. And because they’re still there, they’re blocking the 25 or the 30 or the 35-year-old who is more of their time and could be more innovative and creative in terms of solving the problems that we face today, rather than the problems that we faced 35 years ago. And that’s why I spend a lot of time thinking about how we can get young people involved at an early age in thinking about the world around them and getting them to recognize that the world doesn’t have to be this way. It’s this way because people made it this way, and you have the power to change it.
Philip Blumel: The second thing that Larry Lessig brings up in his letter to Virginia is that an Article V convention can be limited in its scope.
Nick Tomboulides: Yes, what he bases this on is that the framers did not go into this discussion blind when they wrote this provision for a convention to propose amendments. In fact, they had an incredible wealth of experience with conventions, because in the century before the Constitution was written, states and colonies were calling conventions on average every three or four years for all sorts of different topics, and it was very well understood what a convention is, and was. It was a task force that was designed to substitute for a legislature to address a specific problem. And so they would gather, they would issue proposals on different topics, and I know they met… Sometimes the topic was negotiating with tribes, sometimes the topic was the states or colonies uniting in a common defense, sometimes the topic was price inflation. There were all sorts of different topics, but it was almost always limited to a specific topic, and it’s that precedent that Lessig can use to say throughout the history of conventions, legally speaking, these can be limited. In fact, when states call for a convention, they can limit it, including a limit to term limits for Congress.
Philip Blumel: Right, and we’ve had a couple of dozen conventions. If you counted from law commission conventions, which are held every year, we’ve had hundreds of conventions in this country between the states, and the states will call them for a limited subject. There’s no history of ’em going off the rails. In fact, none of them ever have gone off the rails, and the Uniform Law Commission, which meets every year, where states send delegates… Very similar to an Article V convention… The states send delegates to work on specific projects and make proposals. Those proposals do not have the force of law. The proposals that come out of the Uniform Law Commission every year must go back to the states to be ratified by the various legislatures, and before they have any force or effect. This has been going on every year since 1892, and it never runs away. Nobody ever claims it’s a Constitutional convention because it’s not a Constitutional convention. When the convention is set up for a specific purpose, the states send delegates with instructions based on that specific purpose, how could it really go off the rails?
Philip Blumel: Let’s say for instance, that someone did raise their hand at the Uniform Law convention or at an Article V convention or any convention, and raise their hand and say, “You know, I’d like to bring up this subject that is completely outside the realm of this convention that no one’s prepared to really talk about, and it’s radical and causes tremendous changes. Can we suspend the rules and discuss this now?” And the other delegates would probably have to call back to their states to get instructions, or they would just simply vote it down because it’s absurd. And another safeguard that exists out there is there’s seven states so far, and there’s more and more on the way, that in anticipation of the upcoming term limits convention, have adopted what they call…
Nick Tomboulides: Faithful delegate laws.
Philip Blumel: Faithful delegate laws. These say that if you are sent as a delegate to a multi-state convention and you act outside of your instructions, you’re in trouble, buddy.
Nick Tomboulides: The best analogy of this, I think, would be, ironically, the United States Congress. The United States Congress has the power, 24/7 365, to propose any Constitutional amendment it wants on any topic. Like the convention, it’s a mere proposal. It doesn’t have the force of law, but unlike the convention, in Congress, anyone can say anything. It’s not limited to a particular scope. And so from 1990 until 2021, there was a congressman from New York named José Serrano, and every two years, he would stand up at his desk in Congress and he would propose a really stupid and half-baked amendment, and that amendment was a repeal of Presidential term limits. Now, let me ask you, Phil, were Presidential term limits repealed because one nut job in Congress stood up and technically proposed the amendment 15 times over the last 30 years?
Philip Blumel: No, in fact that idea never got out of committee.
Nick Tomboulides: Never got out of committee. What would happen was, he’d stand up, he’d announce his ridiculous idea, people would laugh and then they’d go to lunch. And that’s exactly what would happen at a convention if any whacko stood up and said something stupid or outside the scope of the call.
Philip Blumel: Where is Izzy? Last week, the Carolina Journal found Tim Israel carrying his term limit Congress sign trekking through North Carolina and across America. Since 1991, the Carolina Journal has offered daily news, analysis and commentary about North Carolina through its website, print publications and radio broadcasts in nearly 20 markets across the state. For more info, see carolinajournal.com.
Speaker 2: So first of all, tell us, why did you get interested in this issue of term limits?
Tim ‘Izzy’ Israel: Early 2020, I saw a video of Nick Tomboulides that he was talking to the Senate in 2019, and his statistics and just the way he approached everything factually steamed me up enough to where I was like, “Okay, I’m gonna do something.” I didn’t know what I was gonna do, but I was gonna do something. And I figured if I walked the country, it might gain enough attention to cause people to take a look at this issue.
Speaker 2: Yeah, so you are walking. Tell us what you’ve done so far.
Tim ‘Izzy’ Israel: Well, I walked to Tallahassee and got a little media coverage. That was about 650 miles. Then I went on to Ozark, Alabama, which is 800 miles, and then I met US Term Limits. They saw the footage in Tallahassee and sent Byron Sheehy, the Alabama representative, he came and met me and we went to lunch, and they started talking to me about sending a guy out with a van, and there’s Jeff, and I don’t have to worry about where I’m sleeping every night. A couple of nights budgeted for a hotel, and they’re feeding me. So it’s a joint effort between my little entity and their big entity, and I hope I can help all I can to raise awareness for this need. I’m just grateful that I can do it.
Speaker 2: Well, very good. And you mentioned that you’re raising awareness, but also you’re talking to people as you’re doing this. What sorts of things have people said to you about this issue that you’re interested in? Do they say, “Hey, right on, keep at this”? What’s the message?
Tim ‘Izzy’ Israel: That’s all they say is “Right on.” I’ve not met one person out there that, once they figure out what I’m doing or ask me what I’m doing, that they don’t feel the same way, that this is a major, major flaw in our governmental system.
Speaker 2: That has to be helpful in keeping you going.
Tim ‘Izzy’ Israel: It is, yeah.
Speaker 2: If people want to learn more about this, obviously, most people who hear this are not gonna see you out there walking, but they might be able to find out more. Should they go to the Term Limits website, or is there another place to go?
Tim ‘Izzy’ Israel: Term Limits is a great place to go for information. On my little website, you can go to whereisizzy.com. I also have links to where you can understand or find out who your senators are. You can even… An interesting thing I did that made me kinda sick to my stomach was look up just 10 senators and within the first 10, the net worth of somebody from Virginia, I think, was over a quarter of a billion dollars, and most of the rest were millionaires as public servants that took an oath for an office. It’s not like a normal job. I guess that’s part of the reason why it’s been gotten away with so long.
Philip Blumel: Let’s move to the third point that Lessig brings up because this relates to that. What if this guy was so persuasive that he actually got the convention on his side, and… And the convention proposed something wacky. Lessig says that the barrier to ratification is an absolute protection against crazy amendments. What does he mean?
Nick Tomboulides: What he means is that the constitution, Article V of the Constitution stipulates that no amendment can become part of the Constitution unless it’s ratified by 38 states after being proposed by either Congress or a convention, which would mean that a mere 13 single legislative chambers in any 13 states could block any proposed amendment from becoming part of the Constitution, which is a tremendous safeguard, that is a huge firewall because you have, I think right now, 23 states have Republican trifectas, 15 states have Democratic trifectas. It’s impossible for any amendment without a broad consensus from the American people from emerging out of a convention and getting ratified so that there’s no risk whatsoever in this process because the ratification bar is so darn high.
Philip Blumel: That’s right. So that, I think is really the ultimate protection, the convention itself can only propose, it cannot alter or abolish or change any law by itself, it can only bring up ideas, it has to go back to the States and pass an overwhelming threshold in order to be ratified and keep in mind, the threshold is so high and the difficulty of changing the Constitution via Article V is so difficult that it has never been done. Now, it’s true, Article V movements have influenced Congress to make changes to the constitution. But it’s never been done. And think about this too, the ratification process, the whole amendment process is so difficult that there have been over 12,000 Amendments proposed to the US Constitution by the Congress, which is in a way a 24/7 365-day a year amendment convention, because they can pose amendments any time, and of those, how many have passed? It’s ridiculous to think that somebody can… Some crazy person can raise their hand, come up with a proposal that is radical, and it’s like, let’s say ones that I keep hearing them bringing up by the people that are posing are just things like, Well, they might decide, instead of doing term limits that they’re gonna ban guns or they’re gonna ban abortion, or they’re gonna install former President Trump as being a dictator of the United States or something like this. That would have to go through 38 state legislatures and it ain’t happening.
Nick Tomboulides: Let me just ask you this too, another counterpoint on this subject, why are there almost never members of Congress? We have 535 members of Congress, why are members of Congress almost never proposing amendments to repeal the Second Amendment or repeal the First Amendment, or install President Trump as a dictator? It never happens because they know they are politically responsive actors and they know they will get thrown out of office in a second, if they even try anything like that. Well, is the same, not absolutely true for a convention? A convention will be comprised mainly of State Legislators, they’re gonna appoint themselves to this thing, and they have their own jobs to protect, their State House and state senate seats, and they’re gonna be very reluctant to touch any of these third rails of politics that are extremely unpopular. They’re not gonna wanna alienate anyone with these radical proposals, they’re gonna wanna stick to the subject and get term limits for Congress done because it’s popular and it’s in their best interest.
Philip Blumel: Right, in fact, you bring up a point that shows that the Article V process is actually safer than the congressional process, because Article V convention would be limited to the instructions that delegates are given from all the States. Congress itself is not given such instructions, they are held accountable solely by political considerations, as you say. The delegates too in Article V convention to amend the Constitution would be held by those political constraints as well, but they’re also tied or bound by the instructions they have been given by their respective states. That’s something Congress is not bound by, they can propose an amendment about anything at any time, and of course, if it’s crazy, it goes nowhere. In fact, a lot of good ones even go nowhere because it’s so hard to do.
Nick Tomboulides: We have to be very careful here because when someone rejects the convention, in my opinion, what they’re really saying is, I want Congress to have a monopoly over our national discourse. I want Congress, to have total control over the types of policies that can be enacted, and as George Mason commented at the Constitutional convention of 1787, when Congress has all the power, no amendments of the proper kind will ever be obtained because eventually Congress is going to abuse their power, they’re going to exploit their positions for personal gain, and you will have no recourse because the foxes are guarding the hen house. Hence the reason the amendment convention was born in the first place, to give the people of America the ability to go around Congress and get things done that are in our nation’s best interest, that is what the founders had in mind when they wrote this into the constitution, and if they were around today, if Thomas Jefferson, John Adams, Ben Franklin, were around today, and we were complaining about all these problems we have in our country, they would ask, Well, why haven’t you used the tools that we gave you, why haven’t you used this convention. We gave it to you for a reason. So I think we’re faced with that question today, and I hope that we choose wisely.
Philip Blumel: When you’re attacking Article V, you’re essentially attacking the Constitution.
Nick Tomboulides: Let’s close with that. That’s a great line.
Philip Blumel: Thanks for joining us for another episode of No Uncertain Terms. The term limits convention bills are moving through the state legislatures, this could be a break through year for the term limits movement. To check on the status of the term limits convention resolution in your state, go to termlimits.com/takeaction. There, you will see if it has been introduced and where it stands in the committee process on its way to the floor vote. If there’s action to take, you’ll see a Take Action button by your state, click it. This will give you the opportunity to send a message to the most relevant legislators urging them to support the legislation, they have to know you’re watching. That’s termlimits.com/takeaction. If your state has already passed the term limits convention resolution or the bill has not been introduced in your state, you can still help. Please consider making a contribution to US Term Limits. It is our aim to hit the reset button on the US Congress and you can help. Go to termlimits.com/donate. Termlimits.com/donate. Thanks. We’ll be back next week.
Stacey Selleck: The revolution isn’t being televised. Fortunately, you have the No Uncertain Terms podcast.
Speaker 8: USTL.