Tea Partiers, Tenthers, and the corporate sponsors who support them
have come up with a variety of ways to circumvent the federal government
and bypass the federal regulatory system, including efforts to hold an
Article V Convention, commonly called a “Con Con,” to amend the
Constitution and the Sen. Ted Cruz(R, TX)-developed plan for use of
“interstate compacts” to block federal law.
In
a report
for the Center for American Progress, Ian Milhiser described these
state’s rights efforts as a project for “seceding from the union one law
at a time.” These initiatives could result in a Balkanized
confederation of states that would be no match against the power of
international corporations and would allow for eliminating the
regulatory system and the social safety net.
The most recent issue of
The Public Eye magazine includes two
extensive articles on the efforts of conservatives to shift power to the
states, including Frederick Clarkson’s
article on the State Policy Network’s growing influence, and my
article on the growing nullification movement (co-authored by Frank Cocozzelli).
Nullification is based on a legal theory that states can block
enforcement of federal laws individual states deem unconstitutional. But
another route to “nullification” was popularized by Senator Cruz before
he even became a senator, and promoted through Tea Party organizations
and the highly-controversial American Legislative Exchange Council
(ALEC).
Ted
Cruz was mentored at an early age through Rolland Storey’s Free
Enterprise Education Center, where Cruz learned Austrian economics, read
Cleon Skousen, and intensively drilled in delivering speeches. As an
adult, Cruz joined the board of Storey’s Free Enterprise Institute,
described as “forming conservative leaders since 1976.” The board
includes Leo Linbeck III and Chairman Emeritus Robert McNair, one of the
co-founders of the “flat tax” organization Americans for Fair Taxation.
Cruz’s idea is to use “interstate compacts” to shield states from federal laws. He
developed the concept in 2010 as an alternative option for “nullifying Obamacare.” Just prior to his election as senator, Cruz
worked
as senior fellow with the Center for Tenth Amendment Studies at the
Texas Public Policy Center, the state’s “free market” think tank and a
State Policy Network member.
While the concept of interstate compacts is not new, Cruz’s idea to use
them as a strategy for shielding states from federal laws is uniquely
original, which he
freely admitted to Fred Barnes of the
Weekly Standard in January 2011.
The Constitution, in Article I, Section 10, allows for states to form
interstate compacts with the consent of Congress. This is most
commonly done to oversee shared resources, such as waterways. One of
the earliest formed and better known of these compacts is the New York –
New Jersey Port Authority. But Cruz
is claiming that interstate compacts can be expanded as a way to circumvent presidential veto power.
“With congressional consent, federalized interstate compacts could
shield entire areas of state regulation from the power of the federal
government,” wrote Cruz and Mario Loyola in a
December 2010 report for the Center for Tenth Amendment Studies. In the introduction, Cruz and Loyola state:
“Under our Constitution, interstate compacts that
regulate matters within the enumerated powers of the federal government
require congressional consent. That consent can be expressed (an
affirmative majority vote in Congress) or even implied by congressional
acquiescence. In the case of express congressional consent, historically
that has been accomplished through either a bill or a resolution that
typically has been presented to the President for his signature into
law.
Critically, once Congress consents to an interstate compact, the
compact carries the force of federal law, trumping all prior federal and
state law.”
In other words, Cruz and Loyola claim that an interstate compact can
be formed and made the supreme law of the land, including trumping the
Affordable Care Act, by simple “acquiescence” of Congress and therefore
bypassing the need for the president’s signature.
By early 2011, this concept had already
been promoted through the Sam Adams Alliance and Tea Party organizations, as described in the
Weekly Standard:
“In October, Eric O’Keefe of the Sam Adams Alliance
broached the compact strategy with the leaders of Tea Party Patriots,
Mark Meckler and Jenny Beth Martin. And in November, they, in turn, took
the idea to their national council, gathered in Washington to conduct
an orientation session for newly elected members of Congress (only
Republicans showed up).
When O’Keefe and a panel explained the strategy, they got a
standing ovation from the 180 members of the council. ‘I’ve never heard
of a panel getting a standing ovation,’ O’Keefe says. At least 37 of
them signed up as state coordinators for winning legislative approval of
the health care compact. An experienced political consultant, Mike
Barnhart, was hired as national coordinator.”
The concept was also promoted through the State Policy Network’s “Federalism in Action” program, and Cruz himself
presented the idea at the 2010 American Legislative Exchange Council (ALEC) conference, where it promptly became the foundation for ALEC’s “
Health Care Compact ACT” model legislation for state legislators.
To date, this Healthcare Compact Act has been passed in eight states:
Texas, Oklahoma, Utah, Missouri, Indiana, Alabama, Georgia, and South
Carolina. The healthcare compact is promoted and tracked through an
organization called the
Healthcare Compact Alliance, a project of
Competitive Governance Action,
a 501(c)(4) co-founded by Texas businessman Leo Linbeck III and Eric
O’Keefe and sharing the address of the Linbeck Group, LLC, in Houston.
The vision of shielding entire areas of state regulation from the
federal government has been further enshrined by ALEC in the form of a
model bill developed by their International Task Force, and approved by
the ALEC board of directors. Under the title “
State Legislature United Compact,”
the model bill provides validation for those who half-jokingly warn
about the “United States of ALEC,” apparently giving ALEC a role in
forming and running the commission that would organize the interstate
compact, and ensuring that like-minded conservatives would control the
topics and outcomes of a convention.
ALEC’s December 2013 States and Nation Summit in D.C. was sponsored,
in part, by another Linbeck and O’Keefe nonprofit, called the Citizens
for Self Governance. Its legal name is the John Hancock Committee of
the States and it’s the parent organization of the
Convention of the States
(one of several organizations promoting an Article V convention to
amend the Constitution). The organization was incubated prior to
gaining its own nonprofit status by American Majority, an organization
founded by Drew and Ned Ryun to “infuse new Tea Party blood into the
political system.”
Until now, the only method used to amend the Constitution has been
through a two-thirds vote of both houses of Congress, followed by
ratification by three-fourths of the states. However, there is another
process in Article V that allows for a convention to be called by two
thirds of state legislatures. Mark Meckler, cofounder of the Tea Party
Patriots, is now president of the Citizens for Self Governance and is
overseeing the group’s Article V convention efforts.
UPDATE:
The Georgia State Senate has just become the nation’s first legislative
body to pass a Convention of States application. It passed on February
4, 2014, by a vote of 37-17. You can see a copy of the application
here.
Meckler promoted the Convention of the States project
in a session at ALEC’s December summit. On the Saturday following the summit, roughly 100 state legislators from 32 states
met at Mt. Vernon
to advance convention plans. Ferris’ reflections on the event
acknowledged that there are divisions in conservative ranks between
those who want the “con-con,” and those who fear a “runaway con-con”
infiltrated and overrun by liberals. Historical revisionist
David Barton has just
recently endorsed a Constitutional Convention, while both Phyllis Schlafly’s Eagle Forum and the
John Birch Society (JBS) fall into the second category.
As noted in
The Public Eye article
Nullification, Neo-Confederates, and the Revenge of the Right, the JBS has become a major force behind state nullification efforts across the country.
Despite misgivings about a “runaway con-con,” there are several
right-wing groups around the country working to organize a convention,
but with some disagreements about how it would work. PRA senior fellow
Frederick Clarkson, Salon’s Paul Rosenberg, and I have all listened in
on conference calls by one such organization that has differences of
opinion with the Convention of the States on how to proceed (you can
read Rosenberg’s story about it
in Salon).
The leader of that organization has a plan for the first amendment to
be a “Sovereignty and State’s Rights Amendment,” allowing any federal
law to be “countermanded” by the agreement of 30 states.
This state’s rights movement is gaining traction across the country,
including among some on the political Left, but the money and organizing
behind the effort is solidly conservative—or perhaps better described
as paleo-libertarian, or a combination of radical anti-government
philosophies wedded to social conservatism.
This is a box of 9mm rounds at Bill
Jackson's sporting goods in Pinellas Park, Fla. Will bullets like these
become rarities due to the closure of a Missouri smelter? We check a
claim on that concern made by former Rep. Allen West, R-Fla.
Former Rep. Allen West made the case
that the EPA-prompted closure of a lead smelter in Missouri was part of a
"back door" effort at gun control. But experts disagree.
Print 
PDF
