Call a convention to rewrite the US Constitution? Not so fast, Kansas Senate says

TOPEKA - The Kansas Senate has rejected — for now at least — a resolution that on its face would call for a constitutional convention to rewrite the nation’s highest law.

But the real purpose of the resolution was not to put the state on record as supporting the constitutional rewrite. It was to provoke a federal lawsuit over how many votes in the Legislature it would take to do that.

The Senate debated more than three hours before finally voting 21-19 to send Senate Concurrent Resolution 1611 back to the Federal and State Affairs Committee from which it came.

The convention of states is an idea supported by a faction of the conservative movement nationwide seeking a rewrite of the Constitution.

The issue has divided the ordinarily monolithic Republican majority that dominates the Kansas Senate on controversial issues.

Senate Democrats mostly sat out the debate that raged between avowed conservatives on the other side of the aisle.

Supporters want to place additional limits on federal authority, require a balanced federal budget and establish term limits for federal officials — and they believe that they can limit the discussion to those three topics.

Opponents argue that such a gathering could make its own rules and warn of a potential “runaway convention” with unforeseen results.

No one really knows how it would all work. A constitutional convention hasn’t been held since the first one in 1787, when our current Constitution replaced the Articles of Confederation, the nation’s original founding document.

Supporters of the Kansas resolution were clear that they didn’t expect it to pass this year.

In fact, it wasn’t even expected to go before the House of Representatives, which would be required for Kansas to officially apply for a convention to be called.

The real intent was creating a vehicle to challenge the constitutionality of Article 2, Section 13 of the Kansas Constitution.

That section requires a two-thirds majority of both houses “to ratify any amendment to the Constitution of the United States or to make any application for congress to call a convention for proposing amendments to the Constitution of the United States.”

Before Wednesday’s debate, Senate president Ty Masterson, R-Andover, said a vote in favor of the resolution would likely fall between the 21 needed for a simple majority and the 27 required for a two-thirds supermajority.

He had planned to declare the resolution passed if it got 21 votes.

That would have almost certainly triggered a federal lawsuit challenging whether the Legislature is bound by the Kansas constitutional requirement for a two-thirds vote.

That hurdle was inserted into the state Constitution in 1974 when the Legislature put an amendment before voters and 68% said yes, said Sen. Richard Hildebrand, R-Galena, who led the charge against the SCR 1611 with a speech that ran more than 1 1/2 hours.

End-run around Congress

At issue is whether the state amendment conflicts with the federal Constitution, or the two can coexist.

Article V of the U.S. Constitution allows for a constitutional convention to be called upon the request of two-thirds of state legislatures. It is silent on what kind of majorities would be needed state to state.

Proponents claim to have gotten resolutions passed in as many as 28 states, although it’s not clear whether all of those would be counted as official applications.

A convention of states would be an end-run around Congress, which can approve constitutional amendments with a two-thirds vote.

As with Congress-proposed amendments, any proposed changes originating in a convention of states would have to be approved by three-fourths of the states to take effect.

The resolution entered the Kansas Statehouse via Convention of States, a Texas-based organization that has pushed the idea for years.

Hildebrand said he agreed with grassroots supporters of the idea when they say “the federal government’s out of control, it’s a disaster.”

But he was critical of the Texas organization — which has called him a “traitor to the United States and the state of Kansas” for opposing their convention proposal.

Now, he said, “We’re being asked to violate our oath of office and to violate our Kansas Constitution.”

Supporters came armed with a legal opinion by Attorney General Derek Schmidt, who wrote in 2019 that a simple majority would suffice.

He opined that requesting a constitutional convention “is a federal power granted to the Kansas Legislature by the federal constitution which cannot be constrained by the people of Kansas through the text of their state constitution.”

Sen. Mike Thompson, R-Shawnee, framed it as an issue of legislative prerogative. He lamented constitutional amendments going back to the Woodrow Wilson administration that have whittled away at state legislative powers.

He was most harshly critical of the 17th Amendment that established direct popular election of U.S. senators.

“Prior to 1913 . . . the states had the ability to recall our senators,” Thompson said. “That’s where we appointed those senators and if we didn’t like what they were doing, our constituents could come to us and say, ‘Hey, this guy’s doing a terrible job, recall him.’ That’s when the state Legislature really had power.”

“We’ve lost states rights and if we don’t recognize that, then we’re more blind than we realize,” he said.

Referral to committee seemed to be the one outcome no one expected.

Federal and State Affairs is one of a handful of “blessed” committees, meaning the panel can meet and process legislation up to the last day of the session.

But it was not clear late Wednesday whether the committee will try to revive the resolution in the waning days of this session or wait until next year to take it up again.