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The BIRCH BARK BBS / 414-242-5070
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THE NEW AMERICAN -- June 12, 1995
Copyright 1995 -- American Opinion Publishing, Incorporated
P.O. Box 8040, Appleton, WI  54913

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ARTICLE: Front Page
TITLE: Victories in the Con-Con Fight
AUTHOR: Robert W. Lee

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On May 19, 1994, Utah Governor Mike Leavitt publicly unveiled his
controversial proposal to convene a Conference of the States for
the purpose of promoting "fundamental, structural change" to
restore a proper balance between the federal government and the
states. Two days earlier, in a memorandum addressed to interested
parties, Leavitt and his deputy for policy, LaVarr Webb, claimed
that the Conference of the States process would be "powerful"
because it "relies upon precedents established by the Founding
Fathers at the time of our nation's birth."

Describing our current national government as "outdated and old-
fashioned," they asserted that "the problem we confront today
regarding balance in the federal system is similar to what the
Founding Fathers of this country faced more than 200 years ago with
regard to the Articles of Confederation." The duo declared that it
is "vitally important to see how the Founding Fathers solved the
problems of the weak Confederation," since some of what occurred
then "can help guide us today in restoring balance in the federal
system."

History reveals that the Founders called a meeting of the states,
which became the constitutional convention, which, though convened
for the purpose of revising the Articles of Confederation, scrapped
the Articles in favor of an entirely new document.

Less Than a Con-Con?

In their May 17th memo, Leavitt and Webb expressed the hope that a
process "less disruptive than calling a constitutional convention"
can be achieved, but held out the possibility that if "Congress
refused to consider or pass the amendments" that emerge from a
Conference of the States, "the states would have the option
themselves of calling a constitutional convention to consider the
amendments."

The governor's proposal drew prompt criticism from conservatives
concerned about its potential for instigating a constitutional
convention. Leavitt "solved" the problem with a semantic
adjustment, dropping all references to a con-con while keeping the
original blueprint intact. A revised version of the plan, carrying
his name alone, was printed in July 1994 by Utah's two largest
daily newspapers. The revision dropped the reference to "calling a
constitutional convention to consider the amendments," and asserted
instead that "the states would have the final option of taking
constitutional action themselves." In addition, the reference to
reliance "upon precedents established by the Founding Fathers at
our nation's birth" became reliance "upon principles established at
the time of our nation's birth...." (Emphasis added.) The switch
from "precedents" to "principles" was viewed by some as an attempt
to divert attention from the only precedent for a Conference of the
States, which resulted in the only constitutional convention held
to date in our country's history.

The potential for a con-con was still there, to be sure. It was
merely camouflaged in a way that misled many to believe that it had
been abandoned. By January of this year, the Conference of the
States had been endorsed by most governors, as well as by such
prestigious organizations as the National Governors Association,
the Council of State Governments, the Advisory Council on
Intergovernmental Relations, and the National Conference of State
Legislatures. Quick approval by at least a simple majority of
states (26 of the 50) required to convene the Conference appeared
to be a sure thing, and talk within pro-Conference circles shifted
from whether the conference would be held to what its outcome would
be.

Moving Ahead

The first step after a majority of states signed on was to be an
organizing session in July, followed by the Conference itself in
late October during which concrete proposals (including
constitutional amendments) would be approved.

First to pass a "Resolution of Participation," on January 16, 1995,
was Governor Leavitt's own state of Utah. To assure that he would
have the honor of being first to sign the measure, the legislature
passed it on the first day of the session (January 16th) without
hearings or debate. The vote was 75 to 0 in the House and 27 to 1
in the Senate. Two days later, Arkansas followed suit, also without
hearings. On January 20th, Virginia gave its blessing (without
hearings), as did Delaware (without hearings) on January 26th and
Kentucky (without hearings) the next day. On February 2nd,
resolutions were passed with similar haste and lack of scrutiny in
Idaho, Missouri, and Iowa. Ohio, Arizona, Wyoming, and South Dakota
soon came aboard, and by mid-February the tally stood at 12 to 0 in
favor of a Conference of the States. The juggernaut was rolling,
and did indeed appear to be unstoppable.

But then the well-oiled Conference machine ran into a brick wall.
Whereas early votes approving Resolutions of Participation had been
taken in an informational vacuum, a grassroots opposition movement
led by the John Birch Society and its nationwide network of
educational activists began to materialize. The Birch Society had
first drawn its members' attention to the threat posed by the
Conference of the States in its January Bulletin, where Don
Fotheringham, the Society's point man on the issue, warned that the
Leavitt plan was "potentially more dangerous than legitimate calls
for a con-con. The governor, it seems, has concocted a whole new
strategy for making radical changes to our form of government -- a
strategy that conflicts with the amendment procedures provided by
Article V in the U.S. Constitution." While acknowledging that the
current federal-state balance "tilts to the far left in favor of
federal power" and "is in dire need of correction," Fotheringham
stressed that "no legislative or structural alterations can
properly be obtained by any joint activity of state executives."

To date, the most useful educational tool exposing flaws in the
Conference of the States has been Fotheringham's article, "Con-Con
Call," which appeared in the February 6th issue of The New
American.* Once that article began to circulate widely, demands for
legislative hearings increased and many lawmakers were made aware
of the ominous implications of the proposed Conference for the
first time.

------------------------------------------------

*NOTE: Reprints are available at three copies for $1.00;
100/$25.00; 1,000/$200, from American Opinion Book Services, P.O.
Box 8040, Appleton, WI 54913. Add 15 percent ($2.00 minimum) of
order total for postage and handling.

------------------------------------------------

The Grassroots Grow

Serious grassroots opposition to the Conference of the States
initially surfaced in Colorado. The Senate approved the resolution
in mid-February, but by a surprisingly close vote of 21 to 14. The
measure had been expected to pass with minimal opposition. Spurred
by Birch Society activists and other concerned citizens, the House
Judiciary Committee scheduled hearings.

On February 16th, the John Birch Society's Don Fotheringham
testified against the Conference. Fotheringham recollects that
during his testimony he told the committee that our country's
Founders "understood their sovereignty. They exercised it in
liberating themselves from England, in issuing the Declaration of
Independence, in establishing the Articles of Confederation, and in
ordaining the U.S. Constitution. They understood the power that
resides in a free people, the power to create a government, and the
power to disband one." Fotheringham testified that Resolutions of
Participation in the Conference "would consolidate those same
powers, no matter what the meeting may be called." In passing such
a resolution, he advised the lawmakers, "You establish a delegation
that is no longer accountable to the legislature of Colorado. The
process of appointing delegates to meet with a majority of the
other states to conduct federal business releases them from all
accountability to this body. That is because, in a federal setting,
such delegates are accountable only to the people. That is the
legal, the peaceful, process by which the revolutionary force of a
sovereign people is consolidated."

Commenting on attempts to add mollifying amendments to the
resolution, supposedly to make it con-con safe, Fotheringham
described such efforts as worthless, since "no amendment could be
written that would have more power than the forces consolidated by
this process. Delegates of the people are superior to Article V.
They are superior to the Constitution. They are the creators of
constitutions, presidents, courts, and congresses."*

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*NOTE: In a number of states, one or the other (or both) of two
amendments have been appended to the resolution in the attempt to
appease critics. They read: "Adoption of the Resolution does not
constitute an application by the Legislature of [State] for the
calling of a federal Constitutional Convention within the meaning
of Article V of the United States Constitution"; and, "The
Conference of the States may not be convened as a federal
Constitutional Convention under Article V of the United States
Constitution."

------------------------------------------------

At the conclusion of the day's testimony, Senate Majority Leader
Tim Foster, who had spoken in favor of the resolution, urged the
committee to postpone a vote until a majority of other states had
passed their resolutions. That way, Colorado could avoid defeating
the measure and thereby slowing momentum for the Conference. No
vote was taken, and the resolution died when the legislature
adjourned for the year on May 8th.

Off Track

On April 2, 1995, the Salt Lake Tribune reported that Governor
Leavitt's policy director, LaVarr Webb, had "traveled to Sacramento
in March to help guide California's formal 'Resolution of
Participation' to passage. There, in a legislative committee room,
Webb stared down dozens of angry conservatives worried about
undermining the Constitution. The California lawmakers killed the
resolution" by a vote of four to one. Tribune reporter Laurie
Sullivan quoted Governor Leavitt as saying: "They had 80-some-odd
people turn out to the hearing. They were booing and demonstrating.
LaVarr was basically the only [supporter] there."

According to Sullivan, "In a span of just weeks, the John Birch
Society has heaved the conference locomotive off-track." For his
part, Webb told a reporter for Salt Lake City's Deseret News that
"there is a lot of opposition from the real extreme right-wing
wackos," whom he described as "irrational" and unwilling to "listen
to reason."

As we write, Resolutions of Participation have passed both houses
of legislatures in 14 states, but have been scuttled in 20 others,
including:

INDIANA. Representative Dean Mock was instrumental in keeping his
colleagues up to date regarding the ominous implications of the
Conference of the States. Two slightly differing resolutions
languished with little support in either the House or Senate. They
died when the legislature adjourned for the year on April 30th.

LOUISIANA. Don Fotheringham testified against the Conference on
March 29th, but the state's House Government Affairs Committee
approved the resolution that day by a narrow six to five vote. On
April 18th, however, the full House voted down the resolution by a
margin of 57 to 27. Babs Wilson, a parish chairwoman of the
Republican Party, played a key role in generating opposition to the
resolution.

MARYLAND. After identical Conference resolutions were introduced in
the Senate and House, local John Birch Society members Ben and
Betsy Boyce arranged for Don Fotheringham to testify during
hearings held in the Senate on February 28th and in the House the
next day. Summarizing his "Con-Con Call" article from The New
American, Fotheringham urged the Maryland lawmakers to read the
article and carefully consider what a Conference of the States
would actually entail. When he indicated to committee Chairman (and
Senate Majority Leader) Clarence Blount that he was nearing the end
of his testimony, the chairman asked him to instead "please go on,"
which he did. No vote was taken that day.

During the next day's hearings before the House Commerce and
Government Matters Committee, Colorado State Senator Duke made a
strong case against the resolution, explaining the uncertainty of
the ratification process even were the Conference to comply with
Article V and submit its action plan (States' Petition) to the
states.

In testimony Fotheringham cited Utah's experience during the debate
over repeal of prohibition. Utah was a "dry" state, due in large
part to the influence of its heavily Mormon population, and all
members of the legislature had agreed to vote against the 21st
Amendment. When Congress and the liquor lobby realized that the
legislature of Utah and many other states had no intention of
ratifying the 21st Amendment, Congress exercised its Article V
option to circumvent the legislatures by authorizing state
ratifying conventions instead. Congress and special interests then
influenced the delegate selection process to assure that even "dry"
states would pass the anti-prohibition amendment. It was by that
strategy that Utah, ironically, became the 36th and decisive state
to legalize the sale of liquor, despite overwhelming opposition
from the state legislature.

Maryland's Senate committee opted to postpone a vote on the
Conference matter. But on March 13th, the House committee rejected
the resolution by a lop-sided tally of 16 to 4, thereby laying it
to rest for the year.

MONTANA. Hearings were held in the Montana House on March 14th.
Again, Don Fotheringham was there, as were Montana Governor Marc
Racico and Governor Leavitt. It was the first time that
Fotheringham and Leavitt had faced each other during a hearing. The
governors were allowed to speak both first and last. In between,
Fotheringham focused on the enormous power that could be wielded by
the Conference due to the Resolutions of Participation process. He
explained why the action plan produced by the Conference would not
necessarily come back to the state legislatures for ratification,
and made clear that the John Birch Society was not accusing
Conference sponsors of attempting to hold an Article V convention
per se, but rather of consolidating the forces that would amount to
such a convention.

As Fotheringham has pointed out on other occasions, delegates to
the Conference of the States would already have the con-con power,
so there would be no need to announce to the world that it was a
con-con. If and when 26 legislature-approved Resolutions of
Participation are secured, the delegates to the Conference "can do
whatever they please, whether they call it a constitutional
convention or not." The resolutions, Fotheringham stresses, are the
problem. "They energize the concept. When you meet in a federal
setting with other states to do federal business, you are a con-con
whether you call it one or not."

The hearing was thorough, both sides were given ample opportunity
to make their case, and the event was extensively covered by both
the print and electronic media. The House committee opted not to
vote that day, but later rejected the resolution (March 14th) by a
vote of six to five.

NEW MEXICO. On March 7th, Fotheringham arrived at the state capitol
in Santa Fe to give testimony at hearings which, according to the
day's printed agenda, were to be held on the House side. It soon
became apparent that a proverbial "fast one" was being attempted,
since the House hearings were merely for the purpose of
appropriating expense money for Conference delegates. Some
sleuthing by Fotheringham and John Birch Society members Lee
Gonzales and Gary Krieger eventually determined that the
Conference, under another name, was being scrutinized by the Senate
Rules Committee. The three arrived at the hearing room as Senate
Minority Whip Timothy Jennings was about to call for a vote.
Jennings mistakenly assumed that Fotheringham was representing Mike
Leavitt, and told him, "Governor Leavitt offered to come here
today, but I told him I didn't think it would be necessary and that
we had everything all worked out here." After allowing brief
statements by Fotheringham, Gonzales, and Krieger, the committee
passed the resolution unanimously. It was subsequently approved by
the full Senate and sent to the House Judiciary Committee.

The bill was placed on the House calendar for March 15th. By law,
the legislature would adjourn by noon on March 18th. No hearings
were held on the 15th, nor at any other time. Over the next four
days, however, a number of key legislators availed themselves of
the opportunity to study the issue more thoroghly. At the last
moment, only three minutes prior to adjournment, the House Speaker
called up the Conference resolution for a vote. He claimed that
there was no longer a con-con problem, since the measure had been
amended to preclude one. Thanks to some last-minute floor work by
State Representative Lorenzo Larranaga, however, it quickly became
apparent as the voting lights flashed that a major upset was in the
making. The resolution went down to defeat, 42 to 21.

Other states in which the Resolution of Participation has either
been voted down, or the legislature has adjourned without passing
it, include Florida, Georgia, Hawaii, Kansas, Minnesota,
Mississippi, Oklahoma, Oregon, Pennsylvania, Rhode Island, Vermont,
and West Virginia.

New Strategy

The Conference of the States will not be held in 1995 as planned.
Governor Leavitt and other spokesmen admit that burgeoning
grassroots opposition has forced them to cancel the July organizing
meeting and to postpone the confab itself that was originally
scheduled for October 22nd-25th in Philadelphia.

On April 21st, the Conference of the States steering committee,
chaired by Governor Leavitt, met in Florida to figure out how to
reverse the misfortune that has befallen the Conference cause.
Earlier, Leavitt had indicated that he might be willing to forego
the Resolutions of Participation, which would solve the problem,
but the steering committee (with his support) not only decided to
keep the Resolutions as part of the process, but increase the
effort to achieve passage by a majority of state legislatures next
year. Leavitt himself questioned whether or not it would be
possible to attract governors and other state leaders to the
Conference if the Resolutions were abandoned, since it would be
perceived as a defeat, and there would be a risk of losing top-
level delegations because they would have lost a sense of urgency.

The steering committee also decided to launch a massive effort to
establish a fund-raising and lobbying entity to help spread the
pro-Conference message to state lawmakers prior to legislative
action next year. According to a March 25th report by the Salt Lake
Tribune's Laurie Sullivan, the "American Legislative Exchange
Council [ALEC] and the State Legislative Leaders Foundation will
join the Council of State Governments, the National Governors
Association, and the National Conference of State Legislators as
official conference conveners." ALEC has for many years advocated
a constitutional convention, if necessary, to achieve approval of
a balanced budget amendment. The Washington-based Heritage
Foundation, which periodically lends its aura of conservatism to
questionable causes (it backed GATT and NAFTA, and is presently
urging that NATO be expanded to include "former" communist
countries that the U.S. would be obligated to defend), is,
according to Governor Leavitt, one of the entities "drafting
scholarly position papers stating the conference could not, would
not become a constitutional convention."

As noted earlier, the Conference resolution has passed in 14
states, but has been rejected by vote or inaction in 20. As we
write, the count since mid-February stands at two for and 20
against the Resolutions of Participation. It is an impressive turn-
around, but is also merely the first skirmish in what could prove
to be a long, drawn-out conflict. Those who would defend the
Constitution by opposing the Conference must guard against
complacency, and re-double their efforts in coming months, lest
they risk the fate of the hare that raced the tortoise in Aesop's
instructive fable.

Plans are presently underway for a "federalism summit" this autumn
which, Conference promoters hope, will attract the support of at
least 26 states. If that magic number is reached, Governor Leavitt
has said that the "summit" will be transformed into a "convening
meeting" at which governors and legislators will make plans for a
future Conference of the States. Otherwise, the event will simply
proceed as a "summit," and may include not only governors and
legislative leaders, but "perhaps even mayors, city councilmen,
members of the courts -- both state and national...." It will,
Leavitt predicts, "be an important watershed event in and of
itself..." As for the Conference of the States, he speculates that
"it will happen, and it will happen sometime, but it doesn't have
to happen immediately."

END

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THE NEW AMERICAN -- June 12, 1995
Copyright 1995 -- American Opinion Publishing, Incorporated P.O.
Box 8040, Appleton, WI  54913

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