By Devin Burghardt. Originally published at IREHR.
With the fight over Obamacare slowly receding, the Tea Party Patriots are mobilizing for a new effort to dramatically re-write the Constitution, beginning with a serious call to repeal the constitutional amendment that led to the creation of the Internal Revenue Service and the income tax, the 16th Amendment. As implausible as it seems, the effort is already picking up steam in the states. Along the way, they’ve picked up some strange bedfellows and turned some allies into enemies.
Field reports, event recordings, and new documents obtained by the Institute for Research and Education on Human Rights show a growing national effort by Tea Party groups and allies to significantly rewrite the Constitution. This new report outlines the significant organizational players, the various strategies, and the rifts exposed in this latest Tea Party offensive.
The Tea Party-instigated “final battle for Obamacare” led to a seventeen day shutdown of the federal government and risked collapsing the U.S. economy. But in the end, they failed to defund the Affordable Care Act. The government re-opened. Congress voted to raise the debt ceiling. Having led the charge, the Tea Party took the brunt of the blame for the stinging defeat. It was the second time the Tea Party had created a crisis around the debt-ceiling, and the failed strategy took a toll this time. Public opinion slumped back to pre-IRS “scandal” days.
Other groups were still reeling from the rout, but one national Tea Party faction began laying groundwork for a shocking new strategy. Though it’s received virtually no national media attention, the Tea Party Patriots have been preparing their national staff, local coordinators and members to wage war on the Constitution.
The plan is as simple as it is diabolical: it starts by amping up a push for Congress to pass a Constitutional Amendment. When that fails, organize at the local level to get the states to call a Constitutional Convention.
The scheme has been brewing inside the Tea Party Patriots inner-circle for some time, but the relentless campaign against Obamacare diverted energy and distracted from the cause. But having exhausted the economy hostage-taking strategy over the debt ceiling, electioneering growing wearisome and unnecessary having reshaped the GOP in their image, and with other groups already trailblazing on the issue, they’ve decided to roll-out the strategy in 2014.
Ironically clinging to the notion that they are guided by “Constitutional principles,” the Tea Party Patriots actually plan to chip away at the bedrock cornerstones of the Constitution. Left unchecked, their plan could trigger a Constitutional Convention. Such a move could destabilize the nation and eliminate everything from the 14th Amendment’s equal protection and birthright citizenship protections, to the 17th Amendment’s direct election of Senators. It could also throw open the doors to other hard right fantasies, and would put at risk everything from women’s reproductive health, labor rights, progressive taxation, and the separation of church and state.
But first up, the old far-right punching bag, the IRS.
“It’s Not Rocket Science:” The Tea Party Plan to Repeal the 16th Amendment
The Tea Party Patriots will use the April 15 Tax Day to ramp up activism by their locally affiliated groups to abolish the 16th Amendment. On April 8, the Tea Party Patriots held a national conference call to lay out their push to abolish the 16th Amendment. Though it has received little attention, the effort has been more than a year in the making.
Lost in the coverage of the cavalcade of legislators on stage that day was the agenda that Tea Party Patriots co-founder, Jenny Beth Martin, laid out in her afternoon presentation. Repeal of the 16th Amendment was at the heart of the Tea Party Patriots fifth anniversary celebration on February 27.
Martin outlined three key issues for the Tea Party Patriots. In addition to yet another call to repeal Obamacare and the outline of a plan to massively cut government spending, Martin devoted much of her talk to the roll-out of the Tea Party Patriot effort to repeal the 16th Amendment. “Our next task sounds like a hard one. Some of you may even think it’s impossible. It’s not. We will amend the Constitution, and replace the tax system with a fair, fixed, flat rate.”
Following a year-long assault on the Internal Revenue Service over the phony scandal related to the granting of non-profit status to Tea Party groups, Martin appealed to the tried-and-true American hatred of paying taxes, while simultaneously casting the Tea Party as victims of political persecution. “An obvious benefit to doing this is that we will dump 67,000 pages of oppressive IRS regulations. And we will replace it with a tax that is simple and fixed – one that will save families and business billions of dollars a year in tax preparer fees alone. It stops the IRS from political targeting and silencing speech. It takes away many of the special interests on K Street, and frees us from politicians who only serve their own interests, rather than the people’s. There’s more to it: this will reduce taxes. And when we reduce taxes and reduce government spending, we all have a chance to earn more money and businesses are able to hire more people. We free people and the economy to do incredible things,” she declared.
Martin also told the small celebration at a ritzy Washington D.C. hotel that, “When this movement started, I was going through personal financial crisis myself. My husband and I found ways to keep the roof over our family’s head without a government bailout.” Her emotional declaration of self-sufficiency in the face of financial pain may tug at the heart-strings of Tea Partiers, but it’s a lie.
Long before President Obama was elected, Jenny Beth Martin and her husband wrung up a staggering tax debt. To keep that roof over their family’s head, they turned to government for a bailout in the form of bankruptcy protection and tax relief. As noted in Tea Party Nationalism, Martin’s route to the Tea Parties includes a bumpy collision with tax collectors. According to court documents, Martin and her husband owed over $680,000 in tax debt, including over half a million dollars to the Internal Revenue Service, when the pair filed for bankruptcy in August of 2008.
Revving up the assembled troops, Martin concluded, “To amend the Constitution. To revamp the tax code. That’s a challenge we are willing to accept, and we will win. That loftygoal starts on the ground with us. We need to teach our family and friends that it can be done. We need to make the case to our state legislators and to Congress. It’s not rocket science. And we will do this.”
Martin’s February announcement should come as no surprise to anyone closely watching the Tea Party. Back in 2011, Tea Party Patriots National Support Team Constitutional Coordinator Bill Norton and then Tea Party Patriots co-founder Mark Meckler participated in a Harvard symposium on a Constitutional Convention.
“Our next task sounds like a hard one. Some of you may even think it’s impossible. It’s not. We will amend the Constitution, and replace the tax system with a fair, fixed, flat rate.”
In February 2012, Meckler and his co-founder Jenny Beth Martin published their book Tea Party Patriots: The Second American Revolution (Henry Holt and Co, February 14, 2012). The book lays out their 40-year roadmap for revolution, including a plan for Constitutional Amendments followed by Constitutional Convention(s).
Martin and Meckler’s plan first sought to scrap the Founder’s delicate balance embodied in the Constitutional Convention provisions. “So we need a constitutional amendment to change the process of amending the constitution to permit single-issue constitutional conventions to be called where only certain topics may be considered…A new amending procedure would allow voters to bypass Congress and hold conventions without fearing damage to the fundamental fabric of our governing institutions,” they wrote.(p. 106).
They also called for a specific Amendment, one which would revert the Constitutional balance back to something more resembling the failed Articles of Confederation. Martin and Meckler wrote, “We need to restore the balance intended by the original Constitution. We need a constitutional amendment providing that if three-quarters of the states pass a law repealing or modifying a federal statute, their change is binding on the federal government.”(p.107)
Nor was the February anniversary event the first time that Tea Party Patriots announced their intentions to go after the 16th Amendment.
Just days after the government shutdown/debt-ceiling debacle, on November 21, 2013, Tea Party Patriots first revealed their support for a congressional bill to repeal the 16th Amendment. “The only way to reform the IRS in a meaningful and lasting manner is to repeal the underlying Constitutional amendment that allowed for the creation of 67,000 plus pages of regulations,” Said Martin. “It is time to start over and Congressman Bridenstine’s Bill to repeal the 16th Amendment is the place to start,” added the group’s media release.
Presently, Bridenstine’s bill, HJR 140, has eleven co-sponsors and has been referred to the House Judiciary Subcommittee on Constitution and Civil Justice.
With national attention still focused on the previous Tea Party failure, the announcement went largely unnoticed, as was the creation of a new coalition effort to repeal the 16th Amendment. Last September, Tea Party Patriots joined Americans for Fair Taxation, Americans for Limited Government, and Competitive Governance Action to form the Coalition to Repeal the 16th Amendment (Repeal16.org). The new coalition claims that, “Repeal 16 is founded on the proposition that the 16th Amendment establishing the federal income tax was a radical social experiment launched 100 years ago that has now grown into a Frankenstein monster.” In one of the few mentions of the new coalition, Politico noted that the firm of Phillip Stutts & Company Inc. was hired to run the digital and public affairs efforts for the coalition group.
Regardless of whether or not the Tax Day push to repeal the 16th Amendment serves to move the bill through Congress, the Tea Party Patriots have been laying the groundwork for the potential next step, an Article V Constitutional Convention.
The Tea Party Push for a Constitutional Convention
An Article V Convention, also called a Convention to propose amendments to the United States Constitution, or a Convention of the States, is one of two alternative procedures for proposing amendments to the United States Constitution described in Article Five of the Constitution (The other method is a vote by two-thirds the members of each house of Congress). An Article V Convention is triggered when two-thirds of the states file applications to demand it.
The Article V Convention method has never been used to amend the Constitution. One reason: the high bar necessary to call a Convention. Additionally, as Martin and Meckler alluded to in their book, such a Convention would have no limitations. Anything could become an Amendment. Anything could be repealed.
With the Congressional route to passage of a Constitutional Amendmentstill a long-shot, Tea Party Patriots are already preparing their leadership for an alternative path to dramatically alter the Constitution.
In January, Tea Party Patriots kicked off a webinar series entitled “Article V Symposium: A Discussion on Amending the Constitution of the States.”
The webinars were run by Bill Norton, the Tea Party Patriots National Support Team Constitutional Coordinator. Norton’s “expertise” on the Constitution comes from his other job a “Master Instructor” for the National Center for Constitutional Studies (NCCS), the group founded by long-time John Birch Society supporter W. Cleon Skousen. Before his death, Skousen acted as a mentor to Nelson.
Speaking to Tea Party groups across the country, Norton has promoted Skousen’s book, The Making of America. The book includes an essay on slavery that argued that, “abolitionist delay[ed-ed] the emancipation process,” and that the standard of treatment of slaves was “humane.” Further, a graphic in the 1986 edition of the book claims, “The economic system of slavery chained the slave owners almost as much as the slaves.”
During the first webinar, Norton outlining the rationale for the special symposium, “Tea Party Patriots over the last couple of years certainly heard a lot about Article V, both pro and con, for and against, an Article V convention – an amending convention. And so we figured it would be a good idea, as the conversation continues to gather more and more interest, we thought it would be a good idea to gather some great information to present to our local coordinators and other people involved in the Tea Party movement.”
Nelson added, “I didn’t think that people were ready for an Article V convention, because I didn’t necessarily believe that the people understood natural law principles enough to engage in a discussion to alter our Constitution. My views have changed a bit. I do believe that the people are capable of becoming educated and I believe that just like in the founding era, some of the catalysts—the Declaration of Independence and the Articles of Confederation and Constitutional Confederation—those events spurred public education and made it so people were very interested in learning about the Constitution and more about fundamental principles, or as the founders called them, ‘first principles’.” He concluded that he was now leaning towards an Article V convention.
The Tea Party Patriots Article V Convention effort was met with derision by some far-right allies, most notably the John Birch Society and the Eagle Forum, both of which have opposed the idea for decades.
That hasn’t stopped Tea Party Patriots from moving forward, nor has it deterred other national Tea Party factions from getting into the act.
Over at Tea Party Nation, founder and proponent of eliminating much of the 14th Amendment, Judson Phillips wrote on April 4, “Is a Constitutional Convention coming? Could be.” And on the Tea Party Nation website, Magnus Colorado of San Antonio, Texas echoed, “We the People must use Article V to repeal the 14th, 16th and 17th amendment which removes the MONEY AND POWER from DC . . . and puts it back in the hands of our State legislatures . . . If we do not act they will have usurped the entire Constitutional LIMITS one court decision piled on the next and little by little the The Republic is gone. FOREVER.” Mr. Colorado is also a leader in a group called the Article V Project to Restore Liberty.
The scheme has also been percolating inside the Patriot Action Network. James from Carlisle, Pennsylvania wrote on the Tea Party group’s website, “A wise man once said when life gives you lemons then make lemonade. So it is for the reelection of Obama. Now I’m going out against the status quo as I always do and say that yes, the left controls the cities and those voting blocks, mostly minority, cancels out your vote. But I think that given the choice between Romney and Obama, dumb and dumber that there was no choice. Elections are about differences. Whoever you liked, Reagan or Carter, everyone can agree that there was a sharp difference between the two. Was there a difference between the Obama and Romney? … So here is the lemonade. I once wrote about an Article V Constitutional Convention where our Constitution could be amended. Crazy talk huh? Consider that if all of you that put an effort into the primary for Ron Paul and those that supported Romney and even many on the left put that same effort into an Article V Convention then most likely that legislation would be on Governor Corbett’s desk in Harrisburg. It might even appear as a ballot question in Maryland by next year.”
The 1776 Tea Party (aka TeaParty.org) also looks to be supporting the effort, though the group is spending more time on efforts to impeach President Obama.
Perhaps due to their ties with the John Birch Society (which IREHR documented in 2011) the FreedomWorks response has been mixed. On their site, FreedomWorks staff have both promoted JBS events deploring the idea, as well as listing Article V promotional events.
While a number of local Tea Party groups have also jumped on the bandwagon, not all groups are happy. For instance, the New Hampshire Tea Party Coalition warned that the purpose of the Article V Convention is to “disarm Americans.” They’ve teamed up with the Birchers to hold press conferences to loudly oppose a “Con-Con.”
Right, Left, Con-Con
National Tea Party groups are playing catch-up to the growing call on the far-right for an Article V Convention. On the Right, talk of a Constitutional Convention (Or Con-Con for short) has been growing since the re-election of President Obama. Talk-show hosts Glenn Beck and Mark Levin have promoted various versions of a Constitutional Convention. In February, David Barton, the theocrat pseudo-historian behind the Christian Right, anti-Separation of Church and State efforts threw his support behind an Article V Convention of the States.
In addition there are several other Tea Party-linked groups pushing for an Article V Convention of the States. The most notable groups are the American Legislative Exchange Council (ALEC) and the Convention of the States (COS).
Founded in 1973 by Paul Weyrich and colleagues, the American Legislative Exchange Council calls itself “the nation’s largest, non-partisan, individual public-private membership association of state legislators.” In reality, the secretive organization, which includes nearly 2,000 legislative and 300 corporate members, serves as a clearinghouse for model far-right legislation. The group’s legislative priorities have included voter suppression laws, rolling back civil right legislation, privatization of public education, repeal of Obamacare, breaking unions, deregulation of industry, and more. ALEC is perhaps most notorious for working with the National Rifle Association to craft the model “Stand Your Ground” legislation that empowered George Zimmerman to kill Trayvon Martin because Zimmerman felt threatened.
Among the ten current ALEC initiatives, the “Restore the Balance” initiative includes the call for an Article V Convention. On the group’s website, they note, “Our Founders knew the importance of checks and balances. In the United States Constitution, they outlined one of the most important roles states have in keeping the federal government in check. Under Article V, states are granted the right to require Congress to call a convention of the states, during which states can propose amendments to the Constitution.”
The website also includes the slick ALEC publication, Proposing Constitutional Amendments by a Convention of the States: A Handbook for State Lawmakers, which includes model Article V application legislation that state legislators can easily adapt and introduce back home.
In the foreword to the Proposing Constitutional Amendments by a Convention of the States handbook, Indiana State Senator Jim Buck, who chairs the ALEC Tax and Fiscal Policy Task Force, wrote,
Time is running out. Our nation is trillions of dollars in debt without a credible plan to stop spending. The battle in Congress has escalated to a point where politics outweighs the cost of our economic future, and there is little hope our nation’s leaders will make the tough choices that need to be made in order to reign in our debt and revive our economy. Fortunately, there is a solution outside of Congress—a solution that Professor Rob Natelson outlines in this Handbook.Our Founders knew the importance of checks and balances. In the United States Constitution, they enumerated one of the most important roles states have in keeping the federal government in check. Under Article V, states are granted the right to require Congress to call a convention of the states, during which states can propose amendments to the Constitution.
As ALEC heads into its Spring Task Force Summit in Kansas City, Missouri on May 1-2, IREHR will be closely watching to see how high the Article V Convention issue appears on the ALEC 2014 agenda.
The other notable group calling for an Article V solution is the Convention of the States, a project of Citizens for Self-Governance. The group’s national leadership includes ex-Tea Party Patriots leader, Mark Meckler, and Michael P. Farris of the Home School Legal Defense Association.
The COS Project seeks to have a viable political operation active in a minimum of forty states. They currently claim statewide volunteer leadership in Alabama, Alaska, Arkansas, Arizona, California, Colorado, Delaware, Florida, Georgia, Iowa, Idaho, Illinois, Indiana, Kansas, Louisiana, Massachusetts, Maryland, Maine, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Virginia, Washington, West Virginia, Wisconsin and Wyoming.
Not all efforts calling for a Constitutional Convention are tied to the far-right. There’s the group, Call a Convention, CallaConvention.org, founded by Harvard Law professor Lawrence Lessig which aims to stamp out political corruption by eliminating the corrosive impact of money in politics. There’s the Compact for America, which includes Lessig and some Republican operatives. There’s even a Left-leaning Con-Con group that spun-out of the Occupy Wall Street movement.
In recent weeks, concern has surfaced on the far-right about the connections between Meckler and Lessig. The relationship between the two men has been used to argue that an Article V Convention was a Trojan horse for progressives.
Con-Con Gaining Steam
On March 6, both chambers of the Georgia legislature officially passed an Article V Application for a Convention of the States. Though many Constitutional scholars warn that it would be impossible to limit the scope of a Convention of the States, the Georgia resolution aims to restrict the convention to topics of limiting the power of the federal government and establishing term limits for federal officials.
“An Article V Convention of States would provide an opportunity for the citizens of this great nation to restore the balance of power between the states and the federal government,” Tea Party-backed Georgia State Rep. Buzz Brockway said in a statement. Georgia’s House voted 107-58 to pass the measure, SR 736, which previously had passed the state Senate 37-16.
The Georgia legislation was sponsored by several legislators with both Tea Party and ALEC ties. Brockway, the sole sponsor in the House has been a member of ALEC’s Communications and Technology Task Force. The sponsor of the bill in the State Senate, Cecil Staton, along with three of the bill’s five co-sponsors, have also been active in ALEC.
After the passage of SR 736, Brockway urged “legislators in the other 49 states to join Georgia and call for a Convention of States for the purpose of proposing amendments to the U.S. Constitution.”
Far-right state legislators are heeding his call. Bills similar to Georgia’s have passed at least one chamber in Alabama (House – HJR 49), Arizona (House), and Alaska (House – HJR 22), and it has been introduced in Florida, Missouri, New Mexico, and South Carolina.
As impossible as this Tea Party plan sounds, it should be noted that previous efforts have come extraordinarily close to victory.
As historian Thomas H. Neale describes in The Article V Convention for Proposing Constitutional Amendments: Historical Perspectives for Congress, while the obstacles to an Article V Convention are “daunting,” efforts to call an Article V Convention have nearly succeeded twice in the last fifty years. Reaction to a 1964 Supreme Court ruling over apportionment of state legislatures, and the drive for a balanced budget amendment in the 1980s, both came remarkably close to calling an Article V Convention.
In 1964, the Supreme Court ruled in Reynolds v. Sims that districts in both chambers of state legislatures must be generally equal in population, thus embracing the principle, “one person, one vote.” Opponents of the ruling made states-rights arguments against the changes to apportionment and expressed fears that it could lead to dominance of state governments by “urban interests.”
Some foes of the ruling urged Congress to pass a constitutional amendment to permit states to use additional factors to determine apportionment, but the effort came up short. Just months after the ruling, others chose the Article V Convention route. As Neale noted, “the General Assembly of the Council of State Governments published and circulated both a manual on the Article V Convention process for state legislatures and a model application for a convention. The first state applications for a convention to consider amendments on legislative apportionment were submitted in 1963, and by the 91st Congress (1969-1970), 33 states had filed Article V applications, just one short of the two-thirds necessary to trigger a convention.”
From 1975 to 1983, the conservative push for an Article V Convention for a balanced budget amendment also nearly succeeded. Supported by President Reagan, Article V Convention activists gained support from 32 states, just two short of the requisite needed. Momentum stalled, however, when Congress passed the Gramm-Rudman-Hollings Balanced Budget and Emergency Deficit Control Act in 1985, which claimed to serve the same purpose without the risk of a runaway convention.
Just as the call for an Article V Convention can move Congress to pass desired legislation, as in the case of the Gramm-Rudman-Hollings Act, the efforts can spur Congress to take initiative to amend the Constitution. As Neale notes, “The concerted action of states in calling for an Article V Convention with the ultimate purpose of convincing Congress to propose a particular amendment has been referred to as the ‘prodding effect,’ because the states are prodding Congress to take the initiative.”
Passage of the 17th Amendment, which allows for the U.S. Senators to be elected by the people rather than appointed by state legislatures (something which many Tea Partiers now oppose), was the most prominent example of the prodding effect. Efforts to call for an Article V Convention, and the fear of a “runaway convention” convinced Congress to act. It was passed in Congress and submitted to the states for ratification on May 13, 1912, and ratified by three-fourths of the states by April 8, 1913.
It shouldn’t be possible for the Tea Party to simultaneously wrap themselves in the Constitution at the same time they campaign to take a chainsaw to it, yet that is precisely what they are doing. The Tea Party Patriots and other groups are quite serious about their desire to eliminate many different elements of the Constitution of keen interest to human rights activists. Everything from the equal protection and birthright citizenship provisions of the 14th Amendment, to the 15th Amendment’s voting rights provisions, to the system of progressive taxation enabled by the 16th Amendment, to the 17th Amendment’s direct election of Senators, are all on the table. The effort could literally re-define the nation.
It’s definitely not rocket science. Unless human rights supporters take the threat seriously and begin organizing to confront these efforts (and the groups behind them) head-on, many essential rights and protections enumerated in the Constitution could be gone.