Incoming House majority leader Eric cantor is for it. Governor Bob McDonnell, Lt. Gov. Bill Bolling and Attorney General Ken Cuccinelli are for it to. “It” is what’s called the “repeal amendment,” a proposed federal constitutional amendment that would effectively give states a veto power over egregious federal legislation. One of the key tests for this amendment’s repeal will be in Virginia, where House Speaker Bill Howell, who controls what does and doesn’t come to a floor vote in the chamber, has made the repeal amendment a pet cause. But can even the Speaker get such an idea through the House?
My colleague Scott Lee interviewed Howell about the amendment and asked what obstacles it might face. So far, the most vocal objections have come from tea party favorite (and potential U.S. Senate candidate) Del. Bob Marshall, who warns that the ratification method Howell endorses — a ratifying convention — is fraught with dangers and could “run away.”
It’s an old concern. Past proposals to have the states, rather than Congress, start the amendment process have always run into the “run away” wall. In general, the argument goes that a convention gathered to vote on an amendment could do that, plus whatever else it wanted — from wholesale repeal of old amendments even to producing a new constitution. Paranoia aside, there is at least some credibility to the argument: the convention that created our current Constitution was only supposed to modify the Articles of Confederation. Needless to say, they far exceeded their mandate.
But would that happen today? Howell says that a convention call could be tailored so that only the proposed amendment — and nothing else — would be on the convention’s agenda. Anything that exceeded the convention’s explicit mandate would be null and void. Or so he hopes.
Howell’s real hope is that, as has also happened before, the states start the ball rolling on an amendment and Congress steps in to propose and approve its own version, which is then sent to the states for ratification.
Backers of the repeal amendment aren’t waiting for that critical mass of state’s calls for a convention to appear. They hope to introduce and win approval for such an amendment in the next Congress.
While I wish them luck, the chances of that happening are somewhere between none and nonexistent. Even if they can win House approval, they are unlikely to find a two-thirds majority in the Senate willing to give states a veto over congressional action.
This puts the onus back on state-level politicians like Howell. He says he’s been gathering support for the amendment across the country — Utah, South Carolina, Indiana and elsewhere. Considering the huge number of legislative seats Republicans gained nationwide in the November, it’s not inconceivable that several could produce convention calls.
But it’s going to be tough in Virginia. With Democrats controlling the Senate, and in no mood to give Republicans a victory on an issue like this, it will be up to old-fashioned grassroots lobbying to win in the upper chamber. And there’s precedent here, too: in the 2010 session, a handful of Democratic Senators broke ranks to support Virginia’s health freedom law that currently serves as the basis for Attorney General Ken Cuccinelli’s legal challenge to Obamacare.
Could federalism notch a second big win in Virginia? It just might…
