AUGUSTA — A resolution under consideration by the Legislature that lifts most of its wording from a model bill written by a secretive, corporate-funded group could lead to a radical rewriting of the U.S. Constitution.

If approved, the resolution would make Maine the 13th state to call for a fairly open-ended constitutional convention of the states under Article V of the Constitution. If 34 states pass such a measure, the United States would convene its first constitutional convention since 1787, and delegates could set about amending or rewriting the Constitution.

Aside from the preamble, the text of the bill resolution closely mirrors that of a model bill drafted and promoted by the American Legislative Exchange Council, or ALEC, a corporate-funded organization that allows businesses to write legislation and give it to state lawmakers to introduce at home. Some passages are copied word for word from the ALEC document.

FLOOR VOTE ON RESOLUTION SOON

A competing measure that claims to limit the convention’s proceedings to the passing of a balanced-budget provision has been adopted by 27 state legislatures. The one under consideration in Maine is far more radical – limited, it proclaims, to measures “that impose fiscal restraints” or “limit the power and jurisdiction” of the federal government, while imposing term limits on congressional representatives.

“These are three sweeping areas that amount to a rewrite of the Constitution,” said Arn Pearson, general counsel for the Center for Media and Democracy, a Wisconsin-based organization that closely tracks ALEC. “I really see it as a return to the Confederacy. They want the ability for states to override Supreme Court rulings and any federal law they don’t like.”

The lawmaker who introduced the resolution, Rep. Steve Stanley, D-Medway, did not respond to interview requests last week and said via a legislative spokeswoman that he was unavailable to speak about it Monday.

A legislative panel charged with evaluating the merits of H.P. 987 voted 7-6 to recommend that the resolution not pass. It will go to a full floor vote, probably this week.

The only lawmaker who testified on its behalf at a May 17 public hearing was Rep. Matthew Harrington, R-Sanford. He said he was inspired to do so after serving as a delegate at a simulated Article V convention at Virginia’s Colonial Williamsburg last September, along with Sen. Garrett Mason, R-Lisbon Falls, and former Rep. Randy Greenwood, R-Wales. Harrington said the event was “a complete success and a great experience.”

The event simulated discussion of the same three issue areas in the Maine resolution. It was promoted by ALEC and sponsored by Citizens for Self-Governance, a Texas-based nonprofit that’s championing the measure across the country and is headed by Mark Meckler, founder of the Tea Party Patriots movement and a friend of Maine tea party activist Andrew Ian Dodge, who died of cancer in 2014.

“As a participant, I can tell you that the process works,” Harrington told legislators at the May 17 public hearing. “Many of us wished it was a real convention because the proposals that came out of it would help to fix many of the problems we are facing today.”

In an interview with the Portland Press Herald, Harrington said he’d been skeptical of the convention idea until he attended the Williamsburg simulation and saw the degree of checks and balances that would be in play. “There were like 115 state legislators there who were generally on the same page on a lot of the issues, and even we had a hard time coming together on issues like term limits,” he said. Harrington noted that in a real convention, any recommended amendments would have to be endorsed by four-fifths of the states’ legislatures to be adopted.

“There are so many safeguards, it’s almost something we should be doing annually,” he said. “Congress proposes thousands of amendments that don’t pass, so what’s wrong with the states being more involved in the process?”

JUSTICES SCALIA, BURGER OPPOSED

Many constitutional experts, past and present, have expressed deep concerns about anyone ever convening a convention under Article V, primarily because the Constitution offers little guidance as to how it would be conducted, including how delegates would be selected and how one would limit the scope of proposed changes once the meeting was convened.

In 2014, the late, staunch conservative Supreme Court Justice Antonin Scalia said he would never want to see an Article V convention held. “Whoa!” he explained. “Who knows what would come out of it?”

In a 1988 letter to conservative activist Phyllis Schlafly, retired Chief Justice Warren Burger also expressed opposition. “There is no effective way to limit or muzzle the actions of a constitutional convention,” he wrote. “The convention could make its own rules and set its own agenda. Congress might try to limit the convention to one amendment or to one issue, but there is no way to assure that the convention would obey. After a convention is convened, it will be too late to stop the convention if we don’t like its agenda.

“Whatever gain might be hoped for from a new constitutional convention could not be worth the risks involved,” Burger continued. “A new convention could plunge our nation into constitutional confusion and confrontation at every turn, with no assurance that focus would be on the subjects needing attention.”

Other experts agreed. “I think it’s a bad idea, not because I think our Constitution is perfect or anything like that,” said constitutional law expert Richard Fallon, a law professor at Harvard University and a graduate of Cony High School in Augusta. “It would be a miracle if people hadn’t found a better way to write constitutions than would have been imaginable to anyone in 1789,” when the Constitution was ratified.

“It shows a kind of lack of faith in the current state of American democracy to say this, but I do think it would be a deeply bad idea because of where we are at,” Fallon said.

‘CRAZY’ TIME TO CALL CONVENTION

The involvement of corporate groups like ALEC has the good-government watchdog group Common Cause alarmed about the current effort. “This is a way for Republican donors and the extremists on the right to put their radical agenda into the Constitution, as opposed to simply passing it in the Congress and state legislatures,” said Jay Riestenberg, a campaign strategist at the Washington-based group. “It’s crazy to think that this is the right time to call a convention, when you have a president who is under likely FBI investigation for colluding with a foreign government to win an election and Congress looking likely not to do their constitutional duties and investigate this.”

ALEC has pushed for Article V conventions at its meetings and publishes a guide written by one of its scholars on how to promote and conduct one.

While ALEC claims to be a nonpartisan professional association for state legislators, virtually all of its funding comes from its corporate members, which include major energy, drug, mining, telecommunications and chemical companies. The organization does not disclose the identities of the more than 1,700 state legislators who are members, but documents leaked to Common Cause showed that in 2011, members included Mike Thibodeau, R-Winterport, who is now president of the Maine Senate, and state Sens. James Hamper, R-Oxford, and Brian Langley, R-Ellsworth. Sen. Andre Cushing, R-Newport, a longtime state co-chairman, sits on the organization’s board of directors.

Lobbyist Ann Robinson, an adviser to Gov. Paul LePage, was ALEC’s corporate co-chairwoman for Maine in 2011. This session, LePage introduced an ALEC-inspired bill that would have stopped towns from passing their own pesticide ordinances. Rep. Nate Wadsworth, R-Hiram, who introduced another ALEC-modeled bill that sought to prevent towns from building broadband networks, is a current state co-chairman. Both bills were unanimously rejected by legislative panels.

Harrington said Monday afternoon that he thought the resolution would likely go to a floor vote Thursday.

Colin Woodard can be contacted at:

[email protected]


Correction: This story was revised at 10:11 a.m., May 23, 2017, to correct the spelling of Arn Pearson’s name.