The Leaflet: States Consider Article V Constitutional Reform

Published February 11, 2016

States across the nation are considering constitutional reform. According to Article V of the U.S. Constitution, amendments can be passed in two ways. First, Congress can propose and approve an amendment with a two-thirds majority vote in both the House and the Senate. The amendment must then be ratified by three-quarters of the states to legally become part of the Constitution. This process been used to pass all 27 amendments that exist today. The second way to add a constitutional amendment—one that has never been successfully utilized—requires two-thirds of state legislatures to call a convention of all 50 states for the purpose of proposing amendments. It’s this second method many states are now trying use to create a first-ever convention of the states to create significant constitutional reforms, notably an amendment that would require a federal balanced budget.

On Thursday, February 4, Tennessee became the fifth state to pass a resolution calling for a convention of states to propose amendments under Article V. The resolution, which is modeled after the Convention of States Project (COSP), has also been passed in Alabama, Alaska, Florida, and Georgia. The COSP model resolution calls for a convention to propose amendments to “impose fiscal restraints on the federal government, limit the power and jurisdiction of the federal government, and limit the terms of office for its officials and for members of Congress,” according to the COSP website.

Another constitutional reform resolution, which has been promoted by the Compact for a Balanced Budget, has passed in Alaska, Georgia, Mississippi, and North Dakota. This measure would call for an Article V convention to balance the federal budget by creating an interstate compact agreement to simplify the procedures for calling a convention. Nick Dranias, Compact for America’s president, supports this balanced budget measure, writing, “The founders thought this was a very controlled, moderate, predictable process. It was not meant as a red button. Nothing could be more lawless than what we already have going on in Congress.”

Twenty-seven states have also passed single-subject applications for an Article V convention calling for a balanced federal budget. Nine state legislatures are expected to consider balanced budget amendment applications in 2016. David Guldenschuh, a policy advisor for The Heartland Institute and co-founder of the Balanced Budget Amendment Task Force, explains in a 2015 Heartland Policy Brief, “Thanks to 16 [balanced budget amendment] resolutions still alive from the Reagan-era push for a balanced budget amendment, BBA Task Force had a healthy start toward reaching its goal of 34 states submitting applications to Congress on the same or similar subject, in this case a BBA. With 11 modern-era applications having passed, BBA Task Force is well on its way to 34.”

In 2015 testimony given before the Michigan State House Committee on Financial Liability Reform, Heartland State Government Relations Manager Nathan Makla argued all forms of constitutional reform are important and have merit. “In the United States, constitutional reform should be used to impose fiscal discipline on the national government, restore the important role of the states in our federalist system of government, and end the practice of burdening future generations with debt that has emerged because of reckless spending practices,” Makla said.

What We’re Working On

Budget & Tax
Research & Commentary: Colorado’s Hospital Provider Tax and TABOR Collide
In 2009, the Colorado General Assembly passed legislation creating a hospital provider fee (HPF) as part of its effort to provide health care for those Coloradoans who cannot afford private medical coverage and do not qualify for Medicaid. The HPF is assessed on hospitals based on the number of patients they treat and the number of outpatient services provided. Each hospital pays a different amount for the tax, ranging from millions of dollars to nothing at all. The original legislation creating the tax attempted to hide the true nature of the tax by calling it a “fee.” Even the federal government referred to the provider fee as a tax in a letter approving its payment. The amount of revenue generated by HPF grew rapidly in 2015, increasing by 30 percent compared to the previous year. All told, the program funds an expanded Medicaid population of around 300,000 people. In this Research & Commentary, Senior Policy Analyst Matthew Glans argues, “HPF is a tax that presents a significant disruption of the health care market. It channels limited dollars to an expensive Medicaid program that fails to provide quality care. Medicaid is a flawed model that is unnecessarily costly, delivers subpar health care, and shifts more power to the national government.” Read more

Research & Commentary: School Choice in Mississippi
Empower Mississippi, a nonprofit advocacy organization whose mission is to improve educational choice in Mississippi, released the results of a new poll of likely voters it conducted showing 78 percent of Mississippians are in favor of school choice, including 73 percent of Democrats and 75 percent of independents. Seventy percent of respondents, including 68 percent of Democrats, also said they would be more likely to vote for a candidate for the State Legislature if that candidate supports school choice programs. In this Research & Commentary, Policy Analyst Timothy Benson writes, “Mississippi’s woeful performance on this and other tests underscores the desperate need for the state to expand school choice opportunities far beyond what is currently available. Too many public schools in Mississippi are failing to adequately prepare students for productive lives. Parents should be allowed to choose the schools their children attend and should not be penalized financially if that choice is a private religious or secular school.” Read more

Energy & Environment 
Research & Commentary: Oklahoma Earthquakes
While Oklahoma has a long history of seismicity, the state has seen a significant increase in earthquakes since 2013, with 881 measuring at or above a magnitude (M) of 3 on the moment magnitude scale, including 43 from January 6–11, 2016. M3 is roughly the magnitude needed for an earthquake to be felt on Earth’s surface and often produces “vibrations similar to the passing of a truck,” according to the U.S. Geological Survey (USGS). This spate of earthquakes has led to public confusion as to whether hydraulic fracturing, commonly called “fracking,” is the direct cause of these earthquakes. Some state lawmakers are now calling for an outright moratorium on fracking in Oklahoma as a result. However, Policy Analyst Tim Benson notes in this Research & Commentary the “majority” of injection wells in Oklahoma “do not pose a hazard for induced seismicity,” and “only a few dozen … wells are believed to have induced felt earthquakes.” Only 89 out of more than 10,700 Class II injection wells have “potentially” been linked to any seismicity. Read more

Health Care
Research & Commentary: Certificate of Need Reform in Florida
Florida is one of 36 states that limits the ability of health care providers to expand their businesses through an approval process known as certificate of need (CON). Certificate of need laws were first passed in the 1960s by states in an attempt to slow increasing health care prices by limiting duplication of services and promoting health care consolidation. Recent studies have shown CON laws fail to achieve many of their stated goals and have instead reduced the availability of health care services and caused cost increases. In this Research & Commentary, Senior Policy Analyst Matthew Glans explains how the results in Florida are similar to those found in other states using CON laws. “Data from the Kaiser Family Foundation show health care costs are 11 percent higher in CON states than in non-CON states. The study also found a positive correlation between the number of CON law restrictions and the cost of health care. States requiring certificates of need on 10 or more services averaged per capita health care costs 8 percent higher than the $6,837 average for states requiring certificates of need for fewer than 10 services.” Read more

From Our Free-Market Friends
The Lincoln Institute Announces the Pennsylvania Leadership Conference on April 1–2
The 2016 Pennsylvania Leadership Conference will be held April 1–2, 2016, at the Radisson Penn Harris Hotel and Convention Center in Harrisburg, Pennsylvania. The conference will feature multiple panels covering energy, budget, and health care topics, among other important issues. Keynote speakers include former Judge Andrew Napolitano, a senior judicial analyst for the Fox News Channel, Stephen Moore, a distinguished visiting fellow at The Heritage Foundation, Pennsylvania state Sen. Scott Wagner (R-York County), and Daniel Garza, executive director of The LIBRE Initiative. Read more