House Federal and State Affairs Committee hear testimony on Convention of States
Article/COS
House Federal and State Affairs Committee met on Wednesday, February 15, 2023, to hear testimony on the passage of HCR 5008, a bill, that if passed, would make Kansas the twentieth state to pass an Article V Convention, leaving just 14 more states needed to call a convention.
The committee first heard testimony from proponents of the bill, starting with Convention of States Action Co-Founder and Senior Advisor Michael Ferris who testified via WebEx.
An attorney who has been in practice since 1976, Ferris’s history with Convention of States dates back to the late 70s where he represented for Washington state legislators in a case involving the ratification of the Equal Rights Amendment when Congress tried to change the rules for the deadline for ratification. He was involved in the case all the way to the Supreme Court, being one of the few lawyers to litigate on Article V. He also wrote an article on why the convention of 1787 was not a “runaway convention”—something opponents of the bill often say as a way of fear mongering people into not supporting an Article V Convention.
In his testimony, Ferris explained that Article V of the Constitution was written as it was due to a suggestion by George Mason during the final week of the Constitutional Convention (which is not the same thing as an Article V Convention).
“Up until that time, the Constitution only had one method of proposing amendments,” Ferris explained in his testimony. “Congress had to propose all amendments, the states had to ratify all amendments. But Mason stood up and said in effect, ‘There’s going to be a day when Congress abuses this power. When the federal government abuses its power. We can never expect Congress to propose amendments limiting its own power. We need to give the ability to limit the power of the federal government through proposed amendments.’”
Mason’s recommendation was agreed to without debate and the founders gave the States authority to reign in abuse of power by the federal government through Article V of the Constitution.
Legislative Liaison for Convention of States Action—Kansas Ben Terrill spoke next, answering the question of why he, along with the over 40,000 petitioners in Kansas and the dozens of volunteers are requesting a Convention of States.
“We have all come to the distressing conclusion that selecting the best representatives and voting them into office at the federal level no longer secures our rights in the Constitution from the federal government itself,” Terrill said in his testimony. “We find the government in Washington has in fact become an enemy of our liberty, and the vested interest there do not and will not permit its correction. Therefore, that you have this power has never been denied. We have found this to our great surprise and delight that the framers of our Constitution… have provided a way for us to check the powers of the federal government. The way to restore constitutional order is through you, our Kansas legislators, named as officers in the Constitution, in the fifth article of this document to be able to propose amendments without the consent of Congress, the president, or the Supreme Court.”
Terrill also recapped the recent history of Convention of States as it pertains to Kansas legislation, noting eight calls between 1907 and 1978, with one from 1951, dealing with changes from the federal taxing authority, and another from 1978 calling for a balanced budget amendment, still active today. He then mentioned how Convention of States Action’s proposal has been in the House Federal and State Affairs Committee several times since 2015, passing favorably out of committee each time with the exception of once in 2017, and has been voted on the floor of the House twice, including in 2016 and in 2022, receiving over 60 percent of all possible votes each time.
Due to the “Roe Rule”, a vote for an Article V Convention in Kansas needed two-thirds of the legislature to vote in favor of the bill, while other states needed a simple majority. However, with the Kansas Rules Committee agreeing to axe the “Roe Rule” this year, there is a higher chance of an Article V Convention passing in Kansas this year.
Regional Captain for Convention of States Action John Stepnoski spoke next about concerns of his children and grandchildren not having the same opportunities that he enjoyed due to big government overreach.
“I was a businessman,” Stepnoski said in his testimony. “My grandparents came from Poland and from Italy. They came to the United States with a dream that they couldn’t fulfill in their home countries. They came through Ellis Island. I’ve actually seen some of the documents. So, to me, this is a very, very personal thing. As I was growing up, they instilled in me the values of hard work. And if you work hard in this country, you’re going to be able to succeed, and I’ve had that opportunity. And yet, as I look at my children, my grandchildren, they don’t have the same opportunities that I have. The federal government, through its overreach, has taken away many of the individual liberties that we as a country were founded on.”
Stepnoski continued his speech explaining that in the Declaration of Independence, it says that we all have the right for the pursuit of happiness, life, liberty, and equality as given by our Creator before going into the process of how a Convention of States works.
“There’s been over 40 Convention of the States throughout our history,” Stepnoski explained. “None of them at the national level—20 before the Constitution actually ratified and 22 since that time. In each one of these conventions there’s been rules set forth, much like Congress when they proposed amendments. They had to go through rules and the House had to have their rules and have a resolution. Senate had to have their rules and they had to have a resolution. Those resolutions had to be the same. In each case, two-thirds of that governing body had to approve their resolutions. Then it became a proposed amendment to the U.S. Constitution.”
With 27 amendments to the U.S. Constitution, Stepnoski said there have been lots of Convention of the States, many of the amendments being initiated by the states, ultimately having Congress step in and pass the amendments. Due to the number of guide rails for a Convention of States, Stepnoski also said he was not worried about a runaway convention. These guide rails include, only being allowed to talk about the subjects that the states come together to discuss, the delegates having to agree on them and if they don’t, nothing happens, and once delegates or Commissioners actually propose amendments, they are still just proposed, needing 38 states to agree to pass the amendments, with each state only getting one vote.
Last to speak in favor of passing a Convention of States was Kansas State Director for Convention of States Action David Copeland. He started off explaining how people were signing the petition originally due to their concern about the creation of a federal medical system, and how it has only snowballed from there.
“People used to say they were most concerned not about a loss of their rights, but they were concerned about the budget,” Copeland explained. “We used to have a $10 trillion national debt. It’s $31.5 trillion and it’s growing at a trillion dollars a year. There appears to be no structural mechanism in our federal system to allow that to stop. It’s automatically increased. So, as Mr. Ferris testified, this is not going to be a year-to-year, budget-to-budget fix. There needs to be a structural change. People sign the petition because they say there’s no other way to do it. We must have structural change to address the debt.”
Copeland also spoke on term limits for Congress and how people are increasingly more afraid of what the government is going to do next and how to stop it, a theme that was also in Terrill’s and Stepnoski’s testimonies. He highlighted the fact that voting will not stop the continued growth of the federal government and the loss of individual liberties before moving on to explain the inaccuracies of an opponent’s testimony.
“Last week, in this chamber, an opponent to this process mentioned that the Philadelphia Convention self-ratified,” said Copeland. “Well, no. If you have one of these pocket constitutions, the first 17 pages are the seven articles of our constitution. Page 18 and 19 is the resolution that was sent by the convention to the Confederation Congress as well as the state legislatures of the 13 states, recommending a change of the ratification process of the Articles of Confederation. Both the Congress and the 13 states acted on that resolution and changed the ratification process to allow ratification by nine states…. The Constitution was not self-ratified by the convention. When the convention ended, nothing had changed. They were still under the Articles of Confederation. That was on September 17, 1787. Our constitution didn’t come into effect until June 21, 1788, when New Hampshire became the nineth state to ratify the Constitution.”
He went on to say how opponents of the convention will call it a “constitutional convention” and that it is not a constitutional convention, but rather, as Article V of the Constitution states, “A convention for proposing amendments”.
“The opportunities that I see, is that Americans can have faith in their government again,” Copeland continued. “Because right now, they have none. We know what you guys do here year after year—you keep the lights on in this state…. There is so much you do here that quite frankly most Kansans take for granted. You know for fact if you walk through your district, most people in your district don’t know who you are…. What you do here is so important, and that’s why the framers gave you the authority to break the glass and put the fire out. So, on behalf of those 42,000 Kansans who don’t even know who you are, step up. Do this. Not just for them—for their families and for the rest of the country for which you serve a very important role.”
After the proponents for HCR 5008, opponents had the opportunity to speak against the passing of the bill, of which there was one—Volunteer Coordinator for Kansas Campaign for Liberty John Axtell.
Axtell spoke on the “runaway convention”, quoting James Madison who said, “In one particular, it is admitted that the convention have departed from the tenure of their Commission. Instead of reporting a plan requiring the confirmation of all the states, they have reported a plan which is to be confirmed and may be carried into effect by nine states only.”
Axtell went on to talk about how the delegates at the convention were going too far with their power, before moving on to say the proposed solutions that a Convention of States is proposing do not solve the problems they intend to fix. However, he did not offer any solutions as to how to fix any of the issues which include fiscal restraints, limiting federal government power, and term limits for Congress and federal officials.
Many representatives had questions for Axtell, most notably Representative Susan Humphries (R), who was curious as to why the founders would have even written Article V of the Constitution, if it is just “empty words”.
“It strikes me that your testimony—a good piece of it—is saying those delegates that were at that convention were bad actors,” Humphries said. “And you respect the founders, but a lot of this is just about how they were bad actors.”
Axtell told Humphries that he feels as though she is disrespectfully putting words in his mouth.
“I state very clearly, and this is directly from my testimony, I put it in parentheses, but I have great respect for the founders and the U.S. Constitution they created,” Axtell said.
He further said that he does not consider them bad actors, but rather two groups of people with one group saying they should stop while the other said they should continue, before giving a quote from George Mason. Nevertheless, his reply to Humphries seemed to land distastefully on the committee, and the hearing ended after Axtell’s testimony.