Article V Legislative Compendium

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Part III. Explanatory Text with Footnotes

Full article here

§ 3.14. Convention Rules

1) #The author would like to thank the seasoned lawmakers and other experts who contributed insights into the convention rules process. In the treatment that follows, these people sometimes are referred to as our “advisors.”

§ 3.14.1. The Legal Environment

As discussed in Section 3.5, the courts rely heavily on historical practice when interpreting the words of Article V. This is true both of the Supreme Court2) #United States v. Sprague, 282 U.S. 716 (1931); Leser v. Garnett, 258 U.S. 130 (1922); Hawke v. Smith, 253 U.S. 221 (1920); see also Hollingsworth v. Virginia, 3 U.S. 381 (1798) (following procedure in adopting first ten amendments. and lower courts.3) #See supra § 3.5; see also Paul Mason, Mason’s Manual of Legislative Procedure § 39-6 (Nat’l Conference of State Legislatures, 2010 ed.) [hereinafter Mason’s Manual] (“The best evidence of what are the established usages and customs is the rules as last in effect.”). The history relied on by the courts includes both the period up to the time the Constitution was ratified and practice subsequent to ratification.

Prominent in historical practice—both before and after the Constitution's adoption—has been the uniform and exclusive prerogative of Article V assemblies to adopt their own rules.4) #Accord Mason’s Manual §§ 2-1, 10-4, 13-7. Shortly before he ascended to the Supreme Court, Justice John Stevens, writing for a three-judge federal panel, explicitly recognized this prerogative.5) #Dyer, 390 F. Supp. at 1306 (referring to power of Article V assembly to establish its own rules); see also Mason’s Manual § 71-1. The prerogative further extends to the right of a convention to judge the credentials of its delegates.6) #Opinion of the Justices, 167 A. 176 (Me. 1933) (ratification conventions pass on the elections of their own members); accord Mason’s Manual § 560. Occasional suggestions that Congress could impose rules on an Article V convention are not well-founded, either in history or law.7) #This is an assumption made in Thomas H. Neile, The Article V Convention to Propose Constitutional Amendments: Contemporary Issues for Congress 39 (Cong. Research Serv., Mar. 7, 2014) [hereinafter CRS Report], a paper that shows insufficient understanding of history, recent research, or applicable law. For example, it relies on only two of the more than forty reported Article V judicial decisions.

The prerogative of conventions to establish their own rules does not mean that each convention acts on a blank slate. Far from it. Many, if not most, multi-state conventions have borrowed their written rules from prior multi-state conventions and from legislative bodies. For example, the rules employed by the Washington Conference Convention of 1861 derived substantially from those governing the 1787 Constitutional Convention.8) #A Report of the Debates and Proceedings in the Secret Sessions in the Conference Convention for Proposing Amendments to the Constitution of the United States 19 (L.E. Chittenden ed., 1861). The Nashville Convention of 1850 decided that when one of its own specifically adopted rules did not apply, it would consult Thomas Jefferson's manual of procedure for the United States Senate.9) #Resolutions, Address, and Journal of Proceedings of the Southern Convention 26 (Harvey M. Watterson ed., 1850). Jefferson’s Manual is now a source for procedure in the U.S. House of Representatives as well. See Thomas Jefferson, Jefferson’s Manual, H.R. Doc. No. 111-156 (2011), available at http://www.gpo.gov/fdsys/pkg/HMAN-112/pdf/HMAN-112.pdf.

Convention rules are adaptations of a branch of the Anglo-American common law referred to as parliamentary law.10) #Mason’s Manual § 44-1. As the name suggests, parliamentary law owes its origin to the practices of the British Parliament, but over the years it has been refined for use in this country by numerous legislative and judicial precedents.11) #Id. §§ 35, 38. Parliamentary law applies to both private and public bodies, including legislatures and conventions.12) #Cf. id. §§ 41, 47. An example of a rule of parliamentary law is that convention decisions are rendered by a majority of those voting.13) #Id. §§ 50-1, 51-6, 510-1, 510-4; see also State of Rhode Island v. Palmer, 253 U.S. 350 (1920); Dyer v. Blair, 390 F. Supp. 1291, 1306 (N.D. Ill. 1975) (Stevens, J.). Alarmists sometimes demand to know in advance of a convention what the majority necessary for decision will be. A common question is, “Can the convention act by a simple major­ity vote, or would a two-thirds majority be required, as in Congress, for proposing an amendment?” See Robert G. Natelson, Proposing Constitutional Amendments by a Convention of the States: A Handbook for State Lawmakers 33–34 (Am. Legislative Exch. Council, 2d ed. 2013), available at http://www.alec.org/wp-content/uploads/article-five-handbook-1.pdf (reproducing text of alarmists’ questions and providing answers). This question, of course, reveals ignorance of parliamentary common law. Somewhat more surprisingly, a recent Congressional Research Service paper reveals a similar ignorance. See CRS Report, at 39 (suggesting that a convention majority of two-thirds would be appropriate).

Although an assembly is free to adopt its own rules, parliamentary law standards govern whenever a specifically adopted rule does not.14) #Mason’s Manual §§ 32-4, 37. In the case of a convention, parliamentary law controls (1) before adoption of formal rules15) #Id. § 39.6. and (2) after adoption of formal rules when none of them resolves an issue.16) #Id. § 37.1.

Historically, the formal rules adopted by prior multi-state conventions have been less than comprehensive, leaving most matters to be decided by parliamentary law. Fortunately, that law is readily accessible and easy to ascertain: it is collected in Mason's Manual of Legislative Procedure, published by the National Conference of State Legislatures. As explained below, we recommend Mason's Manual as a source of guidance in absence of a formal convention rule to the contrary.

§ 3.14.2. Historical Resources

Before the Constitution was ratified, colonies and states met in convention over thirty times.17) #See supra § 3.1. Since ratification, at least four additional conventions of states have met: Hartford (1814), Nashville (1850), Washington, D.C. (1861), and Santa Fe (1922).18) #The Santa Fe convention, which negotiated the Colorado River Compact, actually gathered at different times in four different locations, convening at various times in Washington, D.C., Phoenix, and Denver. Most of the meetings, however, including the final and climatic meetings, were held in Santa Fe. I was unable to find a single, unified, online source of the convention proceedings. I accordingly collected them and posted them at Minutes and Records of the Colorado River Commission (1922), available at http://constitution.i2i.org/files/2014/01/Minutes-CORiver-Commn.pdf. There may have been other twentieth century conventions that met to negotiate interstate compacts, although nearly all twentieth century compacts were negotiated more informally.# One might argue that the four-state Delaware River Basin Advisory Committee, which negotiated the Delaware River Basin Compact in 1959–1960, should be categorized as an additional interstate convention. Because this proposition is contestable, that gathering is not included here. See Robert G. Natelson, A Modern Quasi-Convention of States, Independence Inst. (Mar. 1, 2014), http://constitution.i2i.org/2014/03/01/thea-modern-quasi-convention-of-states/. The formal rules of several of these gatherings survive, and the journals or proceedings enable us to reconstruct a partial list of rules from many of the others.

The records from the following meetings are helpful19) #Since this is not a law journal article, it avoids extensive citation from these sources. Summaries of all but the last four can be found in Robert G. Natelson, Founding-Era Conventions and the Meaning of the Constitution’s “Convention for Proposing Amendments,” 65 Fla. L. Rev. 615 (2013), reprinted infra § 5.1. In the text above, I have listed these meetings under their usual or (where available) official names. Many of them had other names, including informal ones. For example, the Boston Convention sometimes was referred to as the “Boston Committee”; and although the first three are now remembered as “congresses,” people also applied the word “convention” to them. The term “congress” to describe a multi-state convention fell into disuse after establishment of a permanent U.S. legislature called “Congress.” :

Albany Congress (1754)

Stamp Act Congress (1765)

First Continental Congress (1774)

First Providence Convention (1776-1777)

York Town Convention (1777)

Springfield Convention (1777)

New Haven Convention (1778)

First Hartford Convention (1779)

Philadelphia Price Convention (1780)

Boston Convention (1780)

Second Hartford Convention (1780)

Second Providence Convention (1781)

Annapolis Convention (1786)

The Constitutional Convention (1787)

Third Hartford Convention (1814)

Nashville Convention (1850) (also called the Southern Convention)

Washington Conference Convention (1861) (also informally called the Washington Peace Conference)

Santa Fe Convention (1922) (formally the Colorado River Commission)20) #Although called a “commission,” this gathering was a true regional convention of states. It should not be confused with those bodies called “commissions” that operate after and pursuant to compacts. The latter represent another form of multi-state cooperation, but their permanent character disqualifies them from being called conventions.

The rules and protocols followed by these gatherings show far more commonalties than differences. For several reasons, however, the rules and protocols of the Washington Conference Convention of 1861 seem particularly apt: It was our most recent general multi-state convention,21) #A “general convention” is one to which all states, or at least states from all regions, are invited, irrespective of whether all participate. It is to be distinguished from a regional, or partial, convention. See supra § 3.1. The term “general convention” does not designate an assembly where the subject matter is unlimited, as some have assumed. and our largest to date. It was, moreover, called for the understood purpose of proposing amendments. Thus, even though the Washington Conference Convention did not operate under Article V, it served as prototype for a duly-called convention for proposing amendments. In several places below, therefore, this section focuses on the rules of the Washington conclave.22) #Infra § 3.14.4–.5.

§ 3.14.3. Formalities before Adoption of Rules

Time and Place

The congressional call specifies the initial time and place of meeting.23) #See supra § 3.9. State applications cannot control the initial time and place, although state legislatures may make recommendations on those subjects to Congress. After convening, the assembly assumes control of times and places of meeting. Thus, the convention decides when and for how long to adjourn, and to what place. For example, the Nashville Convention held its initial session in June of 1850, and then adjourned to November of the same year. The Colorado River Commission (Santa Fe Convention) conducted its twenty-seven days of sitting in four different cities: Washington, D.C., Phoenix, Denver, and Santa Fe. However, Santa Fe was the site of the last eighteen of the twenty-seven meetings and of the most important negotiations.24) #For a unified, online collection of the proceedings, see Minutes and Records of the Colorado River Commission (1922) [hereinafter Colorado Commission Records], available at http://constitution.i2i.org/files/2014/01/Minutes-CORiver-Commn.pdf.

Commissioner Selection

A multi-state convention is a gathering of states in their sovereign capacities, and sovereigns may choose their own representatives. Accordingly, selection of state committees is always left to the states sending them.25) #See supra § 3.10. The strength of the rule is illustrated by the outcomes of the rare attempts to breach it: only twice has the calling entity attempted to guide the selection procedure (in 1765 and again in 1780), and on both occasions those efforts were successfully disregarded.26) #When the Massachusetts legislature called the 1765 Stamp Act Congress, it asked that other colonies select commissioners through only the lower houses of their legislatures. This was because at the time only the lower chambers were directly elected, while the upper chambers were controlled indirectly by the British Crown. Nevertheless, several colonies chose commissioners in ways other than that recommended, and those commissioners were duly seated. Robert G. Natelson, Founding-Era Conventions and the Meaning of the Constitution’s “Convention for Proposing Amendments,” 65 Fla. L. Rev. 615, 635–37 (2013), reprinted infra § 5.1. In 1780, the Massachusetts legislature called a convention of five northeastern states. Apparently because some state legislatures were in recess, it asked that commissioners be appointed by those states’ official “councils of war.” Several states opted to select commissioners by other means, and they also were duly seated. Id. at 659–60. In any event, for Congress to dictate how commissioners are selected would radically undercut the fundamental purpose of the convention procedure as a way for the states to bypass Congress.

The selection method most often chosen by state legislatures has been election by the legislature itself, either in joint session or (more often) seriatim by chamber. However, legislatures may delegate the choice to the executive alone or to some combination of executive nomination and legislative approval. The latter methods were employed for many of the commissioners sent to Washington (1861) and to all of them sent to Santa Fe (1922).

Commissioner Credentialing

Each state determines how to commission its own representatives. Early in the convention, each commissioner is expected to present his or her credentials—that is, the commission or comparable document showing authority to act on behalf of his state or state legislature. The convention selects a committee that passes on those credentials.

Initial Voting Rules

As noted above, a convention for proposing amendments is a convention of states: a gathering of states in their sovereign, or semi-sovereign, capacities.27) #Supra § 3.2.4. To the extent the extant records address the issue, they show that conventions of states universally apply the suffrage rule of “one state, one vote.” This rule follows from the international law standard that all sovereigns are equal. The calling entity (which, in the case of an amendments convention, is Congress), may not alter this rule.28) #In 1783 the Massachusetts legislature attempted to break this custom by calling a five-state “one delegate, one vote” convention. The call had to be rescinded when two of the four other states invited refused to attend. Natelson, Conventions, at 666.

Although at some conventions individual commissioners have been tagged as “members,” multi-state conventions never have applied a “one person, one vote” rule. Perhaps this is because, technically, the “members” of the convention are not individual commissioners but state committees.29) #Cf. Paul Mason, Mason’s Manual of Legislative Procedure § 52 (Nat’l Conference of State Legislatures, 2010 ed.) [hereinafter Mason’s Manual] (providing for equality of the “members” of an assembly).

Some multi-state convention journals refer to voting “by ballot,” especially for officers and committees. This phrase does not refer to voting per capita, but to a procedure by which individual choices are secret, even within state committees.30) #1 The Records of the Federal Convention of 1787, at 2 (Max Farrand ed., 1939) (“The Members then proceeded to ballot on behalf of their respective States—and, the ballots being taken, it appeared that the said George Washington was unanimously elected.”); see also id. at 4: (“Mr. Wilson moved that a Secretary be appointed, and nominated Mr. Temple Franklin. Col. Hamilton nominated Major Jackson. On the ballot Majr. Jackson had 5 votes & Mr. Franklin 2 votes.”); id. at 29 (showing only eight slash marks representing votes). Obviously, since there were several dozen commissioners present, this low vote tally had to reflect the states. Votes are still counted by state and state committees voted as units. However, most voting is not by ballot but viva voce (Latin for “with live voice”).31) #Mason’s Manual §§ 306-2, 536.

The tradition at general conventions has been for state-by-state votes to be tabulated in northeast-to-southwest order.

Quorum and Majority Vote

There are two kinds of quorum rules: (1) the number of commissioners who must agree to cast a state committee's vote and (2) the number of states necessary to transact business on the floor. The former is called an internal quorum rule. It is determined by the commissioning authority—that is, by each state for its own committee. For example, when New York commissioned its three delegates to the Constitutional Convention, it specified that any two must be present (and agree) to cast the state's vote.

As for the quorum of states necessary on the floor and the margin required for decision, by both common law and court decision a majority of states represented is necessary for a quorum,32) #Id. §§ 49-1, 502-1; see also id. § 501-1 (“The total membership of a body is to be taken as the basis for computing a quorum, but when there is a vacancy, unless a special provision is applicable, a quorum will consist of the majority of the members remaining qualified.”); accord id. § 502-2. Section 501-2 provides that “The authority that creates a body has the power to fix its quorum.” In the case of an amendments convention, however, that authority is the convention, not Congress, which calls it, nor the state legislatures, who apply for it and authorize and create its delegations. The Constitution does not prescribe a quorum, leaving it to the convention. and a majority of states voting (a quorum being present) is necessary to decide.33) #Rhode Island v. Palmer, 253 U.S. 350 (1920); Dyer v. Blair, 390 F. Supp. 1291, 1306 (N.D. Ill. 1975) (Stevens, J.). On majorities as a rule of decision, see Mason’s Manual §§ 50-1, 51-6, 510-1, 510-4.

What Officers Should the Convention Have?

Conventions of states always decide what officers are to govern them. Prior conventions seem to have made this decision pursuant to parliamentary law, before formal rules were adopted.

At the least, every convention has a presiding officer, called the president or chairman, and a secretary, executive secretary, or clerk.34) #Mason’s Manual § 584 refers to the secretary, executive secretary or clerk in a legislature as the “chief legislative officer.” Some conventions, especially larger ones, have selected other officers, such as vice president, assistant secretaries, doorkeepers, sergeants-at-arms, and messengers. One former legislator consulted on this project recommended appointment of a parliamentarian.

How Officers Are Chosen.

In prior conventions, the identity of the temporary presiding officer, pending election of a permanent chairman, seems to have been arranged in informal pre-opening meetings. Although some have suggested that Congress designate a temporary presiding officer in its convention call, no multi-state convention call has ever done this, and an attempt to do so likely would have advisory force only.

At the 1754 Albany Congress, a representative of the Crown was present and became the presiding officer. Since Independence, permanent officers invariably have been elected by the convention itself, generally before adoption of formal rules, pursuant to parliamentary law. To the extent the historical records are complete, they show that all American multi-government conventions have elected officers by a majority vote of state committees. This was true even at the 1922 Colorado River Commission, where a federal representative, Secretary of Commerce Herbert Hoover, was present. Hoover ultimately did serve as chairman, but only after free election by his fellow commissioners, one from each participating state.35) #Because of Hoover’s relief work in World War I and his reputation as an international engineer, his personal prestige at the time was enormous.

Before the 1850 Nashville Convention, a preliminary committee decided on nominees for various offices. Although this did not prevent nominations from the floor, the convention did elect the committee's nominees.

The presiding officer always has been elected from among the commissioners rather than from outside the convention. The secretary or clerk usually (but not always) has been a non-commissioner, presumably to better assure impartiality in preparation and preservation of the records. We recommend that state lawmakers consult in advance on preliminary nominations, and that a convention of states retain the custom of electing a commissioner as the presiding officer and a non-commissioner as secretary or clerk.

How Rules Are Adopted.

Some of the smaller conventions have been comprised of only a handful of commissioners—most of them veterans of government service or prior conventions—thereby obviating the need to adopt formal rules. The 1778 New Haven Convention adopted rules, but did not insert them in the journal. The 1922 Santa Fe Convention (Colorado River Commission) seems not to have adopted formal rules, but it did vote on agendas and procedures for each future meeting.36) #For a unified, online source of this convention’s proceedings, see Colorado Commission Records. In the absence of formal rules, parliamentary law, essentially as represented by Mason's Manual, prevails.14) The larger conventions all adopted formal rules and entered them on the journal, although parliamentary law served as a source of default rules.37) #Default rules are discussed below in Section 3.14.4.

One of our advisors suggested that an informal committee of state legislative leaders draft proposed rules in advance of the convention, and then try to induce as many state legislatures as possible to agree to them in advance. Whether or not this is done, the final decision on convention rules belongs to the convention itself.

Immediately after election of officers, the convention should choose a rules committee. By modern parliamentary law, committee staffing is the prerogative of the presiding officer.38) #Mason’s Manual § 600-1. However, the convention may vote to select the committee itself,39) #Id. § 600-2. and the historical records suggest that most of the major conventions have done so. In absence of a rule to the contrary, whoever staffs the committee designates the person who chairs it.40) #Id. § 608.

After drafting proposed rules, the committee presents those rules to the floor for debate, adoption, or rejection.

§ 3.14.4. Recommended Rules Not Pertaining to Debate or Decorum

Source of Default Rules

A “default rule” is a rule that applies in absence of an explicit rule to the contrary. For example, in American parliamentary practice, the default rule for making decisions is a majority of those voting. The federal Constitution, or that of a state, or the adopted rules of a public body, can alter a default rule.

It is impractical for a temporary gathering such as a convention of states to adopt rules to address every conceivable situation, and the historical record shows that conventions of states have not attempted to do so. Instead, like legislatures, they adopt discrete rules addressed to particular situations and rely on a common source to supply the gaps.41) #Paul Mason, Mason’s Manual of Legislative Procedure § 30-1 (Nat’l Conference of State Legislatures, 2010 ed.) [hereinafter Mason’s Manual] (“Most legislative bodies adopt a manual of legislative procedure as the authority to apply in all cases not covered by constitutional provisions, legislative rules, or statutes.”); see also id. § 30-2 (stating that resort to manuals by “deliberative assemblies” is permissible). By way of illustration, the default rules for the 1787 Constitutional Convention appear to have been adapted from the procedures of the Confederation Congress. The 1850 Nashville Convention formally acceded to Thomas Jefferson's Manual of Parliamentary Practice, which Jefferson drafted for the U.S. Senate when he served as Vice President, and therefore as President of the Senate.

We believe the convention should adopt as a source of default rules Mason's Manual of Legislative Procedure. There are several reasons for this.

First, Mason's Manual is very comprehensive. Using it as a source of default rules would make it unnecessary for the convention to struggle with such questions as which motions are in order and when, or the vote margin required for reconsideration.

Second, Mason's Manual is usable and practical. Not only is it time-tested, but unlike the rules and prior default sources used by earlier conventions, it has been kept up-to-date and consistent with modern technology.

Third, Mason's Manual relies on parliamentary common law, and is annotated heavily with legislative and judicial precedents, so the sources and reasoning behind a particular rule are easily discoverable.

Fourth, it enjoys wide currency among state legislatures: Seventy of the ninety-nine American state legislative chambers42) #See Using Mason’s Manual of Legislative Procedure, Nat’l Conference of State Legislatures, http://www.ncsl.org/research/about-state-legislatures/masons-manual-for-legislative-bodies.aspx (last visited Mar. 27, 2014). have adopted it, and there is trend in its direction.43) #Id. Therefore, Mason's Manual, or adopted rules based on Mason's Manual, are likely to be familiar to a majority of commissioners—most of whom will be chosen by state legislatures and will have had state legislative experience. Mason's Manual also will be familiar to any legislative officers or committees assigned to oversee their respective convention delegations.

Finally, among those lawmakers we consulted for this project, we found none who was hostile to Mason's Manual, and several who were very enthusiastic.

True, Mason's Manual was written for state legislatures rather than for conventions. As a practical matter, however, the principle implication of this fact is that certain portions of the manual, such as the portion addressing “Relations with the Executive” can be safely disregarded.44) #The two most prominent rivals to Mason’s Manual also were designed for bodies other than conventions: Robert’s Rules of Order, and Jefferson’s Manual.

Adoption of Mason's Manual would make it unnecessary to craft rules for every occasion. Nevertheless, we believe some explicit rules are called for, as explained below.

Voting by State

All multi-state conventions whose journals disclose a voting rule have proceeded on the basis of “one state, one vote.” This has been both the default rule and the standard prevailing when conventions adopt explicit standards of suffrage.45) #For example, the rules of the 1861 Washington Conference Convention provided, “Mode of Voting. All votes shall be taken by States, and each State to give one vote. The yeas and nays of the members shall not be given or published—only the decision by States.”

To understand the reasons for state-by-state voting, it is important to remember that a convention for proposing amendments is not a general legislature, like Congress or a state legislature. Nor is it an instrumentality of any one state. It is, rather, part of a process designed explicitly to enable the semi-sovereign states, acting as a group through their legislatures,46) #See supra § 3.2.4. to offer ratifiable proposals. James Madison pointed out that the Constitution has both “national” (popular) and “federal” (state-based) features.47) #The Federalist No. 39 (James Madison). The amendments convention, like the U.S. Senate, is a clear example of the latter.

Moreover, the fundamental reason for the convention procedure was to provide the states a way to bypass Congress.48) #See supra § 3.3. The only entity, other than the convention, that might prescribe an unprecedented voting rule would be Congress.49) #Some have argued that Congress has this power under the Necessary and Proper Clause, but this is inaccurate. See supra § 3.9.4. But allowing Congress to design the convention's voting system would undercut the convention's fundamental purpose in a way that the judiciary generally does not sanction. There is no evidence that the one state, one vote rule has been impacted in any way by the “one person, one vote” requirement the modern Supreme Court imposes on general legislative bodies directly representing the people.

Although the application and convention process was not intended to be perfectly democratic, it does accommodate the need for popular consent. The requirement that two-thirds of states, rather than a simple majority, apply for a convention raises the probability of popular consent. The three-quarters ratification requirement virtually assures that any amendment will be approved by a majority (and more likely a supermajority) of the American people.50) #Robert G. Natelson, Proposing Constitutional Amendments by a Convention of the States: A Handbook for State Lawmakers 22 (Am. Legislative Exch. Council, 2d ed. 2013).

There have been occasional attempts in multi-state conventions to challenge or alter the one state, one vote rule, invariably without success. For example, a motion to alter state voting power to reflect population differences was considered at the Nashville Convention. It was recognized that this motion would require assent by a majority of states. The motion was defeated when a majority of states refused to adopt it.51) #Resolutions, Address, and Journal of Proceedings of the Southern Convention 27 (Harvey M. Watterson ed., 1850). Similarly an effort in 1783 by the Massachusetts legislature to call a one delegate, one vote convention failed because states refused to participate. Robert G. Natelson, Founding-Era Conventions and the Meaning of the Constitution’s “Convention for Proposing Amendments,” 65 Fla. L. Rev. 615, 666 (2013), reprinted infra § 5.1.

Majority Voting

Approval of motions and proposals by a majority of those voting (in this case, a majority of states) is the prevailing rule under parliamentary law and prior convention practice. The convention may, if a majority of state committees wishes, alter the rule. The Santa Fe Convention (Colorado River Commission) decided on a unanimity requirement among states for most purposes. The reason, apparently, was that the group was negotiating an interstate compact, the compact would not be binding on any state that rejected it, and the compact might be useless unless all states consented.

The unanimity requirement at the Santa Fe meetings worked tolerably well, but there were only eight commissioners, and dissenters occasionally voted “yes” so as not to obstruct the progress of the negotiations. Even at Santa Fe, late in the proceedings the unanimity rule was changed temporarily to majority consent for most purposes.

A unanimous voting rule clearly would not be appropriate at a general convention, with far more states involved. We recommend that amendments conventions decide substantive and procedural questions by a majority of states voting, a quorum being present.

Quorum

Traditionally, a quorum is a majority of eligible voters (states),52) #Mason’s Manual § 500-2. and this rule seems to have been followed for most multi-state conventions. For example, the 1787 Constitutional Convention adopted a quorum of seven—that is, a majority of state committees—with decisions to be made by a majority of a quorum. On the other hand, the Washington Conference Convention adopted a quorum of only seven states when twenty-one were present. In absence of unforeseen circumstances, we do not recommend departing from the majority rule. However, any future convention of states should provide, as prior multi-state conventions have, that if a quorum is not present, those states that are represented should have power to adjourn from day to day.

Prayers and Oaths

Some conventions have been introduced with prayers, generally before the daily session. For example, the rules of the Hartford Convention of 1814 prescribed that “[t]he meetings of this Convention shall be opened each morning, by prayer, which it is requested may be performed, alternately, by the Chaplains of the Legislature of Connecticut, residing in the city of Hartford.” Even the modern Congress has decided that prayer can have an uplifting effect on the proceedings.

On the other hand, the most successful American multi-state convention in history—the one that drafted the Constitution—made no provision for institutionalized prayer.

We have a preference for an initial prayer, led in turn by representatives of a wide range of faiths and denominations. However, prayer is not an objective that should be pursued if it proves divisive, since, of course, individual commissioners and committees can make their own arrangements if they wish.

The Albany Congress administered an oath to its secretary, presumably to record the proceedings honestly. Oaths of fidelity are routinely administered to American public officers, and we see no reason why a convention should not do so as well.

Kinds of Committees

A convention may decide to create any committees relevant to its mission. Typically, conventions create committees to review credentials, committees to draft language, and committees to negotiate differences. If the gathering is called under the Convention of States application, it will have to address a range of subjects, including term limits, fiscal responsibility, and amendments narrowing or clarifying the jurisdiction of the federal government. In that case, the convention may opt to create a committee to develop amendment language addressing each subject.

Committee Staffing

Under modern parliamentary common law, the presiding officer staffs committees, as did the president of the 1814 Hartford Convention. An assembly may, however, provide for election instead. A rule of the 1787 Constitutional Convention specified:

That Committees shall be appointed by ballot; and that the members who have the greatest number of ballots, although not a majority of the votes present, be the Committee. When two or more Members have an equal number of votes, the Member standing first on the list in the order of taking down the ballots shall be preferred.

Note that under this rule election was by a plurality rather than a majority.

There seems to be no reason to go through the trouble of electing members to all committees, but election may be appropriate for major areas of responsibility, such as rules and intra-convention negotiation.

Secrecy

Those conventions addressing the issue appear to have applied a rule of secrecy. A principle purpose was to allow commissioners to think aloud, debate freely, and change their minds without losing face. For example, the rules of the First Continental Congress provided that “the doors be kept shut during the time of business, and that the members consider themselves under the strongest obligations of honour, to keep the proceedings secret, untill [sic] the majority shall direct them to be made public.” The 1861 Washington Conference Convention prescribed that “[t]he yeas and nays of the members shall not be given or published—only the decision by States.”

Similarly, the rules of both the Constitutional and Washington Conference Conventions specified that “no copy be taken of any entry on the journal during the sitting of the House without leave of the House,” and that “members only be permitted to inspect the journal.” The rules of the Constitution Convention admonished that “nothing spoken in the House be printed, or otherwise published or communicated without leave.”

Our advisors were unanimous in believing that such secrecy would not be publicly acceptable today. Mason's Manual, accordingly, includes no such rules. Advocates of secrecy may be comforted by the realization that, although secrecy has some procedural advantages, disclosure offers some offsetting advantages (in addition to public acceptance). Among these advantages is the greater ability of legislative authorities to ensure that their commissioners remain within their instructions and remain connected with political realities.

Obviously, openness does not justify chaos:the convention will have to adopt rules assuring that its proceedings are not disrupted by outsiders. But this is no more than any modern legislative body must do.53) #Mason’s Manual § 705-3 (providing that a legislative body has absolute control of its chambers).

Minutes

All conventions direct the secretary, either personally or through a convention-authorized assistant, to record the minutes necessary for entry in the official journal. A 1787 Constitutional Convention rule specified that “Immediately after the President shall have taken the Chair, and the members their seats, the minutes of the preceding day shall be read by the Secretary.”54) # 1 Farrand’s Records, at 8.

Number of Commissioners on the Floor

Informal discussions among state legislative leaders prior to a convention may lead to agreed limits on the size of any one state's committee. Based on a study of the historical record, we believe that a cap of five commissioners per state would be appropriate. Ultimately, the size of a state's committee is a matter for that state's legislature to determine.

It is possible that non-cooperative states may, if they do not boycott the convention,55) #For example, Rhode Island objected to the 1787 Constitutional Convention, and refused to send commissioners. No multi-state convention has included committees from every single state. opt to send oversized delegations. They may do so as a measure of protest, as a populist gesture, or as a way of skewing debate in their favor. An historical illustration is the decision of Tennessee to send 100 commissioners to the Nashville Convention, when all the remaining states collectively sent only seventy-five. The presence of oversized committees does not change the one state, one vote rule (which, in fact, survived a challenge at Nashville), but the situation could present problems of crowding and fairness.

One way of forestalling this problem without impairing the prerogative of a state to govern its own committee is to adopt a convention rule limiting the number of commissioners from any one state who may participate in any given debate or appear on the floor at one time. One of our advisors suggested a limit on the amount of floor time that may be used on any day by any state committee.

§ 3.14.5. Rules of Debate and Decorum

Several of the major multi-state conventions have adopted rules of debate and decorum specific to their needs. Notable among these are the standards applied at the Washington Conference Convention of 1861, which were based largely, although not entirely, on the rules of debate and decorum in the more famous conclave in Philadelphia in 1787.56) #A Report of the Debates and Proceedings in the Secret Sessions in the Conference Convention for Proposing Amendments to the Constitution of the United States 19 (L.E. Chittenden ed., 1861) [hereinafter Washington Conference Report]. For reasons mentioned earlier, the Washington Convention rules are worth examining in some detail.57) #Supra § 3.14.2. Listed below are the principle rules together with commentary that may be helpful in adapting them to modern needs.58) #All the rules of that convention are not treated here—only those on debate and decorum.

Order of Business

The Washington Convention prescribed that (1) “[i]mmediately after the President shall have taken the chair, and the members their seats, the minutes of the preceding day shall be read by the Secretary” and that (2) “[o]rders of the day shall be read next after the minutes, and either discussed or postponed, before any other business shall be introduced.”59) #Washington Conference Report, at 23, 24.

Commentary: Mason's Manual sets forth a somewhat different order.60) #Paul Mason, Mason’s Manual of Legislative Procedure § 710 (Nat’l Conference of State Legislatures, 2010 ed.) [hereinafter Mason’s Manual]. If we disregard the items on Mason's list relevant to a legislature but not to a convention, we are left with the following: (1) call to order, (2) roll call, (3) invocation, (4) reading and approval of the journal of the previous day, (5) reports of standing committees, (6) reports of special or select committees, (7) special orders, (8) unfinished business, (9) introduction and first reading of proposals, (10) consideration of daily calendar, (11) announcement of committee meetings, and (12) adjournment.

Focus of the Convention

Another rule of the Washington Convention provided as follows: “Every member, rising to speak, shall address the President; and while he shall be speaking none shall pass between them, or hold discourse with another, or read a book, pamphlet, or paper, printed or manuscript; and of two members rising to speak at the same time, the President shall name him who shall first be heard.”61) #Washington Conference Report, at 23.

Commentary: Addressing the presiding officer is in accord with modern practice.62) #Mason’s Manual §§ 91-2, 110-1. The presiding officer's obligation to select the person rising earlier, and to choose between those rising at the same time, also is consistent.63) #Id. § 91-3(a), (b). The proscription on reading extraneous matter may seem alien in a time of universal multi-tasking, particularly with tablet computers and smartphones; but there is something to be said for requiring commissioners to direct their attention to the debate. If, however, written motions are to be disseminated instantly, commissioners should have receiving devices available. If computers are used for that purpose, then preventing commissioners from reading unrelated matter on them may be impractical.

Frequency and Length of Speaking

“A member shall not speak oftener than twice, without special leave upon the same question; and not a second time before every other who had been silent shall have been heard, if he choose to speak upon the subject.”64) #Washington Conference Report, at 23–24.

Commentary: The two-time rule had been used in the First Continental Congress of 1774 and in other fora, and its success argues for emulation. Mason's Manual provides that a person may speak only once on a question at the same stage of procedure on a given day, and sometimes even on different days.65) #Mason’s Manual § 102.

We found no multi-state convention that limited the amount of time a commissioner could speak on the floor. An effort to impose time limits at the Washington Conference Convention was unsuccessful. Because a modern convention for proposing amendments will represent more states than any prior multi-state gathering—and therefore probably contain more commissioners—we recommend imposition of time limits.

Motions

The Washington Convention rules specified as follows: “A motion made and seconded, shall be repeated; and if written, as it shall be when any member shall so require, read aloud by the Secretary before it shall be debated; and may be withdrawn at any time before the vote upon it shall have been declared.” The rules further stated that “[w]hen a debate shall arise upon a question, no motion, other than to amend the question, to commit it, or to postpone the debate, shall be received.”66) #Washington Conference Report, at 24.

Commentary: Today's technology makes it more practical to require that all but the simplest, most standardized motions be written; and they can be disseminated instantly by electronic means.67) #Cf. Mason’s Manual § 144-2 (stating that “A motion is usually presented orally, but if particularly long or involved, the presiding officer may require that it be presented . . . in writing.”). Mason's Manual does not require seconds; thus in the absence of a seconder, the movant alone may withdraw.68) #Id. §§ 62, 157-1. As for the precedence of motions, the treatment in Mason's Manual should suffice.69) #Id. § 441 (“Form of Presenting Main Motions”); id. § 442 (“Precedence of Main Motions”).

Simplifying Complex Questions

The applicable Washington rule was as follows: “A question which is complicated, shall, at the request of any member, be divided and put separately upon the propositions of which it is compounded.”66)

Commentary: This rule is probably best retained, as more appropriate for a convention than the single-subject-related tests for bills set forth in Mason's Manual.70) #Mason’s Manual §§ 311-2, 313-1, 313-2. To avoid confusion, the term “member” should be replaced by “commissioner.”

Calls to Order

The Washington rules stated that “[a] member may be called to order by another member, as well as by the President, and may be allowed to explain his conduct or expressions supposed to be reprehensible. And all questions of order shall be decided by the President, without appeal or debate.”66)

Commentary: Not even the great prestige of former President John Tyler, the Washington Convention's presiding officer, enabled the stricken non-appealability language to survive a motion to amend. The convention decided that any ruling from the chair could be appealed, although without debate. We also recommend that appeals be permitted to prevent undue influence from the chair.71) #Cf. Mason’s Manual §§ 230-1, 246-4 (permitting appeals). This is particularly important because any person with sufficient reputation to be elected presiding officer is likely to have, or to have had, ties (and perhaps sympathies) with the same federal government the convention has gathered to reform.

The word “member” in this rule should be changed to “commissioner.” Mason's Manual does not refer to a participant being called to order by any other participant, although the presiding officer may call anyone to order.72) #Id. § 122.

Motions to Adjourn

“Upon a question to adjourn for the day, which may be made at any time, if it be seconded, the question shall be put without debate.”66)

Commentary: In Mason's Manual, adjournment for the day is called a “recess,” and a motion to recess is not debatable.73) #Mason’s Manual §§ 215, 216-3. A permanent adjournment is called an adjournment sine die (Latin for “without day,” meaning “without a day for reconvening”). A convention may adjourn sine die at any time, whether or not its work is complete.74) #Id. § 204-1. The Founding Generation specifically recognized that a convention for proposing amendments may adjourn without proposing any amendments. Robert G. Natelson, Proposing Constitutional Amendments by Convention: Rules Governing the Process, 78 Tenn. L. Rev. 693, 743–44 n.342 (2011), reprinted infra § 5.2., at (quoting James Madison and an anti-federalist writer).

Decorum on Adjournments for the Day

“When the Convention shall adjourn, every member shall stand in his place until the President pass him.”75) # Washington Conference Report, at 24.

Commentary: This rule derived from the 1787 convention, and was a tribute to the enormous prestige of its president, General Washington. The 1861 convention retained the rule, probably as a tribute to John Tyler. Whether a modern convention adopts it may depend on the personal prestige of its presiding officer.

Absences

“That no member be absent from the Convention, so as to interrupt the representation of the State, without leave.”76) # Id.

Commentary: This is in accord with the modern practice of compelling attendance at the “call of the house.”77) #Mason’s Manual § 190.

Sitting of Committees and Assuring Proper Notice of Proposals

The Washington Convention prescribed that “Committees do not sit while the Convention shall be, or ought to be sitting, without leave of the Convention.”66)

Commentary: This rule also is duplicated in modern practice.78) #Mason’s Manual § 628-1. It assures that all commissioners have full notice of pending measures and time to consider them. For similar reasons, the rules of the First Continental Congress prescribed that “no question shall be determined the day, on which it is agitated and debated, if anyone of the Colonies desire the determination to be postponed to another day.”79) #1 Journals of the Continental Congress 1774–1789, at 26 (1904). This prompted one of our advisors to recommend a requirement of at least a day's lapse between committee approval of a measure and action by the full house. Mason's Manual states, “It is the usual procedure not to consider bills reported by committees when the report is received by the house, but to order the bill to second reading.”80) #Mason’s Manual § 670-5. Because this reference seems inapplicable to conventions (which do not consider bills nor customarily provide for “readings”) a day's delay between committee report and house vote may serve the purpose better.

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