Right-Wing Billionaires Are Buying Themselves a New Constitution

Days before the first debate between Hillary Clinton and Donald Trump, as protests at Standing Rock intensified and the costliest wildfire in United States history burned across Big Sur, some 150 current and former state legislators gathered in Colonial Williamsburg for a weekend of role play—to debate amendments to the U.S. constitution. The event was led by Ken Ivory, a state representative from Utah. “Like air in a tire, gas will expand to fill the space that is given to it. Government, like that, expands to the limit that it’s checked. Left unchecked, government expands limitlessly,” he told those gathered before him, according to a video later posted on YouTube. Addressing them for the last time, after several days of debate that culminated in passing three proposed (fake) amendments, he said, “It’s time for us to be leaders among leaders, to take this back, this spirit that we’ve felt—the beauty of self-governance.”

It was a role-playing exercise at a historical theme park, but what the participants were acting out was not a homage to the past, but a vision of a radical future—and one which they are closer than ever to realizing. A nationwide political movement, fueled by millions of dollars in political dark money and guided by some of the most powerful and influential figures on the right, has come historically close to invoking a previously unused constitutional provision, which could put the entire structure of American rights and government in play. At a moment when political norms and institutions are already being stretched to their limits, the advocates see an opening to breach those limits altogether.

The mock convention included simulated media coverage: After proceedings came to a close, Mark Meckler, the president of Citizens for Self Governance, the nonprofit organization that hosted the event, was interviewed by people pretending to be journalists covering the day’s events as if they were the political moment of the century. “You have the power to bypass the president, Congress, the Supreme Court—to throttle down the federal government to get it out of our lives and to get it back to what the Founders intended,” Meckler said, speaking directly into the camera. “Anything is possible. We are the impossible nation. We obviously had the Lord’s wind in our sails when our nation was founded.”

He shared a story about his wife, whose favorite Founding Father is James Madison, visiting Colonial Williamsburg while they were looking for a location to hold the simulated convention. As they walked through the historically correct streets, she prayed for a sign—and lo, she came upon an actor dressed as Madison. Colonial Williamsburg was the place to hold the simulated convention. “We have a chance to do something extraordinary,” Meckler continued. “We have a chance to save this republic from the fate that has faced every other republic. They’ve all gone extinct. We have an opportunity because the Founders gave us a tool.”

That tool is Article V of the United States Constitution, which governs the passage of amendments. Meckler, Ivory, and their allies believe that the federal government has become tyrannical, and that Congress is too corrupt ever to limit its own (or the executive’s) powers; the framers of the Constitution anticipated this possibility, and included in Article V a provision that would allow state legislatures to circumvent Washington, D.C., altogether.

“We have a chance to save this republic from the fate that has faced every other republic. They’ve all gone extinct. We have an opportunity because the Founders gave us a tool.”

Since its ratification in 1788, the United States Constitution has been amended 27 times. Under Article V, each of those amendments was supported by two thirds of the members of the both the House of Representatives and the Senate and then ratified by at least three quarters of the states. The article allows a second route to proposing amendments: “On the application of the legislatures of two thirds of the several states, [Congress] shall call a convention for proposing amendments.” Proponents of such a convention present it as an Alexandrian solution to the Gordian knot of federalism and states’ rights—cutting away the tangle of government bureaucracy they argue has increasingly limited Americans’ freedom.

According to Meckler, the idea to push for an Article V convention was not his own but that of Michael Farris, a religious conservative and founder of the Home School Legal Defense Association (HSLDA) who now serves as the CEO and general counsel of Alliance Defending Freedom, one of the largest and most influential entities on the Christian right, and the founder of “God’s Harvard,” Patrick Henry College—the alma mater of many Convention of States staffers. Farris is himself registered as a Convention of States lobbyist; he has long pressed for a “parental rights” amendment that would effectively render children their parents’ property, enshrining in the Constitution parents’ right to beat their children.

This is all in the service of training them to “think God’s thoughts,” as HLDSA’s late senior counsel Chris Klicka put it. Klicka, an early legal theorist of the homeschooling movement, wrote in Home Schooling: The Right Choice that “God describes our children as arrows in the hands of a warrior!…Have we diligently crafted our ‘arrows’ so they can be trusted to hit their target as we launch them into the world?”

The plan reaches far beyond advocates of legalized spanking. Right-wing media personalities like Glenn Beck and Mark Levin—the latter of whom looms large enough in the mind of Trump to have inspired his incorrect accusation on Twitter that Barack Obama ordered surveillance against him—have advocated for an Article V convention. (Levin’s Liberty Amendments: Restoring the American Republic was a New York Times best-seller.) Even ostensibly moderate Republicans like Jeb Bush, John Kasich, and Marco Rubio have expressed their support for the idea of holding an Article V convention. Former Senator Tom Coburn now travels to statehouses across the country, persuading legislators to pass resolutions asking Congress to call a convention. “I’ve dedicated the rest of my life to getting this done,” Coburn said in Williamsburg.

The passion that Meckler, Coburn, and especially Ivory express on this topic might suggest that the Convention of States Project emerged from a grassroots movement to bypass a phlegmatic Congress, or a streak of extremism outside the mainstream Republican party’s movements and machinations. In fact, the same billionaires who ushered in the ruling hard-right Republican majorities over the past ten years are funding and betting on the success of this project, and its key figures are using a thicket of connected dark money groups to do it.

Meckler himself is no stranger to dark money; he is a veteran of the anti-tax, anti-government movement’s failed opposition to Obamacare; he ran the Tea Party Patriots group, an ostensibly grassroots conservative organization that Rolling Stone revealed in 2009 was in fact controlled by the large and well-funded lobbying group FreedomWorks. Meckler resigned from FreedomWorks in 2012, shortly after being arrested for trying to board an airplane at Laguardia Airport in New York with a semi-automatic handgun, which he was permitted to carry in California, in his luggage. He pleaded guilty to disorderly conduct. (“To say that I was stunned would be an understatement,” he wrote in a blog post at the time. “It was a nightmare that I can scarcely describe to you.”)

Meckler’s group, Citizens for Self Governance, is a 501(c)(3) organization whose funding grew to $5.7 million in 2015, tax returns show—more than double what it was when it announced the Convention of States Project two years prior. Calling an Article V convention is not Citizens for Self Governance’s only political project (it is also funding efforts to sue the Internal Revenue Service, for example) but it is its most ambitious. Its recent growth has been funded by a slew of dark money groups tied not only to the religious right but also to right-wing financiers like the Koch and Mercer families. Meckler and Citizens for Self Governance did not respond to multiple requests for comment.

The same billionaires that ushered in the triumphs of the radical right over the past ten years are funding and betting on the success of this project.

In 2015 alone, Citizens for Self Governance (the official legal name of which is the John Hancock Committee for the States) received $1.5 million from the Koch-linked dark money fund Donors Capital, an investment fund that is not required to disclose its contributors, but allows them to direct where their money goes, thereby disguising recipient groups’ ultimate sources of funding. Robert and Rebekah Mercer’s private family foundation contributed a half million dollars to Citizens for Self Governance in 2014; whether that giving continued in 2015 is unclear, as the Mercer Family Foundation has been slow to make its 2015 tax returns available for review. According to the Center for Media and Democracy, Citizens for Self Governance has received at least $790,000 from Donors Trust, a donor-advised fund connected to Donors Capital, since 2011; other dark money funds, like the Vanguard Charitable Endowment Program and the Greater Houston Community Foundation—which are in turn funded by Donors Trust and Donors Capital—have given some $4.5 million in the same time.

Meanwhile, Eric O’Keefe, who co-founded Citizens for Self Governance and serves as chairman of its board of directors, is a longtime Koch brothers operative: he was the Libertarian Party’s national field coordinator during David Koch’s vice presidential bid on the party’s ticket in 1980; he sits or has sat on the board of directors for a number of nonprofits and think tanks funded by the Kochs, like the Institute for Humane Studies and the Cato Institute; and he was subpoenaed in the course of an investigation into possible campaign finance violations during Wisconsin’s 2012 recall elections, on which his group, Wisconsin Club for Growth, spend $9.1 million. (The Wisconsin Supreme Court halted the investigation; no charges were filed.) He goes where the Kochs need him; where he is, their money is likely to follow.

At Citizens for Self Governance, that money goes to retaining lobbyists, paying for things like the simulated convention in Williamsburg (which one source said cost $400,000), and for access to the resources provided by the American Legislative Exchange Council, the infamous, corporate-funded bill mill that puts state legislators, lobbyists, and advocacy groups in rooms together to discuss issues and craft model legislation—such as the “Application for a Convention of the States under Article V of the Constitution” that ALEC drafted and adopted in 2015; it shares language with the Convention of States Project’s own model resolution.

Citizens for Self Governance has sponsored multiple panels and events at ALEC-hosted summits. “It’s not about states rights, it’s about local control,” Michael Farris, the homeschooling advocate, explained during a panel at ALEC’s States & Nation policy convention in 2013. The former contains echoes of the debate over slavery, he warned. “You just steer the language in the proper direction.”

The access ALEC offers has apparently borne fruit: Three of at least five Arkansas House representatives who attended ALEC’s 2015 “Arkansas Night” (which, vexingly, took place in San Diego) co-sponsored a recently passed Article V resolution in their state; Arkansas state senator Gary Stubblefield and representative Bob Ballinger both attended the simulated convention in September and had their travel reimbursed by the Convention of States Project. Arizona just passed an Article V resolution: the house majority whip, Rep. Kelly Townsend, revealed financial contributions from both ALEC and Citizens for Self Governance on her 2017 financial disclosure, while the bill’s sponsor in the Senate, John Kavanagh, used campaign funds to pay for his ALEC membership and was reimbursed for attending its annual conference. (A Convention of States lobbyist asked him to put his name to the resolution.)

“You really don’t need people to do this,” an Article V proponent told Wisconsin state representative Chris Taylor, a Democrat who attended an ALEC summit in 2013 and wrote about the experience. “You just need control over the legislature and you need money, and we have both.”

For Congress to call a convention, three quarters of state legislatures (34, altogether) need to pass resolutions petitioning it to do so. We are closer than we’ve ever been to this happening.

Citizens for Self Governance has also hired lobbyists—like former Senator Coburn, who is registered to lobby in multiple states, including South Carolina, Virginia, and Utah—to travel to state legislatures and persuade local lawmakers to introduce legislation petitioning Congress to call an Article V convention, an effort financed through a network of financially-linked 501(c)(4) nonprofits with names like CSG Action and Convention of States Action. Convention of States lobbyists include national staffers and local organizers; one of the most active and well-traveled of the Convention of States’ representatives, however, is Ken Ivory, the Utah representative who played the part of president of the convention in Colonial Williamsburg. According to Ivory’s financial disclosure for 2017, he is employed by Citizens for Self Governance and COS Action as a “senior legislative liaison,” a position he took sometime after filing his 2016 disclosure.

Ivory has a very busy political life outside of the Utah legislature—his lobbying work for the lands transfer movement has been investigated by the Utah attorney general at least twice, and in a 2015 report on American anti-government extremism, the Center for Western Priorities described Ivory as “the highly effective bridge between the extreme and the mainstream.” Last year, a lawyer for Cliven Bundy, the anti-government militia leader under federal indictment, emailed Ivory to ask whether the legislator could put him in touch with the Koch brothers: “I would like to speak with someone about helping to fund the legal fees associated with this case.”

Recently, Ivory appeared with former senator Coburn at a rally hosted by Convention of States Action in the Utah State Capitol building and attended by numerous other state legislators. In his remarks with Coburn, Ivory said that he’d been to 11 different state legislatures lobbying for an Article V convention. However, by appearing with Coburn, a Convention of States lobbyist in Utah in the Capitol building, it appears that Ivory may have gone too far in blurring the lines between his role as a legislator and as a lobbyist.

“Rep. Ivory does appear to be in violation of the state’s lobbying requirements,” Daniel Stevens, executive director of the Campaign for Accountability, a liberal watchdog group, told me. “He does not have to obtain a license to lobby in Utah: he is exempt as a public official. He does, however, have to file financial reports disclosing his lobbying expenditures. A search of the Utah’s lobbying disclosure database contains no submissions from Ivory.”

Emails obtained through a public records request show that Ivory was consulting with representatives of Citizens for Self Governance about an Article V convention as early as December 2014—long before his disclosure earlier this year that he was actually employed by the group. In January 2015, the emails show Ivory, in his official capacity as a state legislator, worked with Mark Meckler, Michael Farris, and the author of the American Legislative Exchange Council’s “Handbook for State Lawmakers” on Article V on drafting a resolution advocating for a constitutional convention, only introducing the bill after Citizens for Self Governance staffers had reviewed a draft and approved it. He also offered advice on how to whip votes—identifying which legislators were on board, which could be wooed, and which were opposed outright—to get the bill passed. The bill that Ivory would ultimately introduce reflected the Convention of States and ALEC’s model legislation much more closely, and a COS lobbyist emailed Ivory to thank him for it.

“[Ivory is] the highly effective bridge between the extreme and the mainstream.”

“This is yet another example of Rep. Ivory being paid by a group whose agenda he has promoted in the Utah Legislature,” CFA’s Stevens wrote after reviewing the emails. Ivory did not respond to multiple requests for comment.

Ivory has also kept the Convention of States Project informed of what its opponents—and especially conservative opponents—are saying about it to other legislators. “The John Birch society is trying to remain relevant apparently,” he wrote in an October 2016 email. At one point, he asked Meckler and another COS lobbyist to write him a form response to constituents critical of the idea of an Article V convention. “I’m sure we can use it as a template for others getting such questions,” he noted.

This is not a bad idea, as ten states have already adopted the Convention of States Project’s resolution. So far the language has been introduced in 44 legislatures, has been voted out of committee in 24 states, and passed in 12 state senates and 21 state assemblies. Altogether, ten states have passed a Convention of States resolution petitioning Congress to call a convention. (Older, less-well funded Article V movements have come even closer: Twenty-nine states have passed resolutions petitioning Congress to call a convention specifically on a balanced budget amendment, a national austerity program that anti-government activists have been pushing for decades; the Republican party controls 25 state governments, including nine that haven’t passed the resolution yet.)

In Texas, Article V legislation has stalled in the House of Representatives, despite the best efforts of the local Convention of States chapter, the Texas attorney general, and Governor Greg Abbott himself, who declared the drafted legislation an “emergency item.” Last year, Abbott released his “Texas Plan,” proposing several amendments that would not just impose severe austerity measures or restrict the Justice Department’s ability to sanction local police forces but would actually roll back the entire American political project more than a century and a half, to before the Civil War. Abbott proposes, for example, prohibiting Congress from regulating activity that occurs wholly within a single state, restricting the ability of administrative agencies to write federal regulations, and allowing a two-thirds majority of state legislatures to overturn a federal law or regulation. Ivory boosted Abbott’s plan to his Republican colleagues in the Utah state legislature.

Altogether, ten states have passed Convention of States resolution petitioning Congress to call a convention.

Conservative opposition to their Article V proposals is a consistent source of embarrassment and difficulty for the Convention of States Project. In February of this year, staffers for Texas legislators emailed Tamara Colbert, co-director of the state chapter of the Convention of States Project, to complain about the national organization including controversial (and at one point Koch-sponsored) talk-radio host Mark Levin’s disparaging remarks about anti-Article V conservative groups such as the John Birch Society and Eagle Forum in its email blasts.

“Mark Levin is frustrated, more than our grassroots in these states, when legislators do not listen to reason, but succumb to fear and mis-information,” Colbert wrote. “We have no control whatsoever over his show or what he talks about.” The Convention of States does “NOT” hate these groups, Colbert clarified. “We feel sad for them and genuinely desire for them to join us.” In fact, the Convention of States “prayer warrior team” has been praying for them. “And we are seeing miracles in Texas,” she added.

Those miracles have been worked largely by Abbott, who is an avid proponent of an Article V convention—he has proposed nine separate amendments in his so-called “Texas Plan” to restore the rule of law—and he is spreading the good word. Emails show that directors of Convention of States chapters around the country sought Abbott’s advice. “His leadership is reverberating around the nation,” Colbert wrote to his legislative director, emails obtained by public records request show. Even Governor Butch Otter of Idaho asked to consult with Abbott about how to deal with “potential pushback” from conservative groups opposed to a convention.

For Congress to call a convention, three quarters of state legislatures (34, altogether) need to pass resolutions petitioning it to do so. We are closer than we’ve ever been to this happening, but given the fact that there is no historical or legal precedent, what would happen if it did remains unclear. Would Congress set the rules? Who would pick the delegates? Would it be state legislatures? Or would it be Congress? Would it be the courts? Governors? Would California get the same number of delegates as Wyoming? Would each state get one vote, or would representation be proportionate? No one knows. “There are absolutely no rules,” David Super, a constitutional scholar at Georgetown Law School, told me. “The only place you could find such a rule would be in Article V, and it doesn’t say anything about it.”

Meanwhile, rather than advocating for a convention to propose a specific amendment, Meckler’s group, Citizens for Self Governance, is pushing a much broader agenda, petitioning Congress to call a convention on three general issue areas: to impose “fiscal restraints” on the federal government, to limit its “power and jurisdiction,” and to impose term limits on federal office holders.

“‘Restrains federal power’ or ‘restrains fiscal power’ could basically mean anything,” Jay Riestenberg, a researcher at Common Cause told me. “It could mean a balanced budget amendment, but it could also mean a ton of other things. So they are not clear at all on what specific amendments they want, which just goes to the point of, if you call a convention, especially under the Convention of States proposal, literally anything could be brought up—restraining federal power could mean changing the federal government’s ability to tax and spend, or it could mean reversing Supreme Court decisions around marriage equality and abortion and immigration and healthcare. It could mean so many different things.”

Working together, the evangelical Christian right and the industrialist, capitalist right has achieved much over the past few decades: restricting access to abortions; limiting the reach of environmental regulations; preserving (and in some cases even expanding) gun rights. The Citizens United decision has reinvigorated this coalition, which ushered in an era of unprecedented (and mostly hidden) political spending. The prayer warriors and Patrick Henry graduates staffing the organization at the national level and the funding from dark money groups tied to the likes of the Kochs and the Mercers indicate that in the Convention of States Project these interests are again working together to achieve a common goal.

“If you call a convention, especially under the Convention of States proposal, literally anything could be brought up.”

Any controversial amendment these interests might support—to overturn Roe v. Wade, for example, or limit First Amendment protections in the interest of national security—would still need to be ratified by three quarters of the state legislatures. Those legislatures, however, consist of members who may very well have been the delegates who introduced and proposed such amendments. There is a deeper worry, too, that convention delegates may rewrite the rules about how amendments are ultimately ratified. “There is some real concern that they would try to do that,” Riestenberg said. “And what that could ultimately lead to is basically two different governments—the states that ratified the new amendments and the states that did not.”

Such a maneuver would not be without historical precedent: In 1787, delegates from the 13 former colonies gathered in Philadelphia to amend the existing Articles of Confederation, passed by the Second Continental Congress. People like James Madison and Alexander Hamilton, however, had come to believe that the Articles were worthless, and steered the convention to propose a whole new system of government.

“Now, that was widely regarded as illegitimate at the time, and sharply criticized,” David Super, the Georgetown Law professor, said. “They changed the ratification rules that were in the Articles to make it easier to approve the new Constitution. Indeed, they then ratcheted the standards of approval back up after their document was done, which under any other circumstances would be regarded as unfair and unreasonable.” Super continued: “We think of the Constitution as something that reflects overwhelming, supermajority sentiment of things that should last for ages, but this would raise the possibility of things that were not only not consensus items but were not even majority items.”

It is instructive, too, to examine what historical precedents advocates for an Article V convention cite themselves—the most troubling being the Washington Peace Conference of 1861, which tried to avoid the looming Civil War by proposing that slavery should continue to exist where it already existed but would not be permitted to spread. At first blush, this would seem like an odd example to point to while also warning supporters to avoid “states’ rights” language over its pro-slavery connotations.

But if the outcome of the Civil War, and the Progressive Era, and the New Deal, was at each stage to make the United States more of a nation and less of a confederation—to live up to the ideal of one person, one vote—the push for an Article V convention is an attempt to unwind that historical process, to return to a romanticized, antebellum past. “This is an effort to move away from the notion of a national state and back to a nostalgic, pre-Civil War position that I think is neither in keeping with the state of the world and the state of economics in the 21st century nor is based on any serious understanding of what life was like before the Civil War,” Super told me. An Article V convention is a way of ending the struggle between business and government once and for all. “If you put something in the Constitution, that forces change long term,” Super said. “It’s a way of locking in these values even after control of Congress and the White House disappears—which eventually they surely will.”

In this way, the Article V movement is at once both myopic and farsighted: myopic to the extent that well-intentioned people may not actually understand the chaos and horrors that the federal government protects them and their neighbors from, and farsighted to the extent that realizing their vision for the country is not contingent on any individual politician but structural, systemic changes. “Washington, D.C. will never relinquish any power, no matter who is elected,” Grant Martin, director of Convention of States Florida chapter, said during a recent conference call with Article V activists. “They’re regulating everything. There’s no facet of our life that is not regulated anymore.” He added: “Washington, D.C. is on a path that will enslave our children and grandchildren to the debts of the past.”

In his address to viewers at home following the simulated convention in Williamsburg, Meckler offered the following call to arms. “This is our moment,” he said. “I’m asking you to stand up, to live your heritage, to live your birthright—to be who you were born to be.”