Steve Bannon, the former chief strategist in the Trump White House who is at the forefront of the Republican march toward hard-right populism, is throwing his weight behind a movement to radically rewrite the US constitution.
Bannon has devoted recent episodes of his online show the War Room to a well-funded operation which has stealthily gained ground over the past two years. Backed by billionaire donors and corporate interests, it aims to persuade state legislatures to call a constitutional convention in the hope of baking far-right conservative values into the supreme law of the land.
The goal is, in essence, to turn the country into a permanent conservative nation irrespective of the will of the American people. The convention would promote policies that would limit the size and scope of the federal government, set ceilings on or even abolish taxes, free corporations from regulations, and impose restrictions on government action in areas such as abortion, guns and immigration.
“This is another line of attack strategically,” Bannon told his viewers last month. “You now have a political movement that understands we need to go after the administrative state.”
By “administrative state”, Bannon was referring to the involvement of the federal government and Congress in central aspects of modern American life. That includes combating the climate crisis, setting educational standards and fighting health inequities.
Mark Meckler, a founder of the Tea Party who now leads one of the largest groups advocating for the tactic, the Convention of States Action (Cosa), spelled out some of the prime objectives on Bannon’s show. “We need to say constitutionally, ‘No, the federal government cannot be involved in education, or healthcare, or energy, or the environment’,” he said.
Meckler went on to divulge the anti-democratic nature of the state convention movement when he said a main aim was to prevent progressive policies being advanced through presidential elections. “The problem is, any time the administration swings back to Democrat – or radical progressive, or Marxist which is what they are – we are going to lose the gains. So you do the structural fix.”
The “structural fix” involves Republican state legislatures pushing conservative amendments to America’s foundational document. By cementing the policies into the US constitution, they would become largely immune to electoral challenge.
Were a convention achieved, it would mark the zenith of conservative state power in American politics. Over the past 12 years, since the eruption of the Tea Party, Republicans have extended their grip to more than half of the states in the country, imposing an increasingly far-right agenda on the heartlands.
Now the plan is to take that dominance nationwide.
Article V of the constitution lays out two distinct ways in which America’s core document, ratified in 1788, can be revised. In practice, all 27 amendments that have been added over the past 244 years have come through the first route – a Congress-led process whereby two-thirds of both the US House and Senate have to approve changes followed by ratification by three-quarters of the states.
Meckler, working alongside other powerful interest groups and wealthy rightwing megadonors, is gunning for Article V’s second route – one that has never been tried before. It gives state legislatures the power to call a constitutional convention of their own, should two-thirds of all 50 states agree.
The state-based model for rewriting the US constitution is perhaps the most audacious attempt yet by hard-right Republicans to secure what amounts to conservative minority rule in which a minority of lawmakers representing less-populated rural states dictate terms to the majority of Americans. Russ Feingold, a former Democratic US senator from Wisconsin, told the Guardian that “they want to rewrite the constitution in a fundamental way that is not just conservative, it is minoritarian. It will prevent the will of ‘we the people’ being heard.”
Feingold has co-authored with Peter Prindiville of the Stanford constitutional law center The Constitution in Jeopardy, a new book that sounds the alarm on the states-based convention movement. “Our goal is not to scare people, but to alert them that there is a movement on the far right that is quietly getting itself to a point where it will be almost impossible to stop a convention being called,” he said.
His urgency is underlined by how active the movement has become. A convention resolution framed by Cosa has passed so far this year in four states – Wisconsin, Nebraska, West Virginia and South Carolina.
The group has also been busy around November’s midterm elections, using its muscle and some $600,000 (£528,252) of its reserves to support candidates amenable to the idea. “We have built the largest grassroots activist army in American history,” Meckler told Bannon, probably hyperbolically.
Bannon’s other guest on the War Room, Rick Santorum, a former Republican US senator from Pennsylvania who advises Cosa, told Bannon: “This is something that can happen very quickly. We are a lot further along than people think.”
They are also much better funded than people might think. The Center for Media and Democracy (CMD), which monitors the constitutional convention movement, estimates that it pulled in $25m (£22m) in 2020, the last year for which figures are known.
The funds were split between Cosa and other influential groups on the right. They include the American Legislative Exchange Council (Alec), a network of state politicians and corporate lobbyists which has taken up the cry for a constitutional amendment to force balanced budget restrictions on Washington.
Much of the income is dark money, with the origins hidden. CMD has managed to identify some key donors – among them the Mercer Family Foundation set up by reclusive hedge fund manager Robert Mercer, and a couple of groups run by Leonard Leo, the mastermind behind the rightwing land grab in the federal courts.
More than $1m (£880,265) has also been donated in the form of Bitcoin.
The attraction to these groups and donors of pursuing a states route to rewriting the US constitution is easily explained. Over the past 12 years, since the eruption of the Tea Party in 2010, Republican activists have deployed extreme partisan gerrymandering to pull off an extraordinary takeover of state legislatures.
In 2010, Republicans controlled both chambers of just 14 state legislatures. Today, that number stands at 31.
“Republicans are near the high watermark in terms of their political control in the states, and that’s why the pro-Trump rightwing of the party is increasingly embracing the constitutional convention strategy,” said Arn Pearson, CMD’s executive director.
Should a convention be achieved, the plan would be to give states one vote each. There is no legal or historical basis for such an arrangement but its appeal is self-evident.
One vote per state would give small rural conservative states like Wyoming (population 580,000) equal leverage to large urbanized progressive states like California (39.5 million). Collectively, small states would be in the majority and control would tip to the Republicans.
Last December Santorum spelled out this minoritarian vision at a private ALEC meeting. In an audio recording obtained by CMD, Santorum said: “We have the opportunity, as a result, to have a supermajority, even though we may not even be in an absolute majority when it comes to the people who agree with us.”
Pearson decried such thinking as “a profoundly anti-majoritarian and anti-democratic strategy that gives small rural states most control”.
With the counting system skewed towards the conservative heartlands, the list of amendments that might be pursued is disconcertingly large. Though Meckler and his allies largely avoid talking about culture war issues, it is quite conceivable that a nationwide ban on abortion and a rescinding of gay marriage would be on the table.
More openly, advocates have talked about imposing balanced budget requirements on the US government that would dramatically shrink federal resources. Some have even proposed making income tax unconstitutional.
One of the more popular ideas circulating within rightwing constitutional convention circles, initially floated by the talk show host Mark Levin, is that states should grant themselves the ability to override federal statutes and supreme court rulings. It is hard to see how the federal rule of law could be sustained under such an arrangement with its unmistakable civil war undertones.
Under Article V, 34 states would have to call for a constitutional convention to reach the two-thirds requirement. Cosa has so far succeeded in getting 19 states to sign up, with a further six in active consideration.
ALEC, which sets a narrower remit for a convention focused on its balanced budget amendment, has gone further with 28 states on board.
Either way, there is a shortfall. To address it, constitutional convention leaders have invented increasingly exotic mathematical formulas for attaining the magic number, 34. “We used to call it fuzzy math, now we call it wacky math,” Pearson said.
Advocates filed a lawsuit in Texas in February that tried to get the courts to force a constitutional convention on grounds that they had reached 34 states already – they cobbled together unrelated state convention calls, including some dating back to the 1800s. In July two bills were also introduced to the US House requiring Congress to call a convention immediately.
David Super, a law professor at Georgetown University, said the willingness to adopt outlandish logic should sound further alarm bells. It raised the stakes even higher for the November elections.
“The midterms are crucial,” Super said. “Changes at state-level matter, but will not get them to 34 states. If they can take control of Congress, they could bridge the gap.”
Paradoxically, what happens to Congress in the midterms could have the biggest impact on the future prospects of a states-based constitutional convention. Should the Republicans take back control of the US House and Senate they would be in a position to advance radical Republicans’ demands.
“We’ve already seen a willingness to play fast and loose with the math on all sorts of things in Congress,” Super said. “I would not be surprised if they were to make a serious attempt to adopt one of these bizarre accounting theories should they take control of both chambers in November.”
That could mean a rapid dash for a convention before most Americans would have woken up to the danger.
“If the Republicans prevail in Congress, they could try to call a convention right away,” Feingold said. “People should know that when they go to vote in November – this could fundamentally undermine their rights in a way that is both disturbing and permanent.”
