hundred constitutional conventions have been called to frame or revise the State constitutions,' renders it all the more remarkable that this method of proposing amendments to the Constitution of the United States has never been put in operation. This may be accounted for in part by the fact that there has never been a time when a general revision of the Constitution has been widely desired. Although conventions for the proposal or ratification of amendments have never been assembled, yet occasions have arisen when their trial has been urged. Passing over the propositions for a second convention, which were made in the Federal Convention itself, and in the States at the time of their ratification of the Constitution, we find that the Government had scarcely been established when Virginia and New York made application for a convention to draft amendments. In the winter of 1832–33, the legislature of South Carolina passed resolutions declaring it "expedient that a convention of the States be called as early as practicable to consider and determine such questions of disputed powers as have arisen between the States of this Confederacy and the General Government." This seems to have led to the legislatures of Georgia and Alabama passing resolutions in conformity to Article V, petitioning Congress to call a Federal convention to consider the proposal of amendments. The legislature of Delaware, on the other hand, in reply to the resolutions of South Carolina, declared that the Constitution does not recognize any such tribunal or political assemblage as a convention of the States, but has provided for modes of amendment, if amendment be necessary, in the fifth article; "any other mode, therefore, must be repugnant to its provisions;" that any such convention "must be a convention of the people," "and not a convention of the States;" and "that it is not expedient for Congress to call a convention for proposing amendments at this time." 7

6

1 Jameson, Constitutional Convention, p. 550. Tiedman, Unwritten Constitution, p. 42. Article by E. P. Smith in Jameson's Essays, p. 46.

App., Nos. 125, 126.

*Senate Journal, Twenty-second Congress, second session, p. 83.

'App., Nos. 612a, 613-625.

That such a convention of the States, if assembled, could have no anch power as that set forth by the resolutions of South Carolina."

'Senate Journal, Twenty-second Congress, second session, pp. 157-158. For Resolves of Massachusetts in disapproval to Resolves of South Carolina, see Resolves of Massachusetts, Vol. XIX, pp. 401-402; for report and reply of Massachusetts legislature disapproving of the Georgia resolutions, see ibid., pp. 411-423.

Again, in the sessions of Congress just previous to the rebellion, when there was a general desire that every means should be tried before resorting to a civil war, petitions from the legislatures of six States,' besides nine propositions from members of Congress, were received calling for a drafting convention. On the invitation of Virginia, a peace convention was also held, at which commissioners from twenty-one States were present. As a result of its work, the convention recommended to Congress a series of amendments to the Constitution. In this same session of Congress, Mr. Florence of Pennsylvania offered the following singular amendment: "The reserved power of the people in three-fourths of the States to call and form a national convention to alter, amend, or abolish this Constitution, according to its provisions, shall never be questioned, notwithstanding the direction in Article v of the Constitution."5

Propositions for a convention were also offered at three different times during the period of the civil war, and again in 1866.6 Of those presented during the course of the war, the first was introduced by Mr. Vallandigham, in 1861, the other two by Senator Davis of Kentucky, who proposed such a convention of the States for the purpose of bringing about the restoration of peace and the Union.'

1 Virginia, Kentucky, New Jersey, Ohio, Illinois, and Indiana. The convention in Mis souri also approved of a similar course. Stephen, War between the States, II, p. 364. App., Nos. 812, 834, 835, 873, 895, 900, 908, 911, 931a, 941, 954, 970, 970a, 940a.

3 App., No. 873. See ante, pars. 106, 107. Chittenden, Debates and Proceedings of the Peace Convention; McPherson, History of the Rebellion, pp. 67-70. Twenty-two States appointed commissioners, but several did not attend. Foster, Commentary on Constitu tion, 1, p. 173.

App., Nos. 917.

App., No. 892.

App., Nos. 972, 976, 1039a, 1115. The latter by Senator Lane of Kansas, for the Committee on the Judiciary to inquire into the expediency of calling a convention. The framers of the Confederate constitution, evidently profiting by the experience of the past, determined to make it easier to assemble a convention to amend. Provision was made that upon the demand of any three States legally assembled in their several conventions, the congress shall summon a convention of all the States to take into consideration such amendments as the said States shall concur in suggesting at the time when the said demand is made; the same to be submitted to the States for ratification, if agreed on by said convention, voting by States. Article v, of Confederate constitution. McPherson, History of the Rebellion, p. 99.

App., No. 976, submitted in 1862, called for a convention to meet in Louisville, Ky., on the first Monday in April, 1863, to take into consideration the condition of the United States and the proper means for the restoration of the Union. Each State to send as many delegates as it is entitled to Senators and Representatives in Congress. App., No. 1039a (1864), called for a convention for a similar purpose, and for the vindication of the Constitution, and the construction of additional and adequate guaranties of the rights and liberties of the people. He presented a series of propositions as the basis of a lasting settlement of all difficulties. See ante, par. 103.

Senator Ingalls, in 1876, in consequence of the disputed Presidential election in that year, introduced a resolution recommending the legislatures of the States to apply to Congress to call a convention to revise and amend the Constitution.1 This resolution made full provision for the holding of the convention, and for the submission of the revised draft of the Constitution to a convention in each State, chosen by the people thereof. In 1884 an attempt was made to create a commission to call a convention, and as recently as 1886 a minority report of the Committee on Election of President and Vice-President suggested the recommendation of such a convention, owing to "the imperative necessity of a substantial change in the organic law," and the failure of Congress to give due consideration thereto.*

'App., No. 1429.

• Thią made provision for a convention composed of as many delegates from each State as it is entitled to Senators and Representatives in Congress. Two to be chosen by the legislature in each State, the others in the Congressional districts, but no person holding any office of profit or honor under any State or the United States to be eligible as a delegate. The convention should assemble at Columbus, Ohio, May 2, 1877, the Chief Justice of the Supreme Court of the United States to be the presiding officer. Said convention should revise the Constitution and report "such alterations and amendments in the nature of an entire instrument," which should be reported to the President of the United States, who should immediately submit the same to a convention of delegates hosen in each State by the people thereof, under recommendation of the legislature, for their assent and ratification.

App., No. 1631. This resolution, after reciting the failure of Congress to recommend needed amendments, provided for the appointment of a commission of seventy-six persons by the President, composed of two persons from each State from different political parties, for the purpose of considering and proposing to the States the propriety of the legislatures of at least two-thirds of the States uniting in calling a convention on the 4th of July, 1887, for the purpose of proposing amendments to the Constitution.

App., No. 1660. House Rep., No. 2493, Forty-ninth Congress, first session, p. 5. See ante, par. 35.

PREPARED STATEMENT OF BRIAN W. FITZGERALD, STUDENT AT THE ANTIOCH SCHOOL OF LAW, WASHINGTON, D.C.

THE COST OF A FEDERAL CONSTITUTIONAL CONVENTION, HOW MUCH? AND

WHO PAYS?

One issue raised by the calling of a Federal constitutional convention which is often overlooked because of more heavily debated and contested issues involved, but one we certainly cannot afford to forget about, is the effect such a convention would have on the taxpayers of the United States. How much would a Federal constitutional convention cost the taxpayers and how and by whom would the expenses of the convention be paid?

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

The Congressional Budget Office estimates the cost of holding a Federal constitutional convention, at 1981 and 1983 cost levels, excluding the cost of a delegate election process, to be as the following table presents.

In preparing this cost estimate, the Congressional Budget Office based the estimate primarily on the following assumptions: (1) the convention lasting 12 months; (2) the meeting taking place in Washington, D.C. or another city such as Chicago, Ill.; (3) the delegates apportioned from each State as that State is entitled to Senators and Representatives in Congress; and (4) the delegates receiving compensation for each day of the convention, plus per diem and one round-trip airfare between their homes and either Washington or Chicago.

The following explains the assumptions and data used by the Congressional Budget Office to determine the cost of each of the items found in the table. Except for the delegates' compensation, airfare and per diem, all costs are based on data for each type of expenditure obtained from the Democratic and Republican National Committees for the 1976 National Conventions, and from the States of Arkansas, Illinois, Louisiana, Montana, North Dakota, New Hampshire, Tennessee, and Texas for their state constitutional conventions. 1. Delegate salaries are assumed to be $2,300 per month.

2. Delegate per diem expenses are based on the rate currently allowed by the federal government for Washington, D.C. and Chicago.

3. Current airfares were used to estimate the cost of airfare for the delegates. The delegates, except for those residing near the convention city, were assumed to fly coach class from the capital city of their respective states to the convention city.

4. For the determination of the size of the convention staff it has been assumed, based on the experience of the eight States, that 35 core staff personnel will be required to organize and run the convention with an additional 50 people, (including, pages, stenographers, security staff, etc.) needed during the time the convention is in session. It is estimated that the core staff will need at least 3 months prior to the convention to make all necessary preparations, and to perform all advance legal and research work, etc., plus an additional month after the convention is adjourned to finalize administrative and procedural details. An average annual salary of $20,500 plus benefits has been used for the core staff, and $11,400 plus benefits for the additional convention staff.

To estimate other miscellaneous costs that would be involved, since the data collected for the Democratic and Republic National Conventions and the eight

State conventions are for varying lengths (anywhere from 4 days to 2 years) the relationship of their total compensation and benefits (including travel and per diem but excluding delegate salaries) to other costs was used to estimate the relationship for a Federal convention. Specifically, for these 10 different conventions, other expenses were approximatley 60 percent of total compensation and benefits. When applied to a Federal convention this would mean an additional 7 million at 1981 price levels.

In addition to the costs shown in the table, the election of the delegates would cost State and local governments approximately $120 million if a separate election was held in 1981 for this purpose. If the delegates were put on a general election ballot, the cost would be approximately $1 million and would be somewhat higher if put on the primary ballots, since some jurisdictions do not hold primaries and would have to do so for the purpose of electing convention delegates. According to the Federal Election Commission the cost of elections rises about 10 percent each year. Therefore, if the delegates were selected in 1983 through a separate election, the cost would be approximately $150 million; if put on a general ballot, the cost would be $1.5 million.

This estimate does not include the additional costs for the reservation and use of a convention meeting place. It has been assumed that if a convention was to be held in major hotel, the hotel would not charge for the use of its ballroom if it was going to house most of the delegates. (All housing costs of the delegates were included as a part of the per diem expenditures.) However, no major hotel would be able to tie up its ballroom facilities for a year without reservations having been made many years in advance. Thus, if arrangements for holding the convention in a major hotel were not made well in advance in order to secure their ballroom cost free, such an additional cost might have to be included in the total cost estimate. A ballroom in one of the major hotels in Washington would cost approximately $1,500 to $2,000 per day if no housing or meal services were provided.

It should be noted here that the Congressional Budget Office, in its discussions with the various managements of the major hotels in the Washington area, found that these hotels are somewhat less than enthusiastic about becoming involved with such a convention. Management seems to feel that the indefinite and possible extended duration poses a serious scheduling problem; one they feel may not be worth the notoriety of being the host of a national constitutional convention.

Other possibilities for a convention meeting site would be a facility owned by the Federal Government, such as the Department of Agriculture's Auditorium in Washington. The current charge for its use is $55 per hour, plus $14 per hour for technical service. It is most unlikely that local government facilities would be available for this convention. For instance, the City of Chicago is unlikely to donate the use of its convention halls for this purpose, even though it would make them available for such events as the Democratic National Convention, because of the potential duration of a Federal convention and the fact that a Federal convention would involve only approximately one-tenth the number of people. In other words, the convention does not have the potential revenue generating capacity for Chicago's various businesses in order to make it an attractive guest for the city's convention halls, particularly when the convention may possibly be a long term guest.

Most evidently, the cost of holding the convention will increase, due to inflation, the later the convention is held. Accordingly, the 1983 costs found in the table are based on the 1981 estimate adjusted for the Congressional Budget Office projection of the rate of increase in the consumer price index.

HISTORICAL PRECEDENT: WHO PAID FOR THE CONSTITUTIONAL CONVENTION OF 1787

1

3

The delegates of the 1787 Convention 1 were paid by their respective states.* The Constitutional Convention itself passed a resolution on the 5th of September calling on the Continental Congress in New York to pay the Secretary, William Jackson, and the other officers of the Convention for their services.

Max Farrand, The Records of the Federal Convention of 1787, Vol. III, App. B, pp. 557559, (3rd ed. 1927).

Id. at Vol. IIÍ. App. A, IV, XXXVIII, XLIII, XLIV. LII, LXI, XCIII; App. B, pp. 557-559. 3 Id. at Vol. II, p. 510, 511.