delegates (678) that would be necessary to achieve precisely equal representation if Alaska were allowed one delegate or to the disregard for the integrity of the states that would result from redistricting the entire country without regard to state boundaries.

To answer your question more directly I believe that a number of problems could arise if the procedures legislation provides that "delegates shall be elected... in the manner provided by State law." For instance, circumstances might develop that would require federal conduct of elections of delegates to prevent racial or other discrimination. Or in some regions there might be substantial sentiment for choosing delegates in nonpartisan elections. This would necessitate amending state laws to provide appropriate nominating and general election procedures. Some states might do this while others might prefer to continue with partisan elections. The resulting mix of partisan and nonpartisan delegates would pose grave problems in organizing and conducting the constitutional convention. Hence, to avert such difficulties, Congress might have to prescribe a uniform manner of electing delegates. Once again, these hypothetical cases, which could be multiplied many times, demonstrate the wisdom of not enacting implementing legislation until such time as a national constitutional convention is actually going to be called.

9. Question. What are your thoughts on convention delegates being appointed? Would that appointment be made by the governor or the State legislature? Answer. Most emphatically, I believe that convention delegates should be popularly elected. (Of course, any vacancies that occur in a state delegation might be filled by appointment as discussed below.) It is essential that convention delegates be responsive to the people they represent, for the people are the source of constitutional powers. Popular election is the best available means of achieving such responsiveness. Under no circumstances should delegates be chosen initially through appointment by the state legislature or by some other body it designates. This procedure, which state legislatures are empowered to use for picking presidential electors, is anarchronistic. Since the 19th Century, no state legislature has appointed electors itself, but every one has provided for . their popular election.

In a situation where a vacancy occurs in a state delegation, the legislature of that state might not be in session at the time. Hence, it would seem more appropriate to authorize the governor instead of the legislature to fill any such vacancy by appointment.

10. Question. The ABA Report states there is no evidence of any federal constitutional bar against a member of Congress serving as a delegate. Do you have an opinion on that?

Answer. I find the supporting arguments of the ABA Report most persuasive. The Supreme Court has held that the provision of Article I, Section 6 barring Congressmen from holding offices under the United States applies only to an appointive position created pursuant to Article II, Section 2. Obviously this is not the case for an elected delegate to a national constitutional convention. Moreover, the Articles of Confederation contained a clause similar to Article I, Section 6. Yet several delegates to the Constitutional Convention of 1787 were members of the Continental Congress.

11. Question. What are your thoughts with respect to a State legislator serving as a delegate to a convention? What are the ramifications of a State legislator serving as a delegate, proposing an amendment and then returning to the State and ratifying that amendment?

Answer. If a state legislator is popularly elected as a delgate to a national constitutional convention, I see no good reason why he or she should not serve. In my opinion, the most important consideration in this respect is the possibility of excessive influence not by individual state legislators but by the state legislatures. To reduce that danger, any amendments proposed in this way should be ratified by state conventions, which should be popularly elected in accordance with rules prescribed by Congress. Otherwise, the state legis'atures would have complete control over the initial and final stages of this method of amending the Constitution. This would tip the balance too far in favor of the state legislatures. 12. Question. Would a provision in procedures legislation, such as that contained in S. 1710, Sec. 7(a) which states that no Senator or Representative or person holding an office of trust or profit under the United States, shall be appointed as a delegate-be an effective bar?

Answer. In my opinion, the most important issue is not whether such a bar would be effective but whether it would be desirable. Congress should not ban

Senators, Representatives, or other federal employees from serving as delegates. They would bring to a federal constitutional convention valuable firsthand knowledge of national interests and a sense of responsibility for implementing any constitutional amendments that might ensue. The voters in each state should be free to elect whomever they deem best qualified to represent them as delegates to a national constitutional convention.

13. Question. Is the exclusion of Federal employees as delegates justified in light of the fact that State employees would not be excluded?

Answer. As indicated by my preceding answer, I feel that the exclusion of federal employees as delegates would be neither justified nor desirable.

14. Question. Is it appropriate for Congress to include in the implementing legislation a clause designating either the Federal government or the States to provide funds for the convention?

Answer. In the implementing legislation, it is proper for Congress to authorize appropriations for the payment of the expenses of the convention, as Section 8(b) of S. 3 does. However, Congress can only authorizes the expenditure of federal funds. It would be improper for Congress to try to allocate the costs of the convention among the states, and it would be very difficult to devise a suitable formula for that purpose.

15. Question. In your opinion, which entity should bear financial responsibility for a constitutional convention?

Answer. Very definitely, the federal government shoudl bear financial responsibility for a national constitutional convention because the convention would be performing a federal function.

16. Question. S. 1710 embodies the basic tenets of federalism and the sovereignty of the States. In Section 8(b), which states that with respect to no federal funds appropriated for a convention, the states shall bear all expenses incurred. The constitutional question seems to be how can the Congress require the legislatures of the sovereign States to appropriate funds for the support of a federal constitutional convention? In the past there have been instances of "matching funds", but precedent would be set for total financial support by the States. The convention would be totally dependent upon the goodwill of each and every State to pay its share, which as we know, was one of the problems faced by the Convention of 1787.

Answer. Congress cannot constitutionally require state legislatures to appropriate funds for the support of a federal constitutional convention. Federal grantin-aid programs that require participating state governments to provide matching funds are not analogous to imposing the costs of a convention on the states. In such programs, state governments have the incentive of receiving federal funds at least equal to and generally much larger than the sums they contribute. Moreover, participation in any federal grant-in-aid program is optional. That could hardly be the case with a national constitutional convention. For its legitimacy would be impaired if a number of states declined to send delegates.

You quite properly point out the difficulty of relying on voluntary contributions from every state government. The inadequacy of voluntarism in fiscal affairs has been repeatedly exemplified not only by the experience of our central government under the Articles of Confederation but also by the present day refusals of member governments to make their payments to the United Nations. In fact, the problem of financing a national constitutional convention would be even greater than in these instances because the states would not know what their respective fair shares of the total outlays were. There is no provision for allocating the costs of a convention among the states.

In addition to to the difficulties you mention, Section 2 of S. 1710 poses severe financial problems for the GSA and other federal agencies. Section 8(b) states, "No Federal funds may be appropriated specifically for the purposes of payment of the expenses of the convention." Yet Section 8 (c) ordains that the GSA Administrator shall provide such facilities and that every other federal agency shall provide such information and assistance as the convention may require. The costs of such facilities and services, which are the expenses of the convention, could be very large. How would the GSA and other federal agencies be reimbursed for them if no federal funds could be appropriated specifically for that purpose? Moreover, would it be legal for federal agencies to divert funds appropriated for other programs to pay the costs of such facilities and services? And should these other programs have to absorb such costs as they would have to do if there is no possibility of reimbursement?

17. Question. In S. 1710, the State supreme court justice with the most tenure shall convene the constitutional convention and administer the oath of office to each delegate and preside until officers are elected. What are your thoughts on this provision as to the practicalities and political impact?

Answer. It is difficult even to guess why this provision, which has a potential for considerable inconvenience, was made for filling a position that is largely ceremonial in nature. For instance, when needed to convene and preside initially over the constitutional convention, the most senior chief justice of the state supreme courts might very well be unavailable because of being in the midst of an extremely busy session. The most plausible hypothesis is that some sort of symbolic gesture is intended. If that be the case, I cannot imagine any significant political impact that would result.

In contrast, the provision in S. 3 for the Vice President of the United States to convene and preside at the outset of the convention is more reasonable. The Vice President is already in Washington, D.C., and does not have other pressing duties that would interfere with his discharging this responsibility.

18. Question. As we know, the original convention was in session roughly five months and drafted the entire Constitution, do you have any recommendation as to the duration of any future convention?

Answer. Because of the adverse effects on our political system while such a convention is sitting, some of which are set forth in my prepared statement, I recommend that any future convention terminate its proceedings within six months after the date of its first meeting. That should be ample time to work out one or so specific amendments, which is all that a "limited" convention is supposed to do according to its proponents. And Congress could always extend this period if necessary.

The reasonableness of this period is attested by experience with the 27 state constitutional conventions that assembled during the 31-year period from 1938 through 1968. The average length of these conventions, including both unlimited and limited bodies, was 4.4 months. And if the extraordinarily long Rhode Island convention is excluded, the average duration was only 2.6 months.

19. Question. Section 9 of S. 1710 eliminates the provision in S. 3 which provides that a constitutional convention shall terminate in one year unless extended by Congress. Would this omisssion effectively authorize a continuing convention? Answer. Yes, this omission would effectively authorize a continuing convention. And if the provision in S. 1710 for state financing of the convention were realizable, Congress would not even be able to terminate its proceedings by cutting off its funds. In any event, implementing legislation should prescribe the maximum duration of the convention.

That the dangers of an unduly protracted convention are not imaginary was demonstrated by a Rhode Island constitutional convention that ran more than 50 months. It convened on December 8, 1964 and did not adjourn sine die until February 17, 1969. Can you imagine the consequences if a national constitutional convention continued for that length of time, which would include one and possibly two presidential elections and two congressional elections for sure!

20. Question. I would like to draw your attention to the fact that S. 1710 does not provide for a vote on final passage of an amendment by the convention. If S. 1710 was to be passed by Congress, do you think it could be implied that the convention itself has the authority to determine the mode and margin of the vote, or would that become a matter to be decided by the courts?

Answer. With respect to the mode of voting, Section 9(a) of S. 1710 does provide, "In voting on any question before the convention, including the proposal of amendments, each delegate shall have one vote." However, S. 1710 does not specify the margin of the vote on final passage of an amendment. And it certainly could be implied that the convention itself has the authority to determine the size of the vote required to propose an amendment. In general, for any internal procedures of a convention that Congress has not prescribed, the convention has inherent power to do so.

21. Question. By what vote, whether required by procedures legislation or left to the convention to decide, do you think should be required for passage of an amendment? A simple majority or two-thirds or possibly some other fraction? Answer. The vote necessary for proposing amendments should be two-thirds of the convention delegates voting, a quorum being present. A quorum should consist of a majority of the total number of delegates to the convention. This would correspond exactly with the vote required in each house of Congress for final passage of a constitutional amendment.

Whether proposed by Congress or a convention, a constitutional amendment should not be submitted to the states before a substantial consensus on its desirability has been reached by a national deliberative body. A bare majority vote by a convention would not ensure this.

22. Question. What provisions for judicial review should be incorporated in any procedures bill, or would the convention itself have to provide for any review by the courts?

Answer. Neither procedures legislation nor the convention itself has to provide for judicial review. If the Supreme Court decides that questions arising out of this method of amending the Constitution are justiciable, judicial review can be exercised. And the Court will not decline to rule on such matters because Congress has declared that congressional decisions on such questions shall be binding on the courts. Consequently, the provisions of S. 3 which purport to bar judicial review [Sections 3(b), 5(c), 10(b), 13(c)] are undesirable and should be deleted. For they serve no useful purpose and could aggravate the embarrassment caused by Congress by the Court's review.

On the other hand, Congress should not ease the issue of justiciability by providing for judicial review in convention procedures legislation. As the Court has conceded in stating that various aspects of the amending process involve political questions, Congress has better means and facilities available to it to determine such questions than the Court has. Hence, Congress should not act in any way to reduce the long-standing reluctance of the Supreme Court to intrude into this

area.

23. Question. What would be the status of any lawsuit brought before a convention assumes its responsibilities?

Answer. To be effectual, any lawsuit seeking injunctive relief from the calling of a convention would have to be decided before the convention assembled, much less assumed its responsibilities.

24. Question. The ABA report suggests that a three judge district court panel be authorized to review any disputes that may arise with respect to a constitutional convention. Do you have an opinion as to the advisability of this panel? How do you foresee this panel being selected?

Answer. As indicated in my answer to Question 22, I do not believe that there should be any provision for judicial review in convention procedures legislation. 25. Question. As you know, S. 3 does not provide for any judicial review, whereas S. 1710 makes provision for an aggrieved State to bring an action in the Supreme Court directly, which was rejected by the ABA feeling that the initiation of suit in the Supreme Court necessarily escalated the level of controversy without regard to the significance of the basic dispute. What are your thoughts on this?

Answer. The same as my answer to Question 24.

26. Question. Do you think Section 15(a) of S. 1710 is constitutionally consistent with Article III of the Constitution, which establishes the original and appellate jurisdiction of the Supreme Court?

Answer. The same as my answer to Question 24.

27. Question. Should time constraints be put upon any court, panel or arbitrating body for a determination of any dispute or legal action brought by any individual or State in connection with any procedures legislation or action by the convention?

Answer. The same as my answer to Question 24.

28. Question. Section 12 of S. 1710 fails to include any provision for dealing with a situation where Congress fails to enact a concurrent resolution providing for the mode of ratification, but the proposed amendment is submitted to the States for ratification by the Administrator of the General Services Administration anyway. What are your thoughts as to whether this leaves a serious gap in the ratification procedure?

Answer. This does leave a serious gap in the ratification procedure. Article V gives Congress exclusive control over the mode of ratification of an amendment regardless of the method by which it was proposed. Consequently, a constitutional convention could not choose the mode of ratification nor could any other body but Congress do so. To fill this gap, I recommend adding the following paragraph to Section 12 of S. 1710:

"(c) Except as otherwise prescribed by concurrent resolution of the Congress, any proposed amendment to the Constitution shall become valid when ratified by conventions in three-fourths of the several States within seven years from the date of the submission thereof to the States, or within such other period of time as may be prescribed by such proposed amendment."

In my answer to Question 11, I have already given my reason for preferring ratification by state conventions whenever this alternative method of amending the Constitution is used. Otherwise, the state legislatures have complete control over the initial and final stages of the process, which accords them excessive influence over changes in the basic framework of our political system.

29. Question. Section 13 of S. 1710 omits a provision included in S. 3 which states that Congress shall decide questions "concerning State ratification or rejection" of proposed amendments. This power to determine the validity of a State ratification or rejection is one that Congress has traditionally exercised. In the alternative, what other institution could make that determination or would be better qualified?

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Answer. Both authority and reason support the proposition that no other institution is better qualified than Congress to decide questions concerning state ratification or rejection of proposed amendments. In Coleman v. Miller, 307 U.S. 433 (1939), which centrally concerns ratification issues, the Court said, the question of the efficacy of ratifications by state legislatures in the light of previous rejection or attempted withdrawal, should be regarded as a political question pertaining to the political departments, with the ultimate authority in the Congress in the exercise of its control over the promulgation of the adoption of the amendment." In Coleman, the Court refused to decide how long a child labor amendment remained open to ratification in the absence of a time limitation by the Congress. The Court deferred to Congress on this question on the grounds that it involved an appraisal of a great variety of relevant conditions, political, social, and economic, which could not be properly weighed by the courts. The Court stated that such questions "can be decided by the Congress with the full knowledge and appreciation ascribed to the national legislature of the political, social and economic conditions which have prevailed during the period since the submission of the amendment."

Also, observable facts confirm that no other institution is better qualified by composition and organization to make such determinations. The Congress comprises members from all parts of the country who are sensitively attuned to conditions in their districts. Their accessibility and collegial decision-making ensure a maximum of responsiveness to these dynamic circumstances.

[The New York Times, Feb. 16, 1979]

PROPOSED CONVENTION ON BALANCING BUDGET

(By Adam Clymer)

WASHINGTON, Feb. 15.-Twenty-seven state legislatures have called on Congress to summon a constitutional convention to draft a constitutional amendment requiring the Federal budget to be balanced except in emergencies. If seven more states join them, Congress may be obliged to call the first such convention since 1787.

While the discussions in most state legislatures have been perfunctory, the subject is getting increasing attention as the total nears the 34 that would make the necessary two-thirds of the states, and three lines of debate are emerging, as follows:

¶Whether a requirement for a regularly balanced budget is a good idea in

itself.

Whether such a requirement should be in the Constitution.

¶Whether a constitutional convention is the best place to write such an amendment, and, even if it may be, whether a convention might not run wild and try to change the fundamental elements of the Constitution.

Congressional Democrats generally answer "no" to the three questions implicit in the lines of debate. President Carter says he favors a balanced budget, opposes constitutional conventions and urges that the idea of an amendment be approached "very gingerly, very carefully."

Republicans here almost universally oppose a convention, argue for balanced budgets as a goal but split about whether an amendment would be appropriate. Many prefer an amendment that would limit only Federal spending, which is more easily controlled than tax revenue. In the remaining states, however, support for the convention effort generally comes from Republican legislators.