National Referendums on Federal Constitutional and Legislative Issues: Can the Public Have a Direct Say?

MATTHEW CASBARRO—On January 4th, 2019, Senator Ted Cruz proposed a constitutional amendment that would place limits on Congressional terms. The proposed amendment would limit United States Senators and House Representatives to two six-year terms and three two-year terms, respectively. There are currently no term limits for either of the chambers of our Federal Legislature, though there are limits to the terms that members of Congress may serve on committees. Senator Cruz previously proposed a similar amendment in 2017. It seems unlikely that members of Congress would vote to limit their own ability to serve, which leads one to ask if this is an issue that can be decided by a referendum, or popular vote, given the potential conflict of interest.

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In the United States, some states, in their constitutions, allow for referendums on newly passed laws by state legislatures if enough people petition to do so, however there is no national or federal referendum afforded by the United States Constitution. The authority to amend the Constitution of the United States comes from Article V of the Constitution. An Amendment that is proposed by Congress must be approved by a two-thirds majority vote in both the House of Representatives and the Senate. If the Amendment passes the congressional vote, it must be ratified by three-fourths of the states (38/50 states) either by a vote of each state legislature, or ratifying conventions in each state.

Out of the twenty-seven Amendments that have been ratified by the states and adopted, only the Twenty-First Amendment, the repeal of prohibition, was ratified by state conventions. Each state has a different method for selecting the members of its convention, and each state has different methods for conducting its ratification convention. Some states, such as Florida allow anybody that meets the state qualifications for the Florida House of Representatives to apply to be a member of the convention. They are then chosen by a state-wide popular vote, with the top 67 vote-getters winning the seats in the convention. Candidates are listed in three categories on the ballot: for, against, or undecided. Meanwhile, in New Mexico, each sitting member of the state legislature is automatically declared a delegate in the convention, so there is no popular vote.

While ratification by state conventions can, albeit indirectly, give the public a chance to vote on proposed Constitutional Amendments, this option is only available after the Amendment passes its congressional vote.

The other way that an amendment may be proposed outside of Congress is through a convention of the states, called by Congress, also known as an Article V Convention. Unfortunately, in the history of our country, an Article V convention has never been called (except for the creation of the Constitution), and it is unknown exactly how the convention would practically function. The Constitution offers no guidelines on how such a convention would work, how applications for a convention should be counted, or if a convention would be limited to considering one amendment or subject. Some scholars actually fear that an Article V Convention would be dangerous to the Constitution itself. The only way to bypass this requirement is to propose an amendment through an Article V convention, rather than by Congress, which then would require ratification by state ratification conventions rather than state legislature

Given the extremely strict requirements set by Article V of the Constitution to amend the Constitution, it is unlikely that an Amendment will be able to bypass the Congressional voting requirement, even when there is a conflict of interest by members of our Legislature. It is clear that our Founding Fathers did not want popular votes on legislative acts by Congress, or they would have included a provision in the Constitution governing such a process. As it stands, besides voting for members of Congress, state ratification conventions provide the only means for the public to have any say in federal Constitutional or Legislative matters, though it is a very rare occurrence.