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THE STATE INITIATED "REGULATION FREEDOM" AMENDMENT:

"Whenever one quarter of the Members of the U.S. House or the U.S. Senate transmit to the President their written declaration of opposition to a proposed federal regulation, it shall require a majority vote of the House and Senate to adopt that regulation."

HOW EMPOWERING STATES COULD REIN IN FEDERAL REGULATION

People are searching for practical ways to rein in the growth of federal power. One concern is the expansion of excessive federal regulation that threatens economic growth and the creation of new jobs.

The "REINS" Act proposed by Republicans in Congress, would, if enacted, require Congressional approval of major federal regulations. But the chances of getting 60 Senate votes and a Presidential signature for such legislation are speculative at the current time.

However there is a potential strategy for empowering state legislators in 2/3 of the more limited government-minded states to force Congress to propose  a measure that would rein in federal regulators.

A legal team led by David Rivkin, outside counsel to the 26 states who sued to overturn Obamacare has developed a practical strategy starting with the passage of state measures that would empower 2/3 of the states to force Congress to propose a specific Amendment to the Constitution.

This strategy was inspired by an idea Ed Meese proposed when he was Reagan's Attorney General to, as he has described it to us, give the states the same power as Congress to propose a specific amendment to the U.S. Constitution.

This strategy is consistent with Alexander Hamilton's argument in The Federalist Papers #85 that:

"We may safely rely on the disposition of the State legislatures to erect barriers
against the encroachments of the national authority."

There is now an initiative, backed by state legislators, to force Congress to propose the "Regulation Freedom Amendment to require the approval of Congress for significant new federal regulations.

HOW STATES COULD FORCE CONGRESS TO PROPOSE THE AMENDMENT:

There is little chance of persuading 2/3 of Congress to propose a "Regulation Freedom" Amendment under current conditions.

However there is an achievable  legal and political strategy for empowering 2/3 of states to safely force Congress to propose such an Amendment, without the need to hold an Article V Convention.

That strategy involves passing state laws in a majority of states, state constitutional amendments in 13 states, and a U.S. House Rule along with obtaining a pledge by 41 U.S. Senators all to protect the Constitution from the risk of a so-called "runaway convention"

The state law would strictly limit the authority of any convention delegates from that state to the scope of the state's Article V Resolution and replace and punish delegates who violated the law in the same way some states now punish faithless presidential electors.

These laws could be similar or identical to  S. 224 authored by Indiana Senate President David Long and House  Speaker Brian Bosma  This measure, backed by Indiana Attorney General Greg Zoeller was just signed into law by Indiana Governor Mike Pence. Similar laws are under consideration in other states.

If such a law were in effect in a majority of states with a majority of the population, a majority of delegates at any convention would be required to limit the scope of that convention.

The state constitutional amendment would prohibit that state from considering or ratifying a runaway amendment, in other words any amendment from a convention that the states who called the convention did not authorize the convention to consider.

If just 13 states enacted such an Amendment it would be mathematically impossible for 38 states to ratify a "runaway" Amendment.

The U.S. House Rule and the  pledge or statement of intent by 41 U.S. Senators would prevent either chamber from passing a measure to refer a "runaway amendment" to the states for ratification.

Each of these actions would have the effect of enforcing the 10th Amendment power of states to strictly limit the scope of an Article V Convention they threaten.

That would help restore the original meaning of the U.S. Constitution intended by James Madison when he wrote in Federalist 43:

"It (the Constitution) equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by the experience on one side or the other"

It would also be consistent with an American Bar Association Study that authored by the Harvard Law School Dean Jeffrey Sachs and future Secretary of State Warren Christopher who concluded that states had the constitutional power to limit the scope of a Convention.

In the current political environment none of these actions to empower states would require a Democratic legislator's vote, although  bipartisan support would be helpful

If states, through these actions, understood that they had the clear the power to limit a convention they threatened to an up or down vote on a single Amendment, they could safely force Congress to choose between proposing that Amendment or being required to call a convention.

Congress fears any kind of  Convention that would be more powerful than Congress and has always in American history proposed the Amendment enough states wanted rather than call a Convention.

In effect, ending the risk of a so-called "runaway convention" would empower 2/3 of the states to force Congress to propose the specific amendment those states want.

STATES WHICH MIGHT SUPPORT THE AMENDMENT:

Could a serious effort persuade what would have to be a bipartisan coalition of 2/3 of the states force Congress to propose and then 38 states to ratify an Amendment to require Congressional approval of major new federal regulations?

It is certainly conceivable that the 28 states with Republican majorities in the legislature could end up supporting such an Amendment.

In addition Democrats and their constituents in many moderate states would  have a strong interest in making federal regulatory power more accountable to elected representatives of the people.

Democrats in these states might be persuaded to support the Amendment to avoid making it an issue in their campaigns.  Or their opponents  using this and other issues might win majority control in some or all of these states.

A majority of voters, especially in swing districts of swing states may be quite sympathetic to a measure that would require the approval of elected officials for measures proposed by unelected bureaucrats.

The bottom line is that is both politically and legally conceivable for a serious long-term campaign to result in the enactment of the "Regulation Freedom Amendment".

At every stage of progress in this campaign, first to educate leaders about the concepts, and then to advocate passage of the Amendment, the fear of its success would constrain the regulatory enthusiasm  of federal bureaucrats.  These bureaucrats might begin to worry about antagonizing too many state legislators and constituents who support them.

Our progress might also persuade Congress to enact the REINS act to forestall a Constitutional Amendment.

And finally, a "Regulation Freedom Amendment" campaign would place undecided legislators in swing states in the position of either supporting the Amendment, or defending the currently unlimited and unaccountable  power of the federal bureaucracy.

WHO WOULD SUPPORT THE REGULATION FREEDOM AMENDMENT?

Millions of small business owners, their trade associations, and other leaders in the business community fear the impact of federal regulations on their bottom line.

Many 2nd Amendment supporters are also concerned about the potential for federal regulators to restrict 2nd Amendment rights without a vote of Congress.

These people know that without the certainty of a permanent friendly majority in both Houses of the U.S. Congress it will be very difficult for Congress to significantly rein in the federal bureaucracy of  determined Presidents.

And they know that there is no certainty of electing a "limited regulation" President in 2016 or even 2020.

Investing in an alternative strategy of reining in federal regulatory power may prove very attractive.

A wide spectrum of voters will look favorably on such an effort to make Washington bureaucrats more accountable to elected officials.

CONCLUSION

As voters and state leaders look for ways to make Washington more accountable "the Regulation Freedom Amendment" effort could be an attractive option for  state leaders, business leaders,citizen activists, and Members of Congress..

The Madison Coalition is working to build a national team of legislators and advocates to support this effort.

FOR MORE INFORMATION
Please contact:

Roman Buhler
Director
The Madison Coalition
202 255 5000
Rbuhler@MadisonCoalition.Org
www.MadisonCoalition.Org