Project Description

Article V

State
Compact

Article V

State Compact

At its most fundamental level, an interstate compact is an agreement between two or more states. The agreement must be approved by each state legislature party to the agreement, and, in some cases, consented to by the United States Congress. State compacts can be simple agreements or can be more complicated, so much so as to form interstate agencies with their own rules, regulations, governing bodies, and funding.

Forming an interstate compact

Negotiating the contract

Like other contracts, the terms of the state compact are decided upon prior to a state joining the compact. These terms can be negotiated by the governors of the states involved, either directly or by individuals appointed by the governor. A state legislature may also enact a proposed compact and simply invite other state legislatures to join, or a compact may be proposed at the National Conference of State Legislatures. Additionally, the Federal Government may be a party to the negotiations.

Approval of state legislatures

While normal contracts have signature lines for each party involved, state compacts are joined by an act of the state legislature through the normal procedure for enacting legislation. In other words, governors would have to sign the legislative act, they would have the ability to veto, and legislatures could have the ability to override the veto.

Consent of the United States Congress

In certain cases, the United States Congress may need to approve an interstate compact. This arises from Article 1, Section 10 of the Constitution, which states that “[n]o State shall, without the Consent of Congress, . . . enter into any Agreement or Compact with another State.” However, the Supreme Court in 1893 held in Virginia v. Tennessee that Congressional consent is necessary only if a compact is “directed to the formation of any combination tending to the increase of political power in the States, which may encroach upon or interfere with the just supremacy of the United States.”

A compact for term limits

A state compact could be formed in order to facilitate the entire Article V state convention amendment process and alleviate potential concerns surrounding the ideas of a runaway convention (the idea that the convention could get off topic and propose radical amendments), Congressional resistance, and more. The compact would be more than a simple agreement, and would need to create an instrumentality of the states, with its own rules, bylaws, governance, and more.

Facilitating the convention application

In order for the states to make an application to Congress for a convention, the application would likely need to be uniform in purpose and time. A state compact could be used to provide uniformity to, and collect, each individual state action. The interstate compact would submit a uniform application to Congress that had been agreed to by the required number of states.

As the nature of the Article V application would be specified in the compact agreement, each individual state action to join the compact would expressly imply that the state is making the application to Congress for the term limits convention prescribed and governed by the interstate compact. Once at least two-thirds of the states have joined the compact, the compact would package the state actions and submit them along with the predefined application which was created by the compact as part of the negotiated compact agreement.

Establishing the rules of the convention

The compact agreement would also establish the rules which would govern the operation of the convention. Things like quorum rules, debate procedure, and voting would be clearly defined, and the compact and convention governance would be specified. Other details, such as funding, could also be addressed, whether that funding be requested from Congress, or alternatively provided by the state members or raised from private citizens.

Constraining the topic of the convention

One concern about proposing an amendment at a convention of the states is the belief that the convention could become a “runaway” convention. This fear is based on the idea that once a room full of delegates starts debating one issue with the constitution, other, unrelated issues will come up and be discussed. While this concern is already overstated, simply because every proposed amendment would still need to be ratified by at least three-fourths of the states, a compact could completely alleviate this concern by specifying the exact scope of the convention and limiting it to proposing an amendment specifically related to the number of terms members of Congress may serve.

Additionally, it may be possible for the compact itself to specify the ratification method and ensure a lengthy or no deadline at all for ratification to be complete, thus providing the most certain path toward successful ratification.

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