Former senator discusses the hushed efforts to change the US Constitution

"It's time to blow the whistle on it," says former Sen. Feingold.

August 31, 2022, 2:12 PM

There is a new strategy that far-right activists are using to attempt to weaken the foundations of our democracy: something called the “convention provision” in the Constitution, according to a former senator.

Former Sen. Russ Feingold spoke with "ABC News Live Prime" about his new book “The Constitution in Jeopardy,” co-written with attorney Peter Prindiville, about what they see as a coordinated effort to amend the Constitution and making sweeping changes to our democracy using a specific provision in Article 5

PRIME: Senator Feingold, thank you so much for taking the time to be with us tonight.

FEINGOLD: Thanks so much for having me on.

PRIME: Now, a central theme in your book here is focused on Article 5, which allows Congress to make amendments to the Constitution. But you make the case here that a growing group of far-right activists across the country want to essentially exploit another facet of Article Five, which is the convention provision. So tell us what this provision is and why you think it poses a threat.

FEINGOLD: Well, my co-author Peter Prindiville and I have been studying this very closely for a couple of years. Article Five of the Constitution says that if two thirds of both houses of the Congress propose a constitutional amendment and three fourths of the states ratify it, that can create a constitutional amendment. That's the only way it's ever been done.

But there's another provision there that allows two-thirds of the states to apply for a constitutional convention and if they do, Congress has to call it. And our concern is that the far-right groups realize that there would be no limitation on what could be discussed and considered at a convention like that. So they can really undo our Constitution and there's a growing movement to do it on the far-right, and it's time to blow the whistle on it and have people realize it.

Protesters take over the Inaugural stage during a protest calling for legislators to overturn the election results in President Donald Trump's favor at the Capitol, Jan. 6, 2021.
The Washington Post via Getty Images

PRIME: So on that note, you said in your book that this constitutional convention could, in fact, set in motion attempts to fundamentally alter our system of government. You went on to say, quote, every contentious political and social issue could be on the table. But, I mean, I have to ask, how realistic do you think that scenario is?

FEINGOLD: Unfortunately, it's very realistic. Peter and I have studied very closely the fact that they are actually doing model conventions now. They are preparing, they're identifying the people that would be the delegates, and they have an agenda that is pretty clear: they want to really gut the ability of the federal government potentially to protect the environment, to protect civil rights laws, to protect voting rights. They could ban abortion in the Constitution. Basically, they could do almost anything.

And by some counts, they're close to the 34 states. We think they're using phony numbers to come up with that, but a new Congress might decide we're just going to count it this way. So we think it's an imminent threat and it would be foolish for people who care about our Constitution to not realize that this is something that could really happen and could be worse than Jan. 6, worse than what's happened with the Supreme Court. It could be the worst thing yet.

PRIME: And while you call this a threat, the argument from these far-right groups, though, is that their proposals would limit the power and the jurisdiction of the federal government and that they would be putting forward procedural amendments, things that wouldn't really garner any headlines. But again, you say perhaps they have a more severe agenda and consequences?

FEINGOLD: No, there's no doubt they have a more severe agenda. Rick Santorum, the former senator and presidential candidate, has said it's like having a live weapon and you just need to pull the pin on it. So their agenda is not something mild, they may put it in mild terms, but what they're trying to do is make it so. The federal government can't protect the environment, that the federal government can't stand up to protect reproductive rights of women, that the Voting Rights Act is gutted even further. And so it's in their writings, it's in their statements, it's very clear. In fact, they even want to make it, some of them, that if 30 states say they don't like an act of Congress, they can just override an act of Congress.

PRIME: Well, it has been, though, several decades since the last amendment to the Constitution. In fact, only 27 amendments out of the 11,000 proposals to Congress have even been ratified. And while this convention process would make that easier to do, have you found any potential benefits to pursuing amendments, especially in such a divided nation right now, where many states disagree with these with the federal government's decisions?

FEINGOLD: Yeah, we call this the Constitution in jeopardy for two reasons. One is this far-right movement to rewrite the Constitution and take us back to the 18th century. But the other is we do need amendments, but we need to amend it in a different way. We need to change Article Five so that the people, we the people by a majority vote or by majority votes in the States make the changes.

PRIME: And so while you do support some change, are there any specific amendments that you think could actually garner the support needed and that would perhaps benefit our democracy?

FEINGOLD: Yeah, I mean, you know, Congress once almost passed an elimination of the Electoral College in the 1960s. I think that's a pretty popular thing. I think there'd be other things that would be popular, but that's not what's going to come out of this convention if these folks on the right have their way. What's going to come out of it is a gutting of the ability of this country to protect itself. And it's going to be a very hard result for the diverse people who live here in the 21st century. That can't be allowed.

PRIME: Okay, former Senator Russ Feingold, our thanks to you for taking the time to be with us tonight.

FEINGOLD: Thanks so much.