OPENING STATEMENT OF HON. STROM THURMOND, A U.S. SENATOR FROM THE STATE OF SOUTH CAROLINA Senator THURMOND. Mr. Chairman, today we begin hearings on an uncharted area of our Constitution. We are here to discuss that portion of article V which authorizes a Constitutional Convention. While we have come close to such a convention in the past, we have never used this approach to amend the Constitution. However, we are now faced with the very real possibility of convening such a body, because 30 of the required 34 States have requested one. The possibility of a convention invokes mixed feelings. While some people fear that a convention would be uncontrollable, others see it as limited to one or two very specific, well-defined amendments. While some believe that the risks involved in a convention outweigh any possible benefit, others think that it represents a needed check on an unresponsive Federal Government. Whatever one's feelings are on the usefulness of the convention method for amending the Constitution, there appears to be a consensus on what the fundamental questions are. First, we must consider the validity of State applications for a convention. This discussion includes the issue of a State's ability to rescind its application. Second, we must consider the scope of the deliberations at the convention. This discussion must focus on whether these deliberations can be limited, and if they are to be limited, then how those limits are to be enforced. Since there is very little precedent to guide us, we have no hard and fast answers to these tough questions. We must look to the reasoning and interpretation by the Framers of the Constitution for assistance. We must fully consider all the possible ramifications of a convention and attempt to find the best solutions to any problems which we can foresee. Hopefully, these hearings will help us find those solutions. We are fortunate to have such distinguished witnesses with us today. By their presence, they indicate their desire to help fashion reasonable solutions. I look forward to participating in these very important discussions. OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE OF UTAH Senator HATCH. Let's call this session of the Subcommittee on the Constitution to order. We have an impressive list of witnesses here today, and I apologize for being a little bit late, but we had a conflict that I had to resolve before I could get down here. I wish to congratulate our chairman, Senator Bayh, for convening hearings on the subject of procedures for article V Constitutional Conventions. I am well aware of the chairman's long interest in this matter, and the leadership role he played in this issue several sessions ago. In considering this isue, this committee is embarking upon a complex issue of the first constitutional magnitude. The question that this committee will be deciding are threshold questions, for the most part. There is no precedent that will guide our decisions. There is no tradition and no experience to which we can look for example. And there is surprisingly little in the way of documentary material to provide insight into the expectations of those who drafted our Constitution. Each of us, in my opinion, must look carefully to the plain language of the Constitution, to provide whatever guidance of which it is capable. We must look to the actions of the Philadelphia convention to discern what we can from it. And we must look to the policies that the founders hoped to achieve through article V and conform our procedures legislation appropriately. I am extremely enthusiastic about the quality of witnesses that our subcommittee will have before it today, and I am confident that each of them will enable us to make wiser and more informed decisions on this legislation. At the outset, I would like to state my strong hope that each of us, committee members, witnesses, the media, and the public, will be able to view this issue apart from the issues that seem immediately to be compelling some States to seek a Constitutional Convention. Several years ago, the issue was reapportionment; today it is a balanced budget; tomorrow it will be something else. To the best of our abilities, we must place aside the merits of these individual amendment efforts. What this committee is considering, rather, is legislation to establish neutral procedures to guide the conduct of Constitutional Conventions generally. While the imminence of a convention on the matter of a balanced budget has obviously created the urgency for this legislation, this committee's burden is to produce procedures legislation designed neither to facilitate nor to obstruct the achievement of a balanced budget amendment, or any other amendment. This legislation will remain applicable to convention initiatives long after a balanced budget amendment has been disposed of one way or the other. Before we begin, I would very quickly like to summarize the premises that underlie S. 1710, my Constitutional Convention Implementation Act. First, it supposes that an article V convention can be limited. That is, if the States have a narrow or precise grievance of a constitutional sort, it is not necessary that they place the entire Constitution in jeopardy in order to remedy their concerns. A convention may, in fact, be limited in the scope of its considerations. Second, I sense that the founders in establishing the convention alternative were concerned that the strong desires of the States should not be obstructed permanently by the will of an intransigent Congress. Congress, as with any other institution, is sometimes less than enthusiastic about limiting its own power and authority. Thus, I have sought in my bill to limit opportunities for congressional obstruction in the Constitutional Convention process. It would be dubious policy in my opinion, and inconsistent with the objectives of article V, to permit Congress to loom over this process in such a way that the legitimate concerns of the States could not, at some point, be pursued through the alternative amendment process. We will begin today by hearing from the Secretary of the Senate, Mr. Stanley Kimmitt. Stan, I apologize for being late. I know you are very busy, and we appreciate hearing from you. TESTIMONY OF J. S. KIMMITT, SECRETARY OF THE SENATE Mr. KIMMITT. Thank you, Senator Hatch. Thank you for providing me an opportunity to appear before your subcommittee today to discuss the method employed by the Office of the Secretary of the Senate in processing petitions and memorials received by the Senate. It is my understanding that before I became Secretary of the Senate original petitions or memorials from State legislatures, rather than copies, were referred to committees. Apparently, this procedure was adopted because of difficulties in duplicating these documents at that time. The original petitions or memorials were delivered to the committees, and receipt cards were signed and returned to the Office of the Secretary where they were retained on file. Thus, a record was kept on the referral and receipt of all documents. Upon becoming Secretary of the Senate, I undertook a review of the procedures within the Office. It was during this review that I noted original petitions and memorials were being forwarded to committees. In some cases, they were lost or unaccounted for. Since rule VII, paragraph 6 of the Standing Rules of the Senate states that original petitions and memorials are to be retained within the files of the Office of the Secretary, the procedure was promptly changed. However, the Senate rules were revised on November 14 of this year, by the adoption of Senate Resolution 274 and now contain no provision to this effect. It is still my intention, unless otherwise directed, to continue the same procedure now in effect. The current procedure for processing petitions and memorials is as follows: The documents are received by the Senate Parliamentarian from the Office of the Vice President. The Parliamentarian reads and endorses them with the date and committees to which they are to be referred. They are then hand delivered to the assistant reported within my office where they are numbered, recorded in the Journal, printed in full in the Congressional Record, and entered in the computer records system. The documents are numbered consecutively, beginning anew with each Congress, a process which was instituted recently so that they could be included in the computer system. After proper entries have been completed, the communications are then Xeroxed and copies sent to the appropriate committees, together with receipt cards which are signed and returned. The original documents and receipt cards are then retained in the files of this Office. The Secretary's Office never kept records of States making application for a Constitutional Convention. However, I directed my staff to conduct a search of those original communications in our possession, beginning with 1978, to determine from which States we have received petitions or memorials relating to a balanced Federal budget. The attached table details those States which have forwarded communications to the Senate. As to petitions and memorials prior to 1978, it is my understanding that originals are in the possession of the Committee on the Judiciary. That completes my statement. Senator HATCH. We appreciate your testimony, Stan, and for bringing us up to date on your procedures. There are 30 States that have called for a Constitutional Convention on the subject of the balanced budget amendment, or something approximating that. Yet, your list contains the names of only 24 States. Among those that your list does not include are Delaware, 1975; Georgia, 1976; Maryland, 1975; Nevada, 1977; and Virginia, 1976. If I could ask, why is there this discrepancy, and in view of the fact that the constitutional convention effort was so close to success several years ago in the area of reapportionment, why have we not adopted housekeeping procedures that would have resolved these problems in the past? Mr. KIMMITT. I can only assume, Senator Hatch, that those petitions that are not on our list are in the possession of the committee. The previous procedure that I outlined, was not a tight one and our Office apparently dropped the ball in not keeping track of those petitions. Senator HATCH. I would think you ought to get your files up to date so the reports can be made more accurately. Can we do that? The subcommittee has the copies, so why don't we get them to you so that you have them all. Mr. KIMMITT. That would bring us up to date. Senator HATCH. Apparently, Nevada has not yet formally sent us their convention application so that only 29 should presently be on file. I think that is the way to do it. I think it is better for you to keep them and send copies to the committee, because we have lost them in the past. I commend your efforts in this regard, and appreciate your testimony. Thank you so much, Senator, any questions? Senator THURMOND. We are glad to have you with us, and thank you for your statement. I wanted to ask you this question: Are these petitions generally sent to the Archives, or the Secretary of the Senate, or to the committees? Where is the official place it should be sent? Mr. KIMMITT. They come first to the Vice President, as the President of the Senate, and he transmits them to my Office, specifically to the Office of the Parliamentarian. The Parliamentarian reviews them and determines to which committee they should be referred. Entries are then prepared for the Senate Journal, the Congressional Record, and the Senate computer system. After being properly recorded, the documents are then duplicated, and copies forwarded to the committees. The original, under the rules, should have been kept and it is now being kept in the Office of the Secretary. As long as the item is active, the original remains in the Office of the Secretary and a copy in your committee. When the matter has been disposed of, it will then be transferred to the Archives which is the permanent repository. Senator THURMOND. Then the petitions should be sent to the Secretary of the Senate, and he would keep them and send copies to the committees, and it would remain on Capitol Hill as long as it is active, and after it becomes inactive, it would be sent to the Archives. Mr. KIMMITT. Yes. Senator THURMOND. Thank you very much. [Mr. Kimmitt's prepared statement with an attachment follows:] PREPARED STATEMENT OF J. S. KIMMITT Mr. Chairman, thank you for providing me an opportunity to appear before your Subcommittee today to discuss the method employed by the Office of the Secretary of the Senate in processing Petitions and Memorials received by the Senate. It is my understanding that before I became Secretary of the Senate original Petitions or Memorials from state legislatures, rather than copies, were referred to committees. Apparently, this procedure was adopted because of difficulties in duplicating these documents at that time. The original Petitions or Memorials were delivered to the committees, and receipt cards were signed and returned to the Office of the Secretary where they were retained on file. Thus, a record was kept on the referral and receipt of all documents. Upon becoming Secretary of the Senate, I undertook a review of procedures within the Office. It was during this review that I noted original Petitions and Memorials were being forwarded to committees. In some cases, they were lost or unaccounted for. Since Rule VII, paragraph 6 of the Standing Rules of the Senate states that original Petitions and Memorials are to be retained within the files of the Office of the Secretary, the procedure was promptly changed. However, the Senate Rules were revised on November 14 of this year (see S. Res. 274) and now contain no provision to this effect. It is still my intention, though, unless otherwise directed, to continue the same procedure now in effect. The current procedure for processing Petitions and Memorials is as follows: The documents are received by the Senate Parliamentarian from the Office of the Vice President. The Parliamentarian reads and endorses them with the date and committees to which they are to be referred. They are then hand delivered to the Assistant Reporter within my office where they are numbered, recorded in the Journal, printed in full in the Congressional Record, and entered in the Computer Records System. The documents are numbered consecutively, beginning anew with each Congress, a process which was instituted recently so that they could be included in the computer system. After proper entries have been completed, the communications are then xeroxed and copies sent to the proper committees, together with receipt cards which are signed and returned. The original documents and receipt cards are then retained in the files of the Office. The Secretary's Office never kept records of states making application for a Constitutional Convention. However, I directed my staff to conduct a search of those original communications in our possession, beginning with 1978, to determine from which states we have received Petitions or Memorials relating to a balanced Federal budget. The attached table details those states which have forwarded communications to the Senate. As to Petitions and Memorials prior to 1978, it is my understanding that originals are in the possession of the Committee on the Judiciary. 91 H.J. Res. 227. 579 S.J. Mem. No. 1. 316 S.J. Res. 1. 223 H. Con. Res. 8. 62 S.J. Res. 1. 61 S.J. Res. 1. 95 H. Con. Res. 31. 673 S. 1024. |