The Amending Process

By Richard Lacayo

All told, more than 10,000 constitutional amendments have been introduced in Congress since 1789. If some of the choicer ones had been accepted, the U.S. would boast a President selected by lot from among the members of the Senate, and a Supreme Court whose members could be removed by popular vote. But only 33 proposals have won the necessary approval from two-thirds of both houses of Congress. And just 26 have passed the final hurdle of adoption by legislatures in three-quarters of the states. The last of them, lowering the voting age to 18, turns 18 itself in two years.

That tough winnowing process, crafted by the framers to cool passions for change, is by most accounts a good thing. A constitution is supposed to be a tightly knit plan of government, not an open statute book. Bulk can even be an inverse indication of its power: the 181 articles in the constitution of the Weimar Republic were the Maginot Line of German democracy. "It's dangerous to amend the Constitution too much," says Columbia University Law Professor Vincent Blasi. "It won't have the look of fundamental law."

The 4,440 words set down by the framers mapped out first principles of government in spare but sweeping lines. The amendments added since the Bill of Rights have actually done little to alter the document's intrinsic meaning, though they took such dramatic steps as abolishing slavery, expanding the right to vote and permitting a federal income tax. A few of the additions even seem gratuitous, like graffiti on a public monument -- Prohibition and the amendment to be rid of it -- and the urge rises to go at them with a sponge.

But monuments, too, can require renovation. Witness the perennial stalemates between Congress and the President. The weakening of party allegiance among voters has meant that only three postwar Presidents have enjoyed four years in which their own party has controlled both houses of Congress. When the White House and Capitol Hill thwart each other on Central America or engage in mutual finger pointing on the national debt, the separation of powers that was the chief innovation of the framers can seem a mixed blessing.

Presidents have still managed to push many wide-ranging programs through Congress. But the regular spectacle of legislative deadlock has given life to a venerable critique of American Government that favors some of the mechanisms and party discipline of parliamentary rule. Under such a system, the winning party's leader becomes Prime Minister and thus almost always commands a majority in Parliament to support his programs. Recently a five-year-old citizens' group called the Committee on the Constitutional System, headed by Washington Lawyer Lloyd Cutler, former Treasury Secretary C. Douglas Dillon and Republican Senator Nancy Kassebaum of Kansas, has been pressing for revisions in that spirit. "In the parliamentary systems of Western Europe and Japan . . . the Prime Minister's success rate is very close to 100%," says Cutler, former counsel to President Carter. "The American system today is only four-fifths as efficient when we achieve party government and only two- thirds as efficient when we have divided government."

To ensure the President a legislative majority from his own party, some members of the committee want to discourage ticket splitting through the use of ballots, like those already used in some states, that place candidates of the same party in a single column, or even forbid split-ticket voting through machines that would permit voters to pull only a single lever endorsing their party's entire slate. They also would let members of Congress serve in the President's Cabinet, thus giving legislators a stake in White House policies. And they want the terms of Representatives increased to four years and Senators to eight, with both running for office in presidential election years. That would eliminate the midterm congressional races that often usher in new majorities, thus breaking the momentum of a presidency. But like the oft made suggestion of a single six-year presidential term, it would also deprive voters of an important opportunity to render mid-course judgment on a President in power.

The committee's proposals could create a less turbulent and vacillating Government, one perhaps better fitted to reach long-range goals but also a less responsive one. A Congress tightly bound to the President and party leadership, without the horse trading and dealmaking that go into the legislative process, might be no representative body at all. Even Kassebaum, while supporting the idea of increasing the terms of Representatives to four years, does not agree with Cutler's proposal to change the American system into a modified parliamentary scheme. "It all works pretty well," says she of the present system.

Whatever their merits, it seems unlikely that the committee's suggestions will move beyond the talking stage without a national sense of crisis to impel them. Even amendments to circumvent Supreme Court decisions, which in this century have been put forward frequently and with passion, have rarely passed muster. The 16th Amendment, which established Congress's power to impose an income tax after the Supreme Court had declared such a levy unconstitutional 18 years earlier, is a rare example.

In the first term of the Reagan Administration, Congress voted down amendments involving school prayer, abortion and a balanced budget. The dauntless budget-amendment forces are not taking no for an answer, however, and have proceeded down another road provided by the Constitution. Article V requires that Congress must call a constitutional convention when two-thirds of the states request one. Since the mid-1970s, 32 states, just two shy of the number needed, have asked Congress to do so for the purpose of adopting a balanced-budget amendment.

That has a lot of people worried. Could a convention be limited to a single issue, or would it become a free-for-all at which special-interest lobbyists would take an ax to the Bill of Rights? Most states calling for a convention have specified that it should be limited to considering a budget amendment. Then again, the first Constitutional Convention, convened expressly to do no more than revise the Articles of Confederation, promptly ditched them instead. Many constitutional experts hold that neither Congress nor the states have the power to specify the meeting's agenda. "God knows we need a balanced budget," says Forrest McDonald, a constitutional scholar at the University of Alabama. "But a convention would go berserk."

Supporters say multibillion dollar deficits pose a greater threat to the Republic. "When you weigh the risks of a nation spending itself into oblivion, the convention looks like a piece of cake," insists Lewis K. Uhler, | a proconvention activist in California, where the legislature is scheduled to hold hearings on a convention bill this month. Proponents of the movement note that even amendments produced by a "runaway" convention would need to be ratified by legislatures in three-fourths of the states. Some openly acknowledge that their effort is partly a ploy to frighten Congress into passing an amendment on its own. The same constitutional brinkmanship produced the 17th Amendment, providing for the direct election of Senators, which Congress approved only after 31 states had called for a convention to adopt it.

Tactic or not, the stakes are real. The near success of the convention forces has galvanized a strange-bedfellows opposition. The American Civil Liberties Union, the Veterans of Foreign Wars, the National Organization for Women and Phyllis Schlafly's Eagle Forum, among many other groups, have joined forces. "At first we would go to state legislative hearings, and some of our people would literally sit at opposite sides of the room," says Linda Rogers- Kingsbury, president of Citizens to Protect the Constitution, the umbrella opposition group.

Now that they are in gear, however, the anticonvention forces are fighting back to great effect. No state has been added to the proconvention list since Missouri in 1983. In seven states, resolutions have been defeated since 1983 after intense lobbying battles and mail campaigns; resolutions are languishing in the legislatures of seven others. "Gramm-Rudman took the steam out of the movement," says former Kansas State Senator Norman Gaar, who introduced a constitutional-convention proposal in 1978. Moreover, while some legal scholars suggest that any legislature's call for a convention is irrevocable, two states that had earlier approved the idea are considering resolutions to reverse themselves.

In a way, the diverse alliance to resist a second convention is testimony to the success of the first one. Any attempts to remedy a problem should be designed in the spirit of the framers: to foster solutions, not to impose them. Today, the movement for a constitutional convention has been sparked by the deficit; next year, it might be prompted by the desire to make English the official language of the U.S. In a nation as diverse as this one, nothing less will do than a Constitution that serves the aim of e pluribus unum (one from many), the national hope so fundamental that it is stamped on the dollar.

With reporting by Steven Holmes/Washington and Melissa Ludtke/Boston