Should the United States have a 4th branch of government? One with the power to overturn and nullify all others? According to two sitting Utah legislators, Representatives Brian Greene (Republican – Pleasant Grove) and Marc Roberts (Republican – Santaquin), yes.
Tuesday evening, the two junior members of the Utah Legislature joined a national conference call and radio program advertised as “The place Tea Party Americans come together,” hosted by right-wing strategist Charles Kacprowicz. The two Utah Republicans spoke in favor of a constitutional convention, more commonly known as a Con Con, where state legislators representing less than one in five Americans could vote to nullify any law or judicial ruling.
“I’m encouraged by the growth in interest in a [constitutional] convention. I’m here to do whatever I can to move this forward,” said Greene, who began his time in the Utah House of Representatives in January, 2013. The young attorney is perhaps best known for his attempt during the 2013 legislative session to pass a bill that would have made it a felony for any federal law enforcement officer, such as an FBI SWAT team, to enforce federal gun laws in Utah. The legislature’s general counsel loudly cautioned that the bill was unconstitutional, but it still passed the House that year by a vote of 49-17 before dying in the Senate.
[pullquote]”The best chance we’d have of doing this is the first time. After that, there will be more resistance from the other states.” -Representative Brian Greene[/pullquote]
Kacprowicz leads a movement on the Tea Party-aligned Right who are searching for a way to nullify federal laws and court decisions they disagree with, such as Obamacare and Roe v. Wade, but without opening the door for liberal state legislatures to be able to overturn the federal laws and SCOTUS rulings the Left disagrees with, such as the controversial Citizens United decision which opened the door for unlimited corporate campaign contributions. State-based nullification attempts are most often linked to Neo-Confederate secession groups (the number of them in the Rocky Mountain region have been growing), but the attempts have been quickly overturned by the courts who point out that Article VI of the constitution clearly says that the United States Constitution trumps any laws states may pass.
The solution, Greene, Roberts, and Kacprowicz say, is to organize a Con Con where legislators from each state join together to vote to overturn federal laws and rulings. But unlike Congress, where states are given a number of seats according to their population, this version of a Con Con would give every state the same number of votes. So although California has over 38 million people, they would only have the same voting power as Wyoming with its 576,000 residents. That enormous shift in the balance of power could theoretically allow representatives of only 16 percent of the U.S. population to call the shots and dictate the course of both domestic and foreign national policy.
“The best chance we’d have of doing this,” says Greene, “is the first time. After that, there will be more resistance from the other states. So it’s imperative that we take as big of a bite of the apple as possible the first time around, rather than just taking nibbles with individual amendments.”
[pullquote]”I’ve got a DVD on my desk titled ‘Beware of Con Cons’ from the John Birch Society. Traditionally they are with us on constitutional issues. But on this they’re scared for some reason.” -Representative Marc Roberts[/pullquote]
“Brian and I are on the same page with this,” Roberts added, who joined the legislature in the same 2013 freshman class as Rep. Greene. “We’ve only got one shot at this, and if it works it’ll be that much harder to do again. It’s difficult to get nullification through.”
The idea has received significant opposition from not only the Left, but even conservative organizations which are frequently associated with the “fringe,” such as the John Birch Society (formed in 1958 to counter the civil rights movement, which it called a conspiracy to create a “soviet negro republic”) who say that if the Right can overturn laws and rulings they don’t like, so can the Left.
Representative Roberts laughed at the Birch opposition to a Con Con. “I’ve got a DVD on my desk titled ‘Beware of Con Cons’ from the John Birch Society. Traditionally they are with us on constitutional issues. But on this they’re scared for some reason. It’s kind of like the Disney movie ‘It’s a Bug’s Life,’ when those little ants realized that there were more of them than the grasshoppers, they were able to run over the grasshoppers. When the John Birchers tell us to just nullify, we’re happy to. But we need something stronger, like this.”
“It’s unfortunate that our friends at the John Birch Society and even our own [conservative] scholars are against us on this.” Kacprowicz added. “They just don’t get it.”
Utah Political Capitol reached out to Utah House Majority Whip Greg Hughes (Republican – Draper) after the call, who told us that the Con Con issue is a divisive one among the GOP nationwide. “People are really worried about a Con Con getting out of hand. It’s kind of turning into a circular firing squad among Republicans.”
Greene told the audience of mostly supporters that one of the things he’d like to accomplish with a Con Con is a complete state takeover of all federal lands within Utah, a proposal which was put forward and passed by the legislature a few years ago by Representative Ken Ivory (Republican – West Jordan), which was also flagged by the legislature’s attorneys as potentially unconstitutional. Currently, Utah is attempting to defend the policy in federal court.
Greene criticized Ivory’s strategy to use the courts to try and gain access to federal lands (which the state of Utah could then sell to private owners, corporations, or oil and gas companies), saying “The deck is unfortunately stacked against us, because the courts tend to side with the [United States] government. So we’re spending tens of millions of dollars on these cases, where we don’t get anything out of it.” Greene says a Con Con would be the better way to go to force the United States to turn over public lands.
[pullquote]”Nullification follows a pre-Fourteenth Amendment view of Constitutional law, before due process and equal protection were extended to cover the behavior of the several states.” -researcher Rachel Tabachnick[/pullquote]
Kacprowicz also pointed out a recent article by Salon, which quoted researcher Rachel Tabachnick’s piece entitled “Nullification, Neo-Confederates, and the Revenge of the Old Right,” which says that “nullification follows a pre-Fourteenth Amendment view of Constitutional law, before due process and equal protection were extended to cover the behavior of the several states.” She also points out that this latest attempt for a Con Con is by far not the first, and that in the past the idea of calling such a convention has been used for causes including overturning federal gun laws that prohibit private citizens from owning tomahawk missiles, to imposing Christianity as an official state religion.
But none of the opposition from the Left or the more traditional Right seems to be slowing down the two Utah County Republicans. At the end of the call, Kacprowicz offered them both a position on the national steering committee to advance the nullification movement.
“Sign me up!” Greene quickly replied.
“I’d also be very interested, and am happy to be involved,” Roberts added.
[pullquote]”[Senate] President Niederhauser has been going to some of these meetings to help decide what the rules of such a convention would be.” -Speaker Becky Lockhart[/pullquote]
So could a Con Con for nullification and the creation of what would essentially be an all-powerful 4th branch of government really happen? UPC asked outgoing Utah House Speaker Becky Lockhart (Republican – Provo) what kind of support the idea has among the Republican-dominated Utah legislature. “The issue of having a convention is getting more and more attention and support,” Lockhart told us. “There is usually a bill run every five years or so calling for a [Con Con].” She also said it’s not just Utah Republicans who are warming up to the idea, and it’s gaining traction with conservative state legislators around the country.
The last time a bill calling for a Con Con was proposed in Utah was in 2011 by Representative David Clark (Republican – Santa Clara), who later resigned mid-term to join Zions Bank as a Senior Vice President. The bill died in the House without receiving a full vote.
But despite that legislation’s lack of success, some of Utah’s most powerful politicians may still be in favor of the idea. “[Senate] President Niederhauser has been going to some of these meetings,” says Lockhart, “to help decide what the rules of such a convention would be.”
Hughes also said he thinks a Con Con would be “appropriate,” but added that it’s not a priority for him. “I just don’t see the point of running forward with this.”
Although Lockhart declined to say whether or not she personally supports a Con Con, she did respond to Rep. Greene’s statement that the legislature’s lawsuit to force the U.S. government turn over all federal lands to Utah—a move she is personally in favor of—is a waste of tens of millions of dollars. Lockhart called that “interesting.”