HF 438 (LSB 1110YH (5) 91)

HOUSE FILE 438

BY  JONES

A BILL FOR

An Act concerning persons appointed to a convention called by the United States Congress to propose amendments to the Constitution of the United States, making appropriations, and providing penalties.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  LEGISLATIVE FINDINGS.  The general assembly finds all of the following:
   1.  Article V of the Constitution of the United States contains two methods for proposing amendments to the Constitution of the United States:
   a.  The proposal of amendments by Congress whenever two-thirds of both houses shall deem it necessary.
   b.  The call of a convention for proposing amendments by Congress upon the application of the legislatures of two-thirds of the several states.
   2.  There have been over four hundred fifty applications for an Article V convention of the states for the purpose of proposing amendments.
   3.  Every state legislature except Hawaii has enacted one or more resolutions calling for an Article V convention of the states for the purpose of proposing amendments. Some states have rescinded some or all of such resolutions.
   4.  Thirty-seven states have current resolutions calling for an Article V convention of the states for the purpose of proposing amendments. These states are: Alabama, Alaska, Arkansas, California, Connecticut, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nebraska, New Hampshire, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Washington, West Virginia, Wisconsin, and Wyoming.
   5.  Each of these applications have specified topics for such a convention. A very small number have been a call for a general convention. The vast majority of applications have been for a convention to propose amendments on a specified topic.
   6.  No set of applications from the legislatures of the several states has ever reached the threshold of two-thirds of the states applying for a convention for the same topic.
   7.  An unwavering historical precedent has been established for a valid application for an Article V convention of the states for the purpose of proposing amendments, by requiring two-thirds of the legislatures of the several states to apply for a convention for amendments on the same topic or topics.
   8.  The general assembly of Iowa has passed nine resolutions calling for an Article V convention of the states for the purpose of proposing amendments on a variety of topics. Eight of these resolutions are still valid, although three of them are likely moot since the topic therein concerned the direct election of United States senators.
   9.  There are contemporary efforts to call for an Article V convention of the states for the purpose of proposing amendments that have reached more than one-half of the required number of states to require Congress to call such a convention.
   10.  It is in the best interest of the people of Iowa for its general assembly to be prepared to nominate, credential, and oversee the actions of delegates that it will appoint for such a convention regardless of the topic if such convention is called.
   11.  The historic record makes it clear that the founders used the term “convention of states” to describe the Article V convention process. This terminology has at least one particular legal meaning. It clarifies that the convention will be in the form of states meeting as states. By definition, all conventions of states require voting on the basis of one state, one vote.
   12.  All stages of the convention process proceed on the basis of one state, one vote. Two-thirds of the states are required to call a convention. A majority of the states are required to finalize the text of any proposed amendments drafted by the convention. Three-fourths of the states are required, via either their legislature or in ratification conventions as shall be specified by Congress, to ratify the text of any proposed amendment.
   13.  As established at the original constitutional convention in Philadelphia in 1787, the legislature of each state names its commissioners or delegates, and gives them such instructions as the legislature deems appropriate.
   14.  Once two-thirds of the several states have applied for a convention for the same topic, the duty of Congress to call a convention is mandatory.
   15.  Litigation surrounding the ratification of the equal rights amendment has established the principle that it is unconstitutional to attempt to change the process for adopting a constitutional amendment in the middle of the process. Accordingly, it is unconstitutional for a convention to consider amendments on any topic other than the topic for which it was expressly called by the agreement of two-thirds of the several states.
   16.  The supreme court of the United States has determined that all actions of state legislatures arising under Article V of the Constitution of the United States are based on their authority under Article V of the Constitution of the United States. Accordingly, the general assembly possesses intrinsic power under the Constitution of the United States to call itself into session at any time for the purpose of fulfilling any of its duties under Article V.
    Sec. 2.  NEW SECTION.  38.1  Definitions.
   As used in this chapter, unless the context otherwise requires:
   1.  “Advisory committee” means a committee consisting of members selected by each chamber using the process defined in this chapter to perform the duties defined in this chapter.
   2.  “Alternate commissioner” means a person designated to replace a commissioner upon a vacancy.
   3.  “Call” means a measure sent by Congress calling for an Article V convention of states for the purpose of proposing amendments to the Constitution of the United States.
   4.  “Chamber” means either the senate or the house of representatives of the general assembly.
   5.  “Commissioner” means a person selected by resolution of the general assembly as provided in this chapter to represent this state at an Article V convention of states for proposing amendments.
   6.  “Commissioning resolution” means the resolution adopted by both chambers which sets forth the names of the appointed commissioners and their commissions and instructions.
   7.  “Convention” means an Article V convention of states for the purpose of proposing amendments to the Constitution of the United States.
   8.  “Delegation” means the group of commissioners and interim commissioners chosen by the general assembly to represent Iowa at an Article V convention with the powers and duties defined in this chapter and as may be additionally set forth in the commissioning resolution for a particular convention.
   9.  “Scope of commissioner’s authority” means the limitation on a commissioner to support only proposed amendments that are directly within the topics specified in the resolutions of two-thirds of the several states which gave rise to the convention in question, which are enumerated in the credentials of each commissioner.
    Sec. 3.  NEW SECTION.  38.2  Call of special session.
   If a call of a convention is issued by Congress when the general assembly is not in session and is not scheduled to be in session within thirty days, the majority leader of the senate and the speaker of the house of representatives shall, by joint communication, call a special session of the general assembly limited to fulfilling the duties as specified under this chapter. Other special sessions may be called in like manner to perform any other duties required of the general assembly under this chapter.
    Sec. 4.  NEW SECTION.  38.3  Number of commissioners.
   Five commissioners shall be named to represent Iowa at any convention. Any vacancies shall be filled as promptly as possible under the provisions of this chapter to maintain the delegation at full strength at a convention.
    Sec. 5.  NEW SECTION.  38.4  Qualification of commissioners.
   1.  At the time of appointment and at all times during a convention, a commissioner must be all of the following:
   a.  A current citizen of the United States and a citizen of the United States for at least the last five years.
   b.  A current resident of Iowa and a resident of Iowa for at least the last five years.
   c.  At least twenty-five years of age.
   d.  Registered to vote in this state.
   2.  At the time of appointment and at all times during a convention, a commissioner shall not be any of the following:
   a.  Registered or required to register as a state or federal lobbyist at any time within the last five years.
   b.  A current federal employee or contractor other than as a member of the United States armed forces, at any time within the last ten years.
   c.  A federal appointed officer requiring confirmation by the senate of the United States or a federal elected officer, or a federal appointed officer requiring confirmation by the senate of the United States or a federal elected officer at any time within the last ten years.
   d.  Convicted of a felony in any jurisdiction within the last ten years.
   e.  Currently employed by any agency of any government.
   f.  A member of the general assembly within the last two years.
    Sec. 6.  NEW SECTION.  38.5  Selection of commissioners.
   Each chamber shall select two commissioners to be appointed to a convention by adoption of a simple resolution. Each chamber shall nominate one additional commissioner by adoption of a simple resolution. A conference committee appointed by the majority leader of the senate and the speaker of the house of representatives shall decide which of the additional commissioners shall be selected as the fifth commissioner. The additional commissioner that is not so selected shall become the first alternate commissioner.
    Sec. 7.  NEW SECTION.  38.6  Selection of alternate commissioners.
   Each chamber shall nominate two persons as alternate commissioners by adoption of a simple resolution. Each chamber shall establish a rank-order for which of the two alternates shall be given priority in the event of a vacancy. Whichever chamber’s nominee is selected as the first alternate commissioner under section 38.5 shall name the third and fifth alternate commissioners. The alternate commissioners named by the other chamber shall be named as the second and fourth alternate commissioners.
    Sec. 8.  NEW SECTION.  38.7  Commissioning resolution.
   1.  A resolution naming the commissioners must include the commission of the commissioners. The commission must include but shall not be limited to all of the following components:
   a.  A prohibition on a commissioner voting for or otherwise promoting a method of voting at a convention other than the rule that each state has one vote.
   b.  A prohibition on a commissioner proposing, promoting, or voting in favor of a proposed amendment that would alter the text of or in any way erode the specific guarantees of individual liberty established by the Constitution of the United States, including the original Constitution of the United States, the Bill of Rights, and the thirteenth, fourteenth, fifteenth, nineteenth, twenty-third, twenty-fourth, and twenty-sixth amendments to the Constitution of the United States.
   2.  The commissioning resolution must clearly state the scope of the commissioners’ authority, which must be strictly limited to the topic upon which two-thirds of the several states agreed and which formed the basis of the call of the convention.
   3.  The general assembly may provide additional instructions within the commissioning resolution or at any later time by adoption of a subsequent resolution. A copy of any subsequent resolution shall be provided to each commissioner and to the advisory committee by the clerk of the house of representatives.
    Sec. 9.  NEW SECTION.  38.8  Commissioners —— oath —— credentials.
   1.  Each commissioner shall, before exercising any function of the position, execute the following oath in writing:
I do solemnly swear (or affirm) that I accept and will faithfully act according to the limits of authority specified in my commission and any present or subsequent instructions. I understand that violating this oath may subject me to penalties provided by law. I understand that I may be recalled or suspended from my duties by the general assembly or the advisory committee.

   2.  A commissioner’s executed oath shall be filed with the secretary of state. Upon filing of a commissioner’s oath, the secretary of state shall provide to the commissioner an official copy of the executed oath and the commissioning resolution, which together shall serve as the commissioner’s credentials.
    Sec. 10.  NEW SECTION.  38.9  Removal of commissioners.
   1.  A commissioner may be removed for any reason at any time by adoption of a resolution by a constitutional majority of both chambers.
   2.  A commissioner may be removed for cause by the advisory committee if the advisory committee finds any of the following to be true by a preponderance of the evidence:
   a.  The commissioner has supported a proposal at the convention that goes beyond the topic for which the convention has been called as specified in the commissioner’s credentials, or has publicly announced an intention to do so.
   b.  The commissioner has supported any form of voting at the convention other than one state, one vote.
   c.  The commissioner has otherwise failed to adhere to instructions or other limitations imposed by the general assembly that are reflected in the commission or any subsequent instruction provided to the commissioner pursuant to this chapter.
   d.  The commissioner has otherwise violated the commissioner’s oath.
    Sec. 11.  NEW SECTION.  38.10  Advisory committee.
   1.  There shall be an advisory committee consisting of the following members:
   a.  One member selected by the majority leader of the senate.
   b.  One member selected by the speaker of the house of representatives.
   c.  A third member selected by the presiding officer of the chamber whose nominee for the fifth commissioner was not selected pursuant to section 38.5.
   2.  If a member of the advisory committee determines that there is probable cause for the removal of a commissioner, the advisory committee member shall do all of the following within twenty-four hours of making the determination:
   a.  Schedule an in-person or electronic meeting of the advisory committee within forty-eight hours of making the determination.
   b.  Notify the presiding officers of each chamber of the determination.
   c.  Notify the attorney general of the determination.
   3.  a.  At a meeting called under subsection 2, paragraph “a”, the advisory committee shall determine by majority vote whether there is probable cause to believe that a commissioner has acted in a manner that meets the criteria for removal pursuant to section 38.9, subsection 2.
   b.  If the advisory committee determines that a commissioner has acted in a manner that meets the criteria for removal pursuant to section 38.9, subsection 2, the advisory committee shall immediately communicate notice of the determination to the commissioner. Upon receipt of notice pursuant to this paragraph, the commissioner shall cease voting at the convention pending a final determination. The notice must specify a time on the next business day after the notice is issued for a hearing to determine the truth of the matter concerning actions meriting removal. The hearing may be held electronically or in person at the advisory committee’s preference. The commissioner may be represented by counsel of the commissioner’s choosing and at the commissioner’s expense.
   4.  If the advisory committee determines by a preponderance of the evidence that a commissioner has acted in a manner that meets the criteria for removal pursuant to section 38.9, subsection 2, the commissioner shall immediately cease to be a member of the delegation. The alternative commissioner next in line shall immediately join the delegation at the convention.
   5.  A commissioner removed by the advisory committee may appeal to the general assembly if a petition on the commissioner’s behalf is signed by at least twenty-five members from each chamber within seven days of the removal. The leaders of each chamber shall call a special session within seven days after each receives the petition bearing sufficient signatures. A constitutional majority in both chambers is required to restore the commissioner to office. If a previously removed commissioner is restored to office, the alternate commissioner shall be withdrawn from the delegation upon the arrival of the restored commissioner at the convention. The alternate commissioner shall then resume the alternate commissioner’s place in the priority sequence for alternate commissioners.
   6.  A decision of the advisory committee or general assembly pursuant to this section is not subject to judicial review.
    Sec. 12.  NEW SECTION.  38.11  Commissioners —— vacancy.
   1.  A vacancy is created when any commissioner resigns, dies, or becomes unable to attend the convention for any health or personal reason. Any absence from the convention for more than three consecutive days or for more than five days total shall constitute a vacancy.
   2.  A vacancy shall be filled by the highest ranking alternate commissioner according to the process established in this chapter. The advisory committee shall notify the alternate commissioner of the vacancy within three days of the creation of the vacancy. Upon the filing of the required oath, the alternate commissioner shall be confirmed as a commissioner.
    Sec. 13.  NEW SECTION.  38.12  Commissioners —— compensation and expenses.
   1.  A commissioner shall be paid on a monthly basis using an equivalent rate to the salary of a district court judge.
   2.  A commissioner shall receive the same allowance for expenses as provided to a member of the general assembly who is not a resident of Polk county.
   3.  A commissioner shall be considered an employee of the general assembly for administrative purposes.
   4.  During active attendance at a convention, a commissioner shall not be compensated for any other form of employment performed during the time of attendance, but shall be permitted to move to an inactive status of any employment position so as not to impact insurance, retirement, or any other term or benefit of employment.
   5.  There is appropriated from the general fund of the state to the general assembly an amount necessary to pay costs under this section.
    Sec. 14.  NEW SECTION.  38.13  Emoluments and gifts —— financial disclosures —— expenditures.
   1.  A commissioner shall be subject to the provisions of section 68B.22.
   2.  A commissioner shall make all financial disclosures as are required for a member of the general assembly pursuant to law or rule.
   3.  A person shall not expend any moneys or transfer any item of value to any other person for the purpose of seeking appointment as a commissioner or alternate commissioner.
    Sec. 15.  NEW SECTION.  38.14  Commissioners —— criminal penalties.
   1.  A commissioner who knowingly introduces, sponsors, or votes for any proposed amendment that addresses a topic that is beyond the scope of the commissioner’s authority is guilty of a class “D” felony.
   2.  Conviction of a felony pursuant to this section shall constitute an infamous crime for the purposes of Article II, section 5, of the Constitution of the State of Iowa.
    Sec. 16.  NEW SECTION.  38.15  Criminal interference.
   1.  A person who, except as authorized by law, knowingly bribes, threatens, intimidates, or obstructs a commissioner or alternate commissioner from Iowa in the performance of the commissioner’s or alternate commissioner’s duties is guilty of a class “D” felony. A violation of this subsection is punishable in this state regardless of where the prohibited act occurs.
   2.  If a convention is held in this state, a person who, except as authorized by law, knowingly bribes, threatens, intimidates, or obstructs a commissioner or alternate commissioner from any state in the performance of the commissioner’s or alternate commissioner’s duties is guilty of a class “D” felony. A violation of this subsection is punishable in Iowa regardless of where the prohibited act occurs.
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
   This bill relates to the appointment and regulation of commissioners to a convention called by Congress to propose amendments to the Constitution of the United States (convention). The bill includes legislative findings.
   The bill requires the majority leader of the senate and the speaker of the house of representatives to call a special session of the general assembly if Congress calls a convention and the general assembly is not in session and is not scheduled to be in session within 30 days. The special session shall be limited to the matters listed in the bill. The bill requires a delegation sent by Iowa to a convention to always consist of five members (commissioners). The bill requires a commissioner to be and have been for at least 5 years a citizen of the United States and a resident of Iowa, at least 25 years of age, and registered to vote in Iowa. The bill prohibits a commissioner from being registered or required to register as a lobbyist; a federal employee or contractor, other than as a member of the United States armed forces, within the last 10 years; a federal appointed officer requiring confirmation by the senate of the United States or a federal elected officer within the last 10 years; convicted of a felony within the last 10 years; currently employed by any agency of any government; or a member of the general assembly within the last 2 years.
   The bill requires each chamber of the general assembly to select two commissioners by adoption of a simple resolution and to nominate one additional member. A conference committee appointed by the majority leader of the senate and the speaker of the house of representatives shall select which alternate member shall act as the fifth commissioner and which shall serve as the first alternate commissioner. The bill also requires each chamber to select two additional alternate commissioners and provides a process for ranking the alternate commissioners.
   The bill requires the resolution appointing a commissioner to contain prohibitions on supporting or voting for certain proposals and amendments at a convention and the scope of the commissioner’s authority, which shall be limited to the topic of the convention. The bill allows the general assembly to provide additional instructions to a commissioner by adoption of a further resolution. The bill requires each commissioner to execute an oath in writing to obey the commission of the commissioner, which shall be filed with the secretary of state.
   The bill allows the general assembly to remove a commissioner at any time for any reason by adoption of a resolution by a constitutional majority of both chambers. The bill allows an advisory committee, consisting of a member selected by the majority leader of the senate, a member selected by the speaker of the house of representatives, and a third member selected by the presiding officer of the chamber whose nominee for the fifth commissioner was not selected, to remove a commissioner if the advisory committee finds by a preponderance of the evidence that a commissioner acted contrary to the commissioner’s commission or oath. The bill includes a mechanism for calling a meeting of the advisory committee and notifying a commissioner of potential adverse actions. The bill allows a commissioner to be represented by counsel of the commissioner’s choosing at the commissioner’s expense. The bill allows a removed commissioner to appeal to the general assembly but prohibits judicial review.
   The bill creates a vacancy in the office of commissioner when a commissioner resigns, dies, or becomes unable to attend the convention for any health or personal reason, or when a commissioner is absent for more than three consecutive days or five days total. The bill provides a mechanism for the replacement of a commissioner with an alternate commissioner.
   The bill sets the compensation for a commissioner at the same rate as for a district court judge. The bill grants a commissioner an allowance for expenses that is the same as for a member of the general assembly who is not a resident of Polk county. The bill makes a commissioner an employee of the general assembly for administrative purposes and prohibits a commissioner from receiving compensation for outside employment during active attendance at a convention. The bill appropriates necessary moneys from the general fund for these purposes.
   The bill requires a commissioner to abide by the provisions of Code section 68B.22 (gifts accepted or received) and to make the same financial disclosures as required for a member of the general assembly. The bill prohibits a person from making expenditures to seek appointment as a commissioner or alternate commissioner.
   A commissioner who knowingly introduces, sponsors, or votes for any proposed amendment that addresses a topic that is beyond the scope of the commissioner’s authority is guilty of a class “D” felony, which shall constitute an infamous crime. A class “D” felony is punishable by confinement for no more than five years and a fine of at least $1,025 but not more than $10,245. Under the Constitution of the State of Iowa, a person convicted of an infamous crime is not entitled to the privilege of an elector.
   A person who, except as authorized by law, knowingly bribes, threatens, intimidates, or obstructs a commissioner or alternate commissioner from Iowa, or from any state if the convention is held in Iowa, in the performance of the commissioner’s or alternate commissioner’s duties is guilty of a class “D” felony. A violation of this provision of the bill is punishable in Iowa regardless of where the prohibited act occurs.