The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Rules
BILL: SCR 7066
INTRODUCER: Fiscal Policy Committee
SUBJECT: Equal Application of the Law
DATE: February 20, 2024 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
Nobles Yeatman FP Submitted as Comm. Bill/Fav.
1. Nobles Twogood RC Favorable
I. Summary:
Congress has exempted itself from certain laws that are applicable to the other branches of
government or the citizenry at large, such as the Federal Freedom of Information Act and certain
provisions of the Whistleblower Act of 1989. In 1995, Congress passed the Congressional
Accountability Act to apply certain laws to Congress to which they had previously exempted
themselves. However, there remain federal laws from which Congress has exempted the federal
legislative branch, either through not applying the laws to itself or not fully complying with their
requirements.
Article V of the United States Constitution provides the specific process for amending the
document. Congress may directly propose amendments to the Constitution, which is the method
that has been used for each of the 27 amendments ratified since the Constitution went into effect.
Alternatively, upon application by the legislatures of two-thirds of the states, Congress must call
a convention for the purpose of proposing amendments. A proposed amendment goes into effect
once ratified by the legislatures or state conventions of three-fourths of the states; the method of
ratification being solely the choice of Congress.
The concurrent resolution constitutes the state’s application to Congress under Article V of the
U.S. Constitution to call a convention for the sole purpose of considering and proposing a
constitutional amendment prohibiting Congress from making any law applying to the citizens of
the U.S. that does not also equally apply to all U.S. Representatives and U.S. Senators, and all
members of the federal legislative branch.
This concurrent resolution does not have a fiscal impact on the state or local governments.
BILL: SCR 7066 Page 2
II. Present Situation:
Amending the United States Constitution
Article V of the U.S. Constitution1 provides the exclusive process for amending the document.2
Congress may directly propose amendments to the Constitution, the method used for each of the
27 amendments ratified since the Constitution went into effect. Alternatively, upon application
by the legislatures of two-thirds of the states,3 Congress must call a convention for the purpose of
proposing amendments. A proposed amendment goes into effect once ratified by the legislatures
or state conventions of three-fourths of the states;4 the method of ratification being solely the
choice of Congress.
State Applications for an Article V Constitutional Convention
Article V requires application to be made by a state’s legislature, meaning the representative
body authorized to make laws and not referring generally to a state’s legislative process. 5 The
specific text does not refer to the authority of the President or a Governor to approve or veto
legislation6 and the Governor’s approval is not required.
Under Article V, Congress has the exclusive authority to review state applications and determine
whether they count toward the two-thirds requirement. While Congress has not specified the
form, structure, or content of a valid state application,7 the accumulation of pending applications
from the various states shows Congress groups applications according to the issues expressly
stated by the petitioning state rather than simply counting the total number of applications. For
example, the current 27 applications seeking a convention on a balanced federal budget
amendment are not combined with the four applications requesting a convention for an
amendment barring discrimination in public schools to satisfy the necessary two-thirds
requirement and call a convention.8
1
“The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or,
on the application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which,
in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three
fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be
proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and
eight shall be in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its
Consent, shall be deprived of its equal Suffrage in the Senate.” Art. V, U.S. CONST.
2
“The language of the article is plain, and admits of no doubt in its interpretation. It is not the function of courts or legislative
bodies, national or state, to alter the method in which the Constitution has fixed.” Hawke v. Smith, 253 U.S. 221, 227 (1920). See
Henry Paul Monaghan, We the People[s],Original Understanding, and Constitutional Amendment, 96 Colum. L. Rev. 121, 127
(1996); Arthur Earl Bonfield, Proposing Constitutional Amendments by Convention: Some Problems, 39 Notre Dame L. Rev. 659
(1964).
3
Currently, 34 states.
4
Currently, 38 states.
5
Hawke, supra note 2 at 227.
6
Sen. Sam J. Ervin, Jr., Proposed Legislation to Implement the Convention Method of Amending the Constitution, 66 Mich. L. Rev.
875, 888-889 (1968); See also art. I, s. 7, cl. 2, U.S. CONST.; art. III, s. 8(a), FLA. CONST.
7
Legislation previously was proposed but never enacted. See Kenneth F. Ripple, Article V and the Proposed Federal Constitutional
Convention Procedures Bills, 3 Cardozo L. Rev. 529, 530-533 (1981-1982); Ervin, supra note 6 at 885. See also Mary M. Penrose,
Conventional Wisdom: Acknowledging Uncertainty in the Unknown, 78 Tenn. L. Rev. 789, 796 (2011), citing separate prior
legislation filed by Senator Sam Ervin and Senator Jesse Helms.
8
See Selected Memorials, Office of the Clerk of the United States House of Representatives, available at
https://clerk.house.gov/SelectedMemorial (last visited Jan. 30, 2024).
BILL: SCR 7066 Page 3
Article V requires neither a state application nor the congressional call for a convention to
include the specific text of a proposed amendment. Article V authorizes applications to Congress
to call a convention “for proposing [a]mendments,” apparently requiring the convention to study,
debate, and compose the terms of a proposed amendment within the scope of issues authorized in
the call.9 As Article V does not restrict the scope of a state’s application, states may request a
general convention for any purpose or a convention limited only to certain issues.10
There is no court decision on whether a time limit applies to state applications. However, the
U.S. Supreme Court determined Congress has sole authority to set a time limit for states to ratify
proposed amendments.11 Federalist Papers 43 and 8512 imply that applications for a convention
should be reasonably contemporaneous, addressing a particular problem or issue recognized by
at least two-thirds of the states as requiring consideration of constitutional amendment.
Calling an Article V Convention on Application by the States
Article V states that “Congress…on the Application of the Legislatures of two thirds of the
several states, shall call a Convention…” (emphasis supplied). As the U.S. Supreme Court has
interpreted the text as “plain” and its interpretation “admits of no doubt,”13 the general consensus
appears to be that once two-thirds of the states apply for a convention on a common topic,
Congress has no discretion and must call for the requested convention.14
Article V is silent on such matters as the selection of delegates by the states, voting requirements
at the convention, and the procedural rules of the convention. Under the Supremacy Clause,15
because Congress would be exercising its national power provided in Article V, congressional
action on these issues would be controlling, particularly on national matters such as the date,
time, place, and financing of the convention. Congress also could determine the number of votes
allocated to each state and establish uniform requirements for the selection, guidance, removal,
and replacement of state delegates. Absent congressional action, each state may be able to decide
such matters for itself.
Florida Control of Delegates to an Article V Constitutional Convention
The Article V Constitutional Convention Act16 provides guidelines for Florida to qualify,
appoint, remove, and recall delegates to an Article V constitutional convention. These statutes
9
Michael A. Almond, Amendment by Convention: Our Next Constitutional Crisis, 53 N.C. L. Rev. 491, 513 (1975); Robert M.
Rhodes, A Limited Federal Constitutional Convention, 26 Fla. L. Rev. 1 (1973).
10
William W. Van Alstyne, A Response to Justice Thomas Brennan’s Remarks at the Thomas M. Cooley Law School Article V
Symposium, 28:1 Thomas M. Cooley L. Rev. 51, 54 (2011); Ripple, supra note 7 at 548; William W. Van Alstyne, The Limited
Constitutional Convention – The Recurring Answer, 1979 Duke Law Journal 985; Rhodes, supra note 9 at 18.
11
Coleman v. Miller, 307 U.S. 433, 454 (1939); Dillon v. Gloss, 256 U.S. 368, 375-376 (1921).
12
See James Madison, The Federalist No. 43 (January 23, 1788); Alexander Hamilton, The Federalist No. 85 (May 28, 1788).
13
Hawke, supra note 2 at 227.
14
Michael B. Rappaport, The Constitutionality of a Limited Convention: An Originalist Analysis, 81 Constitutional Commentary 53,
80 (2012); Gerald Gunther, Constitutional Brinksmanship: Stumbling toward a Convention, 65 A.B.A. J. 1046, 1048 (1979);
Almond, supra at 498; Ervin, supra note 6 at 885; Bonfield, supra note 2 at 675. See also Alexander Hamilton, The Federalist No.
85 (May 28, 1788)
15
Art. VI, cl. 2, U.S. CONST.
16
Ss. 11.93-11.9352, F.S.
BILL: SCR 7066 Page 4
would control absent express directions by Congress on the same issues, whether in the
convention call itself or established in separate federal legislation.17
Due Process in the U.S. Constitution
The statement that no person is to be deprived of life, liberty, or property without due process of
law is contained in substantially similar form in both the Fifth and Fourteenth Amendments to
the U.S. Constitution.18 The 5th Amendment, which includes the primary Due Process Clause,
applies to the federal government; upon the passage of the 14th Amendment, the states must also
comply with the requirements of due process.19 Both amendments work together to ensure that
no governmental entity acts arbitrarily in creating or enforcing laws, and to ensure that every
person is entitled to fair procedures.20 There are two categories of due process (substantive and
procedural), but both protect citizens from unfair or undue governmental deprivation.
Equal Protection in the U.S. Constitution
The Fourteenth Amendment to the U.S. Constitution was passed by Congress in 1866 and
ratified in 1868.21 Section 1 of the Fourteenth Amendment states, in part:
No State shall make or enforce any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws.
While the Fourteenth Amendment applied explicitly to the states, the U.S. Supreme Court has
interpreted the Fifth Amendment’s Due Process Clause, which binds the Federal government, as
also guaranteeing a right to equal protection of the laws.22 Taken together, the Fifth and
Fourteenth Amendments to the U.S. Constitution prohibit the federal and state governments from
enforcing laws that are discriminately applied to individuals or groups of citizens.23 This is the
notion of equal protection, which, in other words, ensures that laws apply equally to all citizens
and that the government does “not draw distinctions between individuals solely on differences
that are irrelevant to a legitimate governmental objective.”24
17
See art. VI, cl. 2, U.S. CONST., the “Supremacy Clause.”
18
“…nor shall any person…be deprived of life, liberty, or property, without due process of law…” Amend. V, U.S. CONST.;
“…nor shall any State deprive any person of life, liberty, or property, without due process of law…” Amend. XIV, s. 1, U.S.
CONST.
19
Bill of Rights, including Fifth Amendment, was incorporated and made applicable to the states through the Fourteenth
Amendment’s Due Process Clause. Legal Information Institute, Due process, Cornell Law School (last updated Oct. 2022),
https://www.law.cornell.edu/wex/due_process (last visited Jan. 31, 2024); see also Legal Information Institute, Incorporation
doctrine, Cornell Law School (last updated Oct. 2022), https://www.law.cornell.edu/wex/incorporation_doctrine (last visited Jan.
31, 2024).
20
Legal Information Institute, Due process, Cornell Law School (last updated Oct. 2022),
https://www.law.cornell.edu/wex/due_process (last visited Jan. 31, 2024).
21
National Archives, 14th Amendment to the U.S. Constitution: Civil Rights (1868), available at https://www.archives.gov/milestone-
documents/14thamendment#:~:text=No%20State%20shall%20make%20or,equal%20protection%20of%20the%20laws (last visited
Feb. 2, 2024).
22
See Adarand Constructors Inc. v Pena, 515 U.S. 200 (1995).
23
Legal Information Institute, Equal protection, Cornell Law School (last updated Nov. 2022),
https://www.law.cornell.edu/wex/equal_protection (last visited Jan. 31, 2024).
24
Id.
BILL: SCR 7066 Page 5
Congressional Accountability Act of 1995
In response to concerns, complaints, and a conception that Congress was unduly and unfairly
exempting itself from complying with multiple laws, Congress passed the Congressional
Accountability Act (CAA) in 1995.25 Prior to the CAA’s enactment, the federal legislative
branch was exempted from several of Congress’ laws specifically regarding workplace
discrimination and civil rights.26 The CAA in turn required Congress to comply with these labor
laws that already applied to private and other governmental entities; it also established what is
now the Office of Congressional Workplace Rights, which checks for compliance with and
otherwise enforces the CAA within the federal legislative branch.27
For example, prior to the CAA’s enactment, the legislative branch was not covered by the
Occupational Safety and Health Act (OSH Act) of 1970, despite reported hazardous conditions
within Congress’ facilities.28 The OSH Act and 13 other federal laws were made applicable to
Congress with the CAA.29
Current Congressional Exemptions
Despite the CAA’s passage in 1995, there are still laws from which Congress has exempted itself
or with which Congress does not fully comply; below are some examples.
Freedom of Information Act of 1967 (FOIA)
The definitions section of FOIA explicitly excludes Congress from the meaning of “agency” as it
relates to federal governmental entities who are bound by the disclosure law.30 There are
uncertainties about some forms of communications between applicable agencies and Congress.
For example, if “Congress manifested a clear intent to control the document,” items sent from
Congress to agencies could be exempt from FOIA.31
Civil Rights Act of 1964 (CRA)
Title II of the CRA prohibits discriminatory or segregationist access to places of public
accommodation, and Title III specifies that such prohibition applies to state and local
governments.32 Given that much of the federal legislative branch’s facilities include public
25
Jay M. Zitter, Construction and Application of Congressional Accountability Act (“CAA”), 2 U.S.C.A. §§ 1301 to 1438, 59
A.L.R. Fed. 2d 493 (2011).
26
Id.
27
The Congressional Accountability Act, Office of Congressional Workplace Rights, https://www.ocwr.gov/the-congressional-
accountability-act/#:~:text=The%20CAA%20requires%20Congress%20to,%2C%20on% 20January%2023%2C%201996. (last
visited Feb. 1, 2024).
28
James W. Stanley, Statement on how OSHA would apply to the legislative branch, OSHA Archive (July 14, 1994),
https://www.osha.gov/news/testimonies/07141994 (last visited Feb. 2, 2024).
29
Legislative Branch Whistleblowing Fact Sheet, Office of the Whistleblower Ombud, https://whistle