The first is from the American Legislative Exchange Council, a conservative pro-business group.
Proposing Constitutional Amendments by a Convention of the States: A Handbook for State Lawmakers
The second is a 1973 report from the American Bar Association attempting to identify gray areas in the amendatory process to include an Amendments Convention. It represents the view of the ruling class of 40 years ago.
Report of the ABA Special Constitutional Convention Study Committee
While those may be useful guidelines, neither is a binding document. The architects of the convention are free to propose whatever structure they choose.
Members of Congress as DelegatesWe cannot discern any federal constitutional bar against a member of Congress serving as a delegate to a national constitutional convention. We do not believe that the provision of Article I, Section 6 prohibiting congressmen from holding offices under the United States would be held applicable to service as a convention delegate. The available precedents suggest that an “office of the United States” must be created under the appointive provisions of Article II or involve duties and functions in one of the three branches of government which, if accepted by a member of Congress, would constitute an encroachment on the principle of separation of powers underlying our governmental system. It is hard to see how a state-elected delegate to a national constitutional convention is within the contemplation of this provision. It is noteworthy in this regard that several delegates to the Constitutional Convention of 1787 were members of the Continental Congress and that the Articles of Confederation contained a clause similar to Article I, Section 6.
We express no position on the policy question presented, or on the applicability and validity of any state constitutional bars against members of Congress simultaneously serving in other positions.
For reference, below is the text of Article I Section 6 Clause 2:
No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.
The quote from the ABA report is deceptive in its missing language. They refer to an "office of the United States," but the actual language is a "civil Office under the Authority of the United States which shall have been created." If it is Congress that calls for the Constitutional Convention, how can that body NOT be a civil office under the authority of both the Congress that called it, and the Article V provision that authorizes its existence?
If it is, in fact, a body under the authority of the United States, then Congressmen cannot be delegates unless they first resign their Article I seats in order to participate in an Article V convention.
-PJ