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The Rules That Will Govern a Meltdown

[ 85 ] March 31, 2016 |

As many of you have will have already discovered, Ed Kilgore’s blogging about GOP convention rules has been invaluable. This is a really good discussion of why the contemporary political convention is very poorly suited to actually choosing (rather than coronating) a nominee. Today, he has a good analysis of how difficult it would be for the Republicans to install a white knight in place of Trump or Cruz:

Now, obviously, the shoe is on the other foot, and there is a growing possibility that the two strongest candidates for the GOP nomination, Trump and Ted Cruz, could join their considerable forces to insist on maintenance of Rule 40(b) or something much like it to prevent their common Republican Establishment enemies from exploiting a multi-ballot convention to place someone else at the top of the ticket.

Trump is currently the only candidate who is beyond the eight-state-majority threshold for competing for the nomination under the strict terms of Rule 40(b). But Team Cruz is confident enough that its candidate will also satisfy the rule that he’s the one out there arguing that Rule 40(b) means votes for John Kasich are an entire waste because they won’t be counted in Cleveland. And with both Trump and Cruz repeatedly claiming that the nomination of a dark horse who hasn’t competed during the primaries would be an insult to the GOP rank and file, maintaining Rule 40(b) is the obvious strategy to close off that possibility. A good indicator of the new situation is the evolving position of Virginia party activist and veteran Rules Committee member Morton Blackwell, a loud dissenter against Rule 40(b) before and after the 2012 convention, who now, as a Cruz supporter, is arguing that changing the rule “would be widely and correctly viewed as [an] outrageous power grab.”

But can the Republican Establishment stack the Rules Committee with party insiders determined to overturn Rule 40(b) and keep the party’s options wide open going into Cleveland? Not really. That committee is composed of two members elected by each state delegation. No likely combination of Kasich and Rubio delegates and “false-flag” delegates bound to Trump or Cruz but free to vote against their interests on procedural issues is likely to make up a majority of the Rules Committee, or of the convention. Indeed, most of the anecdotal evidence about “delegate-stealing” in the murky process of naming actual bodies to fill pledged seats at the convention shows Team Cruz, not some anti-Trump/anti-Cruz cabal, gaining ground. If Trump and Cruz stick together on this one point no matter how many insults they are exchanging as rivals, they almost certainly can shut the door on any truly “open” convention and force Republicans who intensely dislike both of them to choose their poison.

In theory, convention rules can be preemptively changed. How this would be accomplished to specifically stop Trump and Cruz from attaining the nomination remains very unclear.

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  • Denverite

    Scott, did you see this:

    http://www.wsj.com/articles/george-mason-university-to-rename-law-school-after-justice-antonin-scalia-1459452145

    I’m going off four hours sleep after a 15 hour day yesterday, so I want to make sure that I’m not missing an early April Fool’s day or am hallucinating or am still in the latter stages of coming off a weekend bender or whatnot.

    • Hayden Arse

      Antonin Scalia School of Law at George Mason University: #ASSLaw.

      • n00chness

        Or as Glenn Beck would refer to him, “Anthony Scalia, True American Patriot.”

        • Robert M.

          Does that make the appropriate hashtag #ASSTAP?

    • efgoldman

      Gad. One of my daughter’s best friends has a (non-teaching) position pretty high up at GMU. She must be thrilled.

    • rea

      Hell, why not name it after James Clark McReynolds?

      • twbb

        How about Roy Bean?

        • efgoldman

          How about Roy Bean?

          Roger Taney.

    • randy khan

      Totally true. One of my colleagues received an email from the university with the announcement.

      Honestly, why not? The GMU law school is unapologetically ideologically simpatico with the Scalia point of view (with a dollop of law and economics added for spice).

  • furikawari

    I’ve been wondering why no one ever seems to look in to exactly who the elected Republican delegates are. The main question out there seems to be: If Trump fails to secure a delegate majority, what will the delegates do thereafter? Are they “party regulars” who will Decide, or are they candidate fanatics who will go to war for their man? Anyone know if there is an outfit doing this kind of research?

    Given Cruz’s political acumen, and Trump’s complete lack of a early ground game plan or political apparatus, I wouldn’t be surprised if a large number of Trump delegates are actually Cruz crypto-partisans. Surely he was aware of what Ron Paul’s team did. The nomination may be swiftly decided in his favor if the first vote fails to go to Trump.

    • GFW

      > I wouldn’t be surprised if a large number of Trump delegates are actually Cruz crypto-partisans.

      According to what I’ve heard (basically from watching MSNBC (e.g. Rachel Maddow)) this is exactly what’s going on. Cruz is the best organized in this game. There’s no sign that any of the failed establishment candidates have much going in terms of gathering stealth delegates.

      • Steve LaBonne

        My wild-ass guesses are that 1) winning a majority of pledged delegates and consequently being nominated on the first ballot is Drumpf’s ONLY path to the nomination, and 2) if that doesn’t happen it’ll be Cruz.

    • AMK

      This sounds about right. The delegates themselves are local GOP activists who are probably more ideologically informed–more fixated on dogma and conservative purity. That’s a Cruz crowd.

    • kped

      Which is to say…the Republican convention will be must watch TV. I for one cannot wait.

      • furikawari

        Maybe not. If enough of Trump’s pledged delegates are Cruz supporters, he could just activate them before the convention. Have them sign a statement or letter saying they’re going to vote for Cruz on the second ballot. Then Cruz goes to the convention planners as the savior–“Look–ol’ Teddy’s solved the problem. I’m going to win. Put me in charge of the convention just like you always put the nominee in charge of the convention.” Trump’s supporters stamp their feet / complain / riot immediately, but it is quelled before the convention. Cruz gets widespread laudatory press coverage for saving the party from itself. The convention is the usual combination of boring and insane, and the rioting only happens outside.

        • kped

          The riots outside are all that will be covered. I can’t see how that weekend isn’t great (for someone on the other side not in Cleveland watching them light themselves on fire that is).

          Also…recent history suggests your scenario is way too tidy, and the Republicans don’t do anything tidy anymore. This will be a mess unless Trump wins the plurality.

          • twbb

            A glorious, glorious mess.

    • etc.

      I saw something on another site this morning (I can’t remember where), and they mentioned that attending the convention might run $3000 (air fare, hotel, food, and so on). There was also a mention of the listed occupations of some Trump delegates. I was thinking that those job titles didn’t sound like the kinds of jobs where you might have a week of vacation coming and $3000 in your pocket.

      So what if a portion of Trump’s pledged delegates can’t make the trip to Cleveland?

      • postmodulator

        Are the candidates allowed to pay that? Trump could write a check.

        • etc.

          Trump could write a check, even many checks, but I think there might be two problems (I don’t think there are problems with party rules if you want to pay for your delegates expenses). The first problem is that I doubt the Trump campaign has any idea who all their delegates are, which ones might need a hand, or anything that would allow them to disburse the money. Secondly, I’m not sure Trump would give a bunch of broke people money, even if his Presidential aspirations depended on it.

      • Bloomberg, but I’ll assume you saw it at B.J. as I did.

  • keta

    I have no doubt whatsoever that rule 40(b) will be modified before July. If it means changing the rules on how rules are changed, so be it.

    Keep in mind most GOP establishment see this as a fight for their very existence. Which means all rats are ripe for fucking, every single one.

    • Dagmar

      Rule 40(b: There Will Be Blood.

      • Ken

        Rule 34(b): And it will be uploaded to a porn site.

        • AlexRobinson

          If it is to a porn site, shouldn’t that be 36(dd)?

          P.S. Sorry

        • wjts

          Rule Six: There is no Rule Six!

    • BobBobNewhartNewhartSpecial

      Keep in mind most GOP establishment see this as a fight for their very existence. Which means all rats are ripe for fucking, every single one.

      But they have to realize that stealing this from both the Trump and Cruz supporters would be the worst possible scenario for the GOP.

      • twbb

        Shhhh.

      • efgoldman

        But they have to realize that stealing this from both the Trump and Cruz supporters would be the worst possible scenario

        At this point, no matter what happens, it’s the worst possible scenario

        • twbb

          Don’t you mean BEST?

  • Hob

    Pet peeve: “crown” is a perfectly good verb, there’s no reason to use the back-formation “coronate” (or should I say, no reason to utilize “coronate”).

    • efgoldman

      Pet peeve: “crown” is a perfectly good verb, there’s no reason to use the back-formation “coronate”

      I’ve given up. My inner grammar pedant has retired.

      • The Temporary Name

        You’ve reigned it in.

        • Dr. Ronnie James, DO

          He’s pumping the breaks!

      • bobbo1

        I gave up after the possessive of “Sanders” became “Sander’s”

    • Linnaeus

      Pet peeve: “crown” is a perfectly good verb, there’s no reason to use the back-formation “coronate” (or should I say, no reason to utilize “coronate”).

      Spot the irony in this statement.

      • Just_Dropping_By

        “Utilize”?

        • Hob

          Yes, that was a joke, I didn’t think it needed pointing out but I guess you never know.

          • efgoldman

            Yes, that was a joke, I didn’t think it needed pointing out but I guess you never know.

            There’s no laughing in grammar pedantry!

          • Linnaeus

            The joke was pretty clear. :)

          • Lurking Canadian

            I’d say the italics made pretty clear what you were doing there.

        • Linnaeus

          The irony that I alluded to is that the word “peeve” is itself a back-formation from the word “peevish”.

          • Hob

            Ha! Thank you, I learned something today. That’s one of the best back-formations I’ve heard of. I’m not against them on principle, I just think things like “coronate” are unfortunate because 1. they only happen because someone never really thought about the words they were using (like, they just didn’t get that “coronation” literally just means putting on a crown) and 2. they’re actually longer and less convenient than the word they replaced.

      • Thirtyish

        Also, it’s technically a run-on sentence.

    • You usurped me to it.

  • efgoldman

    And the Berniebots who don’t know the rules are looking at this and saying “See! The Democrats could do this, too!” and will be crushed and outraged that no such thing is going to happen on our side.

    • kped

      Judging by the stuff they are saying about pledged and unpledged delegates that have gone to Hillary, I’d bet good money on that. “Guys, we should totally do this, look at this poll from March about Bernie vs Trump, that’s gotta be worth something, it’s just gotta!!!”

  • ochospantalones

    I mentioned this in the comments over at NY Mag- It seems to me that the inclusion of “President and Vice President” in the rule means that there must be some way to satisfy the rule other than winning a majority of pledged delegates in a primary or caucus. Paul Ryan, who did not run in the primaries, won zero states in 2012 and therefore superficially would not meet this requirement. In fact I don’t think anyone had a majority of delegates in eight states other than Romney, so no one could be nominated for VP if you read the rule this way.

    There has to be a way that the delegations at the actual convention can “demonstrate the support of a majority of the delegates” from their state beyond having been pledged to do so before the convention started. If Cruz and Trump affirmatively control enough delegates to block more than forty-two states from supporting Kasich, then Kasich’s problem is not the rule, it is that he lacks sufficient support from the delegates.

    • CD

      Yeah. Suppose after four ballots there’s a groundswell of support for Newt Gingrich. Then it seems to me the rule just requires that most of the delegates from 8 different states indicate their support.

      Far as I can tell 40(b) is just designed to prevent nominations from the floor for no-hopers.

      • efgoldman

        40(b) is just designed to prevent nominations from the floor for no-hopers.

        It was specifically designed to keep Grandpa Liberty’s delegates from fucking up the last convention.

        • Yes, I think before 2012 it was only five states. And apparently may be changed by whoever changes these things (a committee or all the delegates) either before the convention or in the first day or two, per my vague recollections of contested conventions.

  • Kilgore has the background to understand the nuts-and-bolts involved—in this instance, probably a high ratio of nuts to bolts. I do think however, that he, or whoever wrote the headline for the article, missed a bet:

    How an Obscure Rule Could Limit the GOP Convention to a Choice of Trump or Cruz

    shoulda been

    How One Weird Trick Could Limit the GOP Convention to a Choice of Trump or Cruz

    • furikawari

      Party regulars HATE this!

      • efgoldman

        Party regulars HATE this!

        SCORE!
        +14 pictures!

      • Hayden Arse

        New GOP Rule That Might Make You Queasy

  • CD

    Can’t the entire convention, once assembled as a deliberative (ahem) body, vote to change or suspend its own rules, and at any point?

    • I think it would require only a cabal. “Double secret probation,” doncha know.

      • Ken

        Then to make sure the non-members of the cabal aren’t in the hall during the vote on changing the rules, give them all “free cover charge” coupons for a strip club in the remote suburbs.

    • I’m not sure about the at any point part, but otherwise yes.

  • efgoldman

    If someone wrote this scenario into a political novel or movie script, it would be rejected for requiring too much suspension of disbelief.

    – Trump wins the nomination, it burns down the Republiklown party.
    – Tailgunner Teddy Cruz wins the nomination, it burns down the Republiklown party.
    – The establishment uses rules and subterfuge to nominate some other candidate, it burns down the Republiklown party and has the added bonus of of actual, literal blood on the convention floor.

    What to do, what to do?

    • Lurking Canadian

      The Aristocrats!

    • kped

      It’s amazing how in just a few short months this scenario has went from “not possible, stop dreaming” to “OMG IT’S GOING TO BE SO MUCH WORSE THAN ANYONE CAN IMAGINE!”

      I love it.

      • Philip

        It’s so very nice to watch the rats fuck each otherfor once.

    • PohranicniStraze

      So, basically they have pulled off the rare Reverse Xanatos Gambit?

    • Matt McIrvin

      The thing is, their “some other candidate” usually beats Hillary Clinton in a head-to-head poll. The blood may not matter.

  • ploeg

    This is a really good discussion of why the contemporary political convention is very poorly suited to actually choosing (rather than coronating) a nominee.

    This is also why the nominee will almost certainly be agreed upon before the convention. As many differences as there are between Trump and his Republican colleagues, they are hardly sworn enemies of each other, at least not yet. And Trump has as much leverage against his Republican colleagues as they have on him. If Trump is not satisfied with how things go down, Trump has a substantial following and an unquestioned ability to get on TV (national, regional, and local) and complain about how Senator So-and-so and Representative Whatsit are bad people because they went against the will of the Republican voters and don’t deserve to be re-elected. Probably Trump’s influence would wane somewhat if he doesn’t get the nomination, but the Republicans likely don’t want to test that theory empirically. Gaining the White House would be very nice for the Republicans, but keeping the House and especially the Senate is vital. If Trump is able to get close to a majority, the pressure will be on to get the best deal obtainable given the facts as they are.

    It doesn’t seem likely that Trump would like any offer short of the nomination as a consolation prize, but if Trump falters late, he might be induced to take a European ambassadorship or some like bauble. If Trump finishes strong, Trump’s bargaining position might preclude withholding the nomination from him, but the Republicans would likely impose conditions that would actually work in Trump’s best interest going forward (such as dumping Lewandowski and his team and installing more reliable people in their place). They might not like it, but they’ll do it for the sake of maximizing the chance of holding Congress, and they’ll hope that vote suppression and a lot of lucky breaks will give them a shot at the White House.

    • postmodulator

      Trump has a substantial following and an unquestioned ability to get on TV (national, regional, and local) and complain about how Senator So-and-so and Representative Whatsit are bad people because they went against the will of the Republican voters and don’t deserve to be re-elected.

      There is no deity that loves me this much.

    • randy khan

      There’s always the possibility of a Trump-Cruz or Cruz-Trump ticket with power sharing, a la the deal that Ford offered to Reagan in 1980 (if you can imagine either of those two sharing power for one second).

      I have long given up on figuring out how the Republican race is going to end, but I have to pause on “they are hardly sworn enemies of each other, at least not yet.” If they’re not there, I’d say they’re getting pretty close. And while that sort of thing shouldn’t be a big factor, in this case I wouldn’t be so sure.

      • ploeg

        One shouldn’t take the current rhetoric at face value. For Trump, as a real estate developer, negotiating for something that you want is a big part of his career. For the Republican opposition, part of the game is to offer concessions to the people who don’t win the nomination so that they stay on the bus. If Trump comes in with the most delegates, they’d better come up with something that’s extra special if they don’t grant him the nomination. But they’re not going to tell Trump flat out to pound sand. It might not work out in the end, but they will at least try to reach a deal.

        • randy khan

          Perhaps you can’t take the rhetoric at face value, but it’s also true that some things are hard to take back. Your thinking is perfectly sound and logical, certainly, but this has been an especially illogical election on the Republican side, so I have no idea what’s going to happen.

      • bender

        Kennedy offered the VPcy to Johnson. I can’t imagine Trump agreeing to being anyone’s VP; he has to be the boss. I can imagine Cruz taking it, intending to manipulate Trump into letting Cruz do all the boring parts and then doing a Sarah Palin halfway through his term.

    • CD

      We may find out whether Trump is as good a negotiator as he says.

      But all these gamings-out assume that Trump is a rational actor, aiming to maximize something (money, power, prestige …). Is that true?

      • Philip

        He is, but the thing he’s aiming to maximize is attention.

      • petesh

        What Trump always wants to maximize is his own self-esteem. Given his eccentric views, that makes him inherently unpredictable. I don’t think you can ever even be sure ex post what he was intending ex ante, in any situation.

  • postmodulator

    So, what happens if the convention isn’t dispositive?

    I can think of quite a few scenarios where on July 21st one faction in the party says “candidate A wins” and another faction says “no he didn’t, candidate B won, candidate A didn’t meet condition thus-and-so.” It would most likely involve Trump or Cruz and some establishment choice — hell, maybe Trump and Cruz and some establishment choice.

    I can easily, easily, easily imagine Trump trying to litigate to get ballot access from the 50 secretaries of state. Hell, I can even imagine some secretaries of state deciding Trump goes on the ballot and other secretaries of state deciding the Republican party candidate is Cruz/Kasich/Ryan/someone else.

  • randy khan

    While there’s no doubt it would be in the mutual interests of Trump and Cruz to agree that Rule 40 shouldn’t be changed, the one thing this nomination process has taught me is that you can’t count on Republican candidates to recognize when they should join together in a common cause. So I don’t know if I’d assume that Trump and Cruz would figure this one out, or that one wouldn’t have his delegates vote so as to spite the other.

    If they did manage to keep Rule 40 in place, though, then it basically would come down to which one of them could corral more delegates from among those committed to other candidates or uncommitted. That could be resolved before the convention (and should be if the Rs have any desire to not look insane at the convention itself), but I imagine that the bidding might take a while.

    • Redwood Rhiadra

      While there’s no doubt it would be in the mutual interests of Trump and Cruz to agree that Rule 40 shouldn’t be changed,

      The thing is, it is also in their *individual* interests to keep rule 40 unchanged (unless Cruz fails to pick up enough states to meet the threshold). They don’t have to mutually agree to anything, they just have to each individually decide “I don’t want more competition.”

  • Peterr

    Serious question: Assume that only Trump and Cruz meet the Rule 40(b) hurdle, and thus are the only two candidates whose names are put in nomination, but neither has 50% of the delegates pledged to them for the first ballot. Assume further that Rubio and Kasich do NOT release their delegates.

    If the Rubio and Kasich delegates are required to vote for those candidates on the first ballot, but those names do not appear on the ballot, what happens to those votes? If they are set aside, do they change the number needed to reach 50%? That is, is the rule for victory “50% plus 1 of those voting” or “50% plus 1 of those eligible to vote”?

    • randy khan

      I have no idea. That’s a great question.

    • furikawari

      Rule 16(a)(2) states that delegates must vote according to their allocation by state law or state party rule, unless the candidate to whom they are bound has withdrawn his candidacy, suspended his campaign, or released his delegates. Can Rubio keep his delegates now that he has suspended his campaign?

      In any case, Rule 40(b) states that a candidate must demonstrate sufficient support to have his name added to the pool of potential nominees. But then, to be nominated, a candidate must receive a majority of votes entitled to be cast. All delegates are entitled to cast one vote. Rule 29. Rule 40(d) then instructs the chairman to read the votes, but only for those nominees who are eligible by Rule 40(b). So the votes that go to candidates who don’t make the threshold but don’t suspend their campaigns/withdraw their candidacy cannot make that person a nominee, but are counted for purposes of determining a majority.

      Source: https://cdn.gop.com/docs/2012_RULES_Adopted.pdf

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