As discussed in the previous three parts (particularly part one and part three) of this series, the rules for the two conventions are currently simply a first draft set forth in the Rules of the Republican Party (on the Republican Side) and the Call for the Convention (on the Democratic side). When the rules committees of the two conventions meet this summer before the conventions, they will need to decide what needs to be fixed for this convention and what can wait until after the convention.
On the Democratic side, this debate will be relatively simple. In all likelihood, the candidate with the most pledged delegates will also have the most total delegates and will control the majority of the rules committee. Given the input that candidates have on delegate selection, it is unlikely that the delegates would approve any rules changes that dramatically alter the business of the convention. Additionally, the fact that both of the major candidates will have enough members on each of the committees to write a minority report will put a brake on any major rule changes. While the general purpose of the rules is to manage the business of keeping the convention running smoothly, this balance of power on the Rules Committee tends to discourage attempts to use the rules to silence the trailing candidates at a Democratic Convention. While there are certainly minor changes that people looking at the call might want to do, most of the Democratic debate about the convention involve things like unpledged party leader delegates that are not part of the rules of the convention. The issue about whether to make any changes to the role of these super delegates are an issue for after the convention.
The same can’t be said about the Republicans — particularly if no candidate heads into Cleveland with more than 1,100 delegates. In a contested convention, everything about the Republican rules will be open for discussion in the Rules Committee.
Saying that everything is up for discussion, however, does not mean that everything is likely to become a bone of contention. What becomes significant depends upon the compositions of the delegations to the convention. As noted in part two of this series, while the rules governing delegate selection (primarily Rule 16) supposedly bind delegates to support specific candidates, the national rules leave the delegate selection process to the states without requiring the states to give the presidential candidates any input in the selection process. Thus, you will almost certainly have delegates “pledged” to one candidate who actually support another. Because the pledge only applies to the vote on the first ballot (although some states do bind the delegates for multiple ballots), a delegate is free to vote as they wish on the rules for the convention. Additionally, the rules establishing the convention committees for the Republicans do not guarantee fair representation on the rules committee.
In short, this means that the number of pledged delegates that each candidate has means nothing in terms of the composition of the rules committee or how delegates will vote in any contested vote over proposed rule changes. Given that literally anything is possible depending upon the composition of the rules committee, it is impossible to predict what the final rules will look like. However, there are some obvious holes in the rules that could cause problems in a contested convention. Those holes are likely to be the subject of some attempts to close them in a way that favors certain candidates.
First, Rule 16 (which is technically not part of the rules of the convention) defers to the state rules on binding. While it states that delegates are bound, it does not say for how long or how a delegate can be released. There is a good chance that some proposal will be filed to establish more uniform binding rules and to expressly create a mechanism by which withdrawn candidates can release delegates. Both Donald Trump and Ted Cruz probably want a rule that will release Rubio (and other) delegates on the first ballot
Second, as just noted, while Rule 16 mandates that the Secretary record the vote in accordance with the binding pledges in the various states and further provides that attempts to sign affidavits of support for the purposes of Rule 40 will not count if in violation of a binding pledge, Rule 16 is not part of the rules of the convention. It is likely that there will be some attempt to change Rule 40 (governing the support needed to place a candidate’s name before the convention and the roll call on the nomination) and perhaps Rule 37 (general roll call rule) to expressly incorporate Rule 16.
Third, as noted by Republican lawyer and election law guru Ben Ginsburg Tuesday night on MSNBC, Rule 40 requires the affirmative WRITTEN support of a majority of eight separate state/territorial delegations. While Rule 16 requires the convention to disregard a delegates attempt to sign the wrong candidates pledge of support (wrong as in the sense of somebody other than the candidate that a delegate is supposed to support), nothing in the rules requires a delegate to sign any pledge of support. If only one candidate gets enough written pledge of support, that candidate can be nominated by acclamation. If I were Donald Trump, I want to do away with these written certificates and simply go by the results in the states (with pledges of support only needed for those states that do not bind delegates such as Pennsylvania and North Dakota) or in which there are uncommitted delegates that could get a candidate to a majority.
Fourth, the current language in Rule 40 requiring a majority of eight delegations is new (added in 2012). If I am a candidate who did not get to eight delegations (probably John Kasich), I want a different rule.
Fifth, the current language in Rule 40 suggests that a candidates name must be submitted to the secretary of the convention at least one hour before the floor is open for the making of nominating speeches. If the convention looks deadlocked, some in the party establishment might want to expressly provide that, if the convention recesses after multiple inconclusive ballots that the floor can be re-opened for new nominations.
Sixth, the combination of Rule 16 and Rule 40 suggests that delegates can vote for other candidates but that the secretary will only announce the votes given to candidates who have had nominating speeches. It is likely that some will want to clarify this issue (i.e. can delegates vote for Rubio and Kasich).
Seventh, the rules suggest that — immediately upon conclusion of an unsuccessful roll call –the secretary is to announce the results and call the roll again. If it is clear going in that there will be multiple ballots, the party establishment may want to expressly authorize the chair to declare a recess after a certain number of inconclusive ballots. The current rules do incorporate Robert’s Rules of Order, so a motion for recess from the floor would probably be in order. However, it might help to allow for an automatic or semi-automatic recess.
Obviously, these are just general topics. As the convention gets closer and specific proposals get floated, we may revisit this topic. For now, the key point is that the temporary rules envision a convention at which the nomination is a settled matter and were designed to run things smoothly for the presumptive nominee. If the convention looks like it is heading toward multiple ballot, the rules committee may see a need to clarify what the rules will be for later ballots.