Of Republican Bondage

[Continuing our series on deception in politics and public policy.]

UPDATE: After he got shellacked in Indiana, Ted Cruz dropped out the race for the Republican nomination for president, making Donald Trump the presumptive nominee. This column is now officially out of date. Hope you enjoy it anyway. Just pretend it’s last Tuesday.

(May 3, 2016) Yes, the Trump campaign is being robbed of delegates.

No, it’s not the Cruz campaign that’s cheating.

Here’s what happened:

As GOP rules evolved over the past 30 years, those rules were tweaked and fiddled-with repeatedly, in ways subtle and glaringly obvious, by the Establishment. The short-term goal was to fill the delegate seats at the Republican National Convention with members of the party Establishment, or, at least, to minimize the number and effectiveness of potential insurgents.  The ultimate goal was to prevent mistakes like allowing Goldwater to snatch the nomination from the Establishment in 1964. (To Establishmentarians, the political success of Goldwaterite candidate Ronald Reagan was a fluke—an experiment that, although it worked out, must never be repeated.)

It’s not a conspiracy. In fact, most of the manipulation was barely at the level of conscious thought. People were doing what seemed right, which was to make it easier for people like themselves (hard-working party volunteers and high-dollar donors) to become delegates.

The Establishment’s tinkering has worked: Every GOP presidential nominee since Reagan has been someone who opposed Reagan for the nomination, except for John McCain in 2008, who backed Reagan in 1980 but switched to the anti-Reagan wing long before being nominated himself.

After 2012—when, in the view of the Establishment, the party suffered because it took too gosh-darn long for Mitt Romney to secure the nomination—the rules were altered some more, to ensure that, once the 2016 process got under way, Jeb Bush or someone like him would quickly became the nominee. The timing of primaries and debates and other factors were manipulated to prevent a grassroots, Tea Party-type insurgency, and to lessen the prospect of some wise guy like Newt Gingrich beating up the eventual nominee.

The changes were supposed to help someone with high name I.D. and lots of money. In that regard, the plan worked. But the beneficiary wasn’t Jeb; it was Donald Trump. Oops.

Still, Trump might still be denied the nomination because of a different way in which, over the years, the Establishment has manipulated the rules to block insurgencies. That’s the creation of a process in many states in which there is little connection between the preferences expressed by primary or caucus voters and the selection of the individuals who will serve as delegates.

In establishing the rules for nominating presidential candidates, political parties—that is, the leaders of those parties—have the power to do almost anything they want. But “them’s the rules” can’t justify those rules. That’s like the sentiment expressed by Richard Nixon and followed by Barack Obama, that the president can’t break the law because, “If the president does it, it’s not illegal.”

The rules that are the rules can be right, or wrong. I judge the rightness of the rules based on two standards:

• Were the rules made ahead of time, or were they changed in the middle of the game so as to help one side?
• When you explain the rules to a fair-minded, reasonably intelligent person, does he or she consider them unfair?

Assuming that GOP leaders don’t fiddle further with the rules—for example, changing Rule 40 to allow the nomination of someone who lacks the required majority-support from eight states—the GOP convention rules will be fair, based on Criterion 1, given that all the candidates had the time to read them, come to understand them, and base their strategies on them.

Ted Cruz’s campaign studied the rules and crafted a plan based on those rules. Even if you take into account the way the rules were manipulated to help Bush or a near-Bush, it should be clear to you that the Cruz people aren’t cheating, because they didn’t write the rules. Rather, they are cleverly taking advantage of rules that were intended to hurt Ted Cruz or someone like him. The rise of Donald Trump, together with the elimination of all the Establishment candidates save the hapless John Kasich, scrambled the roles of the various candidates and gave Cruz the chance to beat the Establishmentarians at their own game.

While Cruz ran a near-perfect “inside” campaign, one based on organization and turnout, Trump ran an unimaginably successful “outside” campaign based on his skills as a communicator and his political fearlessness. On the other hand, Cruz positioned himself too much as a movement conservative without broader appeal, while Trump’s campaign was disorganized and, for a long time, clueless about the intricacies of party rules.

That brings us to Criterion 2: Do the rules seem fair? Regarding the separation between the primary/caucus votes for president and the election/selection of delegates, the answer is no.

There is absolutely no legitimate reason to have delegates bound to a candidate they don’t support—a system, by the way, that goes back only to the mid-1970s, not to the days of Abraham Lincoln as some commentators have claimed.

The illegitimate reason, the real reason for this system, is that splitting the process allows party leaders to hold onto delegate slots that they might lose if they were forced to declare a presidential preference prior to the primary/caucus voting and if their being selected as delegate was contingent on whether voters agreed with their preference.

Another reason the Establishment likes the bifurcated system: Linking the primary/caucus presidential vote and the selection of delegates helps bring in new blood. The Establishment doesn’t like new blood. But it’s good for the party. The Goldwater campaign in 1964, the McGovern campaign in 1972, the Reagan campaign in 1976-1980, and the Clinton and Obama campaigns of 2008 all helped rejuvenate their parties, bringing future leaders to the fore. (In Alabama, for example, a local probate judge from a small county was elected delegate under the Reagan banner and served as the delegation chairman. Ten years later, he became the state’s first Republican governor in 112 years.)

When I was elected as a delegate to the Republican convention, in 1976, 1980, and 1984, I had to declare my choice ahead of the voting (Reagan, by the way). My announced preference helped determine whether I got to be a delegate. We were “bound,” but the binding was almost meaningless because only Reagan people got to be Reagan delegates, only Bush people got to be Bush delegates, etc. In the contested races of that period (1976 and 1980), there were no delegates from my state who were bound one way and really wanted to vote the other way. We would have considered such a thing absurd, in part because delegates vote on important things like the party platform and party rules, on which “binding” doesn’t work.

If you vote for Trump or Cruz or Hillary or Bernie in a primary or caucus, your vote should be reflected not only on the nomination but on the platform and rules. If you’re a Democrat against the Trans-Pacific Partnership trade deal, and your pro-Bernie vote elects a Sanders-bound delegate who’s really for Clinton and supports a pro-TPP plank in the platform, you’ve been cheated.

People who go to the polls and vote for Jane Doe expect that their preference will be reflected in the selection of delegates who are for Jane Doe. Not legally “bound” to vote for Jane Doe, but for Jane Doe in their hearts and minds. There are countless ways in which delegates can slip the chains that “bind” them to a candidate—voting at the convention to unseat state delegations that favor Jane Doe, voting to make it impossible to put Jane Doe’s name in nomination (by raising the minimum level of support from state delegations), voting to require a supermajority (say, requiring a 2/3 vote, which the Democrats used to do), or voting to cancel all binding of delegates.

Did you catch that last one? If a majority of delegates voted against binding themselves—as is entirely within their power—Trump’s delegate count could drop instantly from, say, 1,400 to 800. Remember: A Trump-bound delegate who’s really for Cruz can vote however he or she wants on the critical; question of whether to enforce the binding!

Imagine that Trump Has 1,400 delegates, of whom 800 are really for him and 600 are for Cruz or “other.” That leaves 1,072 delegates who are not bound to Trump (that is, bound to someone else or not bound to anyone). Most likely, only a handful of those 1,072 would take the pro-Trump side in a vote on binding. Before the actual nomination vote, a vote is held on whether to enforce the binding. Some 1,000 of the not-bound-to-Trump delegates vote to unbind everyone, and they are joined by the 600 Trump-bound delegates who want to free themselves. The binding is eliminated. Now let’s hold a vote on the nomination itself. Trump gets 800 votes, not 1,400, and Cruz is nominated on the first ballot. OR the delegates also vote to change Rule 40 and open it up for other candidates, in which case anyone could end up as the nominee.

Of course, all that would be seen as cheating, mainly because it would be cheating. The scenario I just outlined has been overlooked by at least 99 percent of the journalists writing about the GOP race, so one could hardly argue that “well, you should have known the rules.” Voters are supposed to understand the process better than people who write about politics for a living??

The key point is this:

If, when the votes are counted tonight, Trump turns out to have won Indiana by a healthy margin, he will be proclaimed the presumptive nominee. He will be virtually assured of 1,237 votes at the convention… if the binding is enforced (and no other funny stuff happens).

If.

Trump-bound anti-Trump delegates include probably 40 of the 50 delegates “won” by Trump in South Carolina, all but a handful of the 55 “won” by Trump in Arizona, the vast majority of the 75 Republican National Committee members in states won by Trump as of today (they’re automatic delegates, bound to the state winner), and many, many more.

As I’ve noted before, the Republican Establishment has it within their power to steal the nomination from Trump. The only thing stopping them is that, if Trump seems to have a majority, they would have to steal it in broad daylight.