What Are The Rules?

Here are explanations for some of the mysteries of this season's primary campaign, like why John McCain captured the Republican nomination so quickly and the role of the Democratic super-delegates:

Here, to whet the reader’s appetite, is the little known rule change that set the stage for the McCain nomination: at its 2000 Convention in Philadelphia the GOP reversed the “order of precedence” in Rule 15 between state party rules and state law. Previously, state law had been the standard for seating a delegation at a GOP convention. State law, in other words, had legal “precedence” over state party rules. But as part of a larger package of rules proposals the GOP reversed this. As a result, beginning in 2004, state Republican parties could set their own delegate selection procedures without getting the state legislature to enact them.

...[A] few parties in traditionally under-represented East Coast states seized this opportunity to increase their influence. Florida scheduled a winner-take all primary along with a turnout-building real-estate tax referendum in late January. The Middle Atlantic GOP organizations in New York, Connecticut, New Jersey and Delaware went winner-take-all on Super Tuesday. McCain’s Arizona (but not Mitt Romney’s Massachusetts) rounded out the state-wide winner-take-all list. The California and Georgia GOPs chose a Super Tuesday winner-take-all system of pledged delegates on the Congressional district level. Thus, there was a large bloc of delegates—about 50 percent of those needed for nomination—to be decided on a winner-take-all basis on or before February 5.

Winning this mostly moderate bloc was the strategic target of the Giuliani campaign. The Giuliani plan was to leverage a victory in Florida in late January into a favorite-son victory in the Middle Atlantic region and a sweep of the California congressional districts. But as it turned out, it was McCain who built on comeback victories in New Hampshire and South Carolina to win Florida. Giuliani immediately withdrew and endorsed McCain. Governor Schwarzenegger and other party leaders in the winner-take-all states followed suit, handing the Giuliani strategy to McCain on a silver platter. When McCain duly swept all the Super Tuesday winner-take-all primaries save Georgia (and even there he bled twelve district-level delegates from Huckabee to balance a fifteen-delegate leakage to Romney in California), his nomination was effectively assured.

Mitt Romney, who had concentrated on media buys, and Mike Huckabee, who had relied on faith-based grassroots organization, discovered too late that their victories, concentrated in proportional rather than winner-take-all states, could not yield the delegate margins to add up to a nomination.

...[L]et us turn to the Democrats, whose rules have become central in a race that fascinates the entire world. If the Republican nomination outcome has run counter to the normal small-state bias of its national convention, the Democrats’ drama is unfolding according to their rulemakers’ designs. As designed, the competition quickly winnowed itself down to three and then two candidates with national rather than narrow sectional or racial/ethnic appeal. As designed, it greatly increased grassroots participation. And as designed, it has provided in advance that any deadlock will be settled by a pre-existing ex officio group of “party leaders and elected officials” (abbreviated as PLEOs in intra-party documents and called “super delegates” in the press, a term originally introduced with snide intent by those opposed to their creation).

The PLEOs— present and past major officeholders, Democratic National Committee members—represent the institutional party. Their number is now pegged at about 25 percent pledged delegates (or 20 percent of the overall convention when the PLEOs are added to the total). This is not remotely enough to determine a nomination, but it does suffice to provide a corrective for a danger inherent in the proportional system the Democrats have mandated.

Proportional representation was first proposed to the Democrats in an 1875 tract by the Cambridge feminist Melusina Fay Peirce (wife of the philosopher C.S. Peirce) as a device to cordon off the growing Irish Catholic vote. Its official adoption a century later had a more inclusive purpose. As a party with diverse bases of support, the Democrats mandated proportional representation to recognize and empower all their factions. Proportional representation assures that every vote in every state counts, whereas winner-take-all and unit-rule systems give zero weight to voices that are in a minority in their geographic area. Proportional representation thus builds turnout, enthusiasm and effective participation for the Democrats.

At the same time, proportional representation brings well-known dangers of fragmentation and deadlock, as exemplified in the tumultuous Israeli and Italian parliamentary systems. For an American political party, it presents an additional competitive risk because the general election is conducted under an Electoral College system that now operates on a state-wide (or, in Maine and Nebraska, congressional district-wide) winner-take-all basis. Thus intra-party nomination procedures based on proportional representation may fail to produce a decisive victor in the states that will determine Electoral College success.

In 1984, after fifteen years of commissions and lawsuits following their 1968-1972 convention debacles, the Democrats settled on proportional representation and two corrective devices for it that have withstood the test of time: minimum thresholds and unpledged ex officio delegates (they have dropped a third option: the winner-take-all unpledged Congressional district primary originally used in seven, mostly large industrial states accounting for about a fourth of the convention delegates, above and beyond the original 14 percent allotment to unpledged ex officios).

...If anyone is needed to broker a deadlock, that role falls first to identifiable members of the institutional party—“thinking delegates” as they were called by former North Carolina Governor Terry Sanford in his influential 1981 book advocating their convention role, A Danger of Democracy: The Presidential Nominating Process. Sanford’s successor as North Carolina Governor, Jim Hunt, headed the Hunt Commission which made PLEOs a formal part of the Democratic nomination process.

The unpledged PLEOs also embody the ideal of “responsible party government” that has long held sway among Democratic-leaning political scientists. Under this ideal the mission of a programmatic party is to overcome the separation of powers with a presidency that moves, to use Montesquieu’s classic phrase, “in concert” with legislative and judicial branches in same-party hands. The doctrine of party responsibility across elections and branches of government legitimates the role of governors, Senators, Congressmen and National Committee members to function as stakeholders in the presidential nomination process.

The PLEOs on this view are not a sinister presence, but transparently designated officials whose individual careers have made them accountable locally to intra-party electorates and who as a group are indispensable nationally as presidential campaigners and governing allies.

Finally—and most importantly in a closely contested race—PLEOs provide an element of discretionary judgment. to counter numerical quirks in any system of mechanically pledged delegates. The Democratic convention is riddled with such incommensurables.

...In all, 2008 presents quite a test for PLEOs and The Charter and the By-laws of the Democratic Party of the United States, as the rules are officially called. Quite a test, in other words, for the leadership of the National Democratic Party in convention assembled. For the first time since the McGovern candidacy of 1972 the Democrats can expect to be judged by the electorate on how they conduct themselves under their own procedures. The Democrats control both houses of Congress. Voters will surely consider how they govern themselves in deciding whether to entrust them with the White House as well. And that is why the topic of party rules, usually so arcane and tedious, can and should interest every citizen this year.