De Civitate

I have a lot of friends who are asking a lot of questions about brokered conventions these days. In this series, Conventional Chaos, I’ll be explaining how a Republican party convention works… and why 2016’s convention could be very different from the dull pageants we’ve seen since the 1970s. In Part 3, we’ll take a close look at the rules and procedure governing the convention. If you’re just joining us, start with a basic overview of the convention process in Part 1 and the deep dive on delegates in Part 2.

There is a book called the Rules of the Republican Party.  It’s a short book, barely 15,000 words long, yet it dictates the entire process by which Republicans pick their president. The book divides neatly into three parts.

The first part (Rules #1-12) serves as the Constitution of the Republican National Committee. The RNC is a group of Republican leaders who work year-round to elect Republicans to office.

The second part of the rulebook (Rules #13-25) describes, in broad terms, how the Republican primary system works.  As you remember from previous posts, the purpose of the Republican primary process is not to pick a presidential nominee. The purpose of the primary process is to select several thousand elected officers of the Republican Party, called delegates, whose job is to represent their state party at a giant meeting of all fifty state parties.  This meeting is called a national convention, and it is held exactly once every four years — always in a presidential election year.  The delegates, chosen by the voters to represent them, then choose the Republican nominee for president. Rules #13-25 determine how many delegates each state gets to send to the convention, establishes the overall schedule for the primary system, and mandates punishments for states that break the rules. It’s basically the Constitution of the Republican primary process.

The third part of the Republican rulebook (Rules #26-42) is the shortest and least detailed. It governs procedure for the national convention itself.  It describes how voting happens, how state delegations can propose changes, who can speak and when and for how long, and, ultimately, what it takes to become the Republican nominee for President of the United States. This part of the rulebook serves as a kind of Constitution for the national convention.

Every four years, just after the start of the national convention, the rulebook expires. The convention delegates must then revise it (or renew it without changes). Until the delegates have officially approved rules for the next four years, the convention is unable to take up any other business, like the party platform or the presidential nomination. This makes sense: the party would be unable to operate after the convention — or even finish the current convention — without rules to govern it throughout.

Not only is a national convention required to revise the rules, but, traditionally, only a national convention can revise the rules. The RNC can’t normally* mess around with the rules between conventions: the delegates have one shot, every four years, to get it right.

Because the party depends on good, solid rules at every level in order to function, and because it has to get those rules right the first time, the process involves a great deal of intricate deliberation over the course of several months. Even in an “easy” convention year, with nobody but nerds like me paying attention, rules negotiations are as tense as they are arcane. This year… God only knows. Let’s walk through the rules-revision process together.

Flip open your Rulebook to page 9.  (Note that we are using the most recent revised version of the rulebook, from August 2014, which is not the version actually passed by the 2012 national convention; there are several minor differences.  Additionally, I thought the 2014 rulebook on the GOP website was ugly, so I reformatted it to look like the 2012 rulebook.)  Under Rule #10(a)(1) — and don’t freak about about that nerdy-looking parenthetical notation, it just makes it easier to find the right paragraph! — you’ll find this instruction:

There shall be a Standing Committee on Rules of the Republican National Committee, composed of one (1) member of the Republican National Committee from each state, to review and propose recommendations with respect to The Rules of the Republican Party.

Simple enough. There’s a bit more detail, but we don’t need it.  The Standing Committee on Rules is the first piece of the puzzle. There are 56 members of the Standing Committee on Rules, one for every state (plus the District of Columbia, Puerto Rico, and the four territories). They are elected very indirectly; according to Rule #1(a), each state party gets three RNC members, who are usually chosen by some kind of state party election or state convention. Those three people then get to “elect” one of themselves to be the state’s representative on the Standing Committee. (There are other Standing Committees, like the Standing Committee on the Call, but, in this post, we only care about the Standing Committee on Rules.)

The Standing Committee’s job is normally very boring. It handles rules disputes between conventions.  Between 2012 and 2014, it was also allowed (very unusually) to recommend changes to the rules, although it could not actually make any without supermajority support on the RNC.  When primary season heats up, their job gets more exciting: under Rule #17(e), the Standing Committee has the authority to punish state parties for holding primaries that violate the rules.  For example, in 2008 and 2012, when Florida held its winner-take-all primary very early (in violation of an earlier version of Rule #16(c)), the Standing Committee on Rules recognized the rules violation, voted on it, and applied the penalty: Florida lost half its delegates.

But the Standing Committee’s most important job comes late in the primary season, at the Spring Meeting of the RNC. This year, it’s happening on the week of April 17th — just a few days from now. At this final meeting of the Standing Committee before the convention begins, they issue a set of recommended changes to the current rules. That’s all: recommendations. Those recommendations are then passed to the next piece of our puzzle: the Convention Committee on Rules.

The “Convention Committee on Rules and Order of Business” is established by Rule #41(a):

There shall be four (4) convention committees; the convention committees on the Platform, Credentials, Rules and Order of Business, and Permanent Organization of the convention…. The Delegates elected or selected to the convention from each state… shall elect from the delegation a delegation chairman and their members of the convention committees on the Platform, Credentials, Rules and Order of Business, and Permanent Organization of the convention, consisting of one (1) man and one (1) woman for each committee.

So, unlike the members of the Standing Committee, the members of the Convention Committee aren’t elected or appointed by RNC members, and thus aren’t (necessarily) insiders. Every state (and territory) gets two Convention Committee members, for a total of 112 members, and the only restriction is that each state must elect both a man and a woman — an affirmative action rule that is weirdly common in the Republican Party, given the GOP’s official opposition to affirmative action — who must both be national delegates from that state, and who must be elected to the Convention Committee by the other national delegates from that state.

So who gets picked for the Convention Committee from each state depends a lot on how that state chooses delegates, a diverse process we discussed last time. In states like Hawaii, where the national delegates are picked by the winning candidates, the Convention Committee members will probably be consummate insiders, like all of Hawaii’s delegates. But in states like Alabama, where national delegates are elected directly on the ballot by primary voters possessed of a strong anti-establishment sentiment, the Convention Committee members are likely to be anything but insiders.  Indeed, since I started writing this post, it looks like Alabama’s delegation announced its Convention Committee members: a little-known state legislator named Ed Henry and a kind-looking woman named Laura Payne, who appears to have no online presence beyond her mostly-private pro-Trump Facebook page (both are Trump supporters; please do not harass them). About as outsider as you can get!

The Convention Committee’s job is as simple as it is contentious: they need to review the recommendations made by the Standing Committee, then either approve them, reject them, or revise them.  In effect, all the months the Standing Committee spends debating various rules changes boil down to a single document that is then used as a starting point by the Convention Committee, which is free to chuck all the work of the Standing Committee out the window and start fresh if it wants.  The Convention Committee must be given a copy of the Standing Committee’s recommendations by June 18th, 2016 (as stated in Rule #41(d)). The Convention Committee then meets just a few days before the convention, and keeps at it until it produces the “Report of the Convention Committee on Rules and Order of Business” — an agreed-upon package of rules changes and renewals that is approved by majority vote of the Convention Committee.

In rare cases, the Convention Committee is deeply divided, and produces two reports instead of one: the “majority report,” supported by the majority of the committee, and a “minority report,” supported by at least 25% of the committee (Rule #34).

So does the Report of the Convention Committee on Rules and Order of Business become the new Republican rulebook? Nope! They’re just a recommendation, too!  The Convention itself still has to weigh in!

The convention actually opens on July 18, 2016. At that time, the Standing Committee and the Convention Committee will both have made their recommendations, but the 2014 Rulebook will still be in place for the start of the convention. (Rule #42 says so.)

The start of the convention follows an Order of Business determined by the RNC itself.  (Rule #26 says so.)  Those of you who, like me, find that level of direct control by the GOP Establishment alarming will be pleased to know that Rule #27 goes on to say that the convention can’t do anything important until the real Rules and Order of Business, proposed by the Convention Committee, have been officially debated and either approved or revised.  So these opening actions of the convention, orchestrated by the RNC, are going to be the least exciting parts of the convention: going by the 2012 Order of Business, we can expect to see the Pledge of Allegiance, the official reading of the 2016 Call to Convention, a memorial to all the Republican officials who died since 2012, and the election (by the convention, not the RNC) of temporary officers to handle said pledges and prayers and readings and speeches. It’s not the RNC doesn’t want to control the process more; it’s just that they mostly can’t.

Meanwhile, in the background, the Convention Committee on Credentials is going to be resolving any disputes about the validity of certain delegates. This is the real action during the start of the convention. Every once in a while, a state party just completely fractures, or even cheats, and two different delegations from a state show up at the national convention, each group claiming to be the “true” delegation from their state.  This happened in Maine in 2012, and it’s happening today in the Virgin Islands.  These disputes are resolved mainly prior to the convention by the Standing Committee on Contests (Rules #23-24), but the Convention Committee on Credentials is the final court of appeals (Rule #25(b)), and this is when it does its work (Rule #25(a)). Contests are a complex and messy business, which we will avoid in the interest of brevity (ha!)… and because it doesn’t look, at this point, like there are going to be any unusually exciting contests this year. Mr. Trump may throw a temper tantrum about how badly he got out-dealed in Colorado and Louisiana, but he has no case under the rules for an actual contest, so this will be irrelevant. The convention will not hinge on credentials the way it will hinge on the rules.

Finally, when all delegates have signed in and all contests are finally resolved, the boring parts are over! The Convention Committee on Credentials is able to announce an official list of who is an actual delegate to the 2016 convention (the “report of the Convention Committee on Credentials”). According to Rule #27, this must be the first non-boring thing to happen at the convention. The convention delegates who weren’t being contested (also known as the “temporary roll;” see Rule #22) now vote on the Credentials Committee report. If they approve that list, the list becomes the “permanent roll” of the convention, and delegates on the permanent roll are officially allowed to be on the convention floor and cast official votes.  Yay!  Four paragraphs since the convention opened and all we’ve done is establish who the delegates are!

But now that we know the delegates, the convention can get to the good stuff. Most likely right after the permanent roll is approved, the convention will elect permanent officers to manage the rest of the convention: a chairman (traditionally the highest-ranked Republican in the House of Representatives; in 2016, that would be Speaker Paul Ryan), a Secretary, a Parliamentarian, a Sergeant-at-Arms, and their respective deputies.

Once that’s done, the convention can finally get to the rules. The report of the Convention Committee on Rules is either read from the podium or distributed to the delegates (both reports, if there is a minority report). Then there’s an up-or-down vote on whether to approve the majority report as-is. As far as I know, the report has always (officially, at least) been approved without modification.

But if the convention delegates don’t like what the Convention Committee on Rules has recommended — which could easily happen, in this year’s closely divided convention — the vote could easily fail, and then we’re in for a classic rules floor fight. Another possibility is that some factions with substantial support will propose changes just before the majority report comes up for a vote — setting up a rules fight that would be only slightly less messy.

I’ve been in a couple of floor fights over rules (at the local/state level), and I’ve witnessed a couple others. Floor fights about rules are generally quite fair, because every faction can offer its own proposals (“let’s use the minority report,” “let’s keep the majority report, but tweak Rule #40(b),” “let’s throw the whole thing out and use this document my state delegates wrote instead,” etc. etc. etc.), everyone gets to debate the pros and cons of every motion, and, in the end, everyone gets their say by a free, fair vote. Eventually, a rules document is approved that has the support of a majority of the convention.

But it takes ages, because being fair to two thousand individual delegates takes time. My first rules fight was at a district convention that was supposed to run from 9 AM to Noon. There were perhaps two hundred people in the convention hall when the battle broke out. We finished the rules fight some time after 3PM, as I recall; the business of the convention, which remained contentious throughout, did not conclude until 11-something PM. It was thrilling, but exhausting, and very expensive for our hosts.  (A bit like this post!)

Once the 2016 convention has adopted, by majority vote, new rules, that is the moment when you can finally throw out your 2014 rulebook.  At that moment, the 2016 rulebook, whatever it says, comes into effect.  The work of the Standing Committee and the Convention Committee on Rules may or may not be reflected in that new rulebook; it all depends on the 2,427 delegates, who can either accept the Committees’ recommendations or throw them out.

The bottom line is that the delegates themselves get the final vote (really, the only vote) on the rules that govern them — not the RNC, not any arcane Convention Committee, and not any presidential candidate. Those outside entities do get to advise the delegates and make recommendations, but the delegates decide, on the convention floor, by majority vote of 1,237, and no candidate bindings or other restrictions apply to any of them.  The delegates are free to vote however they think best.  This gives the delegates immense power, even if they are bound to a particular candidate, and is a major reason why delegate loyalties, and not delegate bindings, are what ultimately decide the result of a convention.  The rules they adopt could simply be a few tweaks to the old rules. Or the new rulebook could be a page-one rewrite, with no resemblance to the old. We’ll all find out in Cleveland.

Only after the delegates have agreed to new rules are they able to begin working on the real meat of the convention: the creation of the party platform and the nomination of presidential and vice presidential candidates. Those processes will be governed by the new rules, whatever they turn out to be.

In the next part of this series, we’ll discuss why, despite all this — and despite the fervent wishes of the Wall Street Journal editorial page — the new rules will most likely be exactly the same as the old ones.

FOOTNOTES

*There is an exception to the “traditional” rule that only a convention can amend the rules: from 2012-2014, the RNC was permitted, under Rule #12 (passed at the 2012 national convention) to change the rules on its own, by a three-quarters supermajority vote. This highly unusual provision expired on September 30, 2014.