The Law of Rules
Obscure party regulations explain the constant surprises of this years primaries. Will Democratic superdelegates follow the spirit of those rules?
By Josiah Lee Auspitz

or almost four decades I have been inflicting on friends, family, airplane seatmates, straphangers on the subway and other random acquaintances my stupefying knowledge of party rules. To me this is a subject so enthralling that I cannot understand anyones being indifferent to it.

I have written scholarly articles and op-ed pieces, testified, lobbied and litigated, presented maps, tables and charts, consulted, advised and given interviews on the topic. About twenty-five years ago I directed a project analyzing party rules in all the fifty states. My young assistant in this task later foreswore politics and entered a monastic order.

In other words, I am a complete party rules bore. I suppose it would be more dignified to present myself as a political scientist, but I have no illusions.

Here, to whet the readers 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.

This meant that in strategizing for 2008, Republican parties could choose a winner-take-all system, even in states where the legislatures had enacted the Democratic Party requirement for proportional representation. Most GOP parties went along with the system used by the Democrats. But 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. McCains Arizona (but not Mitt Romneys 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 delegatesabout 50 percent of those needed for nominationto 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.

The seven-state winner-take-all delegate haul thus delivered a quick kill. It does not under-value the force of McCains personal appeal, his heros resume or his independent character to point out that he was the beneficiary of rules changes not of his own making. The moderate result countered the overall thrust of the GOP Rules, which contain numerous technical devices giving disproportionate weight to the smaller, more conservative states of the South and West.

As it happened, the successful strategic devicethe leveraging of a large winner-take-all blocis precisely the instrument which magnified Ronald Reagans conservative base in 1976 and 1980. In those years, the California GOP primary was the only one in either party conducted on a winner-take-all basis. It was the largest state bloc of primary delegates ever available to a single candidate in the history of the American convention system. A special provision had to be written into California state law to give Ronald Reagan this unique advantage.

A further ironic twist: Karl Rove, the Bush strategist and McCain nemesis, was widely reported to have intervened to shape 2000 Rules Committee deliberations. If so, he allowed the changed Rule 15 to stand, while the main opposition to the change at the time came from Republicans who had backed McCain over Bush for the 2000 nomination.

ut let me not bore the reader with that and other GOP stories here. Instead, let 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 membersrepresent 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).

The first corrective is a threshold, now set at 15 percent, below which a candidate forfeits his or her votes. Thus in the Iowa caucuses Kucinich, Biden, Dodd, and Richardson supporters crossed the floor after the first ballot to join the Clinton, Edwards and Obama camps when their first choice failed to make 15 percent. Arithmetically, a 15 percent threshold limits the field to at most six candidates, but as a practical matter to three or four.

The mathematical logic of even a three or four person race, however, still provides an opening to a spoiler candidate to persevere to the convention floor in the hopes of deadlocking the first ballot and becoming a power broker. Hence the second device, the presence of PLEOs, works to preempt this opportunity, as Jesse Jackson discovered to his dismay at the 1984 Democratic Convention.

If anyone is needed to broker a deadlock, that role falls first to identifiable members of the institutional partythinking 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. Sanfords 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 Montesquieus 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.

Finallyand most importantly in a closely contested racePLEOs 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.

The pledged delegates are variously elected in caucus, primary and convention procedures. Some represent jurisdictions or clubs that will not even vote in the presidential election (Puerto Rico, Democrats Abroad). Some come from states whose delegations are artificially inflated or penalized for timing factors (Michigan and Florida are denied representation entirely for holding early primaries, while Indiana and North Carolina receive 30 percent bonuses on their delegate base for holding late primaries in May). Some delegations are elected in open registration states, others in closed, while Texas embodies a hybrid of the two. Some entire delegations represent states that will be conceded to the GOP (Idaho, Utah, Mississippi, Oklahoma, Texas, Arizona) or by them (Hawaii, District of Columbia) in the general election.

The underlying constituencies represented by the delegates, moreover, are by no means numerically equal. The rules define the popular base of the party as those voting for the ticket in the past three presidential elections. They average this with the Electoral College standard. The result, as illustrated in the accompanying table Votes Per Delegate, ranked by State (simplified using just the 2004 election) does not comport with the one-person one-vote ideology of the Democratic rank-and-file. (The table can be viewed here; for an explanation of the Republican figures, see the endnote below.)

In the least populous jurisdictions, Wyoming and the District of Columbia, each delegate stands for about 4,000 and 5,000 Democratic presidential voters respectively, whereas in Ohio and Florida a delegate represents about 17,000 Democratic presidential voters. Obamas accurate claim that he has won more states and more pledged delegates must be tempered with the fact that his tally, assuming he wins upcoming races in South Dakota and Montana, will include eleven of the twelve most over- represented states on a one-person, one-vote standard. Rhode Island is the only such state in the Clinton column. Of the twelve most under-represented, Obama has won only four.

The table further notes how the national Democratic presidential vote may be dividedas majoritarian-thinking PLEOS are wont to dointo eighteen Clinton states and thirty-one Obama states depending on which candidate won or seems likely to win its primary (that is, to have garnered a majority of the popular vote without regard to proportional delegate yields). Clinton partisans are not likely to overlook that if the Clinton states are taken to include Pennsylvania, Michigan and Florida (though latter two states are not attributed to her in the table), they contain 60 percent of the nationwide Democratic constituency as defined by the rules. On this calculus the partys center of gravity resides squarely in the Clinton states.

There is, however, no single fairness or will of the people statistic that can uniquely determine how PLEOs should vote. In the desperate search to hide behind a magic number, many would like to sum votes across jurisdictions and voting venues, as if the convention system were a time-lapsed direct primary traveling from state to state. But the PLEOs are there precisely because it isnt. The independent judgment of party leaders and elected officials is indispensable in a close contest because the voting numbers are so incommensurable, the party so diverse, the paths to becoming a pledged delegate so miscellaneous, the criteria for presidential excellence so disparate, and the political landscape so changeable.

Certainly, there is no basis for the notion that unpledged PLEOs by virtue of exercising conscientious and timely judgment are somehow less legitimate than delegates who are bound to vote robotically. Exhortations to the PLEOs to repudiate their unpledged status and bind themselves unthinkingly to the majority vote of the pledged delegatesin their district? in their state? in their region? in the fifty states and the District of Columbia? in the entire convention including the non-voting territories? in states with direct primaries only on the ground that caucuses are tainted by the same principle of intensity of commitment that allegedly delegitimizes the PLEOs themselves?collapse under the most elementary critical scrutiny. To the contrary, according to the rules, the thinking delegates are uniquely charged with institutional responsibility for the National Democratic Party. It is their job, among others, to bridge the gap between the proportional representation basis of the pledged delegates and the majority-rule imperatives of victory.

ate in the process, the remaining unpledged delegates will therefore consider more practical numbers put forward quietly by the Clinton and Obama camps. Each campaign will try to translate the proportional state-by-state nomination contests into a majoritarian calculus of the 270 electoral votes needed for presidential victory against McCain.

For political leaders versed in majoritarian thinking, a candidate who has failed to win the popular majority in a states primary has a heavy burden of proof to show that he or she could carry it in the general election. Take the Big Eight industrial states with their 176 electoral votes crucial to a 2008 Democratic presidential victory: California, New York, Florida, Pennsylvania, Illinois, Ohio, Michigan and New Jersey (I exclude Texas and North Carolina as irretrievably red states against McCain, as well as Georgia which went Democratic once for Bill Clinton). Of the Big Eight Obama has won only his home state of Illinois with twenty-one electoral votes, so a larger burden of proof rests on him to show what portion of the remaining 155 large-state electoral votes he can deliver in the general election.

At this writing, the closed primary of Pennsylvania, where the loser cannot blame Republican interlopers, is the only remaining Big Eight state in which Obama can demonstrate his prowessunless of course, broader considerations of legitimacy induce the rules and bylaws committee of the DNC to provide further testing grounds in Florida and Michigan. In 1976 Jimmy Carters victory in Pennsylvania sealed the nomination for him. A victory in Pennsylvania could provide undecided PLEOs with similarly strong validation that Obama can deliver those twenty-one electoral votes, while a loss on the heels of Ohio would present them with a prima facie case for reserving judgment.

The primary results place a comparable burden on Clinton in Illinois and the ten other Obama blue states that have voted Democratic in the past four presidential elections. These total ninety electoral votes. Normally, most of them would be guaranteed to any Democrat, but in two Great Lakes states with twenty electoral votes, Wisconsin and Minnesota, Clintons primary performance was so lackluster as to cast doubt on her ability to carry them in November.

Then both candidates need to show how the results in potential swing states will translate into victories in the general election. Each candidate draws on a distinctive political geography. For both achieving 270 requires not just most of the Big Eight but every available smaller state on the map. As for the solidly red states that have voted Republican in the past four elections, it seems doubtful whether either of the two candidates can make inroads here, though Obamas partisans believe his primary performance bodes well for him in Virginia and North Dakota.

On balance Obamas burden of proof to PLEOs is greater because he has piled up more of his proportional margins in solid GOP red states that are less likely to vote Democratic in the general election. And he has relied much more heavily than Clinton on caucuses, which are weak indicators of general voting trends. On the other hand, by bringing new voters into the party he has demonstrated a coattail effect especially persuasive to officeholders in marginal districts. Moreover, the political geography of his appeal provides greater outreach from the traditional Democratic base. He also brings an intangible factor: he impresses his followers as a once-in-a-generation charismatic political talent, as other Democratic fresh facesJohn Kennedy, Jimmy Carter, Bill Clintonhave in the past.

While it is premature to analyze the electoral numbers in any great detail here, it is already clear that McCains unencumbered nomination and his crossover appeal do not give the Democrats much margin for error. By my preliminary back-of-the-envelope count, which is generous to both candidates, neither can get a strategic advantage over McCain without the seventeen votes of Michigan, a core blue state. If either can command in addition Floridas twenty-seven electoral votes presidential victory is virtually assured.

ll this presents a rules problem because, as is now well known, the DNC, in separate rulings, stripped first Michigan and then Florida of representation for holding their first determining event in January. At the time, it did not seem likely that taken together the two states might hold the balance both for the nomination and the election. But now the Florida-Michigan problem has emerged as a crisis of legitimacy, credibility and competence for the entire party leadership.

The rules of both parties provide a 50% penalty for early scheduling of primaries. But the Democratic rules differ from the GOP by giving interim discretion to the national committees Committee on Rules and Bylaws both to waive and increase the figure. For reasons that seemed defensible at the time, the Committee chose to seat without penalty full delegations from three smaller states with early primariesIowa, New Hampshire and South Carolinabut exacted a Draconian 100% penalty upon Florida and Michigan, which even with their full delegations are among the five most under-represented states on the one person, one vote standard that Democrats profess to hold dear. The effect, as Table I also makes clear, was to deprive of representation six million Democratic presidential voters comprising more than 10% of the partys constituency as defined in the rules. By contrast, the GOP rules require equal application of the published 50% penalty to all affected states, subject to waiver only by the national convention upon recommendation its credentials committee, or a 25% minority report thereof.

The Democratic order of precedence creates two options for state parties. National party rules take precedence over state law, which takes precedence, in turn, over state party rules. In the event of a conflict between national rules and state law, the state party can argue that it has taken provable positive steps to make changes in state law and request a waiver of penalties. Both Florida and Michigan presented evidence to this effect to the DNC but were denied representation. Florida had the stronger case because the GOP controls both houses of the legislature and the governorship. Though Florida did not stress this point, the driver of its week-early primary was arguably not some mischievous desire to disenfranchise Democrats (since the Florida GOP delegation was also cut in half) but to focus urgent attention, without the distraction of Super Tuesday, on a property tax relief referendum to rescue the collapsing Florida real estate market.

The Democratic rules provide a second, backup provision enabling state parties to put in place an alternative process outside the state legal requirements. Riven by Clinton-Obama rivalries, both the Florida and Michigan state parties have declined to do this. The definitive decision of the Executive Committee of the Michigan State Democratic Party to forego the alternative process option came on April 5.

In other words, six million Democrats in two pivotal states are being deprived of meaningful representation in the most exciting and closely contested campaign in a generation by quasi-legal actions of the national and state Democratic parties that will appear to them as unjust. The responses of Clinton and Obama and of the elected leaders of the three main groups of PLEOsthe DNC, the Democratic members of Congress, the Democratic Governors Associationhave not straightforwardly addressed this problem.

Until it was almost too late for a state-initiated solution, the Clinton campaign insisted that the Florida and Michigan votes be counted as if the rules did not exist. Hillary Clinton consistently stated that the January election results should hold even though they fell outside the pre-agreed procedures. She knew, of course, that Obamas name had not appeared on the Michigan ballot.

The Obama campaign wants two token delegations to be seated as if the voters did not exist. Barack Obama supports solutions that would attribute virtual pledges to the delegates to spare Michigan and Florida (and his own vote and delegate count margins) the inconvenience of soliciting any direct expression of popular will. It has been reported, in addition, that Obama partisans have actively intervened to thwart reprise primaries in both states.

Leaders of the three main groups of PLEOs (DNC Chair Howard Dean, Speaker of the House Nancy Pelosi, and Tennessee Governor Phil Bredesen, who chairs the Democratic Governors Association) have tried to change the subject by proposing various gimmicks to force an early end to the nomination campaign without any resolution of the legitimacy problemthis in a year that they simultaneously trumpet as the crucible of a new generation of idealistic party adherents. They talk as if the states of Michigan and Florida did not exist.

The most important group has yet to be heard from: the Committee on Rules and Bylaws of the DNC. It can exercise the same interim authority that created the Florida-Michigan problem to propose a way out. Its co-chair, James Roosevelt, Jr., (grandson of FDR) has been quoted as saying that a significant minority of his committee are more committed to the institutional party than to tactical advantage for either campaign. That remains to be seen.

Like all the other main actors in this drama, the members of the Committee on Rules and Bylaws are PLEOs. Calling them super-delegates gives a misleading impression of conspiratorial elitism. In point of fact, the 800-odd PLEOs are the entire national leadership of the Democratic Party under another name. They have been designated ex officio unpledged delegates to provide a failsafe to the malfunctions of proportional representation. Most would obviously prefer a purely ceremonial role walking the convention floor in their delegate ribbons giving interviews to the press. But this year they have to do the job that they were put there to do.

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.

Unlike the Republican convention, the Democratic apportionment formula falls within the range to be expected under the U.S. federal system. To illustrate the contrast between the party conventions, the attached table makes the same calculations of 2004 presidential voters per delegate for the 2008 GOP convention. The ratio between the two least populous jurisdictions, District of Columbia and Wyoming, and Michigan, are 34:1 and 6:1 respectively far beyond the ratio of 3.7:1 that is to be expected in the Electoral College system.
Republican deviations fall so far outside the range of the Electoral College because in 2000 the GOP abandoned that historic standard as the base of its convention. It increased the at-large (Senatorial) portion of its allocation formula by 67 percent, with no corresponding increase in the Congressional district portion. It broke another age-old party tradition of not seating ex officios by adding for the first time its own version of super-delegates in the person of Republican National Committee (RNC) membersthree further at-large delegates from each state regardless of population These two measures more than doubled the number of at-large delegates in the base of the convention with no corresponding increase in Congressional district delegates. Principled members of the conservative faction on the convention committee on rules and order of business opposed these changes on Madisonian grounds of constitutional balance. They insisted on rare roll-call votes, which they lost.

Josiah Lee Auspitz

Josiah Lee Auspitz has written and testified on party rules over the course of forty years. His “A Short History of Republican Bonuses” appeared as an appendix to a longer article on “Party Rules” in The 1984 Election and the Future of American Politics, edited by Peter W. Schramm and Dennis J. Mahoney, (Carolina Academic Press and the Claremont Institute for the Study of Statesmanship and Political Philosophy, 1987), pp. 133-181.