A Compromise on Superdelegates

Superdelegates should include only democratically elected officeholders, not those chosen by other members of the DNC.

As Democrats do the delicate dance of post-primary reconciliation, one idea being floated as a potential meaningful concession to the Sanders wing of the party is to eliminate any role for so-called “superdelegates” in the selection of future presidential candidates. To do so however, would be a mistake. Fortunately, a more attractive and principled compromise is available.

The Value of Superdelegates

Understanding the potential mistake requires a bit of reflection on the role of political parties and the function of the Democrats’ “super” – more properly called “unpledged” – delegates. Political parties, at root, are voluntary associations formed by citizens who unite in the hope that their candidates and ideas will prevail in local, state and national contests. Like all membership organizations, they follow rules intended to reward those who labor most intensively and most successfully on behalf of the organization. From this point of view, it is rational – and certainly not undemocratic – to make sure that the party’s presidential candidate is viewed as a solid choice by those most deeply invested in what marketers would call the party “brand.”

Both Democrats and Republicans designed their candidate selection rules in anticipation of some level of insider approval as a guarantee of party solidarity. For the GOP, the role of unpledged delegates has been effectively played – until 2016 – by a relatively select group of megadonors. Their participation is entirely informal, but GOP party rules are well tailored for a scenario in which a handful of party favorites each attracts the early support of enough megadonors to make a credible contest in the early states, from which a frontrunner will emerge. Later-voting states are allowed to award their pledged delegates on a winner-take-all basis (either statewide or by congressional district) so that whoever wins in the early skirmish of donor-vetted candidates will most readily become the commanding frontrunner.

In a normal-ish year, the “donor primary” would have created a field of, say, Jeb Bush, Marco Rubio, Ted Cruz, and Scott Walker. It’s likely then we would have seen a happy political party headed to Cleveland for its convention. What Donald Trump realized, however, is that he didn’t need the megadonors to compete, and that, with a hugely splintered field and his media savvy, he could win the early rounds with something far, far less than a majority. The winner-take-all contests cemented his lead, and because there is nothing like a well-established insider vetting process at the end of the contest, the Republicans are essentially stuck.

The Democrats follow a different and, by my lights, more democratic paradigm. There is less insider gatekeeping contemplated for the start of the process. Not only can anyone run who wishes to do so, the party allocates delegates in the state contests proportionally. This means that even a candidate who doesn’t win the early rounds can make a decent case for staying in. Like the Republicans, however, Democrats want a little insurance in case a candidate with little chance of winning the general election ekes out a majority of pledged delegates. That’s why the current rules allow those who have worked hardest for the party and who have carried its banner most successfully to cast what may become deciding votes in the final selection process.

A Better Compromise

For all the bitter talk about party “insiders” and “rigged” systems, there is nothing weird about how the vast majority of unpledged Democratic delegates are chosen. The unpledged delegates include all the members of the Democratic National Committee (DNC), all the Democratic governors, the president and vice president, all Democratic members of Congress, plus “all former Democratic Presidents, all former Democratic Vice Presidents, all former Democratic Leaders of the U.S. Senate, all former Democratic Speakers of the U.S. House of Representatives and Democratic Minority Leaders, as applicable, and all former Chairs of the Democratic National Committee.” In other words, except for the DNC members, each unpledged delegate became eligible for his or her position by winning a popular election under the Democratic banner. Giving these leaders a special voice in the selection of a national candidate seems no less (small-d) democratic than allowing only Democrats in the House of Representatives to choose their candidate for speaker. People who win general elections as Democrats also probably have some expertise in what it takes to win general elections as Democrats.

The tricky part is the DNC. 372 DNC members hold office either because they were chosen for membership by the state Democratic parties or because they were elected by a number of designated organizations representing particular groups of Democratic constituents or Democratic office holders. This roster includes, for example, “the Chairperson of the National Conference of Democratic Mayors and two additional mayors, at least one of whom shall be of the opposite sex of the Chairperson, as selected by the Conference,” or “the President of the Young Democrats of America and two additional members, at least one of whom shall be of the opposite sex as the President, as selected by the organization biennially in convention assembled.” Like the past and current national office holders who get to be unpledged delegates, everyone in this group can claim to have been chosen through democratic means to play their designated role.

The DNC, however, also has 75 additional members beyond the 372. These 75 are not elected to the DNC by the state parties. They are not chosen for their DNC roles by constituent Democratic organizations. They are chosen for committee membership by the other 372 DNC members. If they happen to qualify for unpledged delegate status because they fall within any of the other categories, they should not have to forfeit that status once appointed to the DNC. But it is problematic in principle to award unpledged delegate status to any members of the group of 75 who would become unpledged delegates only because other members of the DNC elevated them to that group.

Allowing the 372 DNC members who are already permitted to serve as unpledged delegates to augment their ranks by up to another 12 percent may be a perfectly fine way of managing the labors of the DNC. It arguably goes too far, however, to allow these elected DNC members to effectively augment their voice – without democratic imprimatur – by awarding unpledged delegate status to individuals with no clearer grass roots or constituent mandate. My proposal is, therefore, to reduce the number of unpledged delegates by disallowing anyone selected only by the other members of the DNC – but who would not otherwise qualify for an unpledged delegate role – to serve in that role.

In embarking on rules reform, Democrats should take note that Hillary Clinton did not need the unpledged delegate system to win in 2016. Had all delegates to the national convention been allocated proportionally based on state primaries or caucuses, she would still be the nominee. Trimming the potential role of superdelegates may likewise have little effect on the outcome of future presidential contests. Nonetheless, a rule change such as this can have important symbolic value in strengthening the party’s internal democratic character. But having some group of unpledged delegates remains a potentially important safety valve. If you don’t believe it, ask this year’s Republicans.

Peter Shane

Peter Shane teaches constitutional law at the Ohio State University's Moritz College of Law and is the author of Madison's Nightmare: How Executive Power Threatens American Democracy (University of Chicago Press 2009).