Monday, March 07, 2016

Dreaming of the RNC Smoke-Filled Room

by Michael Dorf

As the betting now stands, informed observers think the most likely outcome of the Republican Party primaries is that Donald Trump will go to the convention with a majority of delegates and become the nominee. But there remains a serious possibility that no one will have a majority. Some people are now arguing that in such a scenario, the candidate with the most delegates (presumably Trump but possibly Cruz), should get the nomination based on small-d democratic principles. But for that to happen, the non-Trump (or non-Cruz) delegates would need to agree.

Accordingly, I set aside the possibility of the nomination going to Trump (or Cruz) simply on the ground that he has a plurality, and ask what a negotiated resolution looks like. Suppose, just for illustrative purposes, that the candidates arrive at the convention with the delegates split as follows:

Trump: 45%
Cruz: 30%
Rubio: 19%
Kasich: 6%

The exact numbers aren't important but the following is: Trump could get to a majority by combining with any of his three rivals, whereas all of the other three candidates would need to combine together to block Trump. The first ballot would be indecisive. Then the bargaining would begin. After a brutal campaign, it's hard to imagine any of the other remaining candidates throwing in with Trump, but they have all pledged to support the nominee, and so you never know.

Would Kasich release his delegates to Trump in exchange for being his running mate? Presumably only if he doesn't have a better offer from Cruz and Rubio. It's easy to see either Cruz or Rubio offering Kasich the VP slot, but the problem each of them is what to do with the odd man out. The best deal for the GOP would go like this: Cruz and Kasich release their delegates to Rubio; Kasich becomes Rubio's running mate; and Cruz accepts an IOU in which Rubio promises to nominate Cruz to the Supreme Court.

But I doubt that Cruz would take that deal, especially if, as in my hypothetical scenario (and in current reality), Cruz has substantially more delegates than Rubio has. Cruz would then say (with some justification) that he should be at the top of the ticket. What does Rubio get? Maybe he settles for being Cruz's running mate, though I doubt it. Even if Rubio does settle, however, what's then left to give Kasich? If he would actually prefer something like Secretary of the Treasury to VP, then a deal is possible, but if not, then Kasich might take Trump's better offer of the Vice Presidency.

Or maybe not. Maybe Kasich thinks that a Cruz victory would be more likely than a Trump victory, and so, even if ideally he would prefer VP to Treasury (or something else), he might take the promise of a somewhat less desirable position for a greater chance of actually getting it come January 2017.

Nobody knows how any of this will play out, but my main point is that it should not be assumed that denying Trump a first-ballot nomination and rejecting a give-it-to-the-guy-with-the-plurality resolution necessarily means denying Trump the nomination. Because reaching a deal among all the non-Trump candidates would be more complicated than reaching a deal between Trump and one other candidate, Trump could still emerge as the nominee, even if he only has a plurality of delegates going into the convention.


David Ricardo said...

This is a great post, in part because it highlights what has been missing form all the punditry of a brokered convention, mainly if Trump is denied the nomination to whom does it go? There is obviously, as Mr. Dorf has illustrated, no good answer here. Ted Cruz knows that the establishment of the Republican Party will not turn to him which is why he is pursuing a strategy to win outright, and if not Trump or Cruz then it is unlikely the third or fourth place finishers could get the nod. And even if the bargaining that Mr. Dorf describes is attempted, the candidates may not have sufficient control of their delegates to direct their votes.

So what happens? The logical path is that the convention must turn to the 2012 candidates, Ryan and Romney. Ryan would seem a poor choice and unlikely to want to run, so that leaves us with Mitt. Yeah he said he doesn’t want it, (heh, heh, heh) but you know Mitt and he hasn’t completely ruled it out

Does anyone not think this was Mitt’s strategy in making his speech on Trump; not endorsing anyone and promoting a convention determined nominee? Well considering that Mitt was a raging liberal when running against Ted Kennedy and then a raging conservative when running for the Republican nomination, that he was for the individual mandate and then against it, that he opposed Trump’s plan on illegal immigrants even though the proposed the same plan (self deportation of 11 million of them) and that he thought Trump was fantastic businessman when he needed an endorsement and then a terrible businessman when he opposed Trump, well isn’t it apparent what Mitt is up to.

Craig J. Albert said...

The RNC can get its Rubio/Kasich ticket.
1. Kasich and Rubio delegates vote for Cruz.
2. Cruz is nominated, with the VP slot going to Rubio or Kasich.
3. The convention adjourns and the regularly scheduled meeting of the RNC takes place within five days. Frankly, if I were doing it, it would be immediately following the gavel.
4. The RNC determines that the nominee is not a natural-born citizen and there is therefore a vacancy; the RNC fills the vacancy with the other of Rubio or Kasich.

Scott said...

@Craig J. Albert: From the RNC's perspective, that would be the worst possible plan. Not only would Trump call shenanigans and likely mount a third-party run, but Cruz would certainly sue to have his eligibility determined, leading to a protracted court battle lasting into (probably) September, seriously interfering with the campaign season and giving the Democrats plenty of stump fodder about the disorganization of the GOP.

Craig J. Albert said...

Not really. Trump could not mount an effective third party run because he will have missed every filing deadline. After the convention he would simply be unable to run as a consequence of the various "sore loser" statutes. Cruz could sue, but as a purely associational matter -- this is a private club determining the qualifications of its internal leader -- my money would be on deference to the group. Of course, I have no horse in this race; I only want the president to be "not crazy".

Joe said...

If there is any shot of that happening -- I doubt it -- CJA, Cruz will find a way to establish beforehand the RNC accepts he is a natural born citizen. If Cruz gets the nomination that way, Trump or some Trump supporter very well might sue though.

I think it's interesting to think about these issues but if Rubio loses Florida, e.g., think there will be things done behind the scenes before the convention. Also, this is a good resource:

Also, it is my understanding that after the first ballot, the delegates are not bound, which gives each person a stick when dealing.

Steve Davis said...

I disagree with you about one thing -- I think if Cruz were to offer Rubio the VP spot in exchange for his support at the convention, Rubio would take the deal. He's not running for reelection and will be out of office a year from now. He's only 44. And in a lot of ways he's an ideal VP -- well spoken, but not too substantive. He's been a completely ineffective Senator. He'd see the VP spot as his best shot at the Presidency some day.

With Rubio's support and delegates, Cruz (assuming he's not too far behind Trump in the delegate count) would be in a good shot to convince everyone he's the right anti-Trump candidate. He wouldn't have to convince the "establishment", whatever that is. He'd just have to convince enough of the delegates to switch to him rather than Trump. I think the GOP would take that deal notwithstanding its reservations about him. Cruz would be a strong and dependable spokesperson for conservative values. Trump -- who knows?

I think a brokered convention is unlikely, though. The likelihood is that Rubio and Kasich are going to drop out after failing badly on March 15, and either Trump will emerge from those primaries having done well enough that he'll be impossible stop, or Cruz will do better than expected and be in a position to beat Trump in subsequent one on one contests to get the needed delegates. Either way I think it will wrap up by early June.

Michael C. Dorf said...

Whether Steve is right about what Rubio would do would depend on how far behind Cruz he is.

Note another issue, raised by my colleague Josh Chafetz on Twitter: After the first ballot, delegates are released. True. Therefore, the above scenarios depend on the ability of the people to whom the delegates are pledged to control those delegates even after the delegates are formally permitted to go their own way. We don't really know how effective they would be at this task because it has been so long since anything like this happened.

David Ricardo said...

Let's remember the 8 state rule, a candidate must win 8 states to be eligible to have his/her name placed in nomination. Kasich will certainly not make the cut, and Rubio is not likely to make the cut. So who do those delegates vote for?

Of course the RNC/Convention can always change the rule. But then they would need a person to head the ticket who had no sense of hypocrisy, a person who would let nothing stand in the way of securing the nomination, a person who felt he not only deserved the nomination but was entitled to it.

Romney - Rubio 2016!

Joe said...

The "sore loser" laws seem to me problematic on 1A grounds especially if we are going to be as open as one comment noted to consider the whole thing "private" association choices. OTOH, political parties and candidates on the ballot to my understanding isn't really purely private as seen by the white primary cases. So, would be interested to see how that scenario would play out ... though I think this will be handled somehow before the convention at any rate.

Justin said...

I'm sure the nativist base of the Republican party would be quite happy to pull the lever for the GOP nominee in that circumstances anyway. Since the GOP is going to lose in any event, why does it matter who gets what nomination or IOU?

The only question is which value the GOP is going to choose- democratic values, or anti-racist/fascist ones- and which it is going to rebuke.

Justin said...

Also, question.

Assuming Rule 40 stays in place, it's pretty clear that all 4 candidates are not going to win 8 states each. What does that mean for, say, Kasich's delegates? Are they not counted at all, or can they vote for anyone in the first ballot other than Kasich?

tjchiang said...

Your analysis assumes that a candidate's delegates are bound to him until he releases them or at least a candidate somehow exercises control over delegates (such as by picking delegates who are loyal to that candidate). That is not generally true--quite often the state party chooses the delegates, who bear no personal loyalty whatsoever to the candidate to whom they are bound--the only condition is that the delegate has to vote for the candidate on the first ballot. After that, those delegates (who are pretty much all GOP establishment types) will almost certainly abandon Trump. In fact, before that, they can (and very likely will) amend the convention rules in ways that are unfavorable to Trump.

So if the first ballot is cast and is indecisive, at that point Trump loses, and Rubio's chances look great.

Michael C. Dorf said...

TJ: As I wrote above in my response to Josh Chafetz, this is terra incognita. The RNC rules (which are, as you note, amendable, but not in time to change delegate selection), leave to state parties the particulars of how to choose particular delegates for particular candidates. My understanding is that the practice varies widely, so that Trump delegates from some states will in fact be Trump loyalists. Others will not be, but there also will be political pressure that could bind delegates to candidates.

tjchiang said...

I missed your response to Josh Chafetz. My understanding is also that the practice varies by state, so yes some of the delegates will be Trump loyalists, but many won't be. The point is that after the first ballot neither Trump nor Cruz will be in a good position to negotiate, since they will lose a significant chunk of "their" delegates, who won't really feel any loyalty to them either personally or politically, and so their influence diminishes.

Those delegates will presumably have real loyalties to more establishment-minded types such as Rubio, or perhaps Mitt Romney. Which is also why it has been Romney, Rubio and Kasich who have been talking up the brokered convention scenario while Cruz has been bashing it. While the actual percentages are hard to calculate at this time, estimating Trump at 45% and Cruz at 30% is significantly overestimating the amount of actual influence they would have at a brokered convention.

David Ricardo said...

Mr. Dorf's very salient points are reinforced by the David Brooks column today in the NYT. For example he says this.

"If Rubio and Kasich win their home states, Trump will need to take nearly 70 percent of the remaining delegates to secure a majority. That would be unlikely; he’s only winning 44 percent of the delegates now."

What an idiot! The reason Trump has only won 44% of the delegates is that they are awarded proportionally. But during and after March 15 they are award Winner Take All. As Trump has pointed out, had the contests so far been WTA the contest would have been ovef.

And then to compound his stupidity Mr. Brooks goes on to say this about a contested convention.

"The party would go to the convention without a clear nominee. It would be bedlam for a few days, but a broadly acceptable new option might emerge. It would be better than going into the fall with Trump, which would be a moral error, or Cruz, who in November would manage to win several important counties in Mississippi."

Really! Just who is this broadly acceptable new option? Brooks does name him and neither has anyone else writing about the contested convention. Why? Because there ain't one. Maybe it should be required that anyone speculating positively about the possibility of a contested convention should have to name who would emerge and explain how that would happen. Until someone does that, this talk of a contested convention is just that, talk.

Michael C. Dorf said...

One last speculation in response to TJ's follow-up: I wonder whether, in anticipation of delegates bolting, a candidate could release his delegates to another particular candidate FOR THE FIRST BALLOT. If so, then the negotiation could occur before that ballot.

tjchiang said...

I thought about that possibility as well. But, based on a quick look at GOP rules, there does not appear to be any mechanism to release delegates only for a particular alternative candidate (in effect transferring pledged delegates). A candidate can release his delegates completely, or not at all, but delegates do not seem to be legally alienable as such. But I suppose if Trump is at 49% and someone, e.g. Kasich, can credibly promise that at least some of his delegates are loyalists who will do what Kasich tells them after being released, then a pre-first-ballot deal is possible.