This weekend the Rules and Bylaws Committee (RBC) of the Democratic National Committee will meet to address a problem of its own making: the reduction to zero of the Michigan and Florida delegations as punishment for scheduling primaries before Super Tuesday.
Most Democrats now seem agreed that this penalty is excessive, and that the Michigan and Florida delegations need to be seated at the Denver convention. But it is less widely understood that this level of punishment was not required by the Democratic rules in the first place. To the contrary, the 2008 Rules for Delegate Selection nowhere specify or require a 100-percent penalty for timing violations. They are explicit, however, in laying out three more measured options:
1) The normal penalty — the only figure suggested in the rules — is an automatic 50-percent reduction in pledged-delegate strength (the same percentage used by the GOP this year not only for Florida and Michigan, but also for the January nomination processes in Iowa, New Hampshire, South Carolina, and Wyoming).
Also, a state must entirely eliminate the unpledged party leaders and elected officials, the so-called “superdelegates” who are held most responsible for the infraction.
This certainly has the ring of justice in Michigan, where the senior Democratic senator led and the Democratic governor supported a January primary effort after failing to win approval for it from the DNC.
Had the RBC simply stuck with the rules, the delegations of Michigan and Florida would be diluted but seated. The dilution would serve as a disincentive for early timing, much as a positive incentive for late timing this year gives North Carolina and Indiana 30-percent bonuses for scheduling their primaries in May.
The 100-percent penalty, then, is discretionary, under a proviso that permits “additional sanctions.” But its severity should have counseled timely and good-faith explorations of two other paths (laid out in rules 21.C and 20.C.6). James Roosevelt Jr., the co-chair of the RBC, has confirmed that these two rules will figure belatedly in the May 31 deliberations in ways specific to the differing facts and circumstances of Florida and Michigan.
2) Rule 21 (“State Legislative Changes”) precisely anticipates the current situation in which state law and national-party rules conflict. It provides for a two-track remedy: legislative and extra-legislative (“party-run”). The state parties are obliged to take “provable positive steps to achieve legislative changes” to align state law with national party rules. But there is also a backup provision for the national party to require an “alternative party-run system of delegate selection” as an extra-legislative remedy:
A state party may be required by a vote of the DNC Executive Committee upon a recommendation of the DNC Rules and Bylaws Committee to adopt and implement an alternative Party-run delegate selection system which does not conflict with these rules, regardless of any provable positive steps the state may have taken. (Rule 21C)
I have emphasized the words that place the initiative for an alternative process with the RBC and DNC executive committee. The triggering step — a recommendation from the Rules and Bylaws Committee — was never taken. The intensive discussions that did take place regarding state legislative actions are irrelevant to the extra-legislative option laid out in 21C. And the doubtlessly sincere efforts by DNC Chairman Howard Dean and his staff to persuade the states to set up party-run processes on their own were, as we shall see, short-circuited by the flawed presentation of them in early March as unmandated and unfundable by the DNC Executive Committee.
3. There is another extra-legislative path envisaged in the rules, a special committee:
pursuant to Rule 21.C., recommending the establishment of a committee to propose and implement a process which will result in the selection of a delegation from the affected state which shall (i) be broadly representative, (ii) reflect the state’s division of presidential preference and uncommitted status and (iii) involve as broad participation as is practicable under the circumstances (Rule 20C.6)
Here, too, the initiative lies with the RBC. Note that item (ii) anticipates and applies to the unusually large “uncommitted” vote in Michigan encouraged by the Obama and Edwards campaigns after they withdrew their candidates’ names from the ballot. Recognizing the “uncommitted status of the primary voters” is defined earlier in the rules as an approved standard for “fair reflection of presidential preferences” (Rule 13).
The practical reason these three more-moderate options — 50-percent reduction, party-run processes, special committee — were not explored initially is that the RBC wanted to be hardnosed. It projected that the 100-percent option would not affect the final outcome in any case. Once this projection proved wrong, the leadership on the issue passed to Dean, who compounded the original Draconian excess with procedural lapses.
On March 5 Dean issued a statement placing the burden for further action entirely on the two state parties. No mention was made that party-run processes must first be set in motion by a vote of the DNC executive committee. Within days of this omission Dean appeared on ABC’s This Week to publicize his refusal to contribute any DNC funds to whatever do-over the states might propose. Again, he overlooked a crucial point in the rules requiring the DNC to “allocate sufficient resources and staff” to the RBC to “enforce . . . delegate selection requirements for the national and state Democratic parties. (Rule 19G and A.)” In sum, during the crucial period Dean’s leadership neglected the responsibilities of the DNC itself.
Hillary Clinton, who won the majority of the popular vote in both states, has been able to use this disarray to her advantage. Notwithstanding that some of her backers were architects of the 100 percent penalty, she draws on a widespread democratic sense that ordinary voters should not be disenfranchised by party insiders. If the sides were reversed, Obama would surely make the same case.
Once the delegations are restored to some degree, Hillary would like to allocate them according to the votes cast — her slogan is “count the votes.” The rules stipulate that so long as the candidates did not campaign in the two renegade states prior to the primaries, they are entitled to their fair share of any reduced or reinstated delegation as determined by the original primary result.
Obama and his campaign director have understandably proposed an alternative, brokered approach in which the two campaigns decide the allocation in a negotiated settlement — this would “seat the delegations” without grounding them in the votes cast. This position cedes the moral high ground by ignoring popular will.
It and other brokered approaches, moreover, fall outside the quasi-judicial authority of the RBC.
The committee operates under an explicit charge to take actions consistent with the rules. It cannot simply improvise a solution. Its repertoire is limited to a few set moves. Since under standard practice a reconsideration is always in order until definitively rejected by vote, the RBC can reconsider its past discretionary actions on the basis of new evidence or new arguments, which is what Florida is asking.
It can put its imprimatur on a “committee” approach that meets the three standards laid down in rule 20C6; in effect, this is what a blue-ribbon committee from Michigan is asking be done for its challenge. The RBC can restore either or both delegations to 50 percent of their strength. Or it can restore them entirely while invoking other sanctions detailed in the rules, such as denial of seats on convention platform and credentials committees. It can attempt a clean and decisive resolution on May 31, or it can prolong the process by recommending further actions.
And regardless of what it decides, either or both campaigns can take their cases to the credentials committee of the convention, and from there, with the signatures of as few as 20 percent of the credentials committee members, onto the convention floor. The strategic placement of the two states in the Democrats’ electoral-college calculus give a credentials fight a greater-than-usual potential for spillover into the general election.
But whatever happens, we can be sure that the Democrats will reunite in the end with the customary grace described in Irish brogue in 1900 by Mr. Dooley, the mythical Chicago bartender created by the humorist Peter Finley Dunne:
Whin ye see two men with white neckties go into a sthreet car an’ set in opposite corners while wan mutthers “Thraiter” an’ th’ other hisses “Miscreent” ye can bet they’re two dimmycratic leaders thryin’ to reunite th’ gran’ ol’ party.
– Josiah Lee Auspitz has written frequently on party rules for a variety of publications, including Newsweek and the New York Times.