Politics & Policy

Reading Rule 40: It Will Not Make or Break Either Trump or Cruz

Trump greets supporters at a rally in Pittsburgh, Pa., April 13, 2016. (Jeff Swensen/Getty)

As the prevailing winds shift the conventional wisdom about the likelihood of an open convention, a great deal of attention has been showered on the rules that might govern such a contest — and rightly so.

Much of the chatter has focused on a previously obscure provision called Rule 40(b), which stipulates the criteria a candidate needs in order to be placed into nomination and therefore be eligible to win. It’s important to understand the context in which these rules arose, the intentions behind them, and their practical effects. And while each campaign will have its own strategy in the rules-committee meeting, the status quo — the current iteration of Rule 40(b) and the language of Rule 16 that governs it — has advantages and liabilities for certain candidates.

First, it’s necessary to note that the rules themselves are a moving target. Strictly speaking, they don’t exist yet. What does exist is a template in the form of the Tampa rules, since amended several times by the standing rules committee of the RNC. But the final terms are at the discretion of the 112-member rules committee at the convention and, ultimately, at the whims of the full delegation on the floor.

If it sounds a bit like Calvin and Hobbes’s Calvinball — where you make up the rules as you go along and you can’t play the same game twice – that’s because it is. Every convention is different, as are its circumstances and constituent parts. Nobody wants to be bound by the rules set four years ago. And the delegates themselves are largely still being selected, even in states that have long since voted. But, practically speaking, it has never been an issue. In the modern Republican-primary era, there hasn’t been a single second ballot, and the one nominally contested convention, in 1976, was controlled by a sitting president, Gerald Ford. Which is to say the rules are typically written by and for the presumptive nominee to suit the circumstances.

If it sounds a bit like Calvin and Hobbes’s Calvinball — where you make up the rules as you go along and you can’t play the same game twice — that’s because it is.

And it’s impossible to appreciate the practical effects of Rule 40(b) without accounting for its intentions. The 2012 primary was a hard-fought race that lingered into the early spring, well after most observers expected it to be over. Rick Santorum and Newt Gingrich each gave Mitt Romney a run for his money. But by late April, Romney had secured a majority of delegates and was declared the presumptive nominee. Yet while Romney’s chief rivals stood down, Ron Paul and his foot soldiers proceeded to mount a power play through the delegate-selection process. Paul had no shot at the nomination, and with a mere 177 bound delegates, he wasn’t even the runner-up, but in mid May, he turned his attention from the ongoing primary contests to the state and local party conventions.

By the end of the messy process, Paul had at least a disputed claim to delegate majorities in six states, hypothetically enough to earn a coveted speaking slot as a formally nominated candidate. Or at least he would have had a spot according to the 2008 rules, themselves conjured up to avoid a similar embarrassment for McCain. So the Romney-friendly rules committee raised the bar from a delegate plurality in five states to a majority in eight (recall that Paul had a majority in six). And perhaps more fatefully, it tweaked 40(b)’s “shall demonstrate support” language to require a “certificate evidencing affirmative written support.” Despite loud jeers from his fans on the floor, Paul was out of luck.

Thus, Rule 40(b) was entirely about optics and stage management. It wasn’t about limiting whom delegates could vote for or who might conceivably win. Rather, it was about maintaining the pageantry of Romney’s televised nomination. In fact, one look at the unofficial roll from 2012 gives you an idea of how little being “on the ballot” mattered, even under a highly restrictive Rule 40(b). Paul himself received 190 votes. Santorum and Huntsman, who had released their delegates and themselves endorsed Romney, fetched nine and one, respectively. Even Michele Bachmann and Buddy Roemer, erstwhile long shots who never even made it to Iowa, each received the support of a lonely delegate. Another 23 delegates elected to abstain altogether. These 235 votes were not officially recorded by convention officials, but neither were they counted for Romney, the only candidate formally placed into nomination.

Which is to say that 40(b), however retained or amended by the delegates in Cleveland, will not be what makes or breaks Trump, Cruz, or even John Kasich. The winner will need 1,237 votes, and Rule 40(b) does nothing to make that chore any easier.

#share#What matters greatly is what happens to Rule 16, which governs the terms of a bound delegate’s obligation. Rule 16(a)2, another provision necessitated by the Paul insurgency, accounts for potentially hostile delegates who might go rogue: It directs the convention secretary to disregard any delegate calls to the contrary and record votes as bound under state law or party rule.

The Tampa version of this provision had real teeth: Any delegate who voted or affirmed support for the nomination of a candidate other than the one he or she was bound to was considered to have concurrently resigned. Subsequent changes have simplified the process by directing the convention secretary to proactively record all votes as bound, removing the need for such punitive measures. Instead of kicking delegates out for violating their obligation under the rules, such votes simply “shall not be recognized.” And while Tampa’s version of 16(a)2 explicitly exempted delegates bound to inactive campaigns, the amended rules are silent on the matter, leaving the status of the bind up to the respective state parties, potentially limiting the pool of first-ballot free agents.

Perhaps most significantly, Rule 16 did not and does not provide a mechanism for forcing bound delegates to provide the aforementioned “written affirmative support” required under Rule 40(b). In other words, so-called Trojan delegates could hypothetically infiltrate a bound delegation and withhold the support necessary to be placed into nomination. And given that this support must be demonstrated affirmatively before each round of balloting, according to rules guru and political scientist Josh Putnam, one can envision a scenario where names might be added or even subtracted from formal consideration as delegations become unbound.

Ultimately this is why Rule 40(b) matters less than meets the eye. First, there is no requirement that one win a majority of delegates in eight states to be placed into nomination. Many have looked to the proportion of delegates bound by the results of the various primaries, caucuses, and conventions as the barometer for satisfying the rule’s requirements. Such a reading would place Trump squarely above the eight-state threshold, with Cruz expected to clinch this weekend in Wyoming. The logic follows that John Kasich and his single home-state win could never qualify to be placed into nomination.

#related#But victories and support pledged by state-party rule are irrelevant to 40(b) as currently written. Absent a significant change in Cleveland, it will still be incumbent on the campaigns to demonstrate the necessary support to be placed into nomination, most likely in the form of a signed petition. And as a practical matter, it will be up to the whims of the delegations and their members to decide when and whether to affirm (or even withdraw) support for a given candidate. This dynamic puts a premium on electing loyal delegates, not just to secure votes on subsequent ballots but for Rule 40 purposes as well.

The rules fight will be critical, and we would be well advised to keep an eye on who wins these committee slots. The interpretation of the rules could be even more significant. But barring a bound (or nearly bound) majority or changes explicitly restricting the scope of voting options, the status quo template makes a second ballot more likely than not, no matter what happens with the vaunted Rule 40. That alone should make Team Trump nervous as they limp through the delegate- and committee-selection process. Unless Trump is suddenly able to channel his inner Ron Paul, it looks increasingly like first ballot or bust for the Donald.

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