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Rules are for Fools: CAN the GOP Dump Trump?

7 min read

So, one of the questions that is on a lot of people’s mind lately is whether there’s any way that the Republican Party could somehow divest themselves of Trump at the self-declaredly Trump-themed convention in Cleveland. Well, the short answer is yes, they can. That’s the opinion of Curly Hoagland, who is in fact a veteran of the RNC Rules Committee and the 2012 Convention Rules Committee. Actually doing so, however, is another story. There are at least 3 obstacles to overcome before Trump could be forced out, the rays of hope for the #NeverTrump crowd aren’t very bright, short of burning it all down.

Everyone likes reading procedural folderol, right? I mean, that’s why you all come to Daily Kos, right? For debates on parliamentary procedure! Not for the pooties and pies, clearly.

Let’s go the rules!

Rule 12: Amendments. The Republican National Committee may, by three-fourths (3/4) vote of its entire membership, amend Rule Nos. 1-11 and 13-25. Any such amendment shall be considered by the Republican National Committee only if it was passed by a majority vote of the Standing Committee on Rules after having been submitted in writing at least ten (10) days in advance of its consideration by the Republican National Committee and shall take effect thirty (30) days after adoption.

That's the first problem. The RNC’s standing rules vastly limit the ability of the party (or the convention) to simply ignore and rewrite the rules as they go, and as you’ll see shortly, at least one rule covered by this amendment guarantees Trump as the nominee. On the other hand… in principle, these rules aren’t binding from year to year, which is key to Hoagland’s argument. Just as one Congress cannot take an action which binds the abilities of a later Congress, the RNC’s annual rules cannot tie the hands of the party in later years. Each year’s rules are formally adopted at the Convention, so if the Convention Rules Committee just refuses to adopt Rule 12, then anything can happen.

…which isn’t without dangers other than Trump. Once you’ve thrown open the gates by ditching Rule 12, there’s nothing stopping an unruly Rules Committee from tinkering around with things like Rule 1 (the fundamental structure of the party) or Rule 2 (the manner of election of party officials). It's like people who want to call for a Constitutional Convention; be careful what you wish for.

But, for sake of argument, let’s say that Rule 12 is scrapped (or changed in ways that allow all the following to happen—but note that Rule 12 prevents amendments to Rule 12, so…), but the party old guard keeps a tight enough rein to prevent absolute anarchy from happening. Well, immediately, anyway. What’s the next problem?

Rule 16: Election, Selection, Allocation, or Binding of Delegates and Alternate Delegates. (a) Binding and Allocation. (1) Any statewide presidential preference vote that permits a choice among candidates for the Republican nomination for President of the United States in a primary, caucuses, or a state convention must be used to allocate and bind the state’s delegation to the national convention in either a proportional or winner-take-all manner, except for delegates and alternate delegates who appear on a ballot in a statewide election and are elected directly by primary voters.

Well, that’s clearly got to go in order to dump Trump. This is (one) barrier to people who argue that the bound delegates aren’t really bound. Yes. They are. And you can’t get out of that hole just by amending 16(a)(1) to permit a “vote of conscience”. Because, continuing on, it turns out that their votes don’t actually matter anyway.

(2) The Secretary of the Convention shall faithfully announce and record each delegate’s vote in accordance with the delegate’s obligation under these rules, state law or state party rule. If any delegate bound by these rules, state party rule or state law to vote for a presidential candidate at the national convention demonstrates support under Rule 40 for any person other than the candidate to whom he or she is bound, such support shall not be recognized. Except as provided for by state law or state party rule, no presidential candidate shall have the power to remove a delegate.

So, the way the Republican Convention works is that delegates seated from most state elections don’t actually vote (exception: the ones that were directly elected themselves, as some states do, as well as ones specifically elected as unbound; Trump has a majority without any of those delegates, though, so that’s not a solution). I mean, yes, they vote (except that 40(a) means they probably don’t even do that, but moving on), but that vote is just for show. The Secretary actually records the way they were obligated to vote, and simply ignores any votes of conscience / unfaithful elector / shenanigans.

So, really, all of Rule 16(a) has to go. Amendments to Rule 16 are in fact permitted under Rule 12, but it’s pretty doubtful that any #NeverTrump effort will actually be trying to do this ahead of time under the rules as written.

And then, of course, there’s 40(b), which most of us have heard of by now.

Rule 40: Nominations. […] (b) Each candidate for nomination for President of the United States and Vice President of the United States shall demonstrate the support of a majority of the delegates from each of eight (8) or more states, severally, prior to the presentation of the name of that candidate for nomination. Notwithstanding any other provisions of these rules or any rule of the House of Representatives, to demonstrate the support required of this paragraph a certificate evidencing the affirmative written support of the required number of permanently seated delegates from each of the eight (8) or more states shall have been submitted to the secretary of the convention not later than one (1) hour prior to the placing of the names of candidates for nomination pursuant to this rule and the established order of business.

So, at the moment, Trump is the only candidate they’re even permitted to nominate. You can actually change Rule 40 without changing Rule 12 (it’s a “Convention” rule, whose changes are governed by Rule 42 instead), although for it to matter at all, the Rule 12 / Rule 16 situation would already need to have been dealt with. And then you’ll probably need to replace Rule 40 with something sane (good luck!), otherwise delegates will be able to nominate whoever they feel like, and … well, expect that to take forever as far as rounds of voting go.

Fun fact: Rule 40(b) was adopted specifically to prevent contested conventions. It also probably wasn’t thought through very well. Although unlikely in the modern political environment, what would happen in a crowded field where no candidate had the majority of delegates from eight (8) states? Yeah. That’s exactly right, which, if anything, is support for the idea that scrapping large segments of the party rules on short notice might be a thing.

Oh, and I didn’t quote it here, but 40(a) says that if there’s only one candidate who meets the requirements of 40(b), then there’s no vote at all; they just win automatically. Obviously, avoiding Trump means gutting this Rule, but that’s another piece they’ll need to tidy up after.

Is anything else in the rules actually good news for #NeverTrump?

Rule 38: Unit Rule. No delegate or alternate delegate shall be bound by any attempt of any state or Congressional district to impose the unit rule. A “unit rule” prohibited by this section means a rule or law under which a delegation at the national convention casts its entire vote as a unit as determined by a majority vote of the delegation.

A relic of an earlier time (originally proposed by Ulysses S. Grant), Rule 38 is the rallying flag for the #NeverTrump folks. Hoagland argues that Rule 38 really means  that bound delegates aren’t bound. Now, I’m no parliamentarian, but that’s pretty clearly not what it says; rather, Rule 38 prevents the delegates from a divided delegation from impressing their local majority on the delegation as a whole. That’s entirely separate from the idea of delegates being individually bound before the show starts.

On the other hand, the Convention could just hold a vote to suspend the rules, right?

Rule 32: Suspension of the Rules. A motion to suspend the rules shall always be in order, but only when made by authority of a majority of the delegates from any state and seconded by a majority of the delegates from each of seven (7) or more other states, severally.

Well, isn’t that fun? But it isn’t the carte blanche it appears to be. The Republicans’ parliamentary procedures defaults to Robert’s Rules of Order, and Robert’s places restrictions on what a suspension of the rules actually suspends. Specifically, only rules relating to parliamentary procedure can be suspended in this way; not other bylaws that effect who can vote (or how), nor can advance-notice restrictions be waived in this manner. In other words, once Rule 16 or Rule 40 are actually adopted, then this isn’t enough to save the convention from Trump.

There’s a very narrow window of time when Hoagland’s supporters might be able to reject the temporary rules from last year, strike the advance notice procedures from the rules set, cull the barriers to ejecting a clear presumptive nominee, desperately try to replace them with something else in an effort to avoid a riot on the floor of the Convention. Keeping in mind, of course, that any attempt to do so much dot it’s i’s and cross it’s t’s very carefully, lest Trump have grounds to sue over the results.

Is it possible to dump Trump? Yes. But it’s exceedingly unlikely, and what happens next would quite probably be worse.

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