Rules matter. They may or may not be fair, but they always have an impact. Moreover, understanding the rules can be an important political tool while not paying adequate attention to them can cause all sorts of problems.
There’s been a lot of talk recently–much of it complaining–about the rules governing the nominating processes in both the Democratic and Republican Parties. In quite different ways, both Donald Trump and Bernie Sanders have argued that the system is rigged and the rules are unfair.
In Trump’s case, he has actually benefitted from a couple of rule changes that the Republican National Committee instituted after the 2012 election. It’s instructive to consider those changes because they are, as is so often the case, rules intended to correct what was perceived as a problem in the past.
DONALD TRUMP AND THE NOMINATING PROCESS
The RNC hoped to get a nominee selected relatively early and without the circus atmosphere that characterized the 2012 nominating process. In pursuit of that goal, the party reduced the number of authorized debates and front-loaded the primary schedule.
As a result, Trump won several primaries before he had been seriously scrutinized by the press and before his opponents challenged his candidacy. The absence of challenges came from lack of political courage by the other candidates, but the calendar made the problem worse. What the RNC didn’t anticipate when it reduced the number of debates was how crowded the stage would be.
Trump’s complaints about the delegate selection process on the other hand reflect a lack of organization within his campaign. Those rules were knowable to all prior to the start of the nominating season. Trump’s inattention to those rules may not end up costing him the nomination, but it has certainly extended the drama of the race.
THE SANDERS CHALLENGE
Sanders, meanwhile, has argued that the existence of super delegates makes the nominating process unfair. Again, he knew about super delegates before he started his campaign, or should have, and more recently has shifted his stance and is actively trying to woo them.
The reason for their existence, whatever you think of it, has a rational basis as far as the Democratic Party is concerned.
The history here is a little longer. After the 1968 election, in which Hubert Humphrey won the nomination without entering a single primary, Democrats radically overhauled their process. New rules led to most delegates being selected in state primaries and to requirements about the diversity of those delegates. The new highly democratized rules led to the nomination of George McGovern in 1972 and his debacle in that year’s General Election.
Over time, the Party instituted buffers to regain a bit of influence in the nominating process. Political bosses did not come back, but super delegates–key party leaders in each state–became a significant part of the process. Super delegates enable the party establishment to tip the balance if there is no clear winner and reduce the chances of a candidate from way outside the mainstream getting the nomination.
In 2008, Barack Obama understood the nominating process much better than Hillary Clinton did and ended up winning a long, contested race by doing better in caucus states, picking up delegates where the rules were fluid, and, as his momentum grew, appealing successfully to super delegates. Hillary Clinton seems to have learned those lessons and has applied them successfully to her 2016 campaign.
RULES AND ELECTIONS
Is this a rigged system? It certainly is structured to make it difficult for an outsider, an insurgent, to win. Bernie Sanders is discovering that; although given that he never called himself a Democrat before this election cycle, he shouldn’t be surprised. Yet, Donald Trump, who in many respects is at least as much an outsider as Sanders, is poised to win the Republican nomination.
And, as much attention as the rules of the nominating process have received this year, there are arguably several other rules that are actually much more significant in terms of the legitimacy of the election. One involves the efforts of a number of states to disenfranchise some voters through voter ID laws. Don’t kid yourself; anyone arguing that there is widespread voter fraud has a partisan political agenda and is trying to use the rules to influence the outcome. There should be an overwhelming presumption that everyone is entitled to vote unless a clear and decisive case can be made about specific abuses.
The rules about money in elections, altered dramatically by the Supreme Court in its Citizens United decision, have had a significant distorting impact on the electoral process. Presidential candidates of all parties have figured out how to raise obscene amounts of money and, to some extent, balance each other out. The really perverse impact has been in state and local elections where dark money can really tilt the playing field.
Another misguided Supreme Court decision that changed the rules for the worse was its nullification of key sections of the Voting Rights Act. The results have already been evident in places like Arizona, where state officials reduced the number of polling places by two-thirds and left voters to stand in line for hours. Unfortunately, that’s not the only example.
Rules are not neutral. The Supreme Court’s intervention in the General Election of 2000 may be the most disturbing example of all. A 5-4 majority of the Court overrode a popular majority for Al Gore as well as local election procedures in Florida.
In 2016, the ultimate outcome of the General Election is unlikely to be determined by unfair rules or manipulation of them. However, the debate about the rules may well be important in turning public attention to the many imperfections in our electoral system. There will undoubtedly be efforts by both parties after this year to make corrections, but those changes are also likely to have as many unintended as intended consequences.