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The GOP’s Race to the Rules

Republican leaders have given Donald Trump a ferocious pounding over the past week, and have come away with very little to show for their efforts. The Republican front-runner matched or outperformed his polling in the states voting last night, while establishment favorite Marco Rubio saw his support collapse. As anxious anti-Trump eyes turn towards the Republican National Convention in Cleveland, the RNC’s rules are turning against them.

Too much even has been made of Ted Cruz’s victories. So far, he has carried seven states, four of which—Iowa, Alaska, Kansas, and Maine—were caucus states, which he won while receiving only 100,000 votes. These victories are testimony to the strength of Cruz’s ground game in caucus states, not his broad support or his prospects for challenging Trump in the big-state primaries coming up. More significantly, Trump has blown up Cruz’s original strategy for winning the nomination, which depended on sweeping through the southern states on Super Tuesday and building a head of steam going into the big-state primaries. Cruz is left with no path to the nomination unless Trump is denied a majority and the Texas senator prevails in a contested convention.

If Trump fails to win both Florida and Ohio, his opponents could be in position to prevent him from sealing the nomination before the convention. Even if he wins Florida, which now seems likely, but loses Ohio, he might struggle to secure a majority with the full weight of the GOP establishment against him.

One of the singular misjudgments of the 2016 GOP campaign has been the widespread belief that the GOP’s rules give establishment candidates an advantage over the outsiders. This view prevailed into February, but now that a series of establishment favorites have been driven from the race, it’s clear that the delegate allocation rules and frontloading of southern states have favored the outsiders.

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Until very recently, pundits and party insiders thought the rules governing the national convention, likewise, favored party insiders. That assumption is now being questioned. The anti-Trump forces will find some of the convention rules useful in their efforts. For example, most states bind delegates to vote for a candidate based on the results of primaries or caucuses in their states. But that obligation extends only through the first ballot. If no candidate wins the nomination on the first ballot, delegates are released and can vote for any nominated candidate. If Trump fails to secure a first-ballot victory, all bets are off. Party leaders would then be in position to broker the nomination of a non-Trump, non-Cruz, maybe even non-candidate, like Paul Ryan—if they can get him nominated.

And there’s the rub. Rule 40(b) of the national convention rules requires a candidate to demonstrate the support of a majority of delegates in eight states in order to have his name placed in nomination. Like other rules adopted at the 2012 convention, Rule 40(b) was designed to tilt the tables in favor of establishment-friendly candidates. With the eight-state rule, GOP leaders sought to avoid floor demonstrations for outsider candidates, such as those who gave Mitt Romney fits through the 2012 primaries. The party wanted to keep the outsiders and their supporters off the stage and out of prime time so that President Romney could be renominated in a show of party unity.

But like the delegate allocation rules, Rule 40(b) has come back to haunt its authors. As things stand today, only Trump seems certain to reach the eight-state threshold. He has already won majorities of delegates in seven states—South Carolina, Alabama, Georgia, Massachusetts, Tennessee, Mississippi, and Hawaii. Cruz, having won majorities in four states—Texas, Kansas, Maine, and Idaho—also has a shot at the threshold.

So, what are the prospects for each candidate to reach the eight-state threshold? The variety of delegate allocation schemes, uncertainty about how many candidates will remain in the race, and the paucity of polling data makes handicapping the race-to-eight a speculative endeavor. But rough assessments of each state suggest how tough it will be for Rubio or Kasich to meet the requirements of Rule 40(b).

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As long as votes are divided among three or four candidates, only states with high thresholds and winner-take-all rules are likely to award majorities of delegates to a candidate. These states are:

Trump needs only one state to reach the eight-state threshold, but he’ll seek more than eight to deny them to his opponents. Based on recent polling, Florida, Ohio, Illinois, Wisconsin, and New York look like opportunities for him. Another four states—Connecticut, Maryland, Rhode Island, and New Jersey—look promising based on their proximity to states where Trump is performing well and older polling data. This gives the New Yorker at least nine states from which he can pick up the one state he needs to meet the eight-state threshold.

Cruz needs four states to reach the threshold. Assessing which states are opportunities is more difficult for him than for Trump because polling data and other information is lacking in these states. But his best opportunities appear to be in Utah, Nebraska, Montana, New Mexico, and South Dakota. Cruz also has opportunities in Guam, Northern Mariana Islands, and American Samoa where he has invested considerable resources, no doubt, with the eight-state threshold in mind. He would need to win majorities in four of these eight states and territories to reach the threshold, so he has a shot.

Kasich needs eight states, and his best opportunity appears to be in Ohio if he can overcome Trump’s lead in the state. Kasich’s prospects elsewhere are difficult to assess until the fallout from Rubio’s (probable) departure from the race takes shape. A three-way race might put California in play for him, but Trump and Cruz are likely to contend for the state, too. In any case, reaching eight states seems like a stretch for Kasich. With Puerto Rico under his belt, Rubio needs seven states, but with his recent collapse and likely defeat in Florida, the question is probably moot.

There’s a caveat to add to this assessment. Approximately 100 unbound delegates are scattered across the states, typically no more than three per state. A candidate who is close to a majority in a state might be pushed above 50 percent with the support of the state’s unbound delegates. Also, three states—Colorado, North Dakota, and Wyoming—do not bind their delegates, so their delegations could produce majorities and throw them in support of one candidate or another.

But all told, the most likely scenario is that only Trump and Cruz will meet the eight-state requirement of Rule 40(b). Kasich might not even come close.

After months of denial, GOP leaders have finally woken up to their Rule 40(b) problem. In theory, this can be fixed before or during the convention. For example, the rule could be changed to lower or eliminate the eight-state threshold. This would require a vote of the full convention. If Trump is short of a majority, his opponents might cooperate to change the rule and allow other candidates to be nominated. However, if both Trump and Cruz have qualified, they’d have the votes and a common interest to block a change in the rule.

But mischief can be made without making changes to Rule 40(b). For example, the rule could be reinterpreted—“support from a majority of a state’s delegates” might be interpreted to mean a candidate can claim a majority by combining the delegates he won in a state with delegates bound to other candidates who have left the race.

Or, a delegate bound to vote for one candidate could “support” the nomination of another candidate without violating Rule 40(b) or any other rule of the convention. The only action a delegate is bound to take is voting for a specific candidate on the first ballot. He or she is not obligated to follow the instructions of any candidate related to any other action that might arise.

Many delegates to the national convention will be party regulars who could be open to cooperating with the stop-Trump forces even if they are bound to vote for Trump. While these delegates must vote for Trump on the first ballot, they are not bound to oppose rule changes that he opposes. If they choose, they could vote for rules that make a first-ballot victory by any candidate more difficult, then vote for Trump on the first ballot. If Trump fails to secure a majority, the delegates would be free on subsequent ballots to support any other candidate who has been nominated. Of course, this would cause pandemonium, but party leaders might prefer a disastrous convention and a Trump third-party bid to a ticket with Trump at the top.

However, if Trump has between 45 percent and 50 percent of the delegates, the convention will probably balk at such machinations. Below 45 percent, and certainly below 40 percent, stop-Trump contingencies could come into play. But if Trump and Cruz, together, hold the lion’s share of delegates, party leaders might find recruiting Cruz to their plan difficult. If Trump has won the majority of states and holds a significant plurality of delegates, Cruz is unlikely to conspire with the party establishment to deny him the nomination. Such an act would violate Cruz’s basic value proposition for his supporters.

More likely, he and Trump would strike a deal. Neither one of them would want to unlock the door and allow party leaders and their loyalists to bring Paul Ryan, Mitt Romney, or any other establishment favorite onto the stage. Instead, Trump will offer Cruz the vice presidency because he knows when it’s time to deal. Besides, it would be one more twist of the knife in the party he and his supporters seem bent on destroying. And Cruz would accept the offer, because he’s ambitious and he’d be one very big step closer to being a heartbeat away from the presidency. Stranger things have happened this election season.

Philip Diehl is a former chief of staff of the U.S. Treasury Department, staff director of the Senate Finance Committee, and director of the U.S. Mint. 

14 Comments (Open | Close)

14 Comments To "The GOP’s Race to the Rules"

#1 Comment By Lee On March 10, 2016 @ 12:18 am

Thoughtful analysis, but doesn’t matter…the alleged establishment will quickly make themselves food for the worms.

#2 Comment By Alex On March 10, 2016 @ 6:10 am

Two last paragraphs are the essence of what is coming. It is likely already way too late for conventional trick (with or without capital “c”). And I’m everything but anxious over it. An owing-nothing-to-anyone guy as a president and a principled conservative as a veep would be a genuine wild card. The best chance in one’s lifetime.

#3 Comment By John Gruskos On March 10, 2016 @ 9:54 am

It was my understanding that rule 40B requires a majority of delegates in 8 *states*.

DC, Puerto Rico, Virgin Islands, Northern Mariana Islands, Guam and Samoa are not states.

The overseas empire is corrupting our political process by creating rotten boroughs for the establishment.

It is high time America dissolved the political bonds which connect us to these foreign nations in the Caribbean and Pacific.

#4 Comment By KevinS On March 10, 2016 @ 9:59 am

Alex — If a “principled conservative” endorses a non-conservative for president (I assume Cruz would endorse Trump if he is his running mate), what exactly are his “principles”?

#5 Comment By balconesfault On March 10, 2016 @ 11:06 am

@John Gruskos It is high time America dissolved the political bonds which connect us to these foreign nations in the Caribbean and Pacific.

You’re going to bum out a lot of corporations who love that “Made in America” label they can slap on products assembled by foreign contract laborers in Saipan.

#6 Comment By Philip Diehl On March 10, 2016 @ 12:16 pm

John Gruskos-

The convention rules consistently refer to states, not states and territories, and Cruz’s activities in the territories tends to
confirm this interpretation. However, if someone can find any rule or precedent that excludes territories as “states”, I’ll stand corrected. Of course, that would make Cruz’s path to eight states much more difficult.

Thanks for your comment.

#7 Comment By Scott_api On March 10, 2016 @ 12:44 pm

“principled conservative as veep” – so you don’t see Trump picking anyone who ran for the nomination this year?

#8 Comment By Clint On March 10, 2016 @ 3:27 pm

Cruz is a Career Lawyer/Politician, who worked for The Bush Election Campaign, who worked for The Bush Transition Team, who worked for The Bush Federal Trade Commission, who worked for The Bush Justice Department.
As VP, Cruz would be President of The Senate and Cruz is hated on both sides of the aisle The Senate.
It would appear to be counterproductive, since Trump will need to work with The Senate.

#9 Comment By balconesfault On March 10, 2016 @ 4:03 pm

If Cruz was my VP, I’d definitely want to hire a food taster.

This pairing would make the relationship between Ike and Nixon look positively chummy.

#10 Comment By Alex On March 10, 2016 @ 6:15 pm

@KevinS

If a “principled conservative” endorses a non-conservative for president (I assume Cruz would endorse Trump if he is his running mate), what exactly are his “principles”?

You would have made a strong point if there weren’t the illegal immigration issue. If this issue is confronted, Trump ends up as the only conservative in town.

@Scott_api

so you don’t see Trump picking anyone who ran for the nomination this year?

As an example I would remind that Cruz was the only one who openly expressed his intention to abolish same-sex marriage practice. And, being Trump’s veep, he can actually do it.

@Clint

Cruz is a Career Lawyer/Politician, who worked for The Bush Election Campaign, who worked for The Bush Transition Team, who worked for The Bush Federal Trade Commission, who worked for The Bush Justice Department.
As VP, Cruz would be President of The Senate and Cruz is hated on both sides of the aisle The Senate.
It would appear to be counterproductive, since Trump will need to work with The Senate.

But the Senate will need to work with Trump as well. Most senators, if I understand at least something about the politics as a phenomenon, want to be re-elected. And how will they look like in the eyes of the electorate if they are mixed up in throwing spanners in the works of a president who enters the White House atop such a popular wave? Then sum it up with the fact that GOP senators will be working not just with some president, but with a man who has recently carried out a hostile takeover of their own party. An then sum it up with Donald’s authoritarian personality. How many desperados you find inside the Beltway these days?

@balconesfault

If Cruz was my VP, I’d definitely want to hire a food taster.

This pairing would make the relationship between Ike and Nixon look positively chummy.

The fact that Ike was the most successful president of the post-war era remains.

#11 Comment By the unworthy craftsman On March 10, 2016 @ 6:23 pm

The ONLY thing Donald Trump could do that would make me not vote for him would be to pick that slimey worm Ted Cruz as his running mate. That’s literally the only dealbreaker.

#12 Comment By Philip Diehl On March 11, 2016 @ 5:53 am

Clint-

VP’s only preside over the Senate if they might cast the tie-breaking vote on legislation important to the administration. Otherwise, the don’t set foot in the chamber.

#13 Comment By Barry On March 11, 2016 @ 6:33 am

The author forgot the nuclear weapon in the room – Trump would be in an excellent position to stage a third-party run and seriously hurt the GOP.

#14 Comment By Antony Newell On March 11, 2016 @ 6:50 am

I can’t think of anything worse than having Cruz in either spot. There are good reasons that his Senate colleagues aren’t supporting him.