Trump and Cruz have no incentives to change the GOP convention rules to benefit anyone but themselves

JB

The Republican Party's convention rules, drafted in 2012, can't be changed until the 2016 convention begins. In theory, they can be changed in any way the delegates like, as Gerard points out.

In practice, there are good reasons to think that the convention won't change them in ways that would benefit opponents to either Trump or Cruz, the two leading candidates.

That means that Trump and Cruz will likely be the only two names the delegates will ever get to vote on.

Why is this? After all, for weeks the pundits have been spinning out scenarios in which a host of other candidates emerge and fight things out on the convention floor.  (John Boehner just endorsed Paul Ryan.)

The problem is that Trump and Cruz will use their muscle to prevent this from happening.

Rule 40(b) of the current rules says that no one can be placed on the ballot for nomination unless they have won a majority (not a plurality) of delegates in eight different states (or state equivalents, like the Northern Mariana Islands, recently won by Trump).

This rule was originally adopted by Romney supporters to head off the nomination of Ron Paul at the 2016 GOP convention in the 2016 reelection campaign of Mitt Romney. As you can see from that last sentence, things didn't turn out precisely as expected.

As of now, only Trump has gotten over Rule 40(b)'s hurdle. Cruz has won a majority of delegates in four state delegations, Kasich, only one.

Cruz still hopes that he can win a majority in four more states; Kasich is hoping for a rules change. So too are Mitt Romney, Paul Ryan, and almost everyone else in the party who wants to avoid nominating Donald Trump.

But if Trump enters the convention with a little less than 1237 delegates (a majority), and Cruz has something like 600 delegates or more, they will control three quarters or more of the delegates.

At that point they might support changing any number of convention rules. But they don't have an interest in changing Rule 40(b) in a way that would allow anyone else to be eligible to be nominated for president.

That's because they want to avoid the nomination of anyone whom the delegates might believe is a more attractive general election candidate.

This is obvious for Trump. It is also true of Cruz, for different reasons.

Assume once again that neither candidate has a majority of the delegates, but that Trump has close to a half and Cruz has a quarter or more.

Suppose that Cruz gets majorities in 8 jurisdictions. Then he wants only two nominations from the floor--himself and Trump. He hopes that, faced with the choice of The Donald or him, delegates on the first ballot or thereafter will swallow hard and choose him. (Note that Rule 40(b) is not limited to the first ballot).

Suppose that Cruz falls just short of majority support in 8 jurisdictions, but that he is far closer to satisfying Rule 40(b) than Kasich. Then we have a crucial divergence of interests among Trump's opponents. All of them-- controlling a little more than a majority of the delegates--want to amend Rule 40(b) and open up the nominations process. But they want this to differing degrees.

Cruz still wants as little competition as possible, and if he controls over a quarter of the delegates (that is, over half of the delegates needed to outvote Trump on a rules change on the convention floor), his views are likely to dominate. The last thing he would agree to is a rule that allows someone like Paul Ryan to be nominated from the convention floor. So he will likely only agree to changes in the rules that allow him to pass the new requirements but (almost) nobody else.


We will see if this logic holds at the GOP Convention.

UPDATE: Several readers have pointed out that the fact that Trump or Cruz have been assigned delegates who will vote for them on the first ballot does not mean that these delegates will support Trump or Cruz in rules changes when they come to the floor of the convention. These changes will be voted on before the first ballot.  So it is theoretically possible that even if Trump and Cruz collectively control, say, 80 percent of the delegates who will vote on the first ballot, many of these delegates will desert them on rules votes.  In theory, then, the two candidates could still lose a rules battle on the floor, opening up nominations to a flood of new candidates.

This is certainly true as a formal matter. But it overlooks the fact that Trump and Cruz also know this, and that they have been busily working at installing as many of their allies as possible as convention delegates, both in state conventions and in members of state delegations chosen separately from presidential preference primaries.  (My understanding is that Cruz, in particular, has been particularly attentive to these features of the system.) Trump and Cruz are also making and will continue to make side deals with delegates in order to win their support in potential rules battles.

Moreover, convention delegates understand that flouting both Trump and Cruz and handing the nomination to a third party risks breaking the party apart. Trump has not been particularly subtle about this, noting the possibility of "riots" if he isn't nominated. Like a mafia don, he has been saying in effect: "Nice little political party you have there. It would be a shame if something were to happen to it." (In fact, I'm surprised that people haven't started calling him Mafia Don.)

Perhaps even more important, both Trump and Cruz (and Kasich) are using their influence to gain as many seats as possible on the all-important rules committee, which submits proposed rules changes to the convention as a whole.  Supporters of open nominations have to win both in the rules committee and on the convention floor. Trump and Cruz only have to win in one location.

In order for Trump and Cruz to have a practical veto on rules changes that would open up the nomination process, it is not necessary that all of the delegates pledged to vote for them on the first ballot must be loyal to them in votes on convention rules. It is only necessary that, taken together, at least half of the total delegates are loyal to one or to the other of them. By June, I predict that that burden will be pretty easy for them to meet. Moreover, if Trump and Cruz together are able to gain significant support on the rules committee--and there is no reason to think that they aren't paying extra special attention to this--nothing damaging their interests will ever make it to the convention floor in the first place.

The collective action problem of the anti-Trump forces is still in play. Cruz wants to be the only person nominated on the floor other than Trump. So he has no reason to support anti-Trump forces who want more than this.

Again, we will see what happens when the convention opens.



 
Posted 11:21 AM by JB [link]

Fair Value Accounting Debunked Again--Will the Congressional Budget Office End its FVA Crusade?

Frank Pasquale

Do public finances suffer when the government fails to charge the maximum interest rate it could impose for its credit programs? For advocates of "fair value accounting" (FVA), the answer is yes. They believe that if, say, banks are offering loans to solar panel manufacturers at 10%, and government offers them loans at 5%, the government should account for the resulting "loss" in its deficit projections. That would require making up for the "loss" via higher taxes, or lower spending, or higher interest rates on the federal credit. We know that higher taxes are, by and large, a non-starter. So FVA becomes an excuse for austerity, or imposing higher interest rates on federal loans.

The implications here for student loans should be obvious. Students are already saddled with unduly high rates. FVA would just push those rates higher. I describe in detail how problematic FVA is in my recent article, Democratizing Higher Education.

Today I learned that the Government Accountability Office has further bolstered criticism of FVA with a detailed report on its shortcomings. Reviewing the report, financial journalist Dave Dayen offers a tough assessment of FVA bitter-enders:

[F]air value accounting advocates . . . want to discourage the use of federal credit programs, to shift the loans – and the profits – to private lenders. Of course, this would also prove much more costly for borrowers, as we’ve already seen when banks were the middlemen in student loans. The advocates can’t come out and say “we want private companies to make more expensive loans for people,” so they concocted this claim about government accounting practices. And GAO, as objective a source as you’ll find, just came as close as a government report gets to calling them liars.

I know this is a rather wonky topic, but it's an important one for the future of public finance. The Congressional Budget Office has repeatedly advocated for Fair Value Accounting, abandoning its traditional role as neutral arbiter on the cost of legislation in order to advance austerity ideology.* As I observed here about seven years ago, this politicization of accounting has undermined sensible health policy. It is time for CBO to simply do its job and estimate costs of programs pursuant to legislatively mandated standards.

*The google search [site:nakedcapitalism.com congressional budget office] offers an extraordinary roundup of exposes on the increasingly discredited CBO.
Posted 9:01 PM by Frank Pasquale [link]

Machine Learning as a Challenge to the Legal Profession (and vice versa)

Frank Pasquale

In an earlier post, I described our upcoming Yale ISP conference on algorithmic accountability in the professions. We've already featured some blog posts from speakers, and have more on the way.In my earlier post, I described the community of scholars engaged in the study of algorithmic processes of ordering and ranking information. Today, I want to give a sense of the intellectual stakes of our work.

By and large, the lawyers pressing for algorithmic accountability (#algacc, for short) want to see basic principles of due process, anti-discrimination, and transparency imposed on processes like search engine data processing, credit scoring, and terrorist threat assessments. This is fundamentally an effort to make technology accountable to legal values.

Meanwhile, a different, much more dominant movement has been focused on the converse: forcing attorneys to speed up their work with new technology. This legal technology (or #legaltech) movement is extraordinarily influential for several reasons. Many consumers are justifiably frustrated by the slow pace of ordinary legal transactions. Many investors believe that software can do the work of several types of attorneys at, say, one-tenth their current costs, that they can still charge one-half that cost, and make outsized returns.  (Far fewer acknowledge the role of this kind of legal process automation and acceleration in troubling denials of benefits or due process.)

At present, there is very little interaction between the #algacc and #legaltech communities. I have tried to begin that conversation with a review of a book co-authored by a leading #legaltech thinker, Richard Susskind, and his son Daniel. As I discuss there:

A persistent mistake undermines the The Future of the Professions. The authors conflate the professional role with the delivery of expertise. Thus they fail to seriously address two issues at the core of professional identity. First, there is some degree of self-governance among professionals. They primarily work with clients or patients, for example, and not for bosses or shareholders. Second, the main reason they enjoy this autonomy is because they must handle intractable conflicts of values that repeatedly require thoughtful discretion and negotiation. In isolation, these factors damage the Susskinds’ case; together, they prove fatal to it.

To start with the question of values: rarely, if ever, is a vocation simply a matter of conveying information. The duties of professionals do not end with an assessment of the relative likelihood of an intervention “working,” where “working” is defined by a clear, quantifiable metric. That’s most obvious in, say, elder care or education. A robot telling a shut-in elderly person, “Your friends and loved ones care for you” is not really a good substitute for visits. As for children in school, they require some guidance as to how to conduct themselves — as persons, not simply as absorbers and generators of messages. To think otherwise is to put society on a slippery Skinnerian slope to behaviorism.

There is no single measurement of success in the professions, and further complexities arise as soon as one lacks a single quantity or thing to be optimized. For example, attorneys, doctors, and teachers often face very difficult conflicts of values — between, say, zealous advocacy for a client, and acting as an officer of the court; or between extending a patient’s life, and assuring quality of life in the time remaining; or between attending to disruptive students, or simply ordering them out of the classroom to ensure others can learn better. We mark the importance of these decisions by insisting that a human be directly responsible for them. Routinized or robotized approaches do not respect the dignity of the client, the patient, and the student.

There is more in the review, particularly with respect to law and medicine as professions. But I hope the excerpt above makes my main point: professional values are just as important to the deployment of technology, as technology is to the further development of professionals' expertise and effectiveness.

Of course, more widespread deployment of technology can make professional work more difficult. But that does not reduce its importance--indeed, it may well increase it. A critical goal now for legal professionals (and skilled workers of all kinds) is to assure that their values, norms, and skills are reflected in deployments of software and predictive analytics. I hope our conference "Unlocking the Black Box" can showcase cutting edge research on how that may be done--and the unfortunate consequences when it is not.

Labels: Black Box

Posted 11:26 AM by Frank Pasquale [link]

There Aren't Any Pledged Delegates

Gerard N. Magliocca

Just to build on a point that I made in an earlier post, what might happen if Donald Trump does not win a majority of the delegates heading into the Republican National Convention is far from clear because that body can adopt any rules that it wants to count its votes.

Here's a simple example.  In 1980, Ted Kennedy put a motion on the floor of the Democratic National Convention to amend the rules and say that the delegates could vote for anyone on the first ballot.  He did this because he was far behind President Carter after the primaries.  Given that the President had a majority in that Convention, the motion to amend the rules went nowhere.  In a convention where no candidate has a majority, though, this sort of proposal could easily pass. Some states purport to have rules that bind its party delegates to vote for candidates on the first ballot of the national convention, but the Supreme Court's cases on how state law may regulate national conventions suggest strongly that the state's interest is trumped (ahem) by the party's First Amendment right of association.  See Democratic Party v. Wisconsin, 450 U.S. 107 (1981).



Posted 11:58 AM by Gerard N. Magliocca [link] (96) comments

With Scalia Gone, Who’s Wearing the Thick Grammarian’s Spectacles Now?

Lawrence Solan

Posted 11:02 PM by Lawrence Solan [link]

A Law Unto Itself

Gerard N. Magliocca

I think that there is a significant misunderstanding in the works about how party conventions function when they are actually called upon to choose a national ticket.  Some of the commentary is treating this as nothing more than a Nate Silver-esque number crunching formula.  At the end of the caucuses and primaries, so this argument goes, each remaining candidate will have a certain number of pledged delegates.  This tally is something that can be tracked and assessed as you go along and we will know the final result.  Not necessarily true.
Posted 2:01 PM by Gerard N. Magliocca [link] (116) comments

Automating Authority? Algorithmic Practices, Knowledge, and Journalistic Professionalism

Guest Blogger

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Labels: Black Box

Posted 1:45 PM by Guest Blogger [link]

Privacy and Accountability in Black-Box Medicine

Guest Blogger

Roger Ford and Nicholson Price
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Labels: Black Box

Posted 1:42 PM by Guest Blogger [link]

An FDA For Algorithms

Guest Blogger

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Labels: Black Box

Posted 1:36 PM by Guest Blogger [link]

The Alabama marriage mess gets messier (although in practice . . . perhaps not so much)

Marty Lederman

In Alabama, state probate judges issue marriage licenses.  A few weeks back, I explained that those probate judges were subject to three inconsistent orders with respect to whether they should grant marriage licenses to same-sex couples:

(i) a federal district court injunction, which went into effect on July 1, after Obergefell, and was later affirmed by the U.S. Court of Appeals for the Eleventh Circuit, requires the probate judges to issue such licenses;  

(ii) a writ of the Alabama Supreme Court, issued one year ago, on March 3, 2015 [and related writs the Court filed later that month], prohibits those probate judges from issuing such licenses; 

 and

(iii) an order issued on January 6, 2016, by Alabama Chief Justice Roy Moore acting in his capacity as "Administrative Head of the Unified Judicial System of Alabama," purports to "direct" the probate judges that "[u]ntil further decision by the Alabama Supreme Court, the existing orders of the Alabama Supreme Court that Alabama probate judges have a ministerial duty not to issue any marriage license contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act remain in full force and effect."

Once the U.S. Supreme Court decided Obergefell, the Alabama Supreme Court should simply have withdrawn its own March 2015 writs--in effect, injunctions--against the probate judges, which would have settled the matter and precluded the confusion of these multiple, inconsistent orders.  Instead, the state court invited parties to brief the question of Obergefell's effects on the March 2015 orders.  The parties filed those briefs in September.

Finally, on Friday, the Alabama Supreme Court responded to that briefing by . . . doing nothing to change the status quo.  It merely issued an Order that states, in conclusory fashion: "ORDERED that all pending motions and petitions are DISMISSED."'  The state Supreme Court also issued a Certificate of Judgment Friday, certifying the judgments that it issued last March against the Alabama probate judges.  Those judgments, therefore, apparently continue to apply . . . and they are in direct conflict with the subsequent injunction of the federal district court.*

That explains why Chief Judge Roy Moore felt free to write yesterday, in one of his separate opinions, that "the certificate of judgment in this case . . . does not disturb the March 2015 orders of this Court."

This irresponsible "disposition" by the Alabama Supreme Court--which did not even address Obergefell, let alone explain why its March 2015 orders should remain in place after Obergefell--leaves the Alabama probate judges in a quandary, or at least an unenviable position:  They presumably have a state-law duty to abide by an order of their state Supreme Court.  Yet if they violate the federal court order by refusing to issue licenses to same-sex couples, they will almost surely be held in contempt, and perhaps punished severely (whereas it's not obvious what sanctions, if any, they would suffer if they disobey the Alabama Supreme Court orders).

In his separate opinion on Friday, Justice Greg Shaw reports that "no probate court in this State is currently complying with API [the March 2015 decision of the Alabama Supreme Court] or . . . [Chief Justice Roy Moore]'s January 6 administrative order and issuing government-marriage licenses to opposite-sex couples but not to same-sex couples."  In other words, the probate judges, faced with inconsistent state- and federal-court orders, are quite reasonably abiding by the one that is consistent with the Supreme Court's decision in Obergefell.  This isn't very surprising; and presumably the probate judges will continue to do the right thing, even after Friday's (non)development.  But their job certainly hasn't been made any easier by the inexplicable actions of the Alabama Supreme Court.
                                                            
________________________________
* In his separate opinion, Judge Shaw insists that the principal March 2015 order of the Alabama Supreme Court, "by its own terms," does not apply to probate judges who are thereafter subject to a conflicting federal court order (as all of them now are).  I don't think that's a plausible reading, however -- and it's not one that any other member of the Alabama Court endorses.  To be sure, the first API order did not require one particular probate judge (Don Davis) to violate a preexisting federal court order requiring him to grant licenses to four particular named couples.  But the Alabama Supreme Court shortly thereafter made it clear that Judge Davis, like all other probate judges, is otherwise subject to the state court injunction.  And the Court's Certificate of Judgment on Friday certainly appears to confirm that understanding of the Alabama Supreme Court.
Posted 8:30 AM by Marty Lederman [link]

Confronting the Interpreter

Lawrence Solan

Posted 8:35 PM by Lawrence Solan [link]

Who Voted for David Duke?

Stephen Griffin

If your question is why would anyone vote for Trump, you might keep in mind the results of the 1991 election for governor of Louisiana, the runoff between Edwin Edwards and David Duke (there was a notable bumper sticker: "Vote for the Crook.  It's Important").  I was living here and recall well-documented New Orleans Times-Picayune articles showing that Duke was a white supremacist, an anti-Semite, and an admirer of Adolf Hitler.  Duke received 39% of the statewide vote.  Not even close to winning, of course, but still, in the end over 670,000 people voted for a person with these views.  Most of them are doubtless still voting, I don't think they went anywhere.  I generally doubt whether all of these citizens were really white supremacists.  Rather, they were willing to overlook Duke's reprehensible views because he articulated a viewpoint important to them on other grounds (although grounds still race-related I'm sure, let's put it that way).  This may be relevant to understanding the Trump phenomenon.  So even if Trump didn't "disavow" Duke, I doubt whether his vote totals would be much affected.
Posted 3:47 PM by Stephen Griffin [link]

Republicans Play Liar's Poker

Mark Graber

If Marco Rubio, Ted Cruz, Dick Cheney and others are correct that the elite mass media is systemically misinforming America about nuclear weapons in the Middle East, climate change, Planned Parenthood, and the economic consequences of regressive taxes, why should anyone believe what the elite mass media says about Donald Trump.  Donald Trump in this vein is no different than his rivals on the stage tonight.  He just operates the Republican con better than they do.  There are four con artists on the stage tonight, not one.  All are dangerous to American democracy and human survival in their own ways.

Posted 12:45 PM by Mark Graber [link]

The Problems of a Contested Nominating Convention

Gerard N. Magliocca

There are two plausible scenarios for the Republican presidential race.  One is that Donald Trump will be the nominee.  The other is that Trump will have a plurality but not a majority of the delegates when the GOP goes into its convention in Cleveland. This sort of "brokered convention" would be a dream for many political enthusiasts, but there are some tricky problems that I want to discuss.

The last national convention that went to a second ballot for its presidential candidate was in 1952.  (In 1976, Gerald Ford and Ronald Reagan went into the convention separated by a small number of delegates, but Ford won the first ballot.)  This means that there is nobody alive with experience at attending or managing a convention with multiple ballots.  This is bound to lead to confusion.

Now you might respond to the first point by saying "Surely there are rules in place to deal with a situation in which no candidate receives a majority on the first ballot."  Yes there are.  But the rules in place are not necessarily the rules that will govern the convention.  The Convention can adopt its own rules. This is why in the days of yore, the election of the Convention Chair was crucial because that person made all of the initial rulings (subject to being overruled by a floor vote).  Likewise, there can be challenges to delegate credentials on the floor.  When you see a news report that says Cruz won 10 delegates in a state, that is only a provisional figure.  Maybe the Convention will decide that he won 8.  This is why control of the credentials committee was also traditionally vital--go back and read how President Taft excluded lots of Teddy Roosevelt's delegates in 1912 to block his nomination.

All of this raises a deeper question. What if an unhappy candidate decides to sue the RNC over something that happened at the convention?  The contested conventions of old occurred in an era when everybody accepted the norm that the Convention's decisions were final.  I think that is still the correct rule, but you can see how a candidate might plausibly seek a judicial remedy if, say, the rules of the Convention were not followed, changed on the fly, or were blatantly unfair.  Where would that sort of litigation leave the fall campaign?
Posted 12:28 PM by Gerard N. Magliocca [link] (108) comments

The United States's opening brief in the DAPA case (U.S. v. Texas)

Marty Lederman

is here.
Posted 8:34 AM by Marty Lederman [link]

The Persistence of Memory (recalling Salvador Dali and Antonin Scalia)

Mark Tushnet

Posted 11:55 PM by Mark Tushnet [link]

Mark Rylance and the Law

Mark Tushnet

Posted 7:09 PM by Mark Tushnet [link]