For both parties, the rules governing the national convention is the product of gradual change over time. It is a natural desire — shared by both parties — to look back and what went wrong and to try to fix it. The more intelligent members of both parties understand that every cycle will be somewhat different,; so “fixing” something to stack the deck against a candidate is likely to backfire. A perfect example is the Republican rule changes after 2012. In 2012, the Ron Paul campaign was perceived as manipulating the rules to get Ron Paul supporters elected to fill delegate slots won by other candidates. In response, the rules were changed to bind delegates to vote for the candidate that won the delegates. Regardless of how one feels about the merits of that change, the result was that the Republican Party establishment (which had pushed for the rule change) was helpless to stop the hostile takeover of the Republican Party by Donald Trump.
After the last convention (following past practice), the Democratic Party appointed a commission (the Unity Reform Commission) to study the rules and suggest changes in certain areas. In early 2018, The commission’s report then went to the Rules & By-laws Committee (RBC) of the Democratic National Committee. Among the tasks of the RBC is drafting the actual rules governing the 2020 delegate selection process and the convention process. Since receiving the report of the commission, the RBC has been considering that report along with looking at other issues related to delegate selection process and has been composing a draft of the rules for 2020. Later this year, that draft will go to the full Democratic National Committee for a final vote.
While the RBC has discussed a large number of changes, the one change that has gotten some media attention is the rules governing who can run. Most of the media coverage has, at the very least, ignored the history behind this rule, and suggested that the rules change is targeted at Senator Bernie Sanders.
Understanding the changes requires first looking at the existing rules and then looking at how those rules played out in 2016. For the Democratic Party, there are a handful of significant documents related to the delegate selection process and the convening of the national convention. Two of these documents are the Delegate Selection Rules and the Call for the Convention. The Delegate Selection Rules tell the state parties how to draft their state delegate selection plan and how to run the delegate selection process — what they must do, what options they have, and what they may not do. The Call for the Convention is about what happens after the delegates are selected — how and when state parties certify delegates, the standing committees that meet before the convention, and the preliminary rules of the convention (subject to change by the convention).
Over the years, there have been some fringe characters who have attempted to call themselves Democrats and run for the Democratic nomination. As a result, the Democratic Party has had certain rules governing potential candidates. While the below discusses the rules as they appeared in the 2016 documents, those rules have been the same for several cycles. For example, the same rules appear word-for-word in the 2008 documents. In other words, the existing rules that were the subject of the proposed change existed long before Senator Sanders declared an interest in seeking the Democratic nomination.
Looking at the 2016 rules, there were two key provisions in the rules — one in the Delegate Selection Plan and one in the Call for the Convention. Rule 12.K of the Delegate Selection Plan required that prospective presidential candidates had to be registered to vote (both in the 2016 cycle and in the 2012 cycle) and “as determined by the Chair” have demonstrated a commitment to the goals of the Democratic Party. As noted above, this rule governs the delegate selection process and is found in the section requiring those seeking to run for delegate to pledge to support a particular presidential candidate. By inference, if the Chair of the Democratic National Committee determines that a potential candidate is not committed to the ideals and goals of the Democratic Party, then — regardless of how that candidate did in the primary — that candidate receives no delegates and those seeking to serve as delegates may not run for a delegate slot pledged to that candidate. (For example, in 2012, there were certain individuals — non-public officials — who ran against President Obama and received enough votes to qualify for delegates but were deemed ineligible to qualify for delegates.)
Article VI of the Call for the Convention contains a definition of who is a presidential candidate. By its language, it implicitly governs who gets their name formally placed into nomination at the convention before the roll call. It requires that such candidates has accrued delegates during the delegate selection process and demonstrate substantial support to be considered to still be a presidential candidate at the convention. Article VI also requires that such a candidate be a “bona fide Democrat,” again as determined by the Chair of the National Committee. Because Article VI is about the processes at the convention, the convention rules governing the roll call can modify the requirements of Article VI.
Going back to 2016, there was some debate about whether Senator Sanders was a Democrat as defined by these provisions. (After all, on multiple occasions, he had opted to run for a seat in the House of Representatives and then for a seat in the Senate as an independent rather than a Democrat even though he caucused with the Democrats in both bodies while serving.) Ultimately, nobody formally challenged Senator Sanders right to run, and the National Party Chair never had to make a ruling.
Before 2016, there was never a major candidate for whom such questions could be raised. Thus, the vague language of the rules were sufficient. If the National Chair or a State Chair (under the state delegate selection rules) deemed that a protest candidate was ineligible to receive delegates, it was not a big issue and ultimately had zero impact on who won the nomination. After 2016, however, it is clear that a candidate with a loose affiliation with the Democratic Party can be a major contender for the nomination. And 2016 also made clear that, while maintaining an official stance of neutrality, the National Chair will have personal opinions on which candidate(s) would make a strong general election candidate and could use their powers to apply the rules in a manner that — while technically facially neutral — would benefit some candidates at the expense of other candidates. (For example, in 2020, will official Democratic debates have two divisions if there are too many candidates as the Republicans did in 2016 and how will candidates be assigned between a “preliminary” debate and the main “prime time” debate.) Thus, in this cycle’s RBC debates, one obvious issue was whether the vague rules on candidate qualifications needed to be more specific. It is possible, regardless of which candidate you supported in 2016, to come down on either side of the issue. A more specific rule could support a decision to disqualify a candidate who did not meet those terms, but it could also make it more difficult for the National Chair to disqualify a candidate who met the specific requirements.
From what I have seen on-line, and it is mostly news reports with no links to the current draft (as amended at last week’s meeting) of the delegate selection plan or the call to the convention or any other related documents, the proposed change amends Article VI of the Call. As noted above, the fact that it is the Call being amended is significant because the Call only takes effect at the Convention itself and can be supplanted by the Convention Rules if the majority of the delegates want to revise its provisions. The amendment (as approved by the RBC) adds specific criteria to determine who is a bona fide Democrat. In particular, the new Article requires: 1) that the candidate affirm that he/she is a Democrat; 2) that, if nominated, he/she will accept the nomination; 3) that he/she will run for President (and serve as President) as a Democrat; and 4) that this affirmation be in writing. The amended Article does not state a date for when the affirmation must be made. Implicitly, it must be made before the time for filing nomination papers (typically Tuesday or Wednesday morning of the convention). One would think that, by that time, a candidate who intends to be a constructive part of the convention of the Democratic Party would be able to make those affirmations. Obviously, an earlier deadline might make it harder for some candidates who might be considering running as an independent if they fail to get the Democratic nomination, but — from a process perspective — there is nothing outrageous about a party insisting that those who are actively seeking its nomination pledge that they will only run for president as the nominee of that party.
While the media wants to frame this change as a continuing fight between the outsiders supporting Senator Sanders and the party establishment, that framing is sort of forced. (Of course, once the media does that framing, it is easy for those who wish to view everything from that perspective to do so.) The change is only anti-outsider if you believe that the members of a political party have to accept their processes being abused by “independents” who want to be able to be both “in” and “out” at the same time. While a party may have to accept that voters reserve the right to not support the candidate who gets the nomination if they disagree with that candidate, a party should be able to require those seeking the party’s support to agree to support the party.
In any case, the proposed change is just a draft. If people do not like it, lobby your DNC member. But, before doing so, please understand what the existing rules are. Taken in context, what looks like a big change in isolation, may actually be a small change that is actually beneficial.
