What we talk about when we talk about a brokered convention

Posted on March 24, 2016

Now that Donald Trump has pulled out into a strong lead in the GOP presidential primaries, it might seem like he has a lock on that party’s nomination. But party leaders and other dissatisfied Republicans, desperate for a way to keep that from happening, have started talking about doing something that hasn’t happened in American politics in a long, long time: putting up a fight against him at the party’s nominating convention, regardless of how many votes he’s won. This would produce what’s known as a “brokered” or “contested” convention.

It’s a sign of just how desperate they really are that they’re talking about this as a viable way forward. There hasn’t been a brokered convention in so long that the idea is practically unknown in modern American politics. And there’s a reason why — a party that’s still fighting at the convention over who is going to be its nominee is a party so deeply divided that victory in the general election is usually a forlorn hope.

Still, here we are. So, since this is a subject that few people really understand and that the media has done a pretty poor job of explaining, I thought I’d take a moment and write a Guide for the Perplexed on the subject so that at least you, my devoted readers, will be prepared should it come to pass.

To understand how a “brokered” or “contested” convention would work, you have to first understand how a political convention itself really works. So let’s begin at the beginning.

How political conventions work

A political convention is a meeting of party leaders to decide the party’s stance on some question or other. It could be about anything, but in the modern context, there’s only one type of convention that really matters: a nominating convention, where the leaders gather to decide who the party should put up as its candidate for some public office. And at the national level, there’s only one nominating convention that really matters: the quadrennial conventions where the parties decide who to run for President and Vice President of the United States.

Today parties make that decision more or less by popular vote. They hold state-by-state election contests (called primaries or caucuses, depending on how they are organized), each of which decides how the party leaders who will be going to the convention from that state (called delegates) will vote on the nomination. The number of delegates each state is allowed to send depends on its population, so big states like Texas send a lot while small states like Vermont send fewer. The candidates then compete in these contests, and the one who wins enough contests to get a majority of the available delegates to vote for them gets the nomination.

(Note: I’m simplifying a bit here, because there are wrinkles like the Democrats’ “superdelegates” which complicate the picture somewhat. But at the macro level, the picture is accurate.)

How political conventions used to work

Things have worked this way for long enough now that most people just take it for granted that they will be able to vote for who their party nominates, and that their vote will matter. Neither of those things are written in law, however.

It’s important to understand that the entire process of primary elections is a patch that was put on top of an existing system to make it more democratic. Before that patch was applied by the reformers of the Progressive Era, the average person had little to no influence in who the parties nominated for the presidency.

There were still conventions, of course, and delegates still gathered at them every four years to nominate a candidate. But unlike today, those delegates weren’t “bound” by any formal agreement as to who they would cast their vote for when the roll was called. In other words, they could vote for whomever they wanted.

Astute readers will immediately understand the problem this kind of arrangement poses: if a delegate is free to vote however they like, they are also free to sell their vote to the highest bidder. So the party conventions quickly became orgies of political horse-trading, with backers of every declared candidate (and sometimes backers of people who weren’t declared candidates yet) making wild deals of money and favors with delegates to win their support.

And this in turn put people who could control the votes of a whole group of delegates — people like the bosses of the urban political machines, who were strong enough to make sure that the delegates from their region were men who were safely under their thumb — in a position to demand extortionate bribes in order to “deliver” their delegates as a unit. These deals went down in what became known as “smoke-filled rooms,” closed off from public view, so it was always difficult after the votes were cast to determine how many were cast out of conviction and how many had simply been sold off, either retail or wholesale. Even in cases where a nomination wasn’t the result of a behind-the-scenes bargain, the fact that all the important decisions were made in secret meant that the stink of corruption would still attach to it.

If this doesn’t sound particularly democratic or even participatory, that’s because it wasn’t. It had nothing to do with the wishes of the average voter whatsoever. The one and only job of the average voter in this process was to vote for whomever his party told him to vote for, and who the party told him to vote for mostly came down to the wishes of unelected party bosses who were accountable to no one.

This all changed in the late 19th and early 20th centuries, though. Progressives believed in the value of democracy, and saw the closed, elitist party nominating conventions — and the power they gave those unelected, unaccountable bosses — as an affront to it. So one of the reforms they pushed for was to take the power of nominating candidates out of the smoke-filled rooms, and place it instead in the results of a popular vote. The idea caught on, and snowballed into the system we take for granted today.

But — and this is the really important bit — the reformers did not eliminate the old system. Delegates still go to conventions, and the vote of those delegates is still technically what decides who the party’s candidate will be. The only difference is that now most of those delegates are “bound delegates,” required by party rules to cast their vote depending on the results of their state primary or caucus. When you combine this with the winnowing effect the primary process has on the field — losses in early primaries tend to drive weak or fringe candidates out of the race — the result has been that in all modern elections one candidate has been able to sew up enough bound delegates to have a majority when the convention votes, making the actual vote itself a mere formality.

But what if that didn’t happen? What if a party reached its convention with no candidate having a majority of delegates bound to vote for them?

Things would get wild fast, that’s what. And the democratic patch that the Progressives put on top of the nominating process would quickly get peeled back, revealing the seedier system underneath.

How a contested convention would work

People talking about this subject frequently use the terms “contested convention” and “brokered convention” interchangeably. But I would argue that they’re referring to subtly different things, so I’ll be discussing them here separately.

A contested convention is a convention where no one candidate has a majority of the delegates bound to them by the time the convention starts voting. The Republican Party has credentialed 2,472 delegates to vote at its 2016 nominating convention, and party rules specify that a candidate needs to get the votes of a simple majority of those delegates — 1,236 votes — to win the nomination.

As of this writing, Donald Trump, who has 741 delegates bound to him, is the only candidate with a realistic possibility of sewing up that many votes by then; his last serious opponent still standing, Ted Cruz, has only 465.  944 delegates remain uncommitted, which makes it sound like it should be possible for Cruz to reach the magic 1,236 if he can pull off wins in the remaining primaries, but there’s a wrinkle here: unlike in general elections, where winning a state means winning all of that state’s electoral votes, many states have “proportional” or “winner-take-most” primaries where even losing candidates can come away with some delegates based on what share of the overall vote they garner. (As opposed to a “winner-take-all” primary, where whoever wins a simple majority of the votes gets 100% of the delegates from that state.)

So it could be possible for Cruz to run the tables, winning primary after primary, and still end up spitting the remaining delegates with Trump. Cruz needs to win 771 of the remaining 944 delegates — 82%! — to get to 1,236, so unless he starts blowing Trump out of the water by historic margins in those remaining primaries the numbers get pretty grim for him fast.

But while it’s difficult to imagine Cruz winning enough delegates to take the nomination outright, it’s not difficult to imagine him taking enough to keep Trump from doing so. After all, Trump is still 495 votes away from having a majority himself; that’s more than half of the delegates still remaining. If Cruz can keep Trump from getting enough of those delegates to reach the magic number, we’d have a contested convention.

So imagine that happens. The delegates arrive, the roll is called, and it turns out that no candidate has a majority of the delegates on their site. What happens then?

The GOP’s rules make it sound very simple. Rule 40 says:

(d) When at the close of a roll call any candidate for nomination for President of the United States or Vice President of the United States has received a majority of the votes entitled to be cast in the convention, the chairman of the convention shall announce the votes for each candidate whose name was presented in accordance with the provisions of paragraph (b) of this rule. Before the convention adjourns sine die, the chairman of the convention shall declare the candidate nominated by the Republican Party for President of the United States and Vice President of the United States.

(e) If no candidate shall have received such majority, the chairman of the convention shall direct the roll of the states be called again and shall repeat the calling of the roll until a candidate shall have received a majority of the votes entitled to be cast in the convention.

In other words: if they take a vote and nobody has a majority, they just take more votes, on and on, until somebody finally does have a majority. (Each of these votes is called a “ballot,” so a candidate who has a majority in the bag from the start is said to have “won on the first ballot.” At the legendarily divided Democratic convention of 1924, it took a whopping 103 ballots to choose the eventual nominee, John W. Davis.)

Which is where things get loosey-goosey, because the thing about those “bound delegates” we mentioned above — the ones who are required to vote the way their state primary shook out — is that they are not bound forever. The exact details are set by the state parties, so they vary from state to state; but many of them are only bound for one ballot, and if things are still deadlocked by a third ballot nearly all of them will have been released to vote however they wish. So delegates Trump “won” in the primary could, after casting a vote for Trump in the first ballot, switch over to Cruz, and vice versa.

Enter a dark horse

Or, just as plausibly, they could end up switching to a candidate who wasn’t even on the first ballot. In the past, if a contested convention proved after multiple ballots unable to agree on any of the currently running candidates, it was common for new names to be submitted by delegates in an attempt to break the deadlock by finding a compromise candidate that a majority could rally around. Such “dark horse candidates” can, of course, be candidates who dropped out of the race earlier after failing to attract votes in the primaries. (Which is why you’ll notice that, when those candidates drop out, they are always careful to say they are only “suspending their campaign” instead of terminating it; by just putting it in suspension, they keep the door open to bring it to life again later if an opportunity arises.)

But it can also be someone who had not been running could be, too. Delegates are free to put forward any name they like for nomination; and all the party rules have to say on the subject is

In making the nominations for President of the United States and Vice President of the United States and voting thereon, the roll of the states shall be called separately in each case

… which means that, if a delegate puts a name forward and a majority of the delegates agree that person should be in contention, then guess what, now they’re in contention! So it’s possible to imagine desperate delegates at a deadlocked convention throwing out all sorts of names.

Here, too, there is a catch. The national Republican leadership have inserted a provision into the rules that, as written, pretty dramatically limits the number of names the convention can consider for nomination. It’s in paragraph B of that Rule 40 I mentioned above:

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.

This means that, at least in theory, candidates who want to be placed into nomination have to be able to demonstrate first that they have the support of delegates from at least eight states. Which, on the first ballot anyway, means they’ve won at least 50% of the delegates from at least eight primaries or caucuses. (If the 2016 GOP convention really does turn out to be contested, you’ll be hearing about this rule a lot, usually referred to as “Rule 40b” or “the eight-state rule.”)

Today there’s only one candidate who meets that standard: Donald Trump, who has won majorities of the delegates in 11 of the 21 primaries he’s won so far. (Remember, the rule calls for a majority of the delegates, not a majority of the popular vote — so in a winner-take-all or winner-take-most primary, the winner could be the only candidate to qualify under this rule even if he or she only won by a tiny plurality.) The only other candidates still running, Ted Cruz and John Kasich, both fail to meet this standard, Cruz having a majority of the delegates from just five or six states (depending on how Wyoming eventually shakes out) and Kasich in just one. So, by these rules, it’s possible that Trump will be the only candidate to reach the nomination whose name can actually be placed in nomination.

But! There are a couple of caveats to that as well. The first is pretty simple — the rules for the convention are set by the Republican Party, which means that they can be changed by the Republican Party too. If the GOP’s high mucky-mucks get to the convention and discover that Rule 40b is preventing anyone from being able to challenge Trump, they could very well engineer a change of the rules to remove that one, or to modify its meaning in such a way as to let other candidates they prefer get in as well. (Changing the convention rules would cause a huge outcry among those GOP voters who went for Trump because they think the process is rigged against them already, but party leaders may consider that a bridge to be crossed when they come to it.)

The second is more speculative, and, I will admit, based solely on my reading of the party’s rules rather than the judgment of some authoritative third party. (So I will cheerfully admit I could be wrong here.) But as I read Rule 40b, it only requires a candidate to display the support of a majority of delegates from eight states before their name is placed into nomination. It doesn’t say anything about that display having to take place before the first ballot.

Which could be significant, because, as we talked about above, lots of delegates will be free to change their votes after one or two ballots. So a candidate that didn’t have the support of a majority of State X’s delegates on the first ballot could theoretically get them later, once the bound delegates are unbound and allegiances are free to shift. And that would open a door for candidates who were knocked out by the primaries, or who hadn’t even run in them at all, because once the delegates from a state are un-bound the results of its primary would effectively have ceased to matter. So if the convention goes past one or two ballots, the imposing-seeming limits Rule 40b places on who can be nominated would more or less go by the wayside.

Into the last ditch: the brokered convention

So, you ask, what happens if all of these open questions collide with each other, and the convention goes ballot after ballot without any candidate finding enough strength to win? At that point we would go beyond a merely “contested” convention to something even more exotic: a “brokered convention.”

A brokered convention is exactly what its name sounds like — a convention where no candidate can win enough delegates outright, and so people start gathering in those “smoke-filled rooms” cutting deals to break the gridlock. (It’s called “brokered” because these behind-the-scenes power players are acting as brokers, buying and selling bits of political power until one of them has enough to put their favored candidate over the top.)

What shape could such deals take? Any shape, pretty much. Here’s some types of deals that were common at conventions back when brokering was more of a thing:

• Trading offices! Say John Kasich manages to hold on to the 66 delegates he won from his home state of Ohio. To another candidate who can’t quite win a majority outright, being able to swing those 66 delegates into his column could be what he needs to get over the top. So he meets with Kasich and offers a deal: you tell your 66 delegates to vote for me, and I promise to make you my Vice President, or Secretary of State, or whatever plum the candidate thinks Kasich would go for. (Before you get too far up on your high horse, consider that this is how Abraham Lincoln won the Republican nomination in 1860.)
• Trading favors! A President has a lot of levers they can pull to help or hurt a particular state or city, if they want to. So Candidate Y offers to pull some of them the way some on-the-fence group of delegates want them pulled, in exchange for their support.
• Trading money! A rich backer of Candidate Z meets privately with some delegate, that delegate changes their vote to Candidate Z, and a few weeks later that delegate receives a gift of a shiny new boat! What an amazing coincidence. (A delegate is technically acting in a private capacity as part of a private organization, not as a public official, so it’s not clear to me that such a deal would technically be prosecutable as bribery.)

In short, it would be an absolutely frenetic spree of deal-making, all taking place behind closed doors where the public and the press can’t see it — the perfect environment for publicly pious pols to belly up like pigs at the trough.

Conclusion

So will any of this stuff, you know, actually happen?

At this point, it’s hard to say. There’s still a fair number of primaries to be held, with enough delegates still in play to give at least one candidate the chance to put the nomination in the bag according to the rules as they are written today.

But that candidate is Donald Trump, and a whole lot of Republicans — particularly elite Republicans, the ones who could actually pull some of these tricks if they wanted to — hate him like poison. So a contested or brokered convention feels to me more like a real possibility today than it has ever before in my lifetime. It would cause a fight without precedent in modern history, but there are an awful lot of establishment Republicans who sound today like they’d rather make that fight than swallow Trump as the nominee.

In other words: I wouldn’t count it out, even if Trump manages to win an outright majority of the bound delegates. We’re much too deep into the fever swamps at this point to be confident about anything until the delegates actually vote.
(And, perhaps, vote. And vote. And vote…)