In this column, as I’ve often stated, I write about law and policy, not politics. Yet there is such a thing as the law and policy of politics. The primaries and conventions we’ve just lived through have certainly provided some fresh, object lessons about one political issue that touches on both law and policy: the role of party elders. Should senior members of the party (elected officials and members of central committees) have a voice in the selection of party presidential nominees separate from the voices of the voters articulated through primaries and caucuses?
The question has come up in both major parties. We’ve heard the claim that the Democratic nomination was “stolen” from Bernie Sanders by party elders. Superdelegates, elected officials who were not answerable to primary voters, committed early and overwhelmingly to Hillary Clinton, and the national committee apparently put its thumb on the scale, via various procedural decisions bearing on the timing and rules of the campaign.
Meanwhile, over in the Republican party, establishment candidates were pushed aside in Donald Trump’s favor by a torrent of votes from ordinary voters who may or may not have even been Republicans. Many elders, including the last four Republican presidential candidates, did not want to see Trump nominated. However, without Democratic-style superdelegates (Republicans have three automatic delegates per state, but they are not comparable), and with less partiality by the national committee, all the elders could do was make a couple of doomed feints at somehow opening up the convention.
So, at least among Democrats, the elders do have a strong say. But is this a good thing or a bad one? The problem we have in answering that question is that our system of choosing presidential candidates is a patchwork that draws on two separate and not totally compatible paradigms.
Political parties are theoretically private organizations that should be able to set their own rules and appoint their own candidates according to their own rules. But since two specific parties have for 150 years had a monopoly of the power to name the only presidential candidates who stand an actual chance of election, the reality is that parties have been delegated a very significant aspect of the power of the state. Starting in the time of the Progressives, states have tried to reclaim for the general electorate some of this state power by organizing primary elections in order to make the delegate-selection process, and hence the candidate-selection process, responsive to democratic principles and state law.
Bug or feature?
So at the moment, then, the choice comes both from the party organizers, the ones who “own” the parties, do the parties’ work, and represent the parties as officeholders, and from the voters whose participation in the party may amount to nothing more than turning up once every four years (if that) to vote.
When candidates complain that this system, with such ambiguity baked into it by its history and role, is “rigged,” what they generally mean is that the will of the voters is tempered or overridden altogether by the will of the party elders. But is that a bug or a feature?
I’m here to argue it’s a feature, and I think both parties’ travails so far this presidential season illustrate this. Each eventual major party candidate emerged from a selection process shaped by compromises between accountability to party stakeholders and accountability to the electorate that showed up for the primaries or caucuses. In each party contest, there were cries that the system was “rigged” because in one way or another, the party elders had too much of a role. Trump, who complained about rigging in the early going, ended up the Republican nominee, and Clinton, accused of having benefitted from rigging, ended up the Democratic nominee. What do we learn from that contrast?
Though I’m no political insider, it seems clear enough to me that in each case, the party establishment was looking to find the most electable candidate from among those who presented themselves. The Republican elite observed Donald Trump’s now well-documented shortcomings as a primary candidate; it is no surprise that they concluded he would be hard to elect, and tried to derail his candidacy. Whether the “rigging” that Trump complained about – particularly state committee selections of delegates that did not always reflect Trump’s level of support vis-à-vis Ted Cruz’s – really owed much to intentional interference by party elders, is hard to say. But the reasons members of the Bush family, Sen. John McCain, R-Ariz., and Mitt Romney had reservations are clear.
Sanders was a different case, because he had had a long history of electoral success behind him and had polled better than Hillary Clinton did against the likely and eventual Republican nominee. Nonetheless, he was clearly a limited candidate: he had two or three signature issues that were really all he seemed to care to talk about. He was perceived by party leadership as a hammer to whom too wide a variety of problems looked like a nail. A president, however, and for that matter a presidential candidate, must be a Swiss Army knife, conversant with a large number of issues.
Element of fairness
Reasonable minds may differ as to whether the Democratic Central Committee and almost all the superdelegates were correct in concluding that Sanders lacked the breadth of skills the electorate would be looking for, but I’m confident that that was their thinking. They (along with most of the eventual Democratic primary voters and caucus-goers) prevailed.
And at least at this moment, it certainly looks as if the party that heeded the thinking of its elite about the more electable candidate is likely to see that candidate prevail over the candidate who overcame the elites of his party.
This stands to reason. Pros usually know more about a game than amateurs, and on that principle party elders usually will see better than anyone else what makes a candidate electable (and re-electable).
This is not simply a pragmatic concession to the superior horse-picking talents of the political pros. There is an element of fairness to consider here. I go back to the rule that parties are private organizations. In almost any other kind of private organization, the biggest decisions are entrusted to those who perform the most important services. In a party, the most important services are developing issues, raising money, recruiting candidates, commissioning polls, buying television ads, orchestrating the ground game on Election Day – and representing the party by serving in city councils and statehouses and Congress, all things the elders do. Doesn’t this earn them a bigger voice in their parties’ biggest decisions?
The unspoken norm of those who scream “rigged” when party leadership asserts any power to decide the nomination is an election paradigm: the idea that all votes are equal and the result should be binding. But that paradigm neither does nor should apply full force to the private organizations we call political parties. Pragmatism (and fairness) suggest that the parties and the republic probably benefit when elders exert separate power. Choices between outstanding candidates are best for our electoral health, and that separate power supports it.
Witness our current election campaign.
Jack L.B. Gohn is a partner with Gohn, Hankey, Stichel and Berlage LLP. The views expressed here are solely his own. See a longer version, with links to his authorities, at www.thebigpictureandthecloseup.com.