By Sasha Issenberg at Bloomberg
Donald Trump has spent much of his campaign selling himself as a maker of great deals. But in the next phase of the campaign, the author of The Art of the Deal may be confronted with the ultimate dealmaking challenge, gaming the rulebook and horse-trading for delegates at what could be a contested convention. And if that situation comes to pass, it's one in which his opponents have a distinct advantage going in.
All three of Trump’s Republican opponents are now convinced (even if some are loath to concede it publicly) that the current front-runner is the only candidate in the field who still has the chance to win the 1,237 delegates that would ensure his nomination in Cleveland. But if Trump is unable in the remaining primaries and caucuses to line up the necessary delegates, the convention will be deadlocked on its first ballot and then have to vote again—and possibly again and again—until a majority emerges.
That could offer mainstream conservatives and party regulars the opening they would need to take the nomination from a candidate who almost certainly will have accumulated more delegates and possibly millions more popular votes than his rivals. Of the other candidates, only Ted Cruz is focused on trying to finish ahead of Trump in the delegate count, even if neither gets the majority; Marco Rubio and John Kasich are resigned to the reality that they will be playing from behind.
“We’re already into uncharted territory. Everyone knows we’re pretty likely to have an open convention,” says John E. Sununu, a national co-chair of Kasich’s campaign, which has no mathematically viable path to win the nomination without one. “We’ve got to let it play out. We won’t have a sense of that for at least another month.”
Though the real action will take place on the convention floor in June, the machinations to take the nomination from Trump are already fully in progress. If the primary season thus far can be understood as a triumph for the candidate who defies the norms of politics, the shadow campaign now underway will reflect the primacy of rules, including some that can be wantonly rewritten to serve the interests of those in charge. While there’s not a single Republican establishment with the power to dictate outcomes, there are many interlocking ones dispersed among the states. The key to winning at a contested convention is to get them working in concert, and the age-old practices of favor-trading and influence-peddling will become the new norms. Here’s what non-Trump forces are doing—and will find themselves soon scheming to do—to pull off one of the biggest, perfectly legal, heists in American memory.
The Hunt for Double Agents
On Saturday morning, while the candidates were scattered across Ohio and Florida, Illinois and Missouri, Cruz’s campaign was back in Iowa trying to wring another victory out of the state that gave him the first win of the primary season. After Iowa Republicans caucused on Feb. 1, diehards who stuck around their precinct got the chance to elect a local delegate to the county convention. It was those 1,681 precinct delegates who attended conventions in each of Iowa’s 99 counties this weekend, where they selected from among themselves the delegates to subsequent conventions at congressional-district and state levels. Cruz’s victory awarded him eight of the state’s 30 delegates—Trump and Rubio each got seven—but his campaign saw that as a beginning rather than an end. Even after removing his paid staff from Iowa shortly after the caucuses, Cruz maintained an activist network. “We keep an organization in the state,” says Jeff Roe, Cruz’s campaign manager. “Two weeks out we make sure that all of the people who were whipped up leading up to the caucuses are ready for the convention.”
In many states, primaries and caucuses are just the most public face-off in a multi-step process to select the individual delegates who will choose the party’s nominee. Only a small share of the 2,472 total convention delegates are free to pick the candidate of their choice, regardless of the election’s outcome, on the first ballot, while about three-quarters of them are gradually freed to do so on subsequent votes. That means there is a small pool of so-called unbound delegates who are pure free agents, but a much larger number who can be recruited throughout the spring as double agents—delegates who arrive in Cleveland pledged to Trump, all the while working in cahoots with one of his opponents and confessing their true allegiances once it is safe to do so.
“Forty-four states give the delegation-selection authority to a state convention or state executive committee, with no requirement that the candidate have a say in choosing delegates,” says Benjamin Ginsberg, a former general counsel for the Republican National Committee who managed Mitt Romney’s pre-convention delegate strategy. “Centralized power has dissipated in many states so that pockets of grassroots activists hold great sway.”
“Of any of the campaigns the Ted Cruz people are the best-positioned,” says Iowa Republican operative Grant Young. “Not just because they won. They’ve got a big coalition and they’re organized.”
At Cruz’s Houston headquarters, a six-person team overseen by political operatives, lawyers, and data analysts is effectively re-enacting the primary calendar, often with the aim of placing double agents in Trump slates. The ability to pick up new adherents during the state-convention phase invites Trump’s rivals to look anew at the map of his victories, based on the rules governing individual states. The 36 delegates Trump won in Alabama will be bound to him throughout the nominating process, but the 40 he won in Georgia are free to vote for whomever they choose after the first ballot. Georgia holds its county conventions on Saturday to select delegates for district conventions a month later—the week’s most important stop on the shadow-campaign trail. “We’re making resource allocations based upon stopping Donald Trump,” says Roe. “There’s several scenarios where he doesn’t make 1,237.”
Reports of the Party Boss’s Death Have Been Greatly Exaggerated
It has become fashionable to renounce the term “brokered convention” with the argument that, as strategist Stuart Stevens has said, “there aren't any brokers.” There may no longer be the handful of national leaders able, as their early 20th-century predecessors did, to settle multi-ballot convention battles in smoke-filled hotel suites. Indeed, the primary season has revealed the extent to which the so-called Republican “establishment” is better at antagonizing public opinion than guiding it, and completely inept at high-stakes political coordination.
But delegate selection is still an internal party matter, and in state capitals the Republican establishment holds unusual sway. In those states with a Republican governor, the state party is typically a fiefdom of the executive controlled through a chosen chair. Although campaign-finance reforms have prompted “the weakening of state parties over the last decade,” as Ginsberg puts it, 31 states today have Republican executives, more than at nearly any point in modern history. Across most of the country, the de facto party boss can leverage the clout of state government—budgetary authority, regulatory power, public appointments—to enforce party discipline.
During the nominating season, this often means a governor can freely stack an at-large slate with cronies, expecting a rubber-stamp from a subservient party committee. In Iowa, where Governor Terry Branstad in 2014 helped to reclaim the state party after an unexpected takeover from supporters of Ron Paul, Republican officials actively discourage their rank-and-file from even understanding how the state’s 18 at-large delegates will be selected.
Party bosses stand ready to gut some of Trump’s greatest primary-season successes. He won every one of South Carolina’s 50 delegates, by finishing first statewide and in each congressional district, but Trump is powerless to fill that slate with his own people. To serve as a national delegate from South Carolina, one has to have been a delegate to the 2015 state convention—held more than a month before Trump announced his candidacy—and the approximately 1,000 eligible voters come from the same pool. Campaigns for the delegate slots are already underway. Some candidates have begun e-mailing voters, and often they spend small sums of money on campaign materials, like stickers. They all get the chance to address the local conventions before the ballot, and would probably be better off saying they will follow the lead of anti-Trumpers Nikki Haley and Lindsey Graham than the primary voters. “Whoever is chosen for national delegate will have allegiance to the party establishment, and the party establishment is never going to be fond of Donald Trump,” says a South Carolina Republican insider.
Pennsylvania’s rules make it a special case, giving unprecedented power to political figures with an existing local base. By the time the 1980 primary season turned to Pennsylvania, Ronald Reagan’s advisers determined they had no way of matching George H.W. Bush’s spending in a vast state where television and radio time are expensive. “The Reagan team was running out of money at that point, and even if it had wanted to it couldn’t have competed,” says Charlie Gerow, who served as the campaign’s Pennsylvania delegate counter that year. Instead, Reagan tried to exploit the biggest loophole on the Republican primary calendar: a large haul of delegates who are selected through a process entirely distinct from the presidential contest. Bush ultimately won the popular vote handily in Pennsylvania, even though candidates loyal to Reagan seized 50 of the state’s then-77 delegate slots (Pennsylvania now has 71 GOP delegates).
Pennsylvania’s process has changed only slightly, with a pool of 17 delegates bound on the first ballot to the winner of the statewide popular vote. But 54 delegates are still free agents, who run in their home congressional districts untethered to a presidential candidate. “If there is to be a contested or brokered or open convention—whatever you want to call it—Pennsylvania will be at the epicenter because of that huge share of unbound delegates,” says Gerow, a former Carly Fiorina supporter running for delegate in a Harrisburg-area district.
Most candidates for those slots rely on their existing name recognition and ballot position, but a presidential campaign could easily step in to help allies professionalize their efforts through targeted voter contact and digital media. A committee established solely to elect, say, anti-Trump delegates could raise and spend freely before the April 26 primary: Pennsylvania has loose campaign-finance laws, including no limits on personal contributions.
The Art of the Deal
Early rumbles that party insiders are angling to displace the perceived winner of the primary season will provoke a furious backlash. “If the Washington deal-makers try to steal the nomination from the people, I think it would be a disaster. It would cause a revolt,” Cruz said recently in Maine. Talk radio and right-wing online media are likely to echo this appealing anti-establishment riff. Those plotting the theft will have to begin convincing supporters to stick with the scheme in the face of the onslaught, perhaps offering to bolster elected or party officials who go against their constituents with election-year support from a super-PAC established purely for that purpose.
There is nothing in the RNC’s rules that prohibits delegates from cutting a deal for their votes, and lawyers say it is unlikely that federal anti-corruption laws would apply to convention horse-trading. (It is not clear that even explicitly selling one’s vote for cash would be illegal.) To lure a governor, for example, the offer of a Cabinet post could be necessary, while a delegate may be swayed by a job as regional HUD administrator or a seat on the Postal Regulatory Commission. A crucial vote on a procedural question could be ensured with a state party’s website-design contract to a delegate’s cousin’s firm.
But why waste an ambassadorship on someone who could be bought for far less? Every delegate and alternate is already paying for individual travel costs to get to Cleveland. Most state parties tell delegates to expect to spend $3,000 out of pocket on airfare, hotel and meals, and for some it could prove an unexpected hardship. (Delegates are assigned hotels by state; some could end up paying for the La Quinta Inn, others stuck with a bill from the Ritz-Carlton.) As blogger Chris Ladd has noted, Trump’s slate in Illinois contains “a food service manager from a juvenile detention center, a daycare worker from a Christian School, an unemployed paralegal, a grocery store warehouse manager, one brave advocate for urban chicken farming, a dog breeder, and a guy who runs a bait shop.” Could some of them be tempted to flip their votes if a generous campaign, super-PAC, or individual donor picked up the costs of their week in Cleveland? Far-flung territories that are treated as states under RNC rules offer even richer opportunities for geographical arbitrage. Round-trip flights in July to Cleveland from the Northern Mariana Islands, which nine delegates are unbound after the first ballot, already cost more than $2,000 each.
The Disqualifying Round
Trump could still be within striking distance of 1,237 delegates on June 7, when the last five states—including California and winner-take-all New Jersey—hold their primaries. (More than 300 delegates will be awarded on that last day alone.) Party rules require that all states conclude their nominating contests six weeks before the convention begins. This interlude is usually the chance for a nominee to put his mark on the week’s festivities: selecting speakers and entertainment, shaping the staging and visuals to reinforce desired themes.
If the primary calendar ends without any candidate emerging as its presumptive nominee, all those responsibilities will remain with RNC Chairman Reince Priebus. Thus far, Priebus has been docile toward Trump, who early on made being treated equitably by the national party a precondition for promising not to run as an independent in the general election. But if Trump doesn’t finish with a clear majority of delegates, Priebus will face immense pressure from party officials and donors to undermine him.
Any challenge to a state’s results will be litigated before the Standing Committee on Contests, and, if successful, the matter will then be handed to a Convention Committee on Credentials to rule on what slate of delegates will be officially seated on the convention floor. Delegates bound to Trump against their personal preference get a free hand in these decisions; stacking the credentials committee will be their first real chance to cast a vote undermining his path to the nomination.
Trump opponents will be aided by the fog of chaos that has surrounded his candidacy. Investigators deployed by an opponent’s campaign or super-PAC can seek out cases of “disorganization and confusion”—as Romney lawyers described it when they successfully challenged the results of a 2012 Maine convention taken over by Paul supporters—to knock out Trump slates nationwide.
Reports of caucus-site irregularities in Nevada—ballot shortages, unreliable check-in procedures, supposedly neutral election officials wearing Trump garb in violation of party rules—were quickly forgotten when Trump carried the state by a convincing margin of more than 20 points. But anti-Trump forces may now be eager to revisit them. Successfully demonstrating that the process violated Nevada Republican Party rules would not only jeopardize the 14 delegates that the winner was awarded but put all 30 of the state’s delegates back into play. A challenge would have to begin at the state party convention in May, and be brought before the RNC by mid-June. Investigators would have to begin collecting affidavits well before that.
Winning by Moving the Goalposts
In the days before House Speaker Paul Ryan gavels the convention to order on July 18, party officials will gather in meeting rooms near the Quicken Loans Arena to handle committee business. This is where the establishment has effectively unchecked power to begin squeezing out a candidate it does not want to see nominated.
All eyes will be on the Standing Committee on Rules as it is forced to revisit the RNC’s Rule 40, which sets qualifications for a presidential candidate to appear on a convention ballot. Seeking to keep Paul supporters from entering his name into nomination in 2012, Romney lawyers raised the threshold from winning a plurality of delegates in five states to a majority of them in eight. Many party officials believed at the time they had elevated the standard from one that was too easy to meet to one too difficult. Before the official festivities start in Cleveland, the committee would have to rewrite Rule 40 for anyone other than Trump or Cruz to even be considered by delegates.
While the Contests Committee reviews specific challenges to Trump-friendly slates, the Rules Committee could help clear the way for unity slates to displace them on the convention floor. In 1952, supporters of Dwight Eisenhower succeeded in passing what his supporters called a “fair-play amendment,” that denied any delegate from a state whose status was being disputed from voting on any of the challenges. The argument could be easily updated for a day in which Trump-inspired hooliganism dominates the news, questioning why those in essence being charged with having tainted state-level results should be allowed to serve on their own juries.
When each committee’s decisions come before the convention floor for what is typically pro-forma ratification, anti-Trump forces will be happy to see Ryan wielding the gavel as the convention’s chairman; he will have wide latitude to manage the proceedings if they grow contentious. (Unlike other RNC meetings, which operate according to Robert’s Rules of Order,the convention follows House of Representatives procedure.) In 2012, chairman John Boehner decided to hold a voice vote instead of a roll call on pro-Romney rule changes; even though the pro-Paul supporters were clearly the loudest, Boehner reflexively ruled in Romney’s favor.
Trump supporters within the arena who see the vise closing on his chances to be nominated could respond in rage. Trump himself will likely be egging on an insurrection, from within the hall and amplified by his running commentary on Twitter and in broadcast interviews. To define the procedural debate in the media, Priebus will probably want to ensure that the parliamentarian he appoints to stand alongside the speaker is credible and mediagenic. Ryan, who knows that anything he does to provoke ire from the activist right could poison his ability to do his day job, will be eager to have someone else justify his rulings.
Another appointee, the convention’s sergeant-at-arms, has authority to enforce convention rules and is charged with maintaining order; Priebus will want to ensure his or her political loyalties aren’t in question. The chief sergeant-at-arms of the 2008 convention, South Carolinian Henry McMaster, zealously patrolled the crowd to crack down on any distraction that could mar John McCain’s nomination. Calling himself the convention’s “top law-enforcement officer,” McMaster at one point had his his security team rip a “Ron Paul Revolution” sign from the hands of a Massachusetts alternate delegate. Today, McMaster is his state’s lieutenant governor and the most prominent official there to support Trump. It seems unlikely party officials will let McMaster hold onto his badge this year.
If the chairman so desires, the ayes can always have it, and the nays banished to the parking lot.