New York Times reporters recognize the Trump tactical advantage in the GOP primary struggle

This afternoon, Ken Bode, my boss at the Center for Political Reform in 1971-72, emailed me, saying, "I see that the NYT band of analysts finally caught up with you today. I just tell people you were well mentored." Very true. For many decades, Ken has been an amazingly astute observer of American politics.     

The New York Times reports that “[i]f Mr. Trump draws one-third of the Republican primary vote, as recent polls suggest he will, that could be enough to win in a crowded field. After March 15, he could begin amassing all the delegates in a given state even if he carried it with only a third of the vote. And the later it gets, the harder it becomes for a lead in delegates to be overcome, with fewer state contests remaining in which trailing candidates can attempt comebacks.” 

I wrote about this impact of the Republican delegate selection rules on August 11 in a blog post published in the Blue Nation Review on August 26. 

If Trump survives the latest flap surrounding his tacit agreement with a birther at a post-debate event in New Hampshire – and it looks like he will – then he most likely will be the Republican nominee. Unless the Republicans coalesce around one or two powerful non-Trump alternatives (something that is not likely to occur), all he needs to do is to keep at 30-35% primary electorate support; he doesn't need to expand his support, he just needs to maintain what he now has. Only if state parties electing delegates after March 15 switch from winner-take-all to proportional representation delegate allocation schemes could he be stopped. But if state parties now make such changes, Trump clearly will view that as a breach of his “contract” with the Republican National Committee to agree to support the nominee. That would lead to a third-party run by Trump if he does not get the nomination.

The Clown Car is running into a ditch.

Donald Trump's Hostile Takeover of the Republican National Committee: Will It Control the Party?

Earlier this summer, Donald Trump told the American public that he would like Carl Icahn, the (in)famous hostile takeover corporate raider, to be his Treasury Secretary. Thus, Icahn would be a key model for how Trump would govern as President of the United States. He has learned Icahn's lessons well.

Now, having determined that he is being treated "fairly" by the Republican Party, Trump announces that he has signed the Republican National Committee's pledge to abide by the Party's presidential nominating decision next year. This may well portend a hostile takeover of the RNC, so reminiscent of Icahn's tactics in the corporate world.

It is clear that the Party Establishment does not like Trump, but its members are afraid of him. I suspect that he has extracted a commitment from the RNC to oppose any changes in the current delegate selection process that could jeopardize Trump's march to the nomination. As explained in my earlier post, the plethora of winner-take-all primaries in the second half of the delegate selection process beginning on March 15 works to Trump's favor, even if he is opposed by a majority of the Party's primary voters. And if Trump and RNC Chair Reince Priebus have entered into a "contract" to keep the allocation process as it currently stands, Priebus (and the Party machinery) would have to squelch any state's effort to shift away from a winner-take-all delegate allocation. Any deviation by the Party would constitute a breach of contract in Trump World, which Trump would use as an excuse to run a third-party campaign if he does not receive the nomination. And while Trump stated this morning on Morning Joe that he determined that mounting a third-party campaign would be daunting, the fact that the July 18-21, 2016 Republican National Convention is earlier than in recent cycles means the effort would be easier than it would have been in the past.

So how would Priebus enforce his end of the bargain (if there is such a bargain) if a post-March 14 state party chose to change its rules to allocate its delegates proportionally to the votes cast? He could try to use the Convention's Credentials Committee to bar delegates chosen in violation of national party rules. But depending on the alignment of the membership of the Convention Credentials Committee, this might not work, and the fallout could lead to fractious battles on the Convention floor, a non-Trump nominee, and divisive litigation

Indeed, this is the type of scenario that plagued the Democratic Party in 1972. Then, George McGovern won the then-Party-approved winner-take-all primary in California with 43% of the vote. The anti-McGovern candidates challenged the result before the Convention Credentials Committee, and the Committee voted to allocate only 43% of the delegates to McGovern, with the rest to the Hubert Humphrey and Edmond Muskie. (This happened because the California members of the Committee were recused from voting on the challenge to their status.) In retaliation (and as a matter of survival of the McGovern candidacy, since McGovern needed more than 43% of the California delegates to win the nomination), the McGovern members of the Committee voted to deprive Mayor Daley's slate of Humphrey delegates from Chicago of all of their seats, because the Daley slate, while elected, violated procedural slating rules of the National Party. (This happened because the Illinois members of the Committee were recused from voting on the challenge to their status.) But the final Party decision on the credentials of these delegates and would-be delegates would go to the Convention itself.

Both the McGovern and Daley delegates who had been removed by the Credentials Committee brought suit in federal court. While the lower court dismissed the suits, the U.S. Court of Appeals for the District of Columbia Circuit, in Brown v. O'Brien, found in favor of the California McGovern delegates and against the Illinois Daley delegates on the ground that the National Party, having established clear rules for delegate selection, could not then ignore those rules. The U.S. Supreme Court stayed the Court of Appeals' ruling, since the Convention still might be able to work things out.

Chaos ensued. At the Convention, McGovern barely prevailed in reinstating his California delegates and in keeping out the Daley delegates. But due to the length of the delegate credentials struggles, the McGovern campaign had no time to vet its potential vice presidential running mates (leading to the Tom Eagleton fiasco) and ended up having what should have been its prime time nationally televised acceptance speeches given in the middle of the night, when no one but political junkies were watching.

It still is not clear legally whether a political party may disregard its own rules at a presidential nominating convention. In the last piece of legal fallout from the 1972 Democratic National Convention, the U.S. Supreme Court in Cousins v. Wigoda ruled that local courts in Chicago could not hold the challengers to the Daley slate in contempt for violating a state court injunction barring them from taking their seats at the Convention; the First Amendment freedom of association protected the National Party from state court interference when, as then, the Party was simply implementing its own rules. The Court, however, did not reach other issues, such as whether the courts could intervene if the Party ignored its own rules.

Would the RNC want to fall into the maelstrom of the 1972 Democrats? Of course not. Trump's pledge and the implicit (and maybe, in secret, explicit) commitment by the RNC to not alter the existing delegate allocation rules means that Trump has succeeded in his hostile takeover of the RNC. But the RNC doesn't have total control, as the Democrats' 1972 experience illustrates. So the RNC will have to walk a very thin tightrope, unless Trump either runs away with the GOP electorate or somehow self-destructs. It could be a bumpy ride for the Republican Party. And it still could result in a Trump third-party candidacy.