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The race for president in the U.S. in in many ways a contest for delegates. It starts with the state primaries and caucuses but it doesn’t end there. There’s also the delegate selection process — who actually goes to the conventions — and this year, that question could be key. On the Republican side, an open or contested convention looks like a real possibility for the first time in decades. That means those delegates have an outsize importance. For Democrats, there’s the question of superdelegates and which candidate they will back. Guest host Melissa Block and her guests discuss the fight within both parties for delegate support.
- Ed O'Keefe Congressional reporter, The Washington Post
- Ben Ginsberg Partner, law firm Jones Day; NBC/MSNBC political analyst; general counsel for Mitt Romney's 2012 campaign
- Robert Bauer Partner, law firm Perkins Coie; professor, New York University School of Law; former White House Counsel to President Obama
MS. MELISSA BLOCKThanks for joining us. I'm Melissa Block with NPR sitting in for Diane Rehm. Crooked shenanigans, absolutely rigged, a phony deal, those are Donald Trump's words about the Republican nominating process. His attacks follow the recent success of his rival, Ted Cruz, who has been locking up the support of delegates to the Republican convention even in states he hasn't won. Cruz's strategy banks on him prevailing in an open or contested convention that goes to multiple ballots and that's where math really counts.
MS. MELISSA BLOCKIt means mastering each state's rules. It means lining up support delegate by delegate, congressional district by congressional district. On the Democratic side, it's a totally different story. To discuss the fight within both political parties for delegate support, I'm joined in the studio by three guests who are closely following the ins and outs of election law. Ben Ginsberg, who was national counsel for the Mitt Romney campaigns in 2008 and 2012, as well as for both Bush/Cheney campaigns.
MS. MELISSA BLOCKHe played a key role in the 2000 Florida recount and is now with the law firm Jones Day. Ben, welcome to the program.
MR. BEN GINSBERGThank you. Nice to be here.
BLOCKAlso, Bob Bauer, former White House counsel to President Obama. He's now with the law firm, Perkins Coie. Ben, thanks for -- Bob, thanks for coming in. And Ed O'Keefe, who's covering the presidential race for The Washington Post. Welcome to the three of you.
MR. ED O'KEEFEGood to be with you.
BLOCKAnd let's start with those alleged shenanigans, Ben Ginsberg. Explain the reason that the Republican system is the way it is and why, in your view I guess, it wouldn't be shenanigans or rigged or phony.
GINSBERGWell, it's been developed over time. There are two tracks to the process. One is the delegate allocation process. That occurs in primaries that we follow the results of on Tuesday nights and Saturday afternoons. And the second part is the delegate selection process in which all of the 56 states and territories actually sit down and decide who will fill the seats in the Cleveland convention. There are a variety of methods. It goes state by state for how that's done.
GINSBERGIt can sometimes be confusing, the rules...
BLOCKSometimes? Like this year, perhaps?
GINSBERGYeah, well, perhaps the whole year. But the rules were set out as of last September 30 and then, it's how they're followed in the individual states that I think is always the subject of complaints and credentials challenges.
BLOCKBut the bottom line of why the Republican system, the system on the Republican side, is so fragmented, why does each state and each territory have different rules? How did it develop that way?
GINSBERGWell, Republicans are believers in fierce federalism so that there has been a historical tradition in the party that the party should run from the bottom up, as opposed to the top down. And part of that is giving the state, each state, the discretion to have the process the way it wants.
BLOCKBob Bauer, let me turn to you and talk a bit about the Democratic side, which is a very different system in here, as we mentioned, that the question is about super delegates. You've been hearing some questions about the Democratic system as well, including from your own son, I gather.
MR. ROBERT BAUERYes.
BLOCKHe has some concerns about what's going on here.
BAUERThat's correct. That's correct. Well, this is a question that comes up every cycle and just very quickly to mention a point that Ben -- or to refer back to a point that Ben made, even in the Democratic party, there is a significant amount of flexibility provided to states who file delegate selection plans, but they have some control over their own process, as you know, because some states have primaries and some states have caucuses. The super delegates, which became a major factor after the rules reforms post 1968, after the 1968 presidential elections, the super delegates have always been part of that balance that I think both parties try to strike between institutional party interest on the one hand and voter preference on the other.
BAUERAnd it's often not understood because we follow the elections and the way the votes are cast, that the parties still try to retain an institutional interest and exercise some influence over the outcome and that sometimes collides with people's views of how much voter preference should count.
BLOCKAnd the underlying backdrop to that has a lot to do with what happened, I believe, in 1972, right, with the McGovern campaign.
BAUERThat's correct. The McGovern campaign managed to master a set of reforms that had been put in place that were designed to democratize the process. The Democratic nominee in 1968, Hubert Humphrey, won the nomination in '68 without entering a single primary and the view then was that something really had to change and changes were made. McGovern mastered those rules and emerged as the, in many respects, the surprise winner of the nomination in 1972.
BLOCKAnd the institutional interest then would be, since McGovern did so badly in the general election, would be in what? Having a candidate who the party had an interest in promoting and feeling could win in a general election?
BAUERThat's always an issue that comes up, is whether or not a candidate has demonstrated enough popular support to be democratically credible, but at the same time is competitive in the election.
BLOCKEd O'Keefe, let me turn to you. We said this is a math game here. What is that?
O'KEEFEI was never very good at math in high school so it's been a real challenge.
BLOCKWell, let's crunch the numbers a little bit on the Republican side in terms of the delegate count now. There's a magic number that the candidates are trying to hit, which would mean if they get to the convention, they are the nominee. Yeah?
O'KEEFEThat's right. You're aim is to get at least 1237 Republican delegates by the time you get to Cleveland in July and that remains mission number one for the Trump campaign.
BLOCKAnd that's half of the delegates plus one.
O'KEEFEExactly. You have 2,472 folks who will show up in Cleveland who could vote and at this point, Mr. Trump has about 740 delegates, 743 by the AP's count. It varies among other news organizations. As you can see, that puts in on course. He'd have to do just about -- he'd have to get just about every delegate available next Tuesday in New York, same deal in Pennsylvania later in the month. Maryland as well, Rhode Island, Connecticut, Montana, New Mexico and California, that's essentially what remains.
O'KEEFEAnd he needs to get at least, roughly, again, depending on how you do the math, 60 percent of all the remaining delegates to get to 1237 before Cleveland. Is that doable? Yes. Polling right now in those states suggests he could conceivably do it. But he really would need, for example, next week in New York, to win all of the 95 delegates that are there. And there is some polling done that suggests that won't happen, that there may be a few congressional districts that give at least one or two delegates to guys like John Kasich or Ted Cruz, so he would come in a little short.
O'KEEFEBut he will have won the overwhelming majority there so that's a good day for him. Again, in Pennsylvania, situation there where he'd have to win all the available -- but they have a trickier system that we can get into later.
BLOCKIt's really down into the weeds, yeah.
O'KEEFEAnd California, you know, you get a batch that are winner take all, but then, again, you have to fight district by district to win the three delegates that are given to each congressional district.
BLOCKAnd on the Democratic side, where are things stacking up with Hillary Clinton and Bernie Sanders?
O'KEEFESo she currently has a pretty comfortable lead with at least 1289 delegates won though the primaries and caucuses.
BLOCKThese are pledged delegates.
O'KEEFEExactly, with another 469 so-called super delegates on her side, according to the Associated Press. Bernie Sanders has 1038 pledged delegates and at least 31 super delegates. The important caveat there, in both instances, the campaigns say their tallies of super delegates are higher. It's just that those people who are members of Congress, the Democratic governors, party elders, members of the DNC have the right to keep quiet about who they prefer until a later date.
BLOCKRight. And those super delegates can switch allegiances.
O'KEEFEThat has happened at least in one or two instances already this year, yeah.
BLOCKBen Ginsberg, when you look at the Republican field, and Ed was just saying that it's not implausible that Donald Trump could lock this all up before the convention, could get to that magic number, does that seem plausible to you? Does that seem like a likely scenario?
GINSBERGIt seems plausible certainly. He's been winning about 45 percent of the delegates so far. He would, as Ed said, have to win 60 percent. It's actually a slightly higher figure, about 66 percent if you include the delegates who can actually be bound. That is a difficult task, but not impossible. The vagaries of the calendar is such that it now switches into states where he is likely to do pretty well. I think a place like New York is always difficult to gauge because there are many more Democratic districts than Republican districts.
GINSBERGThe polls we're seeing are statewide polls. There are so few Republicans in some of those districts that the polls don't reflect it. Yet, the most Democratic district in the middle of the Bronx provides as many delegates to the Republican convention as the most Republican upstate districts.
BLOCKRight. Which is why you've seen the candidates going there and not always with a very favorable reaction from the folks that live there.
GINSBERGWhen you see Ted Cruz and John Kasich rolling matzo, you know that there is unique politics taking place.
BLOCKIt doesn't happen in every state, but it does happen in New York. So you see a scenario where the rest of the conversation that we're thinking about here, which is what happens if there is an open or contested convention, may be a moot point.
GINSBERGIt may be. I think the evening of June 7 will be a real cliffhanger. California has 172 delegates because, again, of the say the process works. Only 13 of those go to the person who wins the state. So it's very much a congressional district by congressional district battle there to see, I suspect, whether or how close Mr. Trump comes to the 1237.
BLOCKBob Bauer, we've heard a lot from Bernie Sanders supporters that they are angered by the process, that the whole question of super delegates and their allegiances is rigged, much the same language that you hear from Donald Trump and his supporters. Should they be concerned? Is that legitimate?
BAUERIt's a line of argument you often hear. It's not the first time. In 1984, for example, Ben just mentioned the California primary, Walter Mondale came out of the California primary with a surprise loss to Gary Hart. He'd hoped to make a demonstration of complete success on that day. Now, he needed super delegates to win. And so there was a significant amount of effort on his part to try to demonstrate that even though the super delegates gave him, to some extent, the margin, he had still sort of succeeded with the popular vote and he was responding to the kind of criticism that you're referring to.
BAUERThat the elected officials, the party elders, as Ed said, shouldn't decide the outcome. This is not the first year in which candidates have made those arguments. We heard those same arguments in 2008, also in the Democratic nomination process and so as long as we have super delegates, that is certainly going to be a concern you're going to hear expressed.
BLOCKAnd we'll continue our conversation on delegates and the nominating process. You're listening to "The Diane Rehm Show."
BLOCKWelcome back. I'm Melissa Block sitting in for Diane Rehm. We're going to be taking your comments and questions throughout the hour. You can call us on 800-433-8850 or send us your email at email@example.com. You can also join us on Facebook or Twitter to join the conversation about the nominating process in this year's presidential campaign. I wanted to turn to an email. This is from a listener named Bonnie in Silver Spring, Md. And, Bob, this is a question for you. She asks, Bernie Sanders won by 10 percent -- I think actually it was 12 percent -- in Wyoming but Hillary tied in delegates, not including super delegates. Please explain the process. How did this happen?
BAUERWell, this can happen state by state and certainly in caucus processes. These states will set up three-tiered systems where literally from the first one that you see reported on television all the way to a state convention there are different levels to the delegate selection process. And as it has been suggested just a few minutes ago, there are some delegates that are -- emerge from this process committed to a candidate, some that are unpledged, that are not bound, that can be selected later to affiliate with a particular candidate.
BAUERSo, in Wyoming, the Clinton campaign was able to move the delegates that were available -- fore-suasion, if you will -- and there -- or at a later stage in that process, to move the delegates into their camp. And the Sanders campaign was able to do something similar to that in Nevada. And this gets back again to the point, these are very complicated processes and they have different levels. Popular preference is a dominant level but it's not the sole avenue by which candidates obtain delegates under this mixed system. And it's called a mixed system for a reason.
BLOCKMm-hmm. Ed O'Keefe, you've been doing a lot of reporting on what Ted Cruz is up to, with the notion of gearing toward an open convention, a contested convention where maybe he doesn't get the magic number but there's a mechanism by which he can, on a second ballot, a third ballot, Lord knows, on a fourth ballot, become the Republican nominee. What exactly is the Cruz campaign doing over the country?
O'KEEFEWell, the dirty little secret of the Republican convention at least is that somebody who is assigned a seat to vote, if you will, at the convention doesn't, at least on the first ballot, have to actually support the person for whom they're required to vote. Let that sink in for a second. The idea is that, you know, a Republican who, let's say, conceivably supports Marco Rubio, may, in a congressional district somewhere in this country get elected to a delegate position in a district that was won by Donald Trump.
O'KEEFEThe state rule or the state law might say that that person has to vote on the first ballot for whoever won the jurisdiction they're representing. So that Rubio supporter, conceivably, has to vote for Donald Trump on the first ballot. If he wins the 12:37, excellent. It's over. Head for the cocktail party. If it isn't, strap in and prepare for multiple rounds of voting. Now this Rubio supporter may or may not have already signaled that they are a Rubio supporter. But Rubio, of course, isn't in the mix. It may just be Donald Trump and Ted Cruz at that point. So, conceivably, either the Trump or the Cruz campaigns are lobbying that person to try to win them over and they end up making a decision on that second ballot. And they could conceivably vote for Cruz. They could vote for Trump again. Or they may try to find a way to put somebody else's name in the nomination.
O'KEEFEWhat Cruz is hoping to do across the country, in any of these scenarios where it exists, is to get one of his supporters installed so that they do what they have to do on the first ballot but, in subsequent rounds, switch their support to Senator Cruz.
BLOCKWhich brings me to an email that we got from Rob. And, Ben, let me steer this to you. He asks, if delegates are not bound to vote for a particular candidate, some say even on the first ballot, why do we waste so much time and money on state-by-state primary elections? It appears that the only thing that really matters is the delegate selection. So, what's the answer to Rob?
GINSBERGWell, the answer is that 50 of the states and territories do bind the delegates to the winners of popular statewide votes for the first ballot, some states for second, third ballots and a couple for all ballots. There are six states and territories who made the decision, as they're permitted to do, to not hold a statewide preference vote and those are the delegates that are unbound, in addition to 54 Pennsylvania congressional district delegates who, for some reason lost to the myths of history, actually run as individuals and not bound to any candidate. So that's the only pool of unbound delegates on the first ballot.
GINSBERGSo that's the only pool of unbound delegates on the first ballot.
GINSBERGSo what happened in the primaries actually does matter for the first ballot certainly and subsequent ballots in some states.
BLOCKAnd to his broader point, though, that for a lot of states, at least in the later ballots, everything's up for grabs. Whatever happened in the primary, it's a distant memory and it doesn't matter anymore. What about that?
GINSBERGWell, remember that we have never gone to multiple ballots since 1948. So it's always been a single ballot. So the rules are much more geared for what's happened historically than any of the great fantasies in which we're able to indulge for this cycle.
BLOCKBob, any thoughts on that?
BAUERYeah, I wanted to just mention a couple of things. First of all, that when we talk about state rules -- there are state laws and there are party rules. Now states, for example, can dictate that parties operate primaries, for example. But beyond that, in the delegate selection realm, parties have enormous constitutional authority to design their own procedures.
BAUERSo I just wanted to make that clear. And then there's a difference between the Democratic and Republican Party that is interesting. The Republican Party, I think, its rule 16, the Republican Party commits the candidates -- the delegates to vote for the candidates that they stood with, that they were elected to represent, if you will, for at least that ballot. In the Democratic Party, there's a definite requirement that candidates, in all good conscience, reflect the sentiments of the voters who elected them. But they're not actually obligated to do that.
BAUERHowever, the Democratic Party rules provide for what's called a candidate right of review, which means candidates can look at the list of their delegates and just make sure that, at the end of the day, the delegates that were elected for them or in their name are really, in fact, delegates that they can count on.
BAUERThat they're committed to them. And so there's -- there are differences between the parties. But what I wanted to emphasize is that each party has tried to find, again, that balance that some people find satisfactory and periodically don't, between sort of party institutional interests and authority on the one hand and pure popular will on the other.
BLOCKI would like to see the spreadsheet that is keeping track of all of these delegates in there. Maybe I'd like to see it. Maybe I would not.
BAUERI hope it's a whole database and not a spreadsheet.
BLOCKYeah, well. Ed, you've also been writing in The Washington Post about just how far campaigns can go in trying to woo delegates...
BLOCK...pull them over to their side...
BLOCK...if they want to change their mind. If Ted Cruz is trying to convince a Donald Trump delegate to become a Ted Cruz delegate, what can they do? How far can they go?
O'KEEFEThis is why guys like Bob Bauer and Ben Ginsberg -- let's put it this way -- do so well in this business. Because they need -- the campaigns need lawyers like Ben to tell them, do this, do that, don't do this, don't do that. In this case, at least in the case of Republicans, an unbound delegate could conceivably, you know, take some kind of a gift from the campaigns that are wooing them, in this realm. It's going to cost the delegate anywhere between $2,000 and $6,000 to travel and stay in Cleveland for the duration of the convention. In most cases, the expectation is each delegate pays their way. In some cases, a state party will raise the funds to help offset some of the costs.
O'KEEFEBut a campaign could step in and say, hey, we'll pay for your room and we'll pay for your flight. In return, perhaps, you want to vote for us.
BLOCKLegally, ethically, no problem?
O'KEEFEAs far as we can tell, right?
BLOCKBen, Bob, any...
O'KEEFEI mean, we're getting shoulder shrugs that say, yeah, go ahead. There's no problem with that. There would be issues if they were accepting contributions from corporations or from other organizations. But in accepting these favors essentially or these gifts from campaigns, that appears to be within the realm of the acceptable.
BLOCKBen, think back to 1976 and the suasion that was used on the Republican side during the Ford-Reagan battle for the nomination.
GINSBERGGerald Ford managed to give delegates rides on Air Force One.
BLOCKJust happened to have a few seats available?
GINSBERGJust happened to have a few seats. There were some state dinners where apparently delegates got to come to see the majesty of the White House and be better informed American citizens I guess. But, yes, there is a tradition. There are a few bounds in terms of you can't promise somebody a federal job.
GINSBERGBut other than that, it's -- there don't seem to be many laws on this.
O'KEEFESo this cycle we are on watch for when the plane owned by Donald Trump heads to, say, Pennsylvania to pick up 30 or so delegates and bring them to Mar-a-Lago for the weekend.
BLOCKFor a little golf?
O'KEEFEAs far as we know, that's fine.
GINSBERGIt would be cast, I suspect, as a political strategy session amongst prominent Republicans. And you have a political strategy session paid for with hard federal dollars anyplace you want.
BLOCKIt looks bad, doesn't it?
GINSBERGWell, I'm not sure.
BAUERI might be a bit of an outlier on this one.
BAUERFirst of all, I certainly agree with Ben that if these -- I don't say this out of self interest because I won't be representing Republican delegates or Republican candidates in this cycle...
GINSBERGIt's a relief.
BAUER...and that's a relief. But then that's a relief to Ben, for all sorts of reasons we won't disclose. But, if, you know, if they're well-lawyered, I assume they're going to reduce their risks. But I think times have changed significantly and there are some statutes that are sort of vague in their formulation. And there are sort of set of norms that have developed that I think make back-room dealing of the kind we've been discussing -- which involves trades of favors and apparent inducements -- to raise risks in the year 2016, that they didn't frankly pose in 19, you know, 24.
BAUERAnd so I'm not 100 percent sure that it can be the absolute Wild West. I do agree, as Ed said, there may be ways to frame these things that give it more or less a better odor. But I think there may be a higher level of risk than many might imagine.
O'KEEFEAnd I want to make a point here. To the credit of people who have won these positions, who are running for them, I spoke with several in Colorado, in Michigan, in Georgia, in South Carolina, who say, I'm not interested in accepting gifts and my vote cannot be bought.
BLOCKThey can't be bought, yeah.
O'KEEFEI've either made my decision or if I haven't made my decision or if I have the ability to switch a vote in the later round, I want a phone call or I want a conversation. You can call me and you can try to convince me. You don't need to buy my way. I did ask about the idea of offsetting travel expenses.
O'KEEFEI think there's some openness to that. But they certainly wouldn't want any strings attached or expectations. They may more be that the campaign thanks them after the fact or beforehand for voting for them and says we'll cover your cost to get there.
BLOCKYeah. And who's the adjudicating body here? Is it the Federal Elections Commission?
O'KEEFEYeah. Ultimately, it's the FEC because you have to report all of this to them. And if there are any questions about it, that would be referred to them.
GINSBERGWell, I think Bob's referring to more prosecutors.
BAUERYeah, I mean, I suspect that people who are playing hardball here and obviously there'd be some political value to raising the decibel level behind these kinds of charges, might well consider saying these were criminal violations and they ought to be investigated by the Department of Justice.
BLOCKMm-hmm. You know, I remember, I was speaking a few weeks ago with an unbound delegate from Wyoming who said he had heard from the Republican campaigns, except for the Donald Trump campaign, he had heard nothing from them. And I think that speaks to a broader question, which is, has Donald Trump mastered the rules of the game? And according to a lot of your reporting, Ed, he hasn't. He doesn't have the infrastructure in place. He doesn't have the people on the ground. He thought he could -- presumably, thinks he still can do that without needing to. But Ted Cruz is dominating in that area.
O'KEEFEAbsolutely. So we -- I spoke this week with a guy called Paul Manafort, who's leading this effort now for Donald Trump. He conceded that Wyoming is a wash for them. So if there's any signs of improvement for Trump in this regard, it's going to come at some point after this weekend. And that is what Trump has been raising concern about this past week, is what transpired last weekend in Colorado, where a similar situation was set up. A convention was held instead of a primary or a caucus. Trump was accusing the party of conspiring against him by making these changes to rules. That's not the case. The rules were set last summer.
O'KEEFEA very lengthy, much more drawn out and chaotic but democratic process was used in Colorado, that began at the precinct and county levels, graduated to the congressional district level and culminated with a state convention over the weekend that picked 34 delegates. Thousands of people voted. It was democratic, small d, democratic and the Trump campaign simply was ill prepared. And in talking to Trump supporters who were there, they said, we wish they had been here. They dropped the ball.
O'KEEFEWe did what we could but we lost.
BLOCKI'm Melissa Block with NPR. You're listening to "The Diane Rehm Show." And we are talking about the delegate selection process, looking ahead to the conventions this summer in the presidential campaign. If you'd like to join us, call 1-800-433-8850. You can also send an email to firstname.lastname@example.org or find us on Facebook or send us a tweet and we'll try to take some of your questions as we go along. Ben Ginsberg, I've been wondering through all this, as I've tried to wrap my mind around what the possible scenarios are here, how many people do you think there are who actually fully understand these rules in the Republican Party?
BLOCKWhat's that universe?
GINSBERGIt's a pretty small universe. I think it has probably at least quadrupled in this election season...
GINSBERG...as more and more...
BLOCKA crash course?
GINSBERG...campaigns needed to figure out. It's a pretty arcane practice that comes into play every four years in usually uncontested or relatively uncontested situations.
BLOCKAnd on the Democratic side, Bob? Is it more straight forward? Is -- are the rules a bit easier to understand and sort through?
BAUERNo. I wouldn't say so.
BLOCKNo. You wouldn't want to make their job seem easy.
BAUERI mean, again, because you're going state by state and there are really significant -- take a look, for example, at the Iowa caucuses. I mean, there was a fair amount of press about how unbelievably complicated they were. And they are complicated. And, in fact, there's some discussion now about whether they need to be as complicated as they are and whether they can be administered successfully, given their complexity. But -- and then there are other arrangements for electing Democratic delegates that are considerably simpler. But, on the whole, you know, it's a challenging task.
BLOCKLet's go to the phones and take a call from Hannah in Casselberry, Fla. Hannah, you're on the air.
HANNAHThank you so much for taking my call.
HANNAHYou were just touching on my question. Shouldn't a candidate have a clear understanding of how the election process works before running for office? After all, if the candidate isn't informed ahead of time about this, how can we expect that person to make good decisions once elected?
BLOCKOkay. Hannah, thanks for your call. We'll try to get an answer for you. Who wants to take that on mic?
O'KEEFEI'll say this. She sounds like she's espousing the views of those who do not support Donald Trump, who have been saying much the same to me all week, which is this is a complicated process. You hire professionals who understand this stuff, like Mr. Ginsberg or Mr. Bauer, to help you prepare for this. And the idea that he can complain now and say that the rules are unfair is not a valid argument many Republicans would say, because he should have been understanding this last fall when the rules were being finalized and putting people in place to prepare for this. I can tell you, having covered other Republican campaigns this cycle, they had teams of people back at headquarters whose sole job was to...
O'KEEFE...master these rules and to make sure every I was dotted and t was crossed and ballot was turned in properly and at the right length and with the right number of signatures, because you don't want to end up in the situation that Donald Trump is in right now. And so many of these other campaigns saw the 17-candidate field and realized we would probably end up in a situation like we're in today. So they prepared.
BLOCKMm-hmm. Ben Ginsberg.
GINSBERGWell, Mr. Trump did get on the ballot in all 50 states and territories, so that they did pay some attention to those rules. And, you know, the act of running for president is much more -- or should be much more about your vision for the future of the country and your mastery of issues. So I think to an extent campaigns or candidates are forgiven if they're concentrating on the big-picture issues facing the country. They should have somebody doing these rules. It's not I think the Trump people didn't, it's that they were seeing his wave of popular support, which has been greater than any of the candidates, and thought that was enough.
BLOCKBob Bauer, is it fair for candidates to say the system is rigged, when it is the system? And should they know that going in?
BAUERWell, I -- let me say, I think the caller's making -- asking a good question which has two parts to it.
BAUEROne question is whether there's any unfairness. Had the candidate have any reason to believe that it was important to master the rules? Since McGovern in '72, since Reagan in '76, since Goldwater in '64, since Carter in 1976, it's been clear that to run for president you need to understand the rules and manage them appropriately. The other question is, is there a relationship between how well you manage the rule and how well you will govern the country? The different question.
BLOCKOkay. Keep that thought. Coming up, your calls and questions. Please stay tuned. You're listening to "The Diane Rehm Show."
BLOCKWelcome back. I'm Melissa Block with NPR, sitting in for Diane Rehm. And we're talking about delegates and the Presidential nominating contests. I'm joined here in the studio by Ben Ginsburg, who has been counsel to Republican campaigns, including those of Mitt Romney and Bush/Cheney. Also, Bob Bauer, former White House counsel to President Obama. And Ed O'Keefe, who is covering the Presidential race and the ins and outs of the fight for delegates for the Washington Post.
BLOCKWe welcome your emails, your calls and your tweets. If you'd like to join the conversation. In the break, Bob Bauer, you were saying that Ben Ginsberg, your Republican counterpart, had gone a little easy on Donald Trump there. What do you mean?
BAUERYeah, understand, Ben and I are good friends, but the comment was directed more at Ben than it was against Trump. The -- I think that no candidate can say I had no idea that the rules were there. As I went through the whole history, where it's become clear over the years that these rules are an important part of how candidates have to prepare to compete. And in Donald Trump's case, I'd have to say, while he got himself on all 50 states' ballots, running as a businessman who knows how to get things done, it's peculiar, from my perspective, that he's saying now that he finds the rules confusing.
BAUERAnd he wasn't really prepared to use them to his best effect. It seems an awkward position for him to be in.
BLOCKBut does it play, Ed, into the narrative of, you know, I'm the outsider. This is against us and we're fighting for the common guy.
O'KEEFEAbsolutely, which is why -- yeah. Yeah, but when you're also making the argument that you're an effective manager, I think Bob has a point that I think that's what's really grating to a lot of Republicans right now. So, you're trying to have it both ways, Mr. Trump. You want to be this effective manager and you want to be the outsider and you're going to complain when you're losing. As the Cruz campaign said this week, he's whining -- if he's not winning, he's whining. And I think that's a line we're going to continue to hear from the Cruz campaign.
O'KEEFEI think the Senator used it last night on -- in one of those town halls that were broadcast, you know, and they have a point. Which is why, also, you've seen the Trump campaign, you know, staff up and prepare. He also has to use it as a motivating factor. There are still several big states to vote and he wants to make sure that his people keep turning up. They don't want them to be deterred by these reports that say that he's stumbling through the process.
BLOCKWell, also, and a number of folks have pointed this out, that Donald Trump has prided himself on pointing out how he has used bankruptcy law to his advantage. Mastering the intricacies of the tax code.
BLOCKSo that he only pays the -- what he absolutely has to pay, so why should it be any different in mastering the rules of a campaign?
O'KEEFEAnd that's certainly what some of his critics would say, yes.
BLOCKWhy don't we go to another caller? I want to turn to Ralph in Kalamazoo, Michigan, who has a question. Ralph, you're on the air.
RALPHYes, hello. I had a question about the Democratic primaries. They seem to me to be totally inconsistent, confusing, unfair, and undemocratic. In other words, there's not a uniform system at all. It seems like there's some caucuses, there's some primaries, there's some open primaries, some closed primaries. The caucus system is, to me, I don't, I don't -- I've never been to a caucus. I have no idea what goes on. I don't know what the rules. And then there's a question of how the delegates are apportioned after the vote in the caucus or the primary is taken. That's confusing to me.
RALPHSo why isn't there a uniform system, you know, across all states? Wouldn't that make more sense and be easier for the voter to understand?
BLOCKOkay, so Ralph, you're confused. I think, probably a lot of folks listening right now are equally confused. We'll try to sort this through. Bob Bauer, you want to take a stab at that?
BAUERThe caller's expressing bewilderment about a very complicated system, and Ben Ginsberg said earlier about the Republican Party, and I think this is true about the Democratic Party. There's a lot of variety. The states are given a significant amount of flexibility to structure processes that are appropriate to their own political expectations, requirements, and the like. And so, it's true that there are primaries and there are caucuses and the rules for participation in the primaries as well as for participation in the caucuses vary.
BAUEROne interesting, by the way, footnote to all of this, because we've been talking about this struggle between the party controlling its nominating process. But at the same time, wanting to heed the popular will. This balance that I've been talking about that the parties have to struggle with over time. The caucuses, which are oftentimes, you know, they're open to the participants, of course, on certain conditions. Some of which have been criticized, but they're a very different arrangement, of course, than primaries are, requiring voters to commit significant amount of time to a very complicated process.
BAUERFor expressing preferences for their candidates. Those caucuses were such that when they came to be very much used to good effect by insurgent candidates like George McGovern or Gary Hart. The party regulars, if you will, the people you call the party regulars, actually decided they preferred primaries. They preferred less complicated procedures because they thought that was much more likely to be ones in which party interests would be better expressed. So you -- it's a little bit less -- almost the opposite of what you'd expect in some sense. The caucus sounds like it's a more, sort of, you know, internal process and the primary a more open process.
BAUERAnd yet, the party regulars preferred primaries in many respects. So yes, it's complicated and it's complicated because of that federalist emphasis.
BLOCKAnd is there any thought, looking ahead, I mean, we're obviously all tangled up with thinking about this immediate campaign, but looking forward, is anybody thinking, maybe this isn't the system we want. Or, on the other side, are people saying, this is exactly the system we want and it's working as it's designed to do. Ed O'Keefe.
O'KEEFEWell, I think you get those questions every four years. We get it about the Electoral College, certainly. There's always a revived push to do that. There's always a push to move Election Day from Tuesday to Saturday.
O'KEEFEYou know, every four years this stuff comes up. And really, I think in the case, Ben, correct me if I'm wrong, the Republicans have actually -- part of the system they're using right now is actually a change from the way it's been done in the last few cycles. And the changes were made to sort of accelerate the nomination process, make -- preserve the rights of first four states that vote. But also sort of spread the wealth a little bit.
GINSBERGThe Republican process has changed over the years. In both, in 1996, in 2000 and 2008, we had nominees very quickly, by the week after Super Tuesday. That was the result of a process where there were more winner take all states early on. The process now is actually spread out. There's a requirement that for the first two weeks this year, the first month last time, there be proportional primaries only. Fewer winner take all states than existed before, the changes that went into effect in 2012. And, in fact, in the last two cycles, we've had much more extended, tenuated primaries.
GINSBERGWith Mitt Romney not winning until, actually, this time four years ago. And the nomination process going until June 7th this time. So, the changes that were put into effect starting in 2012 have actually served to extend our process. But also, that has provided many more variations in what the states do.
BAUERThe question of, sort of, are we satisfied with this process -- Ed's quite right. Ben's right. Every cycle, there are real concerns, because as the caller reflected, the people are not clear just exactly how these primaries, and particularly based on how they're reported actually mirror Democratic preferences. Very complicated to follow. One thing we haven't talked about, we talk about delegate selection procedures, but of course, there's a question of winner take all verses proportional allocations. And the Democratic Party is a purely proportional arrangement. All the way through.
BAUERThe front loading of primaries, the significance, still of small states like Iowa and New Hampshire in generating so called candidate momentum. The sequencing of primaries over time has been an important part about how candidates maneuver, even before the schedule is set to try to maximize what they think their competitive advantage would be. There are all sorts of facets that make this an immensely complicated process and very difficult for, as oftentimes once voters get into the details and see the hard parts come to the service.
BAUERRight? The more -- it's very hard for them to understand precisely what's taking place here.
BLOCKAnd when you look at all that, is it a system that makes sense to you, if you can step back from your role as a lawyer who's navigating it. When you look at it, do you see a logic to it?
BAUERWell, I found over the course of representing candidates, I have to be honest with you, that I -- it always made sense to me when my candidate emerged victorious.
BLOCKI'm thinking Ben is nodding his head.
BAUERYeah, Ben's over there grinning like Cheshire cat. But I would say that the question has always been, and that's why I emphasize how complicated it is, that it's a big system that's a balance of party preference and voter will. And parties strike it, sometimes satisfactory, sometimes not. The question is what's the alternative? And that's something people have struggled to come up with.
BLOCKYeah. Yeah. We haven't talked about one potential thing that will become very important come the convention on the Republican side. And that is the role of the Rules Committee, Ben. And we're gonna get deep down into the numbers and the Republican code here. But the Rules Committee will play a key role, conceivably, if they were to go to multiple ballots in determining how the convention will proceed. Walk us through just the basic contour of what that Rules Committee could do and how that would change things.
GINSBERGWell, the Rules Committee is made up of two people from each of the states in territories chosen by the delegates to the convention themselves. So, it is a group that is representative of the people who get selected by the voters or by a convention. They will deal with the proceedings of the convention. So that can be -- include what it takes to put a candidate's name in nomination. It can include, under our rules, whether it's a majority of the delegates, which is what it's been since 1856 or a plurality of delegates, which seems to be what Mr. Trump is advocating.
GINSBERGOr they have the power to make it a super majority of delegates. So, all the rules framing nominations, what it takes to actually win the nomination, how the proceedings on the floor will go, will all be determined in the first instance by the convention rules committee, which meets the Friday before the convention begins.
BLOCKI can only imagine the lobbying that would be going on to A, get people on that committee, and then to influence how they decide on these key questions.
GINSBERGYeah. And a number of those votes will really be the first test of who has what strength at the convention. So, it's the -- it really is the canary in the mineshaft.
BLOCKEd O'Keefe, you've been looking at that, too.
O'KEEFEYeah, and it's a pretty intense fight to get people onto those committees. There was a great example over the weekend in Michigan where Trump supporters and Kasich supporters won the state's eight slots and they boxed out the Cruz campaign. So, the Cruz campaign was robbed of a chance in Michigan, at least, to get at least two or maybe more seats for their supporters on the committee.
BLOCKAnd they coordinated that, I believe, the Trump and Kasich campaigns.
O'KEEFEThey did, they did and this was a very localized thing. This doesn't suggest a national Trump/Kasich alliance. At least not yet, but there were accusations that the Cruz campaign tried to pull a fast one at the end there in Michigan and tried to change the rules in Michigan to get their guys on. The other two campaigns realized that and boxed him out.
BLOCKAre -- do you think we're really looking for -- looking forward to a major surprise, maybe not looking for, but anticipating a major surprise in either of the conventions coming up this summer? Ed? Ben.
GINSBERGI think there are going to be huge, huge, huge surprises at the Democratic convention that Bob can deal with when a candidate comes from nowhere who people didn't see coming. Bob, over to you.
BAUERThis is Ben's retaliatory question.
BAUERDid you notice that?
BAUERI took him on on his Trump question, now he's fighting back.
BLOCKSo now he's tossing it to you.
BAUERHe's fighting back.
BLOCKWith a hard ball.
GINSBERGIt's just an honest question people want to know.
BAUERI -- listen, I think that you've read the reports. The process is ongoing. You know, I think that the Republican Party appears to be sort of in, sort of, the throws of a much more muddied struggle in some respects. But the Democratic primary process continues. I mean, there's no question that the campaign goes on. I think that people have looked at the delegate math and reached their own conclusions. But there are some who disagree. So, I can't -- I -- the one thing I know I've tried to avoid doing, fortunately because I'm not a media commentator. I'm an attorney, is to predict outcomes until they're settled.
O'KEEFEAll I will say is that this has already been one of the most unpredictable and dramatic cycles so far. I think the tensions on the Democratic side, between Clinton and Sanders supporters, and the unpredictability and unsettled nature of the Republican side, make whoever choose as a running mate more consequential and potentially more important than in recent cycles. Because, you know, on the Republican side, it could become a transactional pick to help close the convention and figure that out. On the Democratic side, it could certainly be used as a healing tactic if there continued to be tensions between the two sides.
BLOCKI'm Melissa Block. You're listening to The Diane Rehm Show. And Ben Ginsberg, let me pick up there on the note that Ed O'Keefe just left us with. Because you had a thought on what you wanted to amplify.
GINSBERGEd makes a great point. One of the interesting strategic questions for the Republican campaigns, for the candidates, will be whether they announce their choice for Vice President in advance to try and coalesce support. Or it's a decision you don't make until you're actually at the convention to read what's happening at the convention. It puts a particular emphasis in a challenging way on how you do the vetting process for Vice Presidential candidates. Something Bob and I have looked at in a bipartisan committee. But how you actually do the very elaborate and detailed screening for Vice Presidential candidates in a 40 day period at best. But perhaps even under the duress of a contested convention.
BLOCKBen Ginsberg, you raised the notion of an outside candidate miraculously appearing at the Democratic convention. Let me run that by you on the Republican side, because there has been a lot of talk about could it conceivably be someone from the outside. We heard House Speaker Paul Ryan categorically rule his name out of contention in that scenario. But is that a plausible idea that that could happen at the Republican convention?
GINSBERGI think it's only a plausible idea in what might be about a quadruple bank shot. Which would be multiple ballots without a resolution and it is clear that the candidates who are offered in the initial ballot simply won't be able to reach a majority. And at some point, the delegates will be hungry, tired, not have had a drink and start worrying about paying airline change fees if the convention drags on. And it is only, only if it gets to that stage that I think is a remote possibility, that a white knight candidate who's not been part of the process so far could come into play.
BLOCKAnd that would require a rule change, right?
GINSBERGNo. I don't think so.
GINSBERGI -- the way the rule, the nominating rule reads is that you need the majority of delegates in eight states, that they use the standard for 2012. Once there are unbound delegates, which will occur after the second ballot, those unbound delegates can sign nominating petitions for any candidate that they wish.
BLOCKSo they could be winning those states, essentially, at the convention.
GINSBERGCorrect. You need the majority of delegates in eight states, but that doesn't mean you've won the state in the primary, necessarily.
BLOCKI wonder, for the three of you who are thinking about this, if you are having, have had any weird nightmares, literal nightmares, as you wake up in the morning and think, I just had the craziest dream of what could happen here. Does anything like that pop into your head?
O'KEEFEI think for news organizations, we realize that you can't get there the day before this all begins. You've gotta be there the week before it begins because the most dramatic and consequential stuff could happen on that Friday before when the various convention committees begin to meet and set the rules. Those will really begin to give us a sense of how this is going to take shape. And there's two consequential dates, I'd say, on the Republican calendar left. June 7th, the day that the final votes are cast and the delegates are tallied up.
O'KEEFEAnd then that Friday before the convention. And until we get to those two dates, will we really know what will transpire? There's no -- there are ways to play out scenarios, but there's no way to even make terribly educated guesses about what could transpire.
BLOCKBob Bauer, anything keeping you up at night?
BAUERNo. Right now, again, going into my absolute refusal, even within my own consciousness, to predict the outcomes of these things. I do notice, however, that we have, in our political culture, this interesting sort of conflict between on the one hand what we think is a nightmare. And on the other hand, the kind of excitement that we absolutely hunger for. Right, we say, my God, what a horrible thing if everything goes to pieces, and yet, at the same time, any sort of projected chaos seems to generate a lot of interest.
BLOCKExcitement, yeah. Ben Ginsberg.
GINSBERGI think Bob's absolutely right about that. I suppose we've all thought about all these scary convention scenarios. So that, in itself, won't be a surprise intellectually. But there is that moment where you wake up and realize that it's actually here and it's actually happening, and that's a whole different sort of realm.
BLOCKThat's Ben Ginsberg who was national counsel for the Romney campaigns, as well as Bush/Cheney campaigns. Ed O'Keefe, covering the Presidential race for the Washington Post. And Bob Bauer, former White House counsel to President Obama. I'm Melissa Block. You're listening to The Diane Rehm Show. Thanks for listening.
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