Back in the day, when national party conventions were largely autonomous events rather than infomercials for a nominee chosen in primaries and caucuses, you’d have many names, including multiple “favorite son” candidates who were not really running for president, placed in nomination, with extensive time spent on nominating speeches and even “spontaneous” floor demonstrations. As conventions became more tightly controlled and their managers worried about things like ensuring that the balloting and acceptance speeches occurred before East Coast television viewers were asleep, nonserious candidacies were sacrificed to efficiency. Among Republicans, the tradition developed that no one’s name could be placed in nomination without support from at least three delegations; that cut off the pure favorite-son candidacies. Beyond that, the status of conventions as ratifying rather than nominating events exerted its own pressure on “losers” who typically succumbed to the pressure to unite behind the nominee and grin for the cameras.
That was before the Ron Paul Revolution appeared on the scene. In 2012, the Paulites shrewdly focused on winning fights for delegates that occurred after primaries and caucuses in hopes of making their eccentric candidate and his eccentric causes a big nuisance at Mitt Romney’s convention. And so the Romney campaign and its many allies reacted — some would say overreacted — by using its muscle on the convention Rules Committee (meeting just prior to Tampa to draft procedures for the conclave) to change the presence-in-three-delegations threshold for having one’s name placed in nomination to this one:
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 Rule 40(b), moreover, was interpreted to mean that no candidate who did not meet the threshold could have votes for the nomination recorded in her/his name.
Rule 40(b) succeeded in keeping the Paulites under wraps in Tampa, but as is generally the case, it remained in effect as a “temporary” rule for the next convention, subject to possible revision by a new Rules Committee meeting just prior to the 2016 gathering, and by the convention itself, which controls its own rules. In fact, its drafters may have intended to keep the rule in place to head off some annoying convention challenge to President Romney’s renomination.
Back in the real world, Rule 40(b) may have been in the back of some minds early in the 2016 cycle as a way to keep the convention from being rhetorically kidnapped by noisy supporters of Rand Paul, or of the novelty “birther” candidate Donald Trump.
Now, obviously, the shoe is on the other foot, and there is a growing possibility that the two strongest candidates for the GOP nomination, Trump and Ted Cruz, could join their considerable forces to insist on maintenance of Rule 40(b) or something much like it to prevent their common Republican Establishment enemies from exploiting a multi-ballot convention to place someone else at the top of the ticket.
Trump is currently the only candidate who is beyond the eight-state-majority threshold for competing for the nomination under the strict terms of Rule 40(b). But Team Cruz is confident enough that its candidate will also satisfy the rule that he’s the one out there arguing that Rule 40(b) means votes for John Kasich are an entire waste because they won’t be counted in Cleveland. And with both Trump and Cruz repeatedly claiming that the nomination of a dark horse who hasn’t competed during the primaries would be an insult to the GOP rank and file, maintaining Rule 40(b) is the obvious strategy to close off that possibility. A good indicator of the new situation is the evolving position of Virginia party activist and veteran Rules Committee member Morton Blackwell, a loud dissenter against Rule 40(b) before and after the 2012 convention, who now, as a Cruz supporter, is arguing that changing the rule “would be widely and correctly viewed as [an] outrageous power grab.”
But can the Republican Establishment stack the Rules Committee with party insiders determined to overturn Rule 40(b) and keep the party’s options wide open going into Cleveland? Not really. That committee is composed of two members elected by each state delegation. No likely combination of Kasich and Rubio delegates and “false-flag” delegates bound to Trump or Cruz but free to vote against their interests on procedural issues is likely to make up a majority of the Rules Committee, or of the convention. Indeed, most of the anecdotal evidence about “delegate-stealing” in the murky process of naming actual bodies to fill pledged seats at the convention shows Team Cruz, not some anti-Trump/anti-Cruz cabal, gaining ground. If Trump and Cruz stick together on this one point no matter how many insults they are exchanging as rivals, they almost certainly can shut the door on any truly “open” convention and force Republicans who intensely dislike both of them to choose their poison.
That would leave Kasich with his fistful of general-election polls and the proliferating list of fantasy “unity” candidates on the outside in Cleveland, playing to the cameras but having no real influence over the proceedings. And you can make the case that this is precisely what the Republican “base” wants and has brought to fruition through the nominating process. It would, of course, be highly ironic if the Republican Establishment’s Rule 40(b) became the instrument for two candidates generally hated by said Establishment to impose a duopoly on the party. But there’s no President Romney around to put a stop to it.