There have been a number of inaccurate and even spurious arguments made in recent months pushing the idea that delegates to the Republican National Convention were bound to vote for candidates according to primary and caucus results. The counter-argument, repeatedly vindicated by the plain text, history, and precedents of the convention rules as well as several court decisions, was that neither state party rules or state laws could bind delegates.
It might seem academic at this point because the Republican National Convention appears likely to bind delegates following recent changes to the rules recommended by the rules committee. But it’s still important to recognize the danger to the Republican Party posed by at least one of the pro-binding arguments, and understand why even those who supported binding should recoil from its implications.
Before the convention, the Republican National Committee’s chief counsel advised delegates and members of the rules committee that they could not “retroactively change the rules under which they were elected,” referring to language in the selection process leading up to the convention that purported to bind them to primary and caucus results.
One of the principle reasons this novel and imaginative re-interpretation of party rules was necessary is that earlier claims stating delegates were already bound under the rules had been repeatedly refuted, including by a court ruling in Virginia earlier in the week as well as historical research and analysis showing delegates to past conventions had always, with the exception of 1976, been completely unbound and free to vote their conscience under the current rules.
But the new argument isn’t just dangerous because it denies delegates their longstanding right to vote their conscience, it also threatens the structure and integrity of the party as a whole by twisting the relationship between delegates and the convention.
There is no convention, the highest authority of the Republican Party, until the delegates arrive and effectively create it. In the same way one Congress cannot bind a future Congress to adopt certain policies or programs, it defies all sense to suggest that the convention that creates and governs the Republican Party can somehow be bound by rules established by a previous convention.
In addition, the rules of the Republican Party very clearly specify that delegates to the convention can in fact change any or all of the rules of the convention. Rule 41(d), concerning notices sent out to rules committee members ahead of the convention, includes the following language: “A letter shall be attached to the document stating that all proposed rules are still subject to change prior to the meeting of the Convention Committee on Rules and Order of Business.”
Accepting that Republican delegates to the convention cannot change those rules helpfully identified by the party establishment would upend the relationship by limiting the authority of delegates to govern the party. Republicans generally recoil when progressives ignore the plain text and history of the law in favor of a “living, breathing” interpretation of the constitution, and should regard with similar skepticism what appears to have been a last-ditch argument made to support binding after all other arguments failed.
The Republican Party’s longstanding protections for the right of delegates to vote their conscience look like they will disappear in 2016, after party insiders pushed binding language into the rules (while never acknowledging that their earlier arguments hadn’t held up under scrutiny), but delegates should strongly resist a flawed rule interpretation that would also cause the delegates’ authority to govern the party disappear as well.
Sean Parnell is a public policy consultant in Alexandria, Virginia, and a co-author of Unbound: The Conscience of a Republican Delegate.