Beware the poo-bahs?

Dr. Ben Carson has threatened to bolt the Republican Party if there is a “brokered” Republican National Convention. I’d like to introduce Carson to Mr. Dooley, a fictional character created by 19th century satirist Finley Peter Dunne. Dooley famously uttered the old saw, “politics ain’t beanbag.” What did Carson think he was getting into when he sought the nomination – a genteel debate?

Carson seems to be waking up to the reality that Republican Party pooh-bahs might try to influence the outcome of their national convention. Soon, no doubt, other GOP presidential contenders might similarly discover that a variety of “insiders” may try to exert influence over the 2,500 delegates at the convention in Cleveland next July. Such a tactic would not be unheard of, in fact; although most convention delegates are legally bound to support a candidate, many are not. And delegates who have previously pledged to candidates who have dropped out of the race – whether before or during the convention – are likewise free to vote for whomever they wish, or, perhaps, the choice of their political patrons. There is great potential for a convention dominated by old-fashioned horse-trading.

Let’s back up. Since 1832, the major political parties have chosen their candidates for president and vice president through nominating conventions – an amalgam of party activists and elected officials from states and territories. Modern conventions have largely been ritualistic affairs, because the winner usually wins a majority of delegates weeks or months before the convention. The Democratic contest in 2008 is a good example. As hard fought as that campaign was, by late spring, Barack Obama had reached the “magic number” – a majority of delegates – so that the only real drama of the August convention in Denver was how the candidates and their supporters would come together.

There have been only a handful of times in the modern era when a convention actually made the selection. President Gerald Ford had to vigorously woo delegates when Ronald Reagan challenged him for the GOP nomination in 1976 – and both sides were making promises and counting votes through the actual roll call. Ford nudged out Reagan by only 117 votes out of 2,258 delegates, and then went on to lose to Jimmy Carter. In 1956, there was a floor fight for vice president among Senators John Kennedy and Estes Kefauver, and 11 other Democratic candidates. Kennedy was in the lead on the second ballot with just 15 votes shy of the majority, until enough delegates switched their votes to give Kefauver the nod. Before 1940, the Democrats required a two-thirds vote to nominate a candidate, routinely resulting in multi-ballot affairs. In 1920, for example, it took 44 ballots for the Democrats to nominate Gov. James Cox of Ohio, who was slaughtered by Sen. Warren G. Harding in November; and in 1924, attorney John W. Davis finally won the Democratic presidential nomination on the 104th ballot! Davis also got whupped,

In 2016, it looks like a number of viable Republican candidates will be left standing before the roll is called in Cleveland, for two simple reasons: more than a handful of candidates have significant political and financial support; and the GOP’s own party rules practically pre-ordain the result that no one goes to the convention with a majority. Many of the primaries and caucuses select delegates on a proportional basis, and there are literally dozens of delegate-rich contests. The GOP candidates only need to hold onto a slice of delegates to maintain leverage. If there is enough of a split among the candidates, there can be multiple power brokers and several ballots – a convention worth watching gavel-to-gavel, even if only as a spectacle. I don’t know if Carson has ever even attended a convention, but he would undoubtedly watch this with great wonderment.

The process, Dr. Carson, is not clean and neat like an operating room. But, as we say, when all is said and done, a presidential election ain’t exactly beanbag. 

Jerry Goldfeder is a special counsel at Stroock & Stroock & Lavan LLP focusing on election and campaign finance law. He teaches Election Law and the Presidency at the University of Pennsylvania Law School and Fordham Law School, and co-authors a bi-monthly column for the New York Law Journal (“Government and Election Law”).