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Conscience clause and the Republican National Convention, 2016
 2016 Republican National Convention | |
July 18-21, 2016 Location Cleveland, Ohio | |
President Donald Trump Vice President Mike Pence | |
2016 Convention Rules • Rule 12 • Rule 16 • Rule 40 • Conscience clause • Brokered conventions • RNC Rules Committee • Platform and Platform Committee • RNC Standing Committee on Rules • Republican National Committee | |
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In mid June 2016, a chorus of conservative activists began calling for the 2,400-plus delegates to the 2016 Republican National Convention to become “unbound,” enabling them to vote for whomever they pleased for the party's presidential nomination. The Call of the 2016 National Convention—which was approved in 2012 and amended in 2013 and 2014—required nearly every state to bind its delegates to vote for the candidate to whom they were allocated based on the results of their state’s primary election or caucus. As a result, leading up to the convention in July 2016, more than 1,400 delegates were bound by state party rules to Donald Trump, exceeding the minimum 1,237 delegates necessary to win the nomination and qualifying him as the presumptive Republican nominee.
After Democratic presidential candidate Hillary Clinton opened up a sizeable lead over Trump in national polls and fundraising and several Republican officials publicly questioned Trump’s ability to win a general election, appeals from conservative activists to unbind the delegates grew louder. At the center of their effort to prevent Trump from winning the party's nomination was a change to the Rules of the Republican Party known informally as the "conscience clause," which would have allowed delegates to vote differently from their allocation if such a vote violated their conscience on moral or religious grounds. The amendment was proposed in a meeting of the 2016 Rules Committee, but it failed in a voice vote.
The movement backing the conscience clause was a major front in the conflict between pro-Trump and NeverTrump Republicans. This article breaks down the ins-and-outs of the conscience clause, how it could have been added to the convention rules, and what could have happened if it had passed.
What was the conscience clause?
The conscience clause was a proposed addition to the Rules of the Republican Party that would have explicitly allowed delegates the right to cast a vote at the national convention for the presidential candidate of their choice, whether or not state law or party rules bound them to a different candidate through the primary process.
Kendal Unruh, a district-level delegate from Colorado and a member of the Rules Committee, spearheaded the initiative to amend the rules with a conscience clause. In an interview on June 17, 2016, Unruh asserted that the "delegates already have the constitutional right to be unbound."[1] The purpose of the conscience clause, then, was not to unbind the delegates, but rather to give delegates who are "rule followers" the security to vote as they please without concern that they are breaking a rule.
Unruh explained, "This is going after the activists that, when they are being pressured by the delegation chair or the state chairman or an elected official, 'Fill in the blank,'— it's giving them the tool, the empowerment—I call it the permission slip from mom at home—that they can, then, literally, tangibly hold it and say, 'Honestly, I can unbind because here's an RNC rule saying that I can.'"[1]
In a letter to her fellow Rules Committee members on June 25, 2016, Unruh formally stated her intention to propose a conscience clause to "codify each delegate’s existing right" to vote for the Republican presidential candidate of his or her choice.[2] Unruh offered the following model language:
| “ | Preserving Delegates' Ability to Vote Their Individual Conscience
The secretary of the national convention shall receive and faithfully announce and record each delegate’s vote in accordance with these rules. If any such delegate notifies the secretary of his or her intent to cast a vote of conscience, whether personal or religious, each such delegate shall be unbound and unconstrained by these rules on any given vote, including the first ballot for the selection of the Republican nominee for President of the United States, without the risk of challenge, sanction, or retribution by the Republican National Committee. Allowable personal reasons shall include the public disclosure of one or more any grievous acts of personal conduct by a nominee candidate, including but not limited to, criminally actionable acts, acts of moral turpitude or extreme prejudice, and/or notorious public statements of support for positions that clearly oppose or contradict the policies embodied in the Republican Party's platform as established at the national convention.[2][3] |
” |
Working alongside proponents of the conscience clause was another movement to unbind the delegates, arguing that the delegates to the Republican National Convention were, in fact, already unbound and—with one exception—always had been. The idea was supported and promoted by the group Delegates Unbound and was articulated in detail by Curly Haugland, a national committeeman from North Dakota and member of the Rules Committee, who published a book in 2016 called Unbound: the Conscience of a Republican Delegate. Listed below are the main points of this argument.
- The Rules of the Republican Party fall into three sections governing the Republican National Committee, the convening of the convention, and the proceedings of the convention. Leading up to the 2016 convention, no convention rules committee—save one—had ever added specific language to the actual convention rules explicitly binding delegates to a candidate based on written or verbal pledges or the results of a state’s primary or caucus results. The lone exception was from 1976 when, at the urging of President Gerald Ford and his supporters, the convention rules committee added a rule to the actual convention rules known as the “Justice Amendment,” stating, “that in any event, the vote of each State for the nomination for President shall be announced and recorded (or in the absence of an announcement shall be recorded) in accordance with the results of any binding Presidential Primary or direct election of delegates bound or pledged pursuant to state law.”
- The 2012 Rules of the Republican Party included language—added in 2013 and 2014 by the Republican National Committee—that explicitly required delegates to be bound based on the results of a state’s presidential preference poll and described procedures for dealing with delegates who flaunt the rule. That language, however, falls under the section of the rules known as the Call of the Convention, which Haugland argued would expire at the start of the 2016 convention and would, therefore, have no bearing on the convention’s proceedings.
- Language embedded in two rules that have been, in some form or another, a part of the Rules of the Republican Party for decades has historically been used to allow delegates to vote their conscience on all matters at the convention. One rule, Rule 37(b) in the 2012 version of the rules, has been used to allow delegates to object to the announcement of their delegation’s votes, thereby requiring the roll of that delegation’s members to be called again and their votes to be recorded “in accordance with the vote of the several delegates in such delegation.” The second, Rule 38 in the 2012 version, has been used to prohibit a state or congressional district delegation from being required to cast “its entire vote as a unit as determined by a majority vote of the delegation.”
Failure of the conscience clause
Unruh formally proposed the conscience clause at the Rules Committee meeting on July 14, 2016. The committee met for a marathon session that ran from 8:00 am in the morning until 11:31 pm, with only a brief recess in the late morning/early afternoon. A second session was scheduled for July 15, but the committee voted in favor of completing its work in a single session. Late in the evening, Unruh proposed adding the clause to the end of Rule 38, but the amendment failed in a voice vote.
Unruh had previously mentioned the possibility of trying to offer the conscience clause to the convention body in the form of a minority report if it failed in the committee meeting. Under Rule 34 of the 2012 Rules of the Republican Party, Unruh would have needed to submit a written report with the amendment's terms to the chairman, vice chairman, or secretary of the committee no later than one hour after the committee members had voted on the majority committee report. This filing was also required to include "affirmative written support" from at least 25 percent of the Rules Committee.
On June 17, 2016, Unruh stated her intention to, at the least, push a minority report through the committee.[4] NBC News reported on the same day that there were at least ten members of the committee, including Unruh and her fellow Colorado delegate Guy Short, who supported the amendment.[5] The Wall Street Journal reported on July 6, 2016, that this number had risen to 20.[6] Because of Rule 34, written support from at least 28 members of the committee would be necessary to officially file the minority report.
No minority report, however, was ever offered on the convention floor.
After the failure of the conscience clause at the July 14 meeting of the Rules Committee, amendments were added to Rules 37 and 38—both offered by Jordan Ross of Nevada—stating, "Nothing in this rule shall be construed to prohibit the binding of delegates pursuant to Rule No. 16(a)." Some delegates, such as Curly Haugland, had previously argued that those rules could be—and historically have been—used to allow delegates to vote their conscience.
Paul Manafort, the chairman of Trump's campaign, tweeted later in the evening of July 14, 2016, "Anti-Trump people get crushed at Rules Committee. It was never in doubt: Convention will honor will of people & nominate @realdonaldtrump."[7]
The rules package passed by the Rules Committee on July 14, 2016, was approved by the convention as a whole on July 18, 2016. Learn more about the July 18 business session here.
Minority reports and modern Republican national conventions
Minority reports have been used as a negotiating tool in intraparty conflicts, particularly those arising from platform disputes, to varying degrees of success. In 1976, for example, Republican delegates supporting abortion rights managed to secure enough signatures to file a minority report asserting that a position on abortion "should not be included in a political party's platform."[8] After the report was briefly discussed and a voice vote conducted, the chair of the convention, John Rhodes, held that the delegates had rejected the report. A request for a roll call was refused.[8][9] At the same convention, a second minority report calling for a "morality in foreign policy” plank was approved by voice vote and included in the amended platform.[10]
Another modern example of how minority reports have been handled procedurally comes from the 2000 Republican National Convention. On the first day of the proceedings, the chair of the convention, then-Speaker of the House Dennis Hastert (R-Ill.), announced that although a minority report had been submitted in compliance with the party's rules, it would not be presented to the delegates because "the committee [had] reached an understanding with the proponents of the minority report and no further action by this convention [was] required."[11]
In 2012, a minority report was drafted and signed by at least 25 percent of committee members to oppose changes to the party's rules that would have limited the power of grassroots activists. According to a recap of the event by the Republican Party of Texas, it was never filed because the Rules Committee reached an agreement with the dissenters and removed the problematic language in the main rules package.[12]
The impact of minority reports at national conventions was also discussed in Correll v. Herring, a federal case filed on June 24, 2016, which successfully challenged the constitutionality of a state election law in Virginia on the binding and allocation of political party delegates.
How likely was the conscience clause to pass?
- In late June, Politico surveyed members of the Rules Committee, asking if they would support a rules change that would unbind the delegates at the convention. Out of 32 responses, 25 said they were opposed. Politico also noted that another 33 members of the Rules Committee have made public statements either endorsing Trump or opposing rules changes like the conscience clause amendment.[13]
- On July 6, The Wall Street Journal published the results of a similar survey and found 20 Rules Committee members in favor of a conscience amendment and 59 against it. Thirty-three did not respond.[6]
- As of July 6, an estimated 682 delegates reportedly supported efforts to unbind the delegates, while 888 were opposed, according to Randy Evans, a Rules Committee member from Georgia. As noted by CNN, that left the stances of approximately 900 delegates unknown.[14]
What impact could the conscience clause have had?
It is extremely difficult to predict what would have happened at the convention if the conscience clause had been adopted. Would the convention have become an open convention? Would Donald Trump have lost the nomination? Would House Speaker Paul Ryan (R-Wis.) have suddenly thrown his hat into the ring? Would Ted Cruz have unsuspended his campaign? These are unanswerable questions. But, with that being said, here are three basic points to keep in mind when trying to grapple with what might have happened.
- 1. Heading into the convention, Trump had 1,415 bound delegates and had received support from 127 unpledged delegates for a total of 1,542 delegates who were expected to vote for him on the first ballot. This means that at least 306 delegates bound to Trump would have had to invoke the conscience clause in order to force a contested convention.
- 2. Some delegates bound to Trump but opposed to his candidacy might still have voted for him, regardless. There are four reasons for this. One, even though the conscience clause would have provided these delegates with an “out”—or, as Unruh called it, a “permission slip”—they still might have been unwilling to flaunt the rules of their state party, which, in most cases, were the actual mechanisms that bound the delegates in the first place. Two, delegates in states that voted heavily for Trump—like New York, for example—might have been unwilling to go against the will of Republican primary voters. Three, some delegates may simply would have wanted to avoid a contested convention and would have voted for Trump in the hopes of unifying the party before officially heading into the general election season. Four, some states—like New Mexico, for example—have actual laws in their election codes requiring delegates to vote in accordance with how they were allocated and bound. In the past, the courts have found such laws to be unconstitutional, and in June 2016 a lawsuit was filed in Virginia challenging a law in that state that dictates how national convention delegates are to be allocated and bound. Despite that lawsuit's success in July, concerns over legal fees and the hassle of litigation could still have deterred delegates in states with election laws governing allocation and binding rules from voting for a candidate other than the one to whom they were bound.
- 3. It is unclear who the alternative to Trump would have been and how he or she would have made it onto the ballot. Moreover, it was also unclear if a candidate could have been formally nominated without having his or her name placed on the official nominating ballot. The convention rules were murky on these issues. There was a rule in effect at the convention—Rule 40—which many interpreted to require a candidate to have won delegate-majorities from at least eight states to qualify to have his or her name placed on the official nominating ballot. The only candidate who could possibly have met that threshold was Cruz. Read more about this in the section below.
One interpretation of Rule 40(b)—in the form that it took at the 2016 convention—suggests that Republican presidential candidates were eligible to be nominated at the convention after the first ballot as long as they met the threshold of majority support from eight delegations. Describing a possible contested convention in April 2016, Josh Putnam of Frontloading HQ offered a second-ballot scenario where this could have happened: "After the first ballot, a little less than 60 percent of the delegates will become unbound and free agents on a subsequent vote. Either they can join up with one of the two qualifying candidates—Trump and Cruz in this scenario—or if there is enough support (a majority of delegates in at least eight states) for another candidate, then they can join that effort to produce another Rule 40 qualifier; another name placed in nomination. If Cruz is as organized elsewhere as his campaign has been in states currently selecting delegates though, he would be greatly advantaged on that second ballot and reduce the likelihood of it going beyond that point."[15]
Under this interpretation, any candidate could have had his or her name placed in contention for the nomination on any ballot as long as he or she could show support from a majority of delegates from at least eight delegations, regardless of that candidate's performance or involvement in the primary process.
Morton Blackwell, who has served as a member of the rules committee at five national conventions, offered a different interpretation of the rule in an op-ed for RedState in March 2016.[16]
| “ | In fact, as it now stands, the same Romney-created rule, Rule 40(b), that prevents votes from being tallied for candidates who could not prove majority support from at least eight state delegations also provides that candidates must prove that they meet the eight-state threshold “not less than one (1) hour prior to the placing of the names of candidates for nomination pursuant to this rule and the established order of business.” In other words, when the first ballot begins, no additional candidates can qualify to receive votes that will be counted.
Only candidates who meet the eight-state threshold required to receive votes that count on the first ballot can receive votes that count on subsequent ballots. Under the current rules, therefore, it’s nonsense to talk about any candidate coming from behind to win the nomination unless that candidate meets the eight-state threshold before the first ballot, much less to talk about breaking a possible convention deadlock by nominating anyone who is not right now a candidate for the nomination.[3] |
” |
| —Morton Blackwell[17] | ||
Argument that delegates were unbound
During the 2016 Republican presidential nomination process, there was debate about whether delegates to the Republican National Convention were bound to vote for the candidate that won their states' primary or caucus.[18][19][20][21]
Most Republican Party officials, like RNC Chairman Reince Priebus and a majority of Rules Committee members, supported the view that the Republican delegate allocation rules set by state parties and state laws were binding, and that pledged delegates were required to vote according to the results of their state’s primary or caucus.[22][23] However, some argued that the state party rules and laws were not binding at the convention. Rather, they argued, Rule 37(b) of the national party rules and historical precedent supported the interpretation that delegates could vote according to their own preferences.[18]
Former Republican National Committee member Curly Haugland wrote:[18]
| “ | The history of the Republican National Convention proves that delegates have always, with the exception of 1976, been free to vote their conscience, and the rule that has protected this right over the last 136 years [Rule 37(b)] remains part of the temporary rules of the 2016 convention. The U.S. Supreme Court’s rulings on the issue also make clear that delegates are free to ignore state laws purporting to bind them, and the one national party rule purporting to bind delegates expires at the start of the convention.
|
” |
Ultimately, the Rules Committee of the Republican National Convention in 2016 adopted a version of Rule 16 of the national party rules that affirmed the requirement for pledged delegates to vote according to how state party rules bound them. The rule said, “The Secretary of the Convention shall faithfully announce and record each delegate’s vote in accordance with the delegate’s obligation under Rule No. 16(a)(1), state law, or state party rule.” The Rules Committee also voted to amend Rule 37 with an additional clause saying, “Nothing in this rule shall be construed to prohibit the binding of delegates pursuant to Rule No. 16(a).” Steve Scheffler, a Rules Committee member and member of the Republican National Committee, said, “The voters have spoken. Why would 112 people [members of the Rules Committee] say, ‘We don’t care what you did, we’re going to set our own rules?’”[24]
Click on the following links to learn more about arguments for and against this interpretation of delegate binding:
- Green Papers: "The Ties that Bind–or Do They?" (March 19, 2016)
- The Hill: "All Delegates Are Unbound" (July 11, 2016)
- National Review: “Not a Single Republican Delegate Is ‘Bound’ to Donald Trump” (June 9, 2016)
- The Hill: “GOP delegates are legitimately bound, deal with it” (July 7, 2016)
See also
- Republican National Committee
- Republican National Convention, 2016
- RNC Rules Committee, 2016
- RNC Standing Committee on Rules
- Correll v. Herring
- 2016 presidential nominations: calendar and delegate rules
Footnotes
- ↑ 1.0 1.1 MSNBC, "Could this woman really stop Trump?" June 17, 2016
- ↑ 2.0 2.1 Politico, "Unruh's Letter to Rules Committee," June 25, 2016
- ↑ 3.0 3.1 3.2 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
- ↑ MSNBC, "All In With Chris Hayes, Transcript, 6/17/2016," June 17, 2016
- ↑ NBC News, "Campaign to Dump Trump at Republican Convention Emerges," June 17, 2016
- ↑ 6.0 6.1 The Wall Street Journal, "Anti-Donald Trump Forces See Convention Coup as Within Reach," July 6, 2016
- ↑ Twitter, "Paul Manafort on July 14, 2016," accessed July 14, 2016
- ↑ 8.0 8.1 Wolbrecht, Christina. (2010). The Politics of Women's Rights: Parties, Positions, and Change. Princeton, NJ: Princeton University Press. (pages 41-42).
- ↑ Melich, Tanya. (1998). The Republican War Against Women: An Insider's Report from Behind the Lines. New York, NY: Bantam Books. (pages 76-78).
- ↑ Congressional Quarterly, "1976 Republican Convention Divided Republicans Nominate Ford and Dole," accessed July 6, 2016
- ↑ C-SPAN, "Republican National Convention Day 1 Morning," July 31, 2000
- ↑ Republican Party of Texas, "National Convention Recap," accessed June 23, 2016
- ↑ Politico, "POLITICO delegate survey: Dump Trump lacks the votes," June 24, 2016
- ↑ CNN, "Donald Trump camp may lack numbers to stop delegate revolt, for now," July 6, 2016
- ↑ The Washington Post, "Here’s exactly how a brokered Republican convention would work," April 5, 2016
- ↑ Republican National Committee, "Morton Blackwell," accessed June 23, 2016
- ↑ RedState, "Rules At The 2016 Republican National Convention," March 8, 2016
- ↑ 18.0 18.1 18.2 The Hill, "All delegates are unbound," July 11, 2016
- ↑ National Review, "Not a Single Republican Delegate Is ‘Bound’ to Donald Trump," June 9, 2016
- ↑ The Hill, "GOP delegates are legitimately bound, deal with it," July 7, 2016
- ↑ The Green Papers, "THE TIES THAT BIND-- OR DO THEY?" March 19, 2016
- ↑ Politico, "Never Trump movement gets little help from convention rules panel roster," June 23, 2016
- ↑ The Wall Street Journal, "Anti-Donald Trump Forces See Convention Coup as Within Reach," July 6, 2016
- ↑ The New York Times, "Donald Trump and R.N.C. Crack Down on Rebelling Delegates," June 26, 2016
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