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The Robot Rule

By Susan Estrich

We called it "the robot rule." I still have an old and slightly rusty pin showing a robot with a red slash through it. "Delegates are not robots" was our rallying cry in seeking to defeat what was then Rule 11(h) of the Delegate Selection Rules, or Rule f(3)(c) of the Convention Rules, which bound delegates to vote at the convention for the candidate to whom they were pledged according to the results of their state's primary or caucus.

The year was 1980. The fight was between incumbent Jimmy Carter and Sen. Ted Kennedy. The Carter forces, in what was an excess of paranoia, although understandable given how their year was going (a hostage crisis, double digit inflation, unemployment, etc), supported a rule that would prohibit pledged delegates -- the only kind we had back then -- from changing their minds at the convention. The Kennedy campaign, which was my team, challenged the provision at the Rules Committee, and the vote on the Rule became the campaign's reason for continuing until August even though Carter had a solid majority of pledged delegates.

I can't remember how many position papers, speeches, memos and letters I wrote about Rule 11(h), but it was a lot. While some states had their own laws binding delegates to vote in accord with the results of their state's contest, the validity of such laws was open to question, particularly given that the Supreme Court, only months before the 1980 Convention, had ruled in favor of the Democratic Party and against the state law of Wisconsin on the issue of the state's right to conduct an "open" primary in violation of Party Rules.

Moreover, ace legal researcher that I was, I couldn't find a single case of anyone ever having been punished for violating such a state law, and I argued, as did everyone else I wrote speeches for, that delegates should have the same freedom members of the Electoral College did, even if they seldom used it. My favorite hypothetical was the one about an "ax murderer": What if, sometime between the primary and the convention, it became known that the candidate who had won the primary was in fact an ax murderer? Would the delegates still be bound to support the ax murderer? I used that example so many times that Bob Torricelli, who later became a congressman and a senator but was then the executive director of the Rules Committee, got so frustrated that one day he flat-out said that the president of the United States was not an ax murderer.

This was as close as we got to success. In a show of loyalty, Carter's delegates overwhelmingly supported their right not to vote their consciences, choosing to bind themselves instead in a show of support for their candidate. The campaign finally ended with that vote Monday night on the Rule.

Two years later, the Democrats, acting on a report from a commission chaired by then-North Carolina Gov. Jim Hunt, changed the rules. I served on the drafting committee for that commission, and the big issue was not Rule 11(h)/f(3)(c), which everyone was happy to get rid of, but the proposal to add a category of unpledged superdelegates to the convention.

Undemocratic? For sure. Did it represent a lack of confidence in the will of the people, as represented by voters in the caucuses and primaries? Absolutely. Did we understand this at the time? You bet. I wrote almost as many speeches opposing superdelegates as I had opposing the robot rule.

But the view in 1982 was that the grassroots types who came out every four years could not be trusted to pick winners. It was as simple as that. Too much democracy, too many liberals controlling the process, and too many defeats in November. Changing the rules was all about the desire to win, the thought being that the grownups, the establishment or the "white boys" (and they were called all those things) would be more in tune with electoral success in November than the wackos who voted in Democratic primaries and caucuses.

Last weekend, with his endorsement of Barack Obama, New Mexico Gov. Bill Richardson argued that superdelegates should not deny the will of the people. But he's denying the will of the people of his home state of New Mexico, as Ted Kennedy is the will of the people of Massachusetts, even though Richardson will be a New Mexico delegate at the convention and Kennedy will be a Massachusetts delegate. In both cases, the elected official will be voting for Obama, while their states overwhelmingly supported Clinton.

They have every right to do so. Superdelegates are not robots. Neither, for that matter, are delegates anymore. It may not be democratic, but it is certainly consistent with the rules of the Democratic Party, and with the purpose of those rules.


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