Ruminations of an Elections 'Rules Junkie'

When the Democrats finally settle on a nominee, and it isn’t likely to be anytime soon, you can thank Jesse Jackson and Fritz Mondale for the process that produced him — or her.

Oh yes, and Harold Ickes.

It was Jesse Jackson who, throughout the 1980's— advised at the end by none other than the ultimate “rules junkie” (as we used to call ourselves) and also Hillary-hand Harold Ickes—insisted that the party jettison the last remnants of the old “winner take all” systems.

These systems— or “bloc” or “unit” voting, as they were sometimes called— allowed the winner of a state, or later, of a congressional district of a state, to claim all of the delegates. Jackson pushed for "PR," proportionate representation: it means that the winner wins what he wins, and the loser wins what he does, so in a 60-40 split, 60 percent of the delegates elected at the local level go to the winner, and 40 percent to the loser.

It is intended to protect minority rights, and I mean minority not in terms of skin color, but in terms of losers rights. Some states have, over the years, augmented the PR system with bonuses for state-wide winners, so that there is slightly more value in a win than a loss, because of the fear— long expressed and long ignored— that the danger of a PR system in a hard-fought race is that it would be difficult, some said almost impossible (if there were three people in the race for any significant period), for the winner to actually win.

The point is that in Florida last week, where McCain narrowly beat Romney, McCain got all the delegates and Romney got none, bringing him that much closer to achieving a majority. If the Democratic rules had applied (that is, if the Democrats had allowed any delegates to be awarded, more on that later), McCain and Romney would have emerged with almost equal numbers.

Here in California, where I live, the Democrats will be dividing delegates on Tuesday based on the proportions, with a bonus for the state-wide winner; the Republicans will be awarding them on a winner-take-all basis by Congressional district, which is why the traffic in my home town of Los Angeles has been so horrific these last few days, clogged with candidate motorcades of Republicans, as well as debating Democrats, in search of big delegate wins.

So how does a Democrat ever win in a system that encourages losers to keep losing and racking up the delegates, provided they exceed a 15 percent threshhold (that was part of Edwards’ problem) that guarantees them their share?

The answer was provided by former Vice President Walter Mondale, not only in the long campaign of 1984, when he basically beat Gary Hart on the phone, but in the deliberations leading up to that campaign, when the Democrats settled on the rules for “PLEO’s” (Party Leaders and Elected Officials, you see why we call ourselves rules junkies, with our own version; they have PCP, we have PLEO).

PLEO’s, more commonly known as “superdelegates,” are the unpledged folks who get to go to the convention without having to commit to a candidate and tie their fate to his in their home states. The idea was that after 1972, the wise old men (there weren’t many wise old women, then, and as for the wisdom of the men, that was debatable too) were avoiding the party’s nominating convention like the plague, leaving it to the crazies (liberals, activists, feminists, etc) to pick the losers who went up against the Republicans (winners, too, in the case of Jimmy Carter, although for many years he was considered a loser inside the Democratic party even though he won).

Even the labor skates, who under George Meaney famously rejected McGovern, didn’t want to come. In the wake of the 1980 defeat, which spawned the Democratic Leadership Council, and the effort by Southern states to move their primaries up to “Super Tuesday” in order to have more influence (translate: a conservative influence) on the selection of the nominee (as it happened, the first Super Tuesday was won by Jesse Jackson, not exactly the conservative choice), the party’s Rules Commission, lead by then North Carolina Gov. Jim Hunt, considered a number of proposals to bring back the elders by making them automatic, uncommitted convention delegates.

The two major forces inside the Commission at the time were the “Kennedy people,” which is what I was, lead by the aforementioned Harold Ickes, and the “Mondale people.” Both Kennedy and Mondale were positioning themselves for runs in 1984; the task of their various rules people was to figure out (usually wrongly, in the way these things work) what rules changes would favor them and what ones would hurt them, and then come up with something resembling “principled” arguments to advance our respective political advantages.

Since Mondale, the former vice president, was considered the “establishment” candidate, the working assumption was that the party leaders, however defined, would favor him and not Kennedy, so they were for as many superdelegates as they could get. We were for as few.

Of course, we never came out and said this aloud, which is where I came in. I became one of the leaders of the opposition to superdelegates on the grounds that most of them, given the composition of the party leaders and elected officials, would be white men, destroying the equal division of delegates between men and women and the required representation of every minority group (now I mean race and ethnic origin) that the Democrats had proudly listed in our standards for delegate selection.

To make a long, and painful, story short, I had my “horses” lined up to make the fight against “superdelegates" at the Hunt Commission meeting raring to go, lead by my old friend, and experienced warrior, Maxine Waters of California, when I arrived in D.C. on the morning after the Air Florida disaster to be told by Harold that a deal had been cut between the Mondale and Kennedy people. They’d settled on a fixed number of super-delegates (more than we wanted, less than they did) and I should call off my horses.

I won’t tell you what I said to him, or what he said to me, or what Maxine said to both of us when we told her that we had given up on equal division in favor of the deal, but the result was that Mondale, throughout the long and painful spring of 1984, when it was Gary Hart and not Ted Kennedy who made his supposedly “inevitable” candidacy almost slip away, worked the phones to the superdelegates, who ultimately put him over the top long after the last poll had closed on the last day of that primary season.

In the years since, the number of super-delegates has grown, as Democratic National Committee members, the ultimate smart hacks (and I say that as a former member and proud hack), made sure they got included as PLEO’s with automatic delegate status and the intense attention that goes with it. So this time around, there are 792 of these special delegates, and if you don’t think they are going to make a diffference, maybe a decisive one, you’re not following the intricacies of PR, and how it makes picking a nominee such a slog in a truly contested race.

Then there’s Florida and Michigan. Of course, they were penalized by the party for moving their contests earlier, outside what we call the “window” that technically begins on Tuesday, and from which only Iowa, New Hampshire, Nevada and South Carolina were granted exemptions. But Hillary won both states. Is the Democratic Party really going to tell Florida and Michigan that no one from those states can be delegates to the Convention?

If the answer, as I expect it will be, is no, but that will have to be chosen through some other process other than the prohibited contests that Hillary won, does that mean that the delegates so selected are free to ignore the results of those processes, or does state law, or maybe party rules, bind them to those candidates?

I don’t know the answer to those questions, but I am certain of this; my former teacher Harold Ickes, who made a junkie of me, is already thinking about them.

Click here to link to Susan's new book, "Soulless. "

Susan Estrich is the Robert Kingsley Professor of Law and Political Science at the University of Southern California. She was Professor of Law at Harvard Law School and the first woman President of the Harvard Law Review. She is a columnist for Creators Syndicate and has written for USA Today and the Los Angeles Times.

Estrich's books include the just published “Soulless,” “The Case for Hillary Clinton,” “How to Get Into Law School,” “Sex & Power,” “Real Rape,” “Getting Away with Murder: How Politics Is Destroying the Criminal Justice System” and "Making the Case for Yourself: A Diet Book for Smart Women.”

She served as campaign manager for Michael Dukakis' presidential bid, becoming the first woman to head a U.S. presidential campaign. Estrich appears regularly on the FOX News Channel, in addition to writing the “Blue Streak” column for

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