At the Republican Convention: House Rules or Robert’s Rules and perhaps a Dark Horse

What drama and intrigue! Will there be a contested convention? A brokered Convention? Will there be an attempt to nominate a dark horse (or white knight depending on your point of view) at the Convention?

This last question was on the minds of many pundits when a member of the Republican National Committee made a proposal last week to change the parliamentary authority identified in Rule 30 of the Rules of the Republican Party from the arcane Rules of the U.S. House of Representatives (House Rules) to the slightly less arcane rules of Robert’s Rules of Order.

First, it is standard operating procedure for most private associations to identify a parliamentary authority in its bylaws or rules. The parliamentary authority is only used when the bylaws or rules of an organization are silent. Items that fall into this category are specific motions, specific characteristics of motions and other procedural matters.

Under normal circumstances such a choice is completely uncontroversial, but the Republican Convention of 2016 will be nothing but controversial! One argument against the proposal is that some candidate or cohort of Republicans is attempting the “rig” the Convention in their favor by switching to Robert’s Rules. In fact good reasons exist that Robert’s Rules would make it more difficult to rig the Convention.

The Rules of the US House of Representatives are clearly established for a legislature that meets daily with a considerable amount of business and not for a delegate assembly of a private association that meets once every four years. The House deals with thousands of bills that sift through 21 different committees and 96 subcommittees not to mention dealing with the Senate and the President.

In contrast the Republican convention has four Committees (which operate under Robert’s Rules), six subcommittees and makes but 6 decisions: it adopts 1) a Credentials Report, 2) a Rules and Order of Business Committee Report, 3) a Platform Committee Report, 4) a Permanent Organization Committee Report, 5) the Republican nominee for President of the United States, and 6) the Republican nominee for Vice President of the United States.

Using the House Rules for this is simply over kill. Further very few House Rules deal with matters of the Convention

But would a change from the Rules of the House of Representatives to Robert’s Rules make it easier or more difficult to nominate a dark horse? The answer is most definitely harder. Consider this scenario.

After the Chairman of the Convention announces Donald Trump and Senator Ted Cruz as nominees that have satisfied Rule 40(b), that is, they have demonstrated support from the majority of delegates from eight states, he would then declare nominations closed. Just then a delegate gains recognition and makes a point of order that nominations must be allowed from the floor.

Under Robert’s Rules of Oder Newly Revised 11th edition “[i]f no method of nominating has been specified in the bylaws and if the assembly has adopted no rule on the subject, any member can make a motion prescribing the method ….” p. 431. Since there is a Rule, Rule 40(b), that establishes the method of nominating a candidate, the Chairman has no choice and must overrule the point of order and proceed with voting on Mr. Trump or Senator Cruz.

Under the House Rules, it’s not so clear. The House Rules have no formal rules for nominations such as that in Robert’s Rules. There are only two areas where nominations are called for: to elect the Speaker and to elect committee members and the chairmen of committees. With no formal rules on nominations in the House Rules, the Chairman of the Convention may look to precedents, and here he would find that nominations for Speaker have by tradition come from the floor from party caucuses.

Further, the Republican House caucus provides for nominations from the floor. Indeed, the Rules of the House Republican Conference (the Republican caucus) for the 114th Congress allows for nominations for nominees to come from the floor. By the precedent in the House of allowing nominations from the floor through the caucuses and the Republican Conference itself allowing nominations from the floor, the chair could easily find the point of order well taken and allow nominations from the floor or an appeal could be made on these grounds to allow this to happen.

Oh the howls!

Of course, the counter argument is that Rule 30 allows only those House Rules that are applicable and not inconsistent with the Rules of the Republican Party. The floor fight would begin and he who hath more delegates would prevail.

Robert’s Rules of Order was designed and written for private associations with a limited amount of business to actually address. It was designed for delegate conventions just like the Republican Convention. The House Rules were designed for a wholly different purpose.

And lest anyone think that the scenario described above is outside the pale, this is the exact process Senate Democrats used to change the filibuster rules on judicial nominations in 2013. See the article Senate changes cloture rule without changing the Rules.

About Bylaw Bill Gillmeister

Bill Gillmeister is a governance professional, school committee member, and Treasurer of End Common Core Massachsuetts.