Why must the rules be adopted each time and why by 2/3?
There has been much argument in the 2016 election cycle about the fairness of the primary process, that it is not democratic, that it is establishment, or fixed in some fashion. There have been accusations of cheating. Inevitably, some accusations of cheating will be true (there always are). In more cases, there are mistakes or outright incompetence in a messy and complex process. Most often, mistakes are made because people do not understand the rules and why they are important.
Here is one issue which comes up over and over again which many people seem to be confused about and I do believe it is manifestly unfair when it is done. The issue is the proper way to adopt the standing rules of conventions. The rules which are passed control the business of the convention. If the rules are not themselves passed fairly, nothing else can be fair. Understanding this issue is the beginning of a fair delegate process and of effective convention activism.
The Issue and Why It Occurs
In 2016, we are dealing with this issue within several Missouri Congressional Districts (as of the time of this writing, district conventions will occur tomorrow, 30 April). It has come up before at levels ranging from county to national. It is at the core of the controversy over the 2012 rules for the National Republican Convention and whether they apply at the start of the 2016 Republican National Convention (technically, they do not).
The bottom line is simply this: the rules from one convention do not carry over from one election to the next and the report of the rules committee must always be approved by a vote of 2/3 of the delegates. This procedure is not optional and a convention cannot be valid without following them.
I should note here that I do not accuse people of violating the rules in this case (necessarily) out of malice. In the overwhelming majority of cases, the error results in ignorance of the rules for several reasons:
- Most people, if they are experienced in the rules of order at all, are used to dealing with them in the context of regular meetings of organized societies. This is just as true of Republican (or Democratic, etc) Committeepersons who typically attend regular committee meetings. The rules of conventions are different and they are different for important reasons, but most people, even Presiding Officers, have simply not studied the appropriate sections of Robert's Rules.
- Before 2008, the Republican Party in Missouri was not accustomed to contested conventions. This is less true in other states, such as Michigan, where other state-wide primaries are conducted at the convention and therefore are almost always contested. Because of the lack of contested conventions, we have allowed ourselves to become sloppy about certain rules of order which were seldom used and seldom mattered. Some of the violations of rules we observed in 2008 as activists in the Ron Paul campaign were actually intended to shut us out (regardless of the rules) but many violations were the result of actual confusion and inexperience with the rules of contested conventions. In turn, new activists were often themselves inexperienced with the rules or with common practice.
- It seems convenient to violate certain rules of convention. Attempts to pass rules by less than 2/3 and carrying over rules from past conventions are often done in the name of efficiency. Robert's Rules of order attempts to balance efficiency against the rights of strong minorities: conventions meet to accomplish an agenda of party business. There are certain rights of minorities which are sacrosant, however, and cannot be violated for the sake of efficient meetings. In truth, the efficiency gains are illusory, anyway, given that Robert's Rules of Order specifies a sufficient framework of rules to carry out business without needing to force through or carry over convention rules.
The Simple Explanation
Although people may have difficulty understanding why conventions work the way they do (we'll get to that), the basic, correct process is simple, as James Lochrie, President of the American Association of Parliamentarians, explains:
Lochrie here is quite plain and is merely restating what is laid out in Chapter XIX of Robert's Rules of Order, Newly Revised, 11th edition and particularly in the section of the Rules Committee Report on pp 618. It is also a very old principle of parliamentary law that deliberative body (a body which meets to decide the answers to questions for some group) determines its own rules for how it goes about that process.
The rules committee's mandate is to propose special rules of order and administrative policy (policy is described in chapter 2 ) for use during the convention. Often the same rules are used from year to year, but they should be adopted afresh each time. This provides an opportunity for delegate or members to add new rules or amend existing ones...
A two-thirds vote is required to adopt convention rules. Subsequent to this vote , individual administrative rules require only a majority to adopt or amend; rules of order continue to require a two-thirds vote to adopt or amend. If a convention rule of order is rescinded, the associated rule contained in the parliamentary authority returns to effect. [Meeting Procedures: Parliamentary Law and Rules of Procedure For the 21st Century. James Lochrie. Scarecrow Press. 2003. pp 177. Emphasis mine.]
For legislatures, the approval of their own rules is a constitutional requirement. At the start of every legislative session, the US House appoints a committee to recommend rules for the next session. It is customary in the house for someone to move that the previous set of rules be adopted until the committee completes its task, but it still requires a motion both to use the temporary rules and to approve the new ones recommended by the committee:
It is proper here to adopt the following motion: Resolved, That a committee be appointed to prepare and report a system of rules and regulations for the government of the House, and until such report is made and approved, that the Rules of the last House be adopted. This is done in obedience to the13th section of the first article of the constitution, which vests each House with power to determine upon its own rules of proceeding. [Joel Barlow Sutherland. A manual of legislative practice and order of business in deliberative bodies. Jacob Frick and Co. Philadelphia. 1821. pp 173]Sutherland's book was in turn cited by Thomas Jefferson's manual of parliamentary law.
The Slightly More Complex Explanation
In order to really understand the reason that convention rules must be passed in the way that is required, it is useful to know two things: first, why conventions of delegates have to be handled differently from regular meetings of ordinary societies and, second, why they must require two-thirds to pass. I go into this process and its reasons step-by-step in < a href="https://www.scribd.com/doc/310968332/CaucusProcessAndRobertsRules-Handout">a course I teach on caucus and convention activism and the rules of order, but I will hit the highlights here.
Why Are Conventions Different?
The bottom line is simply this: in regular meetings, each meeting is part of a continuous session of roughly the same body of people. The county committees, for instance, are seated in periodic elections. In between elections, they can set standing rules for themselves which carry over (unless amended) from one meeting to the next. After each election, they are required to reorganize, and that includes a reset of the standing rules adopted by the previous body. As noted above, the same thing happens with the US House after an election (or, technically, any adjournment of any body sine die ("without day").
But with a convention, every convention has adjourned without day and every body of delegates is elected anew. In every election cycle, the decisions are made by different people under different circumstances, and they have a right to decide their own (potentially) peculiar methods for doing so, according to the circumstances they face. In election year where the presumptive nominee has already been decided by the time of the Missouri primary is not best governed by the same rules as an election year in which four strong factions (none of which are a majority) must come to some agreement!
Why a 2/3 Majority?
Parliamentary law in general and Robert's Rules of Order in particular are designed to move forward the business of the majority while protecting the rights of strong minorities (and individual members). While the majority has an interest and right to an efficient order of business, minorities have the right to express an opinion, nominate candidates, vote, and take part in the determination of the rules. The rules of order therefore are an attempt to compromise between these conflicting interests. A simple majority (50%+1) is required to move business forward, such as to pass a resolution, but actions which "strip rights, constrain debate, or change normal rules" require a 2/3 vote.
As noted in RONR11 pp 619, a rules committee report will almost always contain rules which "strip rights, constrain debate, or change normal rules," so when passed as a package, such a report always requires 2/3 to be adopted. There is actually a handy little procedure described on that same page for separating out individual rules for its own vote, at which point the rule in question may or may not require 2/3 to pass. By following that procedure, the body can efficiently pass all of the rules that are agreed on and then deal separately with the issues which require debate. This, again, achieves the objective of balancing a legitimate need for efficiency against the rights of minorities.
Why is it not really necessary, anyway?
People attempt to have rules carry over and make the passage of a body or rules by a simple majority because they are afraid of the convention ending up without any rules to follow at all. While this would indeed be concerning, it cannot really happen as such. At the start of a convention, the delegates are bound by the rules of order specified in the bylaws of the society (in the case of the district/state conventions, this is Robert's Rules of Order, Newly Revised). These rules are in effect until the rules committee report (a set of recommended rules) are adopted--- and if the report fails to be adopted.
As it turns out, Robert's Rules of Order includes--- and has included for some time--- a fairly complete framework for bootstrapping conventions, nominating, holding elections, and amending documents. While it can be more efficient to add to that (such as setting limits on debate for and against more appropriate to the situation, or to specify how slates of delegates will be nominated, or what committees shall be appointed to handle convention business), it is not a disaster if these customizations do not happen. It is quite possible to simply fall back on the rules of order and plough forward. Because no extra rules exist during the convention bootstrap process, as it elects its own convention officers and rules, Robert's Rules already specifies the procedures in a clear fashion. In the 11th edition, these procedures are all organized in their own chapter (XIX) for easy reference.
The Lochrie (2003) book referenced above also has its own chapter on the convention process, in a less detailed and easier to read format than Robert's Rules. The Lochrie book is also available in Kindle format to put on a tablet or phone, highlight and bookmark. My copy of Robert's Rules always looks like it has been attacked by a sticky-note factory so that I can find what I need quickly, but I am finding the convenience of the Kindle book quite appealing.
Personally, I want to win for my cause and my candidate. This is why I research the rules and why I train others. But I want to win fairly, both because of my own sense of honor, my faith in the principles of self-government (and that the Orderer of this world, in the end, knows what He is doing), and for the practical reason that if I win unfairly, I damage my own integrity that of my candidate and of my cause. If I win unfairly today, it will not serve my cause tomorrow.
If we do not pay attention to the rules, then we will be exactly what some of the Trump-supporters claim us to be; I will not be a part of that.