Understanding the Rules of Conventions and Why They Are Different

Why must the rules be adopted each time and why by 2/3?

Introduction

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:

1. 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.
2. 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.
3. 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:

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.]

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.

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 and later editions, 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.

A Note About Mason's Manual (Added Nov 2023)

Mason's Manual of parliamentary procedures for legislatures specifies that the rules for a session pass by a simple majority and may always be suspended or modified the same way. Republicans who participate in the legislative process may be familiar with Mason's and mistakenly believe that the same process is appropriate in a caucus or convention. As Mason's itself specifies, the rules appropriate for private organizations and those appropriate for public organizations do and must differ substantially because of the nature of membership and representative government. Legislative rules very rarely rely on supermajorities and Mason's avoids them for reasons of law and court precedent. Rights of minorities and individuals to debate, make motions, nominate, etc., are protected using mechanisms other than RONR's supermajority requirement. The full complement of such mechanisms cannot readily be ported to a convention under Robert's Rules. The effect of following Mason's on rules adoption outside its proper environment is to strip the rights of strong minorities out of the convention process entirely.

Conclusion

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.

Bathroom Wars: Tribalism Is Only Sometimes Bad

During the ongoing Bathroom Wars, I note the inherent tribalism of both extremes of the debate, of those who are bigoted against LGBT individuals and of the LGBT activists themselves. In some respects this is not a problem, per se, because people have some right to be tribal in their approach even when it is irrational. However, the modern Progressive position and that of Progressive LGBT activists for decades has been staked against that tribalism and everything it stands for. Therefore, the Progressive position in this and other issues is inherently hypocritical where a bona fide nativist or bigot is not: they explicitly state their tribalism,them against the world.

Four Characters of An Honest Approach

More honest still are the people who:

1. Admit their tribal tendencies in their own life and interactions;
2. Realize that other people who do not fit into those boxes have a right to exist and to their own choices regardless;
3. Admit the utility of those tribal tendencies and of a hierarchy of difference in guiding social interactions and societal structure;
4. Realize that there are times and places where we need to seek relationships outside those molds to check our own assumptions or surpass our own limitations, that, too, testing boundaries is part of developing our own sense of who we are;

[Aside: This list has a striking resemblance to a stepladder refinement of views in philosophy or a double-diamond thought process, which I believe is a useful tool and often an accurate description of how people think, but I am not implying that it is the only tool or description applying to this or any issue. Note that, consistent with a diamond thought process, someone may appear to flip-flop their position as they refine it further: someone who holds positions 1-3 may take the same external positions as someone who only hold #1 and someone holding 1-4 may take policy positions resembling that of someone holding only 1 and 2. @TODO: this maybe needs a diagram and a reference.]

The homophobes and bigots in the Bathroom Wars have at least gotten to #1 on this list and do not apologize for it. They often pull in aspects of #3 in a self-examined manner but may or may not have figured out #2 to any significant degree (often lumping everyone who is different for any reason in the "pervert" category). This depends on whether they are actively hostile to LGBT individuals or merely want to be left alone themselves. Clearly, whenever this behavior leads to violation of anyone else, it is wrong and must be opposed. But that kind of bigotry is not the only problem.

Many of those in the LGTB-advocacy and the Progressive wing generally (those who appear to be actively promoting the ordinances which started the issue) have not even found #1 or have but reject #2 with respect to people who are not transgender. Post-1965 Progressive thinkers tend to be actively and explicitly hostile to #3: the stated goal is to break down and destroy traditional structures wherever they are found, in marked contrast to pre-1965 Progressives. In college, I frequently encountered and opposed both of these categories:

• those who would do violence against or otherwise harass an LGBT individual who was doing no harm to them (which is how I found myself participating in a Bigayla sit and and march, being knocked to the ground by an attacker while standing in front of a transgender student I did not even agree with), and
• those extremists on the other side who labeled heterosexuals or cisgender individuals "perverts" and wanted to break down any vestige of distinctions (while simply replacing them with their own categories and distinctions)

People who generally oppose both extremes but believe that upending everyone and everything else is not the right approach accept 1 through 3. These are the people who realize that the bathroom issue is not about transgenders per se (but much more fundamental societal issues) and who advocate for access to single-occupancy or otherwise re-purposable facilities to accommodate any and all needs for additional choice in private spaces. Many of these folks (myself included) don't really care why someone expresses the need for that space. #4 is where we all need to get to and is specifically evidenced by, say, Carly Fiorina's team-management at HP where the goal was to assemble teams with different approaches to a problem in order to court divergent views [@CITATION NEEDED]. I explicitly used that same approach to filling out design/problem solving teams at the Pentagon/AFSAA back in the 90's and actively picked up 'discards' from other teams who had been rejected for divergent views I wanted access to and I did that again in my own consulting business later on.

Folks on both sides who are comfortable with their own identities (as much as humans are capable of being so), who may or may not advocate for their favored choice but at the same time have no desire to impose their views or choices on everyone else are also exhibiting (at least) characters 1-3. So, neither the tribalism of the LGBT community banding together for self-protection against bigotry and to advocate for their cause nor the tribalism of the Christian advocating for heterosexual relationships within marriage is bad as long as that remains within the bounds of the public peace.

We Are Required To Attempt All Four

I also believe that as Christians, we are explicitly commanded to exhibit all four of these characters. We must make space for people to make their own choices while attempting to maintain our own integrity ("discernment" vs "judgement") and our own social structures; being a disciple to others requires reaching out to them and developing divergent relationships without compromising our own principles or the exercise of our faith. These are not easy things to do and they are not meant to be. We will often fail at these things, but we are still commanded to attempt them.

It is also particularly necessary to attempt these approaches in the context of little-r republican self-government. This is where the current tribalism in American politics does hurt us as Ronald Dworkin so ably points out in Is Democracy Possible Here: without agreement on fundamental principles of self-government, there can be no rational policy debate no matter what positions and facts we bring to it

Rejecting Moral Relativism and Strict Utility, Thomas Aquinas

None of this means that we embrace moral relativism (which I explicitly reject). The idea that all persons are entitled to be accorded with some level of dignity for their beliefs does not presuppose an equal dignity of those beliefs. At some level, people are simply entitled to hold beliefs which are wrong, insincere, or even self-destructive without unwarranted interference. Whether their beliefs are right, wrong, or neither particularly right nor wrong is independent of the dignity accorded to the person as a fellow being and fellow creation.

Nor does the requirement for recognizing that dignity in others erase the special duties we may owe. As St. Thomas Aquinas noted in his Summa Theologica, the universal requirement for charity toward others does not mean that we do not choose to favor those to whom we owe a special relationship (self, family, friends, community, fellow citizens) all other things being equal. A man may sacrifice himself for a stranger and at some points may have a duty to do so, but the same duty is not owed, all other things being equal, for him to sacrifice his family or community for a stranger or strangers. A man may (and often ought) bend his customs or traditions as a sign of respect for the dignity of a stranger, out of Christian mercy and charity, but does not have duty to destroy his customs or traditions, to abandon his faith, simply in order to avoid offense. As a man, I do not have a duty to abandon my manliness nor a woman to abandon her womanliness because someone else finds it offensive, but that may mean I am not entitled to enter their private space.

Ending the Bathroom Wars Requires Some Balkanization

On the issue of bathrooms upon which we have become so fixated, different communities create slightly different social structures for balancing privacy, efficiency, and simple bodily needs. A single-occupancy room provides the most privacy but often the least efficiency. Bathrooms separated by gender provide some degree of privacy and some degree of efficiency but do not work for people who (for whatever reason) require a degree of privacy or utility not allowed in that structure, e.g.:

• dad with a female child
• someone with a medical condition requiring discretion
• a pre-op transgender
• a disabled man needing assistance from a wife
• someone who has suffered abuse who will not disrobe in front of others, etc.

Note that we do not necessarily care whether the need is "reasonable"; the mere desire for accommodation ought generally be enough. Bathrooms separated by gender with one or more designated "family restrooms" provide a good overall mix of function.

In some places, the requirements are different. The all-female dorms at college had customs and social structures for when a visiting male had to pee. If the visitor did not obey those customs, he could well expect to be summarily ejected. In the coed dorm I lived in at points, each hall had a single bathroom where, say, one person could use the shower and the other the stall at the same time. Customs for resolving that issue with mixed sexes also existed. When I visited the Legends bar and dance club (this particular one being an LGBT hangout), they had their own social conventions for the restrooms which one either accepts or leaves. That is all as it should be: a city such as Springfield, MO or Charlotte, NC ought not attempt to enforce the same structure on Legends that it does a Franciscan monastery, on a public hall and a private business.

Sometimes when you arrive at someplace where the rules are not what you expect or where you need extra consideration, you must appeal them to the proprietor or community. Sometimes the community or individuals may be gracious and sometimes not. Sometimes asking for consideration requires revealing a private need (such as a disabled man needing assistance from his wife) that you would prefer not to reveal or which risks humiliation. Although we should try as communities to set the best policies we may and attempt to deal graciously with the exceptions, it is an unfortunate fact of humanity that this often fails--- sometimes spectacularly--- but it is not a problem that blunt use of legal force can necessarily solve.

There will always be exceptions and there will always be ungracious people. The debate within constituencies on what policies to have will often be ugly (as all policy debate often is) and that is OK. Somehow we need to find the means to live together (or live apart, see 1-3 above) to resolve things as best we can, not necessarily such that everyone gets what they prefer.