While most of the carping about nominating process rules is emanating from the Republican side of the partisan barricades, there’s some interest in reforms in the Democratic ranks as well, as I discussed at New York.

Earlier this week, the Washington Post‘s Greg Sargent wrote a stimulating post on the possibility of Bernie Sanders using his leverage over Hillary Clinton and the Democratic Party to demand changes in the process that will determine future presidential nomination processes. Aside from the pros and cons of such “reforms,” a more basic question is the extent to which the national parties are in a position to implement them. To a surprising extent, they are not.
Nominating-process guru Josh Putnam of the University of Georgia made this clear in his comment on Sargent’s piece at his Frontloading HQ site. After noting that Democrats typically punt rules changes to a post-convention commission, Putnam gets to the heart of the problem in promoting nominating-process “reforms”:

The problem, as always, is that the national parties have only so much control over the presidential nomination process. The system started out and has evolved into a patchwork of overlapping national party rules, state party rules and state laws. In attempting to fix the perceived problems of any given cycle, the national parties have to navigate that patchwork.

Take the question of whether to use primaries, as Sargent prefers, or instead the less “democratic” caucuses. Primaries cost a lot of money. As a result, they are generally financed by state governments, which in turn means that state legislatures, not state parties (much less the national parties), decide whether and under what circumstances to hold them. If a given legislature doesn’t want to use tax dollars for primaries, odds are high the state parties will resort to the much-less-expensive alternative of caucuses. Could the national party play chicken with the states by demanding primaries? Yes, but are they really going to disenfranchise a state if it doesn’t comply? So far, no one has been willing to find out.
Then there’s the whole open-versus-closed primaries issue (again, Sargent thinks “reformers” would prefer open primaries to encourage engagement with indies). The practical implications of this decision depend heavily on state laws governing party registration. Some states make primary- (or caucus-) day changes in party affiliation very easy. Where that’s the case, making a primary formally “open” doesn’t add a lot of value. Conversely, there are 19 states that do not register voters by party. They are automatically going to be “open primary” states.
“Reforms” in the nominating-contest calendar have been a constant issue in recent years, but all the controversy has showed the limited power of the national parties in this area. It has required ever-more-severe sanctions to keep states from moving themselves up on the calendar, and the Democratic Party’s strong preference for proportional allocation of delegates has meant that it cannot offer the inducement of making winner-take-all (or winner-take-most) systems available to states that agree to hold their contests later in the year. And to the extent that state-financed primaries are utilized, changing dates often requires the cooperation of the opposing party since legislatures aren’t generally going to authorize two separate events.
As Putnam notes, one popular Democratic “reform” doesn’t run afoul of state prerogatives, but encounters another problem:

The problem with eliminating superdelegates is a little different. There is no overlap with state party rules or state laws, but nixing those unpledged delegates is an idea that requires superdelegates — members of the DNC — to vote to strip themselves of that power. It is not a nonstarter, but that idea is a long way from being enacted.

The bottom line is that the presidential nominating process isn’t a national contest with some state rules but a largely state-controlled system. If Democrats want to change that they need to deal with it comprehensively.

With all the talk lately about the U.S. Supreme Court and its past, current, and potentially future composition, we’re beginning to hear more about what Republicans might do if they retake the White House and still have an opening to fill. I wrote about one scary possibility at New York earlier this week:

At present, there’s a major boom among conservatives for Senator Mike Lee of Utah.
Today the Washington Post‘s James Hohmann offers a rundown on all the reasons Lee is enjoying this attention. For one thing, the Utah senator has long been considered Ted Cruz’s best friend in the upper chamber, so if Cruz is elected, it’s a bit of a no-brainer if Lee wants a robe. For another, Lee would probably have an easier time getting confirmed by his colleagues in the clubby Senate than some law professor or circuit-court judge, and might even avoid a Democratic filibuster (assuming Republicans haven’t already killed the SCOTUS filibuster via the “nuclear option”).
But one of the two most important reasons for the Lee boom is buried pretty far down in the story:

Lee is just 44. That means he could squeeze four or more decades out of a lifetime appointment.

Yep. If nominated next year for the Scalia seat, Lee would be the youngest nominee since Clarence Thomas, who has now been on the Court for nearly a quarter of a century, with many years of extremism probably still ahead of him. Before Thomas, you have to go all the way back to Bill Richardson’s favorite justice, Whizzer White, in 1962, to find a nominee as young as Lee would be. As you may have noticed, life expectancy has been going up for Americans in recent decades. For conservatives seeking a permanent grip on the Court and on constitutional law, someone Lee’s age is money.
But the second reason Lee would be significant is only hinted at by Hohmann in the praise lavished on the solon by the Heritage Foundation and longtime right-wing legal thinker Senator Jeff Sessions (the two most likely sources for SCOTUS advice for Donald Trump, as it happens). Lee’s not just any old “constitutional conservative”; he’s a leading exponent of what is called the Lochner school of constitutional theory, named after the early-twentieth-century decision that was the basis for SCOTUS invalidation of New Deal legislation until the threat of court-packing and a strategic flip-flop resolved what had become a major constitutional crisis.
Lee has, on occasion, suggested that child labor laws, Social Security, and Medicare are unconstitutional, because they breach the eternal limits on federal power sketched out by the Founders. Like most Lochnerians, he views the constitution and the courts as designed to keep democratic majorities from stepping on the God-given personal and property rights of individuals and corporations alike. So it’s no surprise he’s been a bitter critic of the deferential view towards Congress expressed by Chief Justice Roberts in the decision that saved Obamacare.
In effect, Mike Lee could become a more influential successor to Clarence Thomas — after overlapping with Thomas on the Court for a decade or two.

Now that would be scary.

I’m jaded enough to roll with all sorts of lame claims in the coverage of presidential politics, but one today drove me to an immediate rebuttal at New York:

Time magazine has truly jumped the shark in publishing an interview with Ted Cruz in which he is encouraged without contradiction to call himself an “economic populist.” If Cruz is an “economic populist,” then the term has truly lost all meaning beyond the pixie dust of rhetorical enchantment.
We are supposed to believe Cruz is a populist because he opposes a few relatively small but symbolically rich corporate-subsidy programs like the Export-Import Bank and regulatory thumbs-on-the-scale for the use of ethanol — both objects of ridicule among libertarians for decades. In the Time interview, he leaps effortlessly from the argument that sometimes government helps corporations to the idea that government should not help anybody.

[B]oth parties, career politicians in both parties get in bed with the lobbyist and special interest. And the fix is in. Where Washington’s policies benefit big business, benefit the rich and the powerful at the expense of the working men and women.
Now the point that I often make, and just a couple of days ago in Wisconsin I was visiting with a young woman who said she was a Bernie Sanders supporter. And I mentioned to her that I agreed with Bernie on the problem.
But I said if you think the problem is Washington is corrupt, why would you want Washington to have more power? I think the answer to that problem is for Washington to have less power, for government to have less power over our lives.

Is there any K Street or Wall Street lobbyist who would not instantly trade whatever preferments they’ve been able to wring from Washington in exchange for a radically smaller government that lets corporations do whatever they want? I don’t think so.
Yet it’s hard to find a politician more inclined to get government off the backs of the very rich and the very powerful. My colleague Jonathan Chait summed it up nicely this very day in discussing Cruz’s Goldwater-ish extremism:

In addition to the de rigueur ginormous tax cut for rich people, Cruz proposes a massive shift of the tax burden away from income taxes to sales taxes. So, not only would Cruz’s plan give nearly half of its benefit to the highest-earning one percent of taxpayers (who would save, on average, nearly half a million dollars a year in taxes per household), but it would actually raise taxes on the lowest-earning fifth …
He advocates for … deregulation of Wall Street, and would eliminate the Clean Power Plan and take away health insurance from some 20 million people who’ve gained it through Obamacare. He has defined himself as more militant and uncompromising than any other Republican in Congress, and many of his fellow Republican officeholders have depicted him as a madman.

Cruz would have you believe his unsavory reputation among Beltway Republicans flows from his identification with the working class as opposed to the special interests. As a matter of fact, he’s considered a madman (or a charlatan) for insisting Republicans ought to shut down the federal government rather than compromise or abandon their anti-working-class policies (and their reactionary social policies as well).
Aside from the policies Chait mentions, Cruz also favors (in contrast to Donald Trump) that populist perennial, “entitlement reform,” including the kind of Social Security benefit cuts and retirement-age delays promoted by George W. Bush back in 2005.
And for dessert, in a position that would certainly make William Jennings Bryan roll in his grave, Cruz is on record favoring tight money policies to combat the phantom menace of inflation, along with a commission to consider a return to the gold standard.
One might argue the description of Cruz as an “economic populist” is a small journalistic excess justified by the heat of the GOP nominating contest. But in a general-election matchup between Cruz and Hillary Clinton, we could find ourselves hearing misleading contrasts of Cruz as a “populist” to Hillary Clinton, the “Establishment” pol. Let’s head that one off at a distance, people. Whatever you think of her set side by side with Bernie Sanders, compared to Cruz she’s a wild leveler and class-warfare zealot, favoring minimum-wage increases, more progressive taxes, large new mandates on businesses, continuation and expansion of Obamacare, action on global climate change, a constitutional amendment to overturn Citizens United, and (of course) opposition to the many reactionary policies Ted Cruz holds dear.

All Democrats should howl with rage at such misappropriations of the economic populist heritage. They might disagree internally as to who is more faithful to that legacy and how much that matters, but if Ted Cruz is part of that club, it’s time to pick a new name.

Everyone loves a good “contested convention” fantasy flowing from the decent odds that no one candidate will arrive at the Republican National Convention in July with a majority of bound delegates. But it’s important to understand how convention rules can make a wide-open convention impossible, and how the contending forces in the party have the power to make those rules stick. I wrote about this issue and the historical context extensively at New York this week:

As conventions became more tightly controlled and their managers worried about things like ensuring that the balloting and acceptance speeches occurred before East Coast television viewers were asleep, nonserious candidacies were sacrificed to efficiency. Among Republicans, the tradition developed that no one’s name could be placed in nomination without support from at least three delegations; that cut off the pure favorite-son candidacies. Beyond that, the status of conventions as ratifying rather than nominating events exerted its own pressure on “losers” who typically succumbed to the pressure to unite behind the nominee and grin for the cameras.
That was before the Ron Paul Revolution appeared on the scene. In 2012, the Paulites shrewdly focused on winning fights for delegates that occurred after primaries and caucuses in hopes of making their eccentric candidate and his eccentric causes a big nuisance at Mitt Romney’s convention. And so the Romney campaign and its many allies reacted — some would say overreacted — by using its muscle on the convention Rules Committee (meeting just prior to Tampa to draft procedures for the conclave) to change the presence-in-three-delegations threshold for having one’s name placed in nomination to this one:

Each candidate for nomination for President of the United States and Vice President of the United States shall demonstrate the support of a majority of the delegates from each of eight (8) or more states, severally, prior to the presentation of the name of that candidate for nomination.

This Rule 40(b), moreover, was interpreted to mean that no candidate who did not meet the threshold could have votes for the nomination recorded in her/his name.
Rule 40(b) succeeded in keeping the Paulites under wraps in Tampa, but as is generally the case, it remained in effect as a “temporary” rule for the next convention, subject to possible revision by a new Rules Committee meeting just prior to the 2016 gathering, and by the convention itself, which controls its own rules. In fact, its drafters may have intended to keep the rule in place to head off some annoying convention challenge to President Romney’s renomination.
Back in the real world, Rule 40(b) may have been in the back of some minds early in the 2016 cycle as a way to keep the convention from being rhetorically kidnapped by noisy supporters of Rand Paul, or of the novelty “birther” candidate Donald Trump.
Now, obviously, the shoe is on the other foot, and there is a growing possibility that the two strongest candidates for the GOP nomination, Trump and Ted Cruz, could join their considerable forces to insist on maintenance of Rule 40(b) or something much like it to prevent their common Republican Establishment enemies from exploiting a multi-ballot convention to place someone else at the top of the ticket.
Trump is currently the only candidate who is beyond the eight-state-majority threshold for competing for the nomination under the strict terms of Rule 40(b). But Team Cruz is confident enough that its candidate will also satisfy the rule that he’s the one out there arguing that Rule 40(b) means votes for John Kasich are an entire waste because they won’t be counted in Cleveland. And with both Trump and Cruz repeatedly claiming that the nomination of a dark horse who hasn’t competed during the primaries would be an insult to the GOP rank and file, maintaining Rule 40(b) is the obvious strategy to close off that possibility. A good indicator of the new situation is the evolving position of Virginia party activist and veteran Rules Committee member Morton Blackwell, a loud dissenter against Rule 40(b) before and after the 2012 convention, who now, as a Cruz supporter, is arguing that changing the rule “would be widely and correctly viewed as [an] outrageous power grab.”
But can the Republican Establishment stack the Rules Committee with party insiders determined to overturn Rule 40(b) and keep the party’s options wide open going into Cleveland? Not really. That committee is composed of two members elected by each state delegation. No likely combination of Kasich and Rubio delegates and “false-flag” delegates bound to Trump or Cruz but free to vote against their interests on procedural issues is likely to make up a majority of the Rules Committee, or of the convention. Indeed, most of the anecdotal evidence about “delegate-stealing” in the murky process of naming actual bodies to fill pledged seats at the convention shows Team Cruz, not some anti-Trump/anti-Cruz cabal, gaining ground. If Trump and Cruz stick together on this one point no matter how many insults they are exchanging as rivals, they almost certainly can shut the door on any truly “open” convention and force Republicans who intensely dislike both of them to choose their poison.
That would leave Kasich with his fistful of general-election polls and the proliferating list of fantasy “unity” candidates on the outside in Cleveland, playing to the cameras but having no real influence over the proceedings. And you can make the case that this is precisely what the Republican “base” wants and has brought to fruition through the nominating process. It would, of course, be highly ironic if the Republican Establishment’s Rule 40(b) became the instrument for two candidates generally hated by said Establishment to impose a duopoly on the party. But there’s no President Romney around to put a stop to it.

Riveting as the presidential election has been so far this cycle, it’s important for Democrats to keep an eye on what’s happening down- ballot. Here are some thoughts on the connection between the two that I discussed at New York:

It is not lost on Democrats watching the whole Republican presidential nominating contest veer crazily into a demolition derby that the GOP is almost certainly going to nominate one of their weakest candidates according to general-election polling, Donald Trump or Ted Cruz. And both of these gents are nicely fitted in the dead man’s clothes of a landslide loser in November, with Trump alienating millions of normally reliable Republican voters and Cruz channeling the ideological excesses of Barry Goldwater.
But aside from giving Democrats a better-than-average chance of holding on to the White House, would Trump or Cruz at the top of the ticket have serious consequences down-ballot? Most of the early speculation on this topic has focused on the battle for control of the Senate, where the GOP’s four-seat margin was already in some question thanks to a landscape where too many vulnerable Republican senators (e.g., Johnson, Kirk, Ayotte, Toomey, Portman) are running for reelection in blue states. But now the wild rhetoric of the GOP presidential primaries and Trump’s terrible general-election numbers are making Democrats think about the previously unimaginable prospect of winning the 30 net seats necessary to take back control of the U.S. House for the first time in six years.
The Washington Post‘s Paul Kane has a good roundup today of expert opinions on this possibility. One independent observer, Nathan Gonzales, downplays its likelihood, noting that House Democratic plans focusing on 2020 or even 2022 (after the next decennial redistricting) may have led the party to underrecruit viable candidates for this cycle. The Cook Political Report’s David Wasserman documents the tough math for Democrats but notes it is still early:

Right now, we rate only 31 Republican seats as at risk, meaning Democrats would need to win an impossibly high 97 percent of them – and hold all their own seats – to take back control. But filing deadlines still haven’t passed in a majority of districts, and it’s worth watching how many more Democratic recruits Trump and Cruz will entice in the coming months.

Wasserman also notes two important crosscutting data points: On the one hand, past presidential landslides have not necessarily produced correspondingly large House turnover, but on the other, the widespread ticket-splitting that made these variable results possible has been declining steadily in recent years. So that leads to the big imponderable question: If, say, Donald Trump is getting waxed by 20 points in the presidential race, will normally Republican voters split tickets, vote for Democrats, or skip voting altogether? It’s really difficult to know at this point.
It is reasonably clear that the rise of straight-ticket voting owes a lot to the growing ideological consistency of the two major parties, with Republicans in particular becoming a monolithic conservative coalition. By contrast, back in 1972, Democrats in (for example) Georgia could reject liberal presidential nominee George McGovern and then (with the help of a convenient sub-presidential straight-ticket ballot line) vote for a consistently moderate-and-conservative set of Democratic candidates down-ballot. And that’s exactly what they did. Nowadays the gradual extinction of liberal Republicans and conservative Democrats both among candidates and voters means fewer people inherently inclined to split tickets. But arguably both Trump and Cruz, in somewhat different ways, stray far enough from the ideological consensus among Republicans that down-ballot candidates (perhaps supported by signals from party leaders) have no compunctions about distinguishing themselves from their party’s presidential candidate, much as southern Democrats did in the heyday of ticket-splitting. This could be particularly true if disunity is apparent at the very top of the party hierarchy, as it seems to be now that the three remaining presidential candidates are abandoning loyalty pledges to support the ultimate nominee.
Given the unusually large GOP majority in the House and thus that party’s exposure in marginal districts, and the pro-Democratic turnout patterns typical in recent presidential elections, some Democratic House gains are almost certain, even if the Republican presidential candidate is not an albatross. Democratic gains short of a majority could paradoxically increase the power of the House Freedom Caucus by reducing Speaker Paul Ryan’s room for maneuvering without Democratic votes. But it’s worth keeping an eye on the number of Republican seats that look vulnerable after the conventions. It was widely believed during the last decade that success in redistricting gave Republicans a lock on the House until 2012. The lock was picked in 2006 and a whole new order was (very temporarily) created by Democratic wins in that year and in 2008. It remains to be seen if a scary presidential nominee can do as much damage to the GOP as did the Iraq War and the financial crisis.

It’s a question we had no way of anticipating as central to Campaign ’16.