Superdelegates and the Founding Fathers

By Brigitte L. Nacos
Much has been said and written about the role of superdelegates in the Democratic Party’s presidential selection process. The so-called superdelegates, mostly elected officials such as members of congress and governors, were created 25 years ago to give party insiders a voice in the selection of their party’s candidate for the highest office. After the selection of George McGovern and Jimmy Carter by primary voters, the idea of superdelegates made sense in order to make intra-party compatibility more likely. After all, in the American shared power system, presidents and their partisans in congress need to have common ground on important issues. The idea that superdelegates must to cast their votes along the lines of their respective states’ primary results is contrary to the rationale behind their creation.

As far as Senators Clinton and Obama are concerned, their views on superdelegates may well be colored by their current delegates’ counts. When I saw an op-ed article by John Yoo in today’s Wall Street Journal, I wondered why the law professor would weigh in on this issue. As an official in the Department of Justice during George W. Bush’s first term, Yoo found legal arguments against adhering to constitutional provisions, statutes, and international human rights and anti-torture agreements in the “war on terrorism.” Now, he thrashes the Democratic Party’s presidential selection model as undemocratic and contrary to the will of the Founding Fathers with a partisan slant. Thus, Yoo writes,

“That the 2008 Democratic nominee for president will be chosen by individuals no one voted for in the primaries flew for too long under the commentariat's radar. This from the party that litigated to ‘make every vote count’ in the 2000 Florida recount, reviled the institution of the Electoral College for letting the loser of the national popular election win the presidency, and has called the Bush administration illegitimate ever since.”

He looks to the Founding Fathers to support his argument that the superdelegates amount to an undemocratic  “super disaster” for Democrats arguing that the superdelegate scheme “wasn't anything the Framers of the U.S. Constitution dreamed up. They believed that letting Congress choose the president was a dreadful idea. Without direct election by the people, the Framers said that the executive would lose its independence and vigor and become a mere servant of the legislature.”

Mr. Yoo ignores conveniently the difference between general presidential elections and the intra-party selection processes. The framers did not concern themselves with political parties. While James Madison and others feared the undue influence of factions, the constitution they framed does not contain one word about the roles of political parties. They are private entities. And while a binding primary system is preferable to the selection of candidates by party officials, the current models have far more problematic features than the participation of superdelegates—including the ability for cross-over voting.

Yoo claims that deals between candidates and superdelegates in the congress will result in many commitments for a future president and thus “threatens to sap the presidency of its independence and authority by turning it into the handmaiden of Congress instead of the choice of the American people.”

In the end, the whole exercise of the op-ed article boils down to Yoo’s long-standing support for unfettered presidential power.

The good news here is that Yoo seems to believe that the “super disaster” selection model of the Democratic Party is likely to produce the next president. Why else would he bother? 

Comments

[lord rev dyjuan d barnes YAHWEH]

LET US DO AWAY WITH THE DELEGATES THE SUPER DELEGATES AND EVEN THE ELECTORIAL COLLEGE AND LET THE VOICE OF THE PEOPLE SPEAK THE POPULAR VOTE NOW!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

[Brigitte]

Tony, yes, Yoo wants an imperial presidency.

I thank Professor Lehman-Wilzig for mentioning the electoral college as evidence for the Founding Father's fears of direct democracy.

Maggie, if it comes done to the super delegates, I hope they follow their own best judgment--if that means voting for Obama--fine; if it means voting for Clinton--fine as well.

As I wrote, though, in my latest post--both candidates need to tune it down and prevent that the Republicans keep the White House

[Maggie]

I agree with you that the superdelegates need not be bound by the results of the primary season -- there could be no point in establishing them if they are to serve as mere rubber stamps to what the democratic electorate has already decided.

But if the superdelegates are to exercise their office in the spirit with which they were established, they are still not free to simply decide on a whim. They must be seen as having a good rationale for overriding the will of the party as expressed in the elected delegate margin. Prior to Wright, there would have been no compelling reason for them to override Obama's elected delegate advantage in order to nominate Clinton. He was clearly established as a viable candidate, well in line with established norms in the party, and clearly electable. Add in the historic dimensions of his candidacy and it would not have been credible for the superdelegates to move to Clinton.

It is possible that the Wright controversy has changed the latter part of that equation. One can imagine a series of landslide victories for Clinton in the final stretch, reflecting a collapse of his candidacy as white voters abandon him en masse. Were that to happen, the superdelegates would arguably have grounds for overriding the edge he would retain in elected delegates. However, even that best case scenario for Clinton carries a severe cost for the democratic party. The Wright flap has been as toxic as it has been because it was fueled by a video tape that was edited to be inflammatory, and which did not deliver a comprehensive or accurate view of Reverend Wright, much less the ministry at TUCC. So the first seriously viable African American candidate for president would be seen as having been knocked out from contention by what boils down to a piece of yellow journalism. That the collapse of Obama's candidacy in the wake of such a 'swiftboating' would have occured in a context in which no major democratic voices sought to calm the waters would add to the problem. (Note that by contrast both McCain and Huckabee declined to hop on the anti-Wright/Obama bandwagon; with Huckabee offering principled reasons for so declining.) In short, Clinton's best case scenario leaves the democratic party looking quite small. Not a good thing given that the party has long stood for the advancement of the oppressed members of society.

Of course, as of now, that best-case scenario looks unlikely. The polls aren't showing a collapse of Obama's candidacy. Moreover, Obama responded to the crisis with a speech that increased his stature as as statesman, strengthening his support among those who find his intellect and integrity appealing. The corrections to the misrepresentation of Wright are beginning to spread through the web, and presumably will penetrate into the culture at large before long. All of this considerably shrinks the room the superdelegates would have had to override the elected delegate margins in a way that would have had a chance at being widely seen as reasonable.

And as of today, I'd say that Clinton herself has slammed the door shut on it. Because she *herself* has sought to recharge that controversy when it was already ebbing down, and she has done so in a way that trades off of the misperception of the widely circulated video. Where Obama went high road, Clinton chose to go low road. At this point, if Obama's campaign does collapse, it's an open question as to whether Clinton actively contributed to that problem. The superdelegates can only override his elected delegate margin at the cost of permanently alienating African American voters and idealistic younger voters who are attracted by the promise of the high road. Clinton's move itself is widely perceived as cynically timed to divert attention from the damage she was getting from her 'misstatement' about Bosnia.

Chuck Todd reports that the mood among superdelegates is to support Obama, and he expects a pretty steady trickle towards him from now until April 22. Frankly, I expect the same. Pelosi has been frantically signalling for some time that the campaign needed to be conducted with an eye towards November. I expect that Clinton's choice today to take her talking points from Fox Network will be perceived as crossing over that line, and that the superdelegates will act accordingly.

[Prof. Sam Lehman-Wilzig]

The most cogent argument for super-delegate legitimacy is embedded in Prof. Nacos's post itself but for some reason she misses it: the Electroal College was set up by the Founding Fathers precisely for the same reason that the Democratic Party decided on super-delegates -- as some counterbalance to unfettered "mass democracy"! One can argue whether the idea is a good one or not, but to argue as does Prof. Yoo that it is not what the Founding Fathers had in mind shows a complete lack of understanding regarding their political philosophy.

[Tony]

Dear Professor Yoo,

Do you remember uttering these words?
***In explaining the Unitary executive theory, Yoo made the following statements during a December 1, 2005, debate in Chicago, Illinois, with Notre Dame Law School Professor Doug Cassel:

Cassel: If the President deems that he’s got to torture somebody, including by crushing the testicles of the person’s child, there is no law that can stop him?
Yoo: No treaty.
Cassel: Also no law by Congress. That is what you wrote in the August 2002 memo.
Yoo: I think it depends on why the President thinks he needs to do that.[10]****

I didn't think so. Aren't you (get it?) the one who decided by yourself that rough interrogation techniques do not approach the threshold of torture until massive organ failure leading to death is imminent? Do the Founding Fathers address waterboarding and other civilized means of dialogue with enemy combatants in any of their writings? Did the Federalist Papers address these issues? Do you assert that Bush got elected two times without making any future commitments to supporters, such as Abramof, DeLay, K Harris, Miers, or any of the henchmen he collects? Has this administration followed the Constitution faithfully, and is above being audited, or is criticism only to be levelled at the Democrats? If the superdelegates include elected officials, who might have to select a nominee by means other than counting popular votes, isn't that in fact the definition of a REPUBLIC, which is where we live? Are you ( I like it!) suggesting that because Republicans didn't adopt the superdelegate idea, it isn't worth using? Maybe the Reps relied on Mr James Baker III, Katy Harris, Jeb, Rove, and a 5-4 SCOTUS decision instead of fiddling around with 796 other Americans. Where are the missing emails? Did you have anything to do with them? What was your military rank when you were discharged?

Could you please repeat that?

Thank you,
Tony Facade

[Jack Frohlich]

Thanks for the positive feedback.

[Brigitte]

Jack Frohlich: I cannot tell you how much I appreciate your comment--not only with respect to the superdelegates. You are so right in emphasizing that Democrats should concentrate on defeating McCain--not each other.
As it stands now, I am afraid McCain looks more and more like the one who will win. And he is more hawkish than Bush--not to mention all their similarities.

[Jack Frohlich]

You hit the nail right on the head. Let me add my perspective.

As a life-long Democrat who supported Dennis Kucinich and is neutral regarding the race between Senators Clinton and Obama I am appalled by the nonsense regarding the role of the superdelegates at the Democratic Convention.

This attack on the role of the superdelgates is an attempt by the Obama campaign, aided by both the mainstream and “progressive” press, to change the party rules. Neither candidate will have the delegates necessary to win the nomination relying solely on the primary results. Therefore neither candidate can win the nomination before the Convention. The rules allow the superdelegates, who are the most senior, successful, experienced, and active members of our party to use their collective “wisdom” to help choose the Democratic standard bearer. There is nothing undemocratic about this. A large number of these superdelegates are elected officials chosen by their constituents to exercise their judgment in government. The claim that they may not use their judgment to help select the Party nominee makes no sense. Nor is it reasonable to exclude Party officials like Howard Dean, or grassroots party activists, from having a voice in the selection process. These are the people who will bear much of the burden of leading the effort to elect our candidate and who will have to work with that candidate if he or she is elected.

The claim that superdelegates who vote for Senator Clinton are being undemocratic is likewise disengenuous. Massachusettes superdelegates Kennedy and Kerry have endorsed Senator Obama even though their constutuents voted to support Senator Clinton. If superdelegates are charged with representing the will of the people these two delegates would be required to support Senator Clinton. Similarly Congressmembers would be required to support the candidate that won their district. Yet very few people have endorsed this approach. Not surprisingly, each campaign supports the approach that favors their candidate.

Supporters of Senator Obama claim that he deserves the nomination because he leads in both the popular vote and number of primaries won. But the popular vote relied on by Obama supporters contains unknown numbers of Republicans and independents. I believe that the Democratic nominee should be chosen by members of our Party not members of the opposition Party. Republicans voting in our primaries have their own agenda, which may not be choosing the best Democratic nominee. In addition, many of the primaries were party caucuses, not elections. Caucuses, by their nature, disadvantage the elderly, the disabled, and the poor who are much less likely to be able to get to a caucus site and spend an entire evening selecting a candidate.

If neither candidate has enough delegates to be nominated on the first ballot then the delegates are free to nominate anyone they want. They may even draft someone other than the two remaining candidates, Al Gore for example. That is the way the process works.

I urge my fellow Democrats to stop demonizing the opposition as undemocratic, and advocate for their candidate within the rules. While Democrats hurl invective at each other John McCain is getting a free ride. Remember, he is the real opposition.