By Reid Wilson
August 25, 2015 at 6:00 am ET
Thousands of delegates to the Republican National Convention will descend on Cleveland eleven months from now, thrilled by the prospect of nominating the candidate they hope will be the next president of the United States.
But those delegates could be in for more work than others at previous conventions: A little-noticed paragraph buried deep inside the Republican Party’s official rules, coupled with the historic number of candidates seeking the nomination and the rise of the super PAC, could lead to the first brokered convention in modern political history.
“Party rule junkies go to sleep every night hoping for such a thing,” said David Carney, a GOP strategist who guided former Texas Gov. Rick Perry’s 2012 campaign.
The rule that could create so much chaos, known as Rule 40, was originally meant to limit discord. It requires a candidate for president to demonstrate support from a majority of delegates in each of eight states before he or she is formally nominated.
Republican allies of Mitt Romney raised the threshold for nominations, from a plurality in each of five states to a majority in each of eight states, during the 2012 convention. They worried that, should Romney run, the lower threshold would allow an insurgent — like former Rep. Ron Paul (R-Texas) — to threaten Romney’s renomination four years later had he won the White House.
The higher threshold also served to streamline the nominating process in an era of made-for-television conventions meant to show party unity rather than division. Excluding candidates who can only demonstrate support in their home states or regions would, the theory went, hasten the coronation of the eventual nominee, who presumably would have demonstrated wider support.
But with as many as 17 candidates on the ballot, most of whom have well-funded outside groups supporting their campaigns, the odds of one candidate amassing majorities in the eight states required is significantly lower than it has been in previous years.
That will weigh on the Republican National Committee’s rule-making body, which meets the week before the convention. Several rules, including Rule 40, will be up for debate at that meeting, said John Ryder, one of Tennessee’s representatives to the RNC and the chairman of the rules committee.
“The current Rule 40 will be part of the temporary rules, and they’ll be in effect until the new rules are adopted,” Ryder said. The eight-state threshold “is capable of being changed, and capable of being changed downward.”
Yet the stocked field means any candidate’s hope of amassing a majority of delegates in early nominating states is smaller still. Party rules require any state holding its nominating contest before March 15 to award delegates on a proportional basis, rather than awarding all delegates to the winner. So far, 18 states and Puerto Rico plan to hold caucuses or primaries before March 15. Winning a majority of delegates in any of those states would require a candidate to run up a massive margin.
States that hold their nominating contests after March 15, super Tuesday, may award delegates on a winner-take-all basis, though they are not required to do so. The fewer that award delegates on a winner-take-all basis, the less likely any candidate accumulates enough delegates to reach the eight required.
Only seven states and the District of Columbia are moving toward allocating delegates on a winner-take-all basis, according to Josh Putnam, a political scientist at the University of Georgia whose Frontloading HQ blog closely tracks delegate allocation rules. States must present the RNC with their finalized plans by October 1.
In ordinary years, crowded primary fields take care of themselves. The candidates who beat expectations in early state contests like Iowa or New Hampshire survive, while those who fall short starve for lack of financing and eventually drop out.
But in the era of the super PAC, those norms are turned on their head. The 2012 campaign offered a preview, as wealthy donors funneled millions into outside groups backing former Sen. Rick Santorum (R-Pa.) and former House Speaker Newt Gingrich (R-Ga.) long after Romney became the presumptive nominee.
This year, there may be as many as a dozen candidates with well-financed super PACs that are able to keep them in the race even after campaign fundraising dries up — several of whom would be viable general election candidates if they survive the nominating process.
“You look at the stage and there’s an entire Cabinet up there,” Ryder said.
Former Texas Gov. Rick Perry, whose campaign has had to stop paying staffers, is a case in point. His super PAC has a whopping $17 million on hand. Perry has shown no sign he will drop out. And with the odds of a brokered convention rising, candidates may find they have an incentive to stay in the race as long as possible, in hopes of playing king-maker once the convention rolls around.
“You could theoretically have no candidate with a majority in any state, because you’re going to have at least 10 or 15 viable candidates going into super Tuesday,” said Saul Anuzis, a former Michigan Republican Party chairman. “There’s no incentive for any of the leading candidates to get out of the race.”
The king-maker card could make the incentive to stay in even more powerful, even for candidates with little chance of winning. If the leading candidate has 40 percent of the delegates from a state, a candidate with 10 percent of that state’s delegates could elicit serious concessions. Even a non-viable candidate can hold on to their delegates. Only when a candidate officially drops out do their delegates become unbound.
The Rule 40 requirement has some presidential campaigns rethinking their approach to the nominating contest. Anuzis, who supports Sen. Ted Cruz (R-Texas), said campaign strategists have held discussions about focusing on smaller states where amassing a majority of delegates would be easier than in larger states.
“A small state is just as relevant as a big state right now,” he said.
Republicans nervous about the prospect of a chaotic brokered convention broadcast on live television — a ratings bonanza, to be sure, but one that likely wouldn’t help the party’s image — still have options. Ryder’s committee will debate lowering the eight-state threshold, or reverting the majority standard to a plurality standard.
But with so many candidates likely to have control of at least a handful of delegates, not to mention divided loyalties on the rules committee, the odds of a last-minute rules change without a significant fight are slim. For those candidates, allowing the rules change without exacting concessions would be surrendering valuable leverage.
The packed Republican field, filled with more high-quality candidates than any election in generations, makes the doomsday scenario of a brokered convention possible. Every day without someone dropping out only heightens the risk.
“Six months ago, ‘no way’ would have been the answer” to a brokered convention, Carney said. “Today, [I’m] not sure.”