FEW SEEM TO have noticed the little paragraph tucked into the temporary convention rules that have been proposed by the Democratic National Committee. It probably looked like another technical provision, more legal language with a yawn of a name: Proposed Rule F(3)(c).
But the little paragraph tells a great deal about the struggle for the 1980 Democratic presidential nomination, which is by no means over. Indeed, it tells you why it is not over, ragardless of what is popularly believed about "binding" state primary laws or state party rules.
The simple fact is this: Those state laws and state party rules have never dictated the votes of any delegates to any national Democratic Party convention since the first one was held in Baltimore in 1832. While those provisions surely carry important weight, they have never prevented any delegates from voting for whichever presidential candidate they deemed best for the party and the country, whether on the first ballot or later.
That is doubtless why the Carter-controlled Democratic National Committee has been inching toward a dramatic attempt to change the convention rules. Some might be tempted to call this a Carter effort to "threaten" or "stack" the convention, while others might simply see it as "smart politics" by the president's men. But there is no question that the temporary proposal is a stunning departure from the past: It would empower a presidential candidate to remove any delegate who once expressed a preference for him but whose vote the candidate might no longer feel confident of getting.
In other words, if President Carter -- or, for that matter, Sen. Kennedy -- even thought that some delegates in their column might change their minds during the balloting in New York, they could simply boot them out and replace them. That would be the effect if the little-noticed paragraph known as Proposed Rule F(3)(c) becomes a permanent rule at the August convention, and its fate might well decide who will be this year's Democratic nominee for president.
The Carter people obviously have a fondness for F(3)(c), even though it could reduce the Democratic Party's convention to a deliberative body with little more to deliberate than delegates do at the Supreme Soviet. In fact, the same paragraph was proposed in 1977 by Carter operative Rick Hutchison to the party's Commission on Presidential Nomination and Party Structure, known as the Winograd Commission, and it was adopted, though merely as one of the party's delegate selection rules.
It stated then, as it does now in its incarnation as F(3)(c):
"All delegates to the National Convention shall be bound to vote for the presidential candidate whom they were elected to support for at least the first Convention ballot, unless released in writing by the presidential candidate. Delegates who seek to violate this rule may be replaced with an alternate of the same presidential preference by the presidential candidate or that candidate's authorized representative(s) at any time up to and including the presidential balloting at the National Convention."
There was reason enough to be troubled by the paragraph when it was adopted as 11(H) of the delegate selection rules. Granted, those rules -- by which all the Democratic delegates will have been chosen for 1980 -- carry no force whatever with the convention itself and surely set no precedents for it. In effect, the little paragraph was a harmless non-rule, governing little more than the wishful thinking of the Carter camp.
But that wishful thinking was itself remarkable -- an early reflection of the Carter forces' desire to overturn Democratic Party history.
That history may well puzzle some people, particularly the uninitiated. How can the results of hard-fought primaries, caucuses and state conventions be disregarded? How can "binding" laws and party rules -- which exist in roughly half the states now -- not actually bind the affected delegates? Don't those provisions count? Yes, they count for a good deal, creating very heavy considerations for delegates selected under them. But none of them, including the "binding" ones, have ever been sacrosanct at the national convention, as the candidates knew when they began their quests for the presidential nomination this year.
They were well aware that the supreme authority governing the national convention is the convention itself -- the permanent rules it adopts shortly after it meets. This is recognized in the Democratic Party's charter, which states that "The National Convention shall be the highest authority of the Democratic Party," and it has been given added weight by the U.S. Supreme Court. In its Cousins v. Wigoda decision in 1975, the High Court ruled that actions by national party conventions supersede state statutes.
That, of course, is why the Carter forces are struggling to overturn the convention rules: They know full well that national Democratic Party conventions have always recognized that delegates sometimes must make painful choices between conflicting obligations, that what was true in the snows of a winter primary may no longer be true in the heat of a summer convention, that circumstances, people and opinions change.
In short, they know that conventions have always found in such cases that delegates must be ruled by their individual judgmeents and consciences, not by state primary laws or state party rules, as important as they are.
This was eminently clear to a reform commisson on party rules that I headed from 1969 to 1972, a panel which examined past convention practices in order to codify those rules. We found a rich history of "bound" delegates switching their votes and of the nominating conventions recognizing that right.
In 1952, for instance, delegates selected under the terms of Oregon state law were "bound" to support Estes Kefauver, the winner of the Oregon primary. But an Oregon delegate ended up voting for Adlai Stevenson. In 1972 there was the delegate "bound" to George Wallace who voted for George McGovern instead. Or take the 1924 convention, which required 103 ballots to pick its candidate. A Florida delegate to that convention was "bound" by both state law and state party rules to support the winner of Florida's primary, William Gibbs McAdoo. He voted for Al Smith.
In his ruling on the 1924 switch, the chairman of the convention, Sen. Tom Walsh of Montana, succinctly stated the Democratic Party's historic position on this difficult issue: that "it is a matter for the delegate and his constituents as to whether he did or did not violate his instructions."
In other words, delegates essentially are in the same position as members of Congress or other representatives who commonly face conflicts between constituent wishes and their own conclusions. This dilemma was perhaps best described by the British philosopher and legislator Edmund Burke in 1774.
Burke acknowledged his duty to his own constituents, whose "wishes ought to have great weight with him; their opinion high respect; their business unremitted attention." But, he added, "Your representative owes you, not his industry only, but his judgment; and he betrays instead of serving if he sacrifices it to your opinion."
Any legislator who goes against his constituents' desires, of course, will be taking his chances when he goes back home. So will "bound" delegates who change their votes at national party conventions, at least if their constituents have not had second thoughts themselves by then. But as to the delegates' historic right to do this there is no question.
All this history was brought together in a rule adopted by the national Democratic convention in 1972 as a result of our commission report. The rule stated that after any challenges to a state delegation's vote:
". . . the votes of that delegation shall then be recorded as polled without regard to any state law, party rule, resolution or instruction binding the delegation or any member thereof to vote as a unit with others or to cast his vote for or against any candidate or proposition."
The same rule was adopted in 1976 in New York, in line with the party's custom of adopting the rules of past conventions. But now, among other things in the proposed temporary rules issued for the 1980 convention, the Carter forces also have tinkered with the ending of that rule. Specifically, they have deleted "candidate or," so that it would now simply let delegates disregard state laws or rules affecting only "propositions." Convenient little change.
One might think that an attempt to overturn party rules by suddenly locking in delegates would be startling enough. But that pales beside the implications of F(3)(c), beside the drive to give absolute power to candidates. If delegates have always been free to make their own judgments, they certainly have never had to worry about being thrown out of a national convention because a candidate believed that he or she was "seeking to violate" a rule such as F(3)(c).
What, for goodness sake, does "seeking to violate" mean anyway? Would affected delegates have to tremble at being seen talking with anybody from a rival camp? Would they have to avoid any mention of doubts they may have about their own candidate for fear of being sent home like children? Would they have to simply nod like dummies in their state caucus meetings?
The proposed rule is difficult to believe. It would not only be deeply offensive to those of use who support Sen. Kennedy and his effort to stop the Carter camp from changing the rules this late in the game. It would be an affront to every delegate.
These are people, after all, who have long paid their dues to the party, not merely with money but with time, often many years spent attending party meetings, walking door-to-door to promote the party's candidates and platforms, manning its phones to help raise funds and doing any other chore necessary. They are the backbone of the party.
They know what politics is about. They know the people in their own neighborhoods and towns and counties and parties. It they are bound by state provisions, they are not going to change their votes merely because of some passing whim. But they do have minds. They are not children. If President Carter is determined to treat them like children, ready to yank delegates suspected of misbehaving, why have them there to participate in the presidential nominating process at all?
Whether the delegates in New York are willing to swallow all this may well be the decisive factor in who becomes the Democratic candidate for president this year.