Big hat tip to Chuck Todd who gestured this morning towards what follows in this diary, and who now suggests that a compromise is forming.
The Rules and By-laws Committee of the DNC being a political body, one should expect its decision to reflect political expediency rather than a strict reading of the Delegate Selection Rules. Nevertheless, the best political decision regarding Michigan and Florida may be one that gives rational Clinton supporters the least to complain about while strictly adhering to the text of the Delegate Selection Rules. My reading of the Delegate Selection Rules and the 5.28.08 memo by DNC staff lawyers leads me to conclude that the RBC is limited to approving a maximum of 86 pledged delegates from Florida and 59 pledged delegates from Michigan to be placed by the Secretary of the DNC onto the Temporary Roll of delegates to the 2008 Convention.
Why strictly adhere to the Rules?
Why strictly adhere to the rules? It is crucially important to the Party and the country that the Delegate Selection Rules be enforced. If the ability of the Party to designate the states that go first is not established this year, there will never be any hope of instituting a system of rotating priority that will finally loosen the grip of two lovely but unrepresentative states (IA and NH) on our national politics. For IA and NH will always go first, and the media will always pay disproportionate attention to IA and NH if the effectiveness of untimely early primaries are a matter of debate.
The Delegate Selection Rules mandate a reduction of a state's delegation if it holds an untimely primary.
Upon a determination of the DNC Rules and Bylaws Committee that a state is in violation as set forth in subsections (1), (2) or (3) of section C. of this rule, the reductions required under those subsections shall become effective automatically and immediately and without further action of the DNC Rules and Bylaws Committee, the Executive Committee of the DNC, the DNC or the Credentials Committee of the Democratic National Convention.
The mandatory reduction is defined as follows
[T]he number of pledged delegates elected in each category allocated to the state pursuant to the Call for the National Convention shall be reduced by fifty (50%) percent, and the number of alternates shall also be reduced by fifty (50%) percent. In addition, none of the members of the Democratic National Committee and no other unpledged delegate allocated pursuant to Rule 8.A. from that state shall be permitted to vote as members of the state’s delegation. In determining the actual number of delegates or alternates by which the state’s delegation is to be reduced, any fraction below .5 shall be rounded down to the nearest whole number, and any fraction of .5 or greater shall be rounded up to the next nearest whole number.
These rules largely speak for themselves. For instance I find it fairly obvious that the RBC does not have the power to declare that Michigan, although in violation of Rule 20(C)(1), shall send 128 people as pledged delegates to the Convention each having half a vote. The mandatory punishment is a very specifically defined reduction in the number of delegates (i.e. persons with delegated powers to vote on behalf of Michigan Democrats) that Michigan is permitted to send to the Convention. A delegate with half a vote is not half a delegate. He or she is a delegate with half a vote.
One term in the Rules is, however, difficult to understand, namely "each category allocated to the state pursuant to the Call for the National Convention." What exactly are these categories?
The authors of the DNC memo seem certain of what this term means. The staff attorneys think each contested pool of delegates is its own category. In other words, each congressional district is a category, the delegates of which are to be reduced by one-half and then rounded down. One page 7 of their memo, they state
If allocation [of pledged delegates to presidential preferences] is made after [the reduction of delegates], then the number of pledged delegates, district by district, would first be cut in half; the number of at-large delegates would be cut in half; the number of pledged Party leader and elected official (PLEO) delegates would be cut in half; and then the allocation would be made based on the district by district primary results for the district-level delegates and based on the statewide results for the at-large and PLEO delegates.
In plain English, the Staff memo's interpretation of "category" means that a 6 delegate district in a state shall become a 3 delegate district, a 5 delegate district a 2 delegate district, and so on, upon the RBC determining that the state's primary violates the Rules.
Regarding the allocation of delegates to campaigns: Let us assume that using the results of the offending January primaries is appropriate as a matter of politics because it will mollify and appease some Clinton supporters. Following the Staff's interpretation of Rule 20(C)(1)(a)'s use of the term "each category", the delegate allocations in Michigan and Florida should be as follows:
Florida
Clinton: 46 delegates
Obama: 39 delegates
Edwards: 1 delegate
Michigan
Clinton: 33 delegates
Uncommitted: 26 delegates
Source: Calculations based on data compiled by The Green Papers.
As the Staff memo rather straightforwardly recommends, let the four campaigns that did not have their names on the Michigan ballot, and were active nationally during at least a portion of the period when ballots were submitted in the Michigan primary, agree upon which 26 Michiganders will be appointed as "Uncommitted" delegates. Because Sen. Biden is a reasonable fellow, and Sen. Edwards and Gov. Richardson are Obama supporters, this will mean that 26 dependable Obama supporters will be appointed as delegates from Michigan and placed on the Temporary Roll.
Postscript:
I'm not absolutely sure that the Staff's "district-by-district" method of implementing "each category allocated..." is the based on the best possible interpretation of that term. But the staff attorneys are in a better position than I am to interpret the meaning of such a term since many of them were undoubtedly involved in the drafting of the Delegate Selection Rules. Moreover, as we all know by now, the rules as a whole make the division of delegates district by district an overwhelmingly salient feature of the entire nomination process. Still, I note that the Call for the National Convention includes an appendix which distributes to the States "delegate votes" in eight categories: five unpledged categories and three pledged categories. The pledged categories are "District Level," "At-Large," and PLEO.
Postscript 2:
My gut feeling as to the fairest resolution consistent with the Rules? Maintain the 100% penalty on Michigan and mitigate the Florida penalty as outlined above.