I was away from the site most of the day and so couldn't participate in what looks like interesting discussions begun as and after the RBC votes came in. Guessing others may have been in similar situations, I'm posting this diary to put my own views on today's activities on the record and allow other latecomers to have their say in a setting where it stands at least some chance of being read.
First, Kagro X was mostly right today, except when he said that Harold Ickes was right.
Second, Hillary's disruptive and angry supporters at the RBC meeting put Obama in a position to end this soon, but he will have to throw a hard pucnh: call on her to reject and denounce the sort of support we say today. Hillary can't hide from the need to take a stand, then.
Third: Obama can pull the final rug out from under Hillary once he has enough superdelegates in hand by giving her what she wants once it no longer matters, thus upholding the "cheaters never prosper" principle.
(1) Rough justice
Based on Kagro's update to his last story of the day, I take it that in his discussion he came to the conclusion that the RBC was acting as a court of equity -- grounding a remedy on questions of fairness -- rather than a court of law, which grounds a remedy based on rules alone, however unfair. What courts of equity do -- bearing in mind that in federal law, at least, courts of equity and law are not separate courts, and that the terms actually address different requests that for remedies can be made of courts -- is probably better better known as administering "rough justice." It's not quite the same as rough justice, as equitable remedies generally don't involve things like direct monetary compensation, but it involves cobbling a solution that does justice.
I can't weigh in on whether the RBC actually had the right to present a remedy that was, essentially, equitable rather than legal. (I know that there are some things that will take me too long to study in order to come to a reasonable conclusion.) I know that Kagro says that they had no right to impose the negotiated 69-59 split requested by the party, (because it involved fiddling with the contest results and giving all of the uncommitted delegates to Obama, which seem like equitable remedies), and that emptywheel's reading of the RBC lawyers' report said that they could not do it, even though a lot of critical parties, including many Hillary supporters, seemed to agree it was the right thing to do. That's some persuasive evidence that what happened today "couldn't happen."
If, as emptywheel had argued, the lawyers argued that the choices were simply between (1) accepting the 73-0 split between Hillary and Obama with 55 uncommitted delegate seats left to fight over and (2) not accepting the results of the primary as a guide at all, then the right thing to do was for the Rules Committee to kick the can down the road to the Credentials Committee, which as I understand it can impose an equitable solution like the "69-59 at half-strength," and let it be settled in mid-June.
I had become so convinced that emptywheel and Kagro were right that I even included a poll in my diary written while the Rules Committee was in recess asking whether RBC should solve the problem today or kick the can over to the Credentials Committee. As of this moment, there are 64 votes in that diary: 62 saying "solve it now," one saying "other," and my lonely vote saying "defer it to Credentials." Shows what I know.
I expect that most of us would agree that for Rules to refer resolution of the Michigan issue for Credentials Committee would be Bad For The Party, even if Right By The Rules. It means prolonging the agony of this process. Now, it is true that the agony (at least the Michigan portion of it) is being prolonged anyway, because Hillary may contest the Rules Committee's resolution anyway, but that probably won't end up mattering. By the time Credentials meeting starts, Obama will have enough delegates in hand -- probably including former Clinton delegates -- that he can substitute a bunch of Hillary delegates into his Michigan delegation and still be in no danger of losing.
Harold Ickes is wrong, of course, because his argument is predicated on the notion that Michigan had a primary. It did not, of course. That is why many Democrats didn't vote, many chose to vote in the actually contests Republican contest, and many may have voted for Hillary whether or not they actually preferred someone else whose name was not on the ballot -- perhaps on the theory that they disliked Kucinich and wanted the party to be less embarrassed by its frontrunner receiving so few votes. You simply cannot read anything definitive into any vote cast in the Michigan Primary, when push comes to shove. That's because it was not an actual primary.
The question, then, is what RBC may do when a state has -- whoops! -- failed to conduct a primary, but has come up with a delegate apportionment that was in effect negotiated between proponents of both remaining candidates within the state party. The party in essence said, hey, we apparently didn't quite hold a legitimate primary this year, but we all got together and figures out what we think is a fair reflection of how our constituents would have voted had they been allowed. In that situation, is the RBC truly required to kick the can down the road to the Credentials Committee, especially given that the outcome of an Obama-dominated Credentials Committee vote is already universally understood, and given that Hillary can take a minority report from Credentials to the convention floor anyway, no matter what happened in the Rules Committee? It's not clear to me that they have to allow the party to suffer harm for no good reason.
Some legal principles guide this intuition -- some analogy to the notion of "futility" in exhaustion of legal process; the notion voiced by Justice Jackson that "the Constitution is not a suicide pact" -- but the basic reason is that even if the RBC acted "ultra vires" (beyond its authority) in this respect, it would not end up mattering because the ultimate consequence is pretty much the same regardless: Credentials, with its equitable powers, gets to settle things, with the possibility of appeal to the convention floor. In fact -- and to me this is the clincher -- the aggrieved party (that would be the Clinton campaign) is better off if RBC acts ultra vires than if it does not, because this way it gets an 10-degelate (five vote) when a decision that eschewed equitable remedies would leave each campaign with no delegates, meaning a tie vote. The only apparent guarantee is a lot of enmity among the people of Michigan for the Democratic Party, which serves no one.
It is very rare when a court -- or, let's be fair, in this case a committee for a private, albeit regulated, organization -- actually makes things better for everyone by abusing its power. But this seems to be one of those rare cases, specifically because this tentative resolution -- in the light of Credentials making a more serious resolution in a few weeks -- does not really change much. It's damn interesting, that's for sure, but I don't think it threatens small-"d" democracy.
(2) Reject and Denounce
The pro-Hillary demonstrators within the meeting were out of line. Is anyone here (at least with the guts to post comments along with diaries) really going to challenge that? The street protestors outside were out of line. They are not being good Democrats. They are not serving the interest of eventual party unity. They are just being rough on Obama for their own odd reasons.
These protestors, in fact, have foreshadowed the worst we fear might come from Hillary Clinton. The good thing is that they have placed the question of whether they will Zell Out the Party squarely on the table. And so, in the spirit of Hillary's challenging Obama on his unsolicited endorsement from Louis Farrakhan, I think that it's only fair to ask Hillary a question: Does she reject and denounce these supporters? Does she think they're wrong -- or merely premature?
Personally, I'm happy if she isn't asked these questions until June 4. Let her finish the primary season. But then she needs to be asked them. No matter what happens with the Credentials Committee, no matter whether she decides to contest its decision at the convention, is this a manner of support she will accept? It's not too early for her to answer this question. It is the Big One, after all. She has gotten herself in a tough position, thanks to her supporters; let's make sure she faces the appropriate questioning.
(3) Acts of grace
Barack Obama will probably be getting a flood of superdelegates soon. He has the key to resolving the conflict with Hillary once the nomination is safely in hand. That is: he can direct a certain number of his Michigan delegates to vote as directed by the Clinton campaign. I think that Harold Ickes said that Obama deserved perhaps 23 of what he tallies up as the 55 uncomitteed delegates, leaving 46 in question -- 46 being the difference between the 69 Obama is getting and the 23 that Clinton concedes. That is 23 votes. Obama will be able to lose 23 votes without a problem, eventually. Once the outcome is settled, he can simply give in on this point, making a convention challenge over Credentials moot.
The important thing, though, is that this would happen not as a matter of right for Hillary, but as an act of grace by Obama. Only by allowing the matter to be resolved once the outcome no longer matters can Obama preserve the principle that "cheaters never prosper": or, less fancifully, that deterrence of future rulebreaking demands that states can only be excused for their rulebreaking if the benefit they gain thereby cannot effect the result of the overall nomination contest.
Obama can solve this, in other words, once Hillary agrees to withdraw, or one superdelegates make her candidacy irrelevant. I hope that he will signal soon that such an act of grace will be forthcoming -- as soon as circumstances permit.