The Blog

After Indiana: Sanders Wins Another Purple State, and Emerges from a Haze of Bad Strategy and Rigged Delegate Math

This post was published on the now-closed HuffPost Contributor platform. Contributors control their own work and posted freely to our site. If you need to flag this entry as abusive, send us an email.

Both campaigns took historic turns after the Indiana Primary. The Donald's art of the steal of the Republican Party nomination was not the more important turn. Republicans offered no good choice anyway. It was Bernie Sanders' Friday letter to the DNC suggesting he will wage a floor fight at the convention and risk party disunity if the Democratic Party continues to steal the nomination from him by means of undemocratic rules and stacking with Clinton loyalists the key committees responsible for those rules. This threat marks a new strategic path to victory that Sanders had mostly neglected until May 6th. Before then he had focused his considerable political capital on arguing about the irrelevant Party platform,

Sanders' fairly narrow May 3d victory in Indiana, a purple state, continued the pattern established in Nevada, Iowa and elsewhere. It confirmed that Clinton's lead in delegates stands on the two very wobbly legs of closed primary states and mostly red (with a couple purple) southern states. The single exception to this pattern is Ohio, where reported primary results showed a 10% discrepancy from exit polls in a manner alleged to be "a likely indicator of fraud." Ohio is closely associated with election theft. Unfortunately, whatever the role of election theft may be in 2016, neither of the other two Clinton factors have much relevance at all to the Democrats' winning map to the electoral college. Nor were these two factors much in play in Indiana, a state that Obama narrowly won in 2008, turning this red state purple for the first time in two generations.

Closed primaries and caucuses are held in about half the states at public expense for the Party's declining 29% share of the electorate. Clinton's identity politics appeals to the Democratic party faithful who dominate such elections. Those who see all politics as identity politics remain loyal to a corrupt party which provides little more in exchange than the surface image of empty symbols. In a "one person, one identity" society you can buy a faux "Woman Card" from Clinton. But you will not get from her a restored democracy in which the 99% of women or other voters can achieve authentic policy reforms, even reforms most relevant to any pandered identity.

Clinton and Obama criticize Sanders for thinking democracy is possible in America. Tavis Smiley has demonstrated that under Obama blacks "have lost ground in every major economic category." It would not be surprising to find the same result for women in a Clinton restoration. Throughout American history racism and patriarchy have been linked in eras of general oligarchic oppression. Their victims typically emerged from that oppression together in periods of general democratic progress. Clinton will only deepen the contemporary plutocratic form of such oppression based on the system of political corruption which her family helped construct. Identity politics will not save you, but only divert from attaining democratic reforms which may.

Clinton will, of course, not have the benefit of closed elections in November. Independents, although excluded from closed primaries, nevertheless do determine general election outcomes. They are the 40% or more of the electorate interested more in recovering democracy from the plutocratic establishment which controls both corrupt parties than in the identity politics/culture war distractions from democracy that the parties have on offer. Independents therefore favor Sanders whose express priority is to reclaim power from plutocrats, "the billionaire class" villains of Sanders' standard campaign speech.

Such a political "revolution," overthrowing plutocracy in favor of democracy, would enable majorities to secure the New Deal-style reforms that he labels "socialism." The scare quotes are needed here to indicate Sanders' peculiarly American usage of that term, which can only be understood as standing in contrast to the American "capitalist" proposition that democratic majorities should not determine the economic structure of their own society. In Sanders' "democratic socialism," the socialism part is a natural consequence of the democratic part. Sanders' platform consists of reforms with which majorities already agree. Such social and economic policies that a majority supports can only be blocked by plutocratic corruption of the democratic process. Closed primaries shut out a large share of voters from a key step in that process.

Independents allowed to vote in Indiana's open primary provided Sanders' margin of victory over the sheep who vote as instructed by the plutocratic Party establishment. The victory that Independents gave Sanders' in Indiana was modest compared to, say, the Wisconsin primary, because Indiana also has southern influences in its Ohio River Valley counties that voted for Clinton. Only pollsters who have consistently underestimated the impact of Independents in open primary and caucus states, and those who believed their underestimates of Sanders. But Indiana's confirmation of Clinton's limited source of support did, apparently, finally draw Sanders' attention to the strategic move he must make if he is to win the nomination in the face of discriminatory Democratic Party rules.


The Indiana result that dominated the news cycle was not about Sanders but rather Donald Trump's elimination of Senator Cruz. This took Trump and many others by surprise. It is discussed here not to further exhaust the oxygen in the room that the plutocratic media spent on advertising Trump, but to note its significant impact on the only campaign that matters in 2016.

Though the identity politics narrative has assigned them the villain's role, Trump's voters are nevertheless owed the nation's debt of gratitude for eliminating the possibility that "Lucifer" (Lyin' Luc?) Cruz will get anywhere near the Oval Office in this election cycle. But for Trump, Cruz could have been one email server indictment, or high-level resignation from the FBI, away from power. It is still worrisome to contemplate that, if Trump should lose, a Clinton presidency could further alienate enough voters from her corrupt and undemocratic Party so that Cruz-family dominionism would make a comeback in 2020. Such a Clinton-Cruz sequence is an even scarier prospect than a one-term transitional Trump regime. As one writer said: "Trump is ridiculous, but Cruz is ... truly frightening.... and he'll be back. Take appropriate precautions."

If, in addition to at least temporarily sidelining "Lyin' Ted," Trump can also be blamed for creating a crisis in, or even destroying, the Republican Party, he can't be all bad. With the Clinton organization back in full control of the Democratic Party, alienated plutocrats like the Kochs would already have their parachute named Hillary Clinton in hand as they bail out of their old disintegrating party for this new Democratic Party alliance of "strange bedfellows." Like the civil rights era witnessed a complete ideological reversal when the former Party of Lincoln become the "southern strategy" party of the New Jim Crow, and vice versa, we might be witnessing the final step in a comparable reversal as the Democratic Party, the former party of labor, is promoted to senior partner in the duopoly Party of Plutocracy.

No one can know where the Trump rump of the Gutted Old Party will land up in the absence of adult supervision greased by plutocratic pay-offs. Who can say whether Trump's offensive reactionary culture wars against Muslims and Mexicans will prove any less symbolic than Hillary Clinton's liberal identity politics in its actual impact, or lack thereof, on public policy? Trump doubtfully knows himself.

Perhaps the most important favor to the country done by Trump and his supporters, especially the Indiana primary closers, is giving Trump a large enough victory to help drive Ted and family, out of the race earlier rather than later. This allows Trump to begin the campaign he has promised: "We're going after Hillary Clinton." Trump will predictably raise those "personal attack" issues about the corrupt Clinton organization that Sanders declines to discuss. Trump's campaign against Clinton and her plutocrat backers may provide the superdelegates a foretaste of Clinton's weakness as a candidate well prior to the Democratic Convention. This may heighten their sensitivity to the issue of integrity as Trump goes about presenting evidence to back up his charge against "Crooked Hillary Clinton, perhaps the most dishonest person to have ever run for the presidency." This development can only help Sanders in the remaining primaries from which Clinton will be distracted by Trump, and even more importantly in his fight within the party over greater integrity of the nomination process, which is the condition Sanders has now laid down "to have a unified party."

This appreciation of Trump's contributions, however inadvertent they may have been on his part other than as was necessary to make the deal, does not even include what Jeffrey St. Clair called the "Trump L'Oeil ... Greatest Spectacle on Earth" depictions of iconoclastic policies, "as if Trump has stepped right off the pages of Ralph Nader's Dickensian romp of a novel, Only the Super-Rich Can Save Us!" (2011). Such policy positions can be subject to hourly changes, because the campaign thinks nobody cares about policy, but only its maker. Yet Trump's loose cannon for policy missiles creates cover for Sanders' critique of plutocratic foreign, trade and other policies as if they were bipartisan positions rather than subjects censored by the mass media.


The most important of the issues where Trump as cleared some space is that of the corrupt plutocracy itself. Whether credible or not, Trump has at least toyed in public with the idea that he will not be taking big money from plutocrats as do their usual "puppets." He apparently got this far mostly on the basis of his celebrity, media smarts, a relatively modest personal loan to his campaign and about $12 million in small contributions. Trump might try deploying Sanders' crowdfunding strategy with his own supporters. Meanwhile, to avoid blatant hypocrisy, Trump's current line of attack against "Corrupt Clinton" might restrain somewhat his natural temptation to put his own hand in the normally large open pockets of plutocrats. Since, as The Hill notes, "Trump has not endeared himself to many on K Street, having attacked lobbyists during the primary campaign.... few lobbyists have come out in support of Trump."

This suggests the possibility that Trump may, instead of extending his hand for the usual dance with plutocrats and their lobbyists, and their party establishment, may instead follow the political axiom about dancing with the ones that "brung 'em" - the voters who bought his billionaire populist image. This would require his employing an entirely different business model for his campaign than the current model of systemic plutocratic corruption. And then, an hour later, maybe not.

This section explores the potential consequences to the country of the choice Trump makes, a choice that was not available to Obama, nor to the Clinton organization which is thoroughly enmeshed with plutocracy. Trump's choice will determine how strong a candidate he will make against Sanders, which is reason to explore the choice in some detail.

It is no doubt easier for Sanders' supporters seeking the recovery of democracy from plutocrats than it will be for the identity politics crowd that supports Clinton to contemplate a Return on Investment (ROI) calculation to define the potential difference between the Trump and Clinton forms of corruption. It is the relative ROI factors that is causing the rats to flee the Republican ship pirated by the new Cap'n Donald in order to back Clinton as the more reliable friend of plutocrats. To start, Clinton took their money during the primary and defended her blatant conflict of interest by challenging Sanders to attempt the near impossibility of proving the subjective intent element of quid pro quo bribery. Trump has bragged that he did not take their money. Yet. And he can speak from experience about how political investments buy lucrative conflicts of interest, while assuring that outsiders to the deal cannot prove subjective intent.

The current bipartisan model of corrupt politics which the Clintons helped create, and which Trump and Sanders are disrupting in different ways, was described by, among many others, Robert Scheer, The Great American Stickup: How Reagan Republicans and Clinton Democrats Enriched Wall Street While Mugging Main Street (2010) 241-42, 246. Scheer explains that "the only difference in the two parties' programs was over who best served Wall Street and hence deserved to be more handsomely rewarded with campaign funding ... [In] both the Clinton and Obama White Houses ...Democrats proved to be as eager to please as their Republican rivals." That eagerness has been rewarded. For example, "Goldman Sachs' PAC and its employees gave $24.5 million to federal political campaigns in the period 1999-2009. Most of that money went to Democrats." Evilsizer, "Names In The News: Goldman Sachs," (May 11, 2010).

Strong support for this partisan contest for the spoils of influence peddling by the post-Clinton Democratic party is provided in an academic study by Michael J. Cooper, Huseyin Gulen, and Alexei V. Ovtchinnikov, Corporate Political Contributions and Stock Returns (2010). The authors developed a comprehensive database correlating publicly listed firms' political campaign contributions to their share appreciation. The data broadly confirmed "the idea that companies make political contributions because the contributions create value for the company." The author's regression analyses could not attribute this value to any other factor than "abnormal" (i.e. political) Return on Investment (ROI). Their data also showed that the "incremental impact on abnormal returns is greater for contributions to Democratic candidates." The Clinton organization is justifiably trusted to give a higher ROI, more bang for the buck. This suggests that the Democrats' identity politics diversion is even more effective than the Republican's counterpart culture wars is in enticing the mass of partisan voters to support the plutocracy against their own economic interests. Trump's Republican voters, for the first time in decades, seem to have started massively voting their own interests, and therefore not that of the plutocratic party establishment. Democratic voters have done the same. But if Democrats have rebelled against the plutocratic establishment in the same numbers in fact, the results are different because the Democratic Party has necessarily rigged up stronger defenses against progressives, since unlike Republicans they occasionally have some.

Obama perpetuated the Clinton template, taking money from Wall Street and then appointing Robert Rubin acolytes and other corporatist Democrats, such as Larry Summers, to key financial regulatory positions where they were able to return an ROI in the form of bailouts and policy concessions many times Wall Street's investment in Obama. The largest bailout went to Rubin's Citibank itself as described by Robert Kuttner, A Presidency in Peril: the Inside Story of Obama's Promise, Wall Street's Power and the Struggle to Control Our Economic Future (2010) 123-29, 203. Kuttner furnished the evidence that "Wall Street still reigns" under Obama that justified Cornel West labeling Obama a "mascot of the Wall Street oligarchs" and a "puppet of corporate plutocrats."

Obama has produced profitably for Wall Street, signing a bill only last year -- when he lacked any political excuse for not vetoing it -- that cut their taxes by a half trillion and vastly expanded the scope for their political corruption to pay for the favor. Clinton, who is clearly running for Obama's third term with contributions from the same sources, can only be expected to act the same as Obama in serving up a high ROI for their mutual benefactors.

According to a CNN poll, Trump's presidential election project is facing perhaps 4 to 3 odds against his success. Trump himself has cited a Rasmussen poll to show he might actually have even odds or better before he has yet made much of an investment in the second phase of his project. He appeals to twice as many Democrats as Clinton does to Republicans, and he wins 37 to 31% among Independents. If Trump were to spend a billion of his reputed fortune to get elected he could then steal back, through ordinary every-day Supreme-Court-legalized petit corruption, at an ROI expected for his real estate speculations of comparable risk. But the country would still be far, far better off than it is now under the Obama practice of systemic Clintonian political corruption. Trump could theoretically become the only plutocrat able to plunder the country since he does not need to invite his fellow plutocrats to the table. This is why Charles Koch finds his ROI so "disappointing" in a Trump world, though he started the primary season saying "I expect something in return" for large political investments in Republicans.

If Trump does not take Koch's money or any other big money from plutocrats, but rather continues to largely self-finance, with the help of small contributions like Sanders, then he does not have to give away any policy favors to the Kochs or any other plutocrats who currently are wary of him for that very reason. Obama gave plutocrats everything the wanted, as will Clinton. The ordinary rate of return to plutocrats in the current systemically corrupt model of politics is extraordinarily high. According to all available information the ROI for political investments is in a different ballpark than your ordinary real estate speculation. Alex Gibney's film Casino Jack records convicted briber and űber-lobbyist Jack Abramoff promising returns of approximately 4000% on generic lobbying expenditures which were used in part to pay off influential members of Congress. See generally, Peter H. Stone, Casino Jack and the United States of Money (2010). In 2010 routine MIC profits of around $25 billion plus equity gains were made against lobbying expenditures of about $64 million, for about a 40,000% return. A more rigorous analysis found that lobbying expenditures for one law exempting repatriated corporate earnings from taxation yielded a 22,000% return on investment. See Raquel Meyer Alexander, Stephen W. Mazza, and Susan Scholz, Measuring Rates of Return for Lobbying Expenditures: An Empirical Analysis under the American Jobs Creation Act (April 8, 2009).

Another study, by the House of Representatives Minority Staff, Hitting the Jackpot: How the House Energy Bill (H.R. 4) Rewards Millions in Contributions with Billions in Returns (2001), probably shows a more typical ROI. This study found: "The cumulative value of the campaign contributions of the coal, oil and gas, nuclear, and electric utility industries in the 2000 election cycle was $69.5 million; the cumulative value of the tax breaks and subsidies for these industries in H.R. 4 is $36.4 billion. If the campaign contributions are viewed as a form of 'investment' in the legislative process, the 'rate of return' on this investment is an astounding 52,200%." Other ROI's of over 5000% for oil subsidies to 77,500% for medicare pharmaceutical overpricing have been reported. See also Clayton D. Peoples, "Contributor Influence in Congress: Social Ties and PAC Effects on U.S. House Policymaking." 51 The Sociological Quarterly 649-77 (2010).

A study by the Sunlight Foundation titled Fixed Fortunes studied "200 of America's most politically active corporations [which] spent a combined $5.8 billion on federal lobbying and campaign contributions" between 2007 and 2012. According to the Sunlight study the 200 gave $597 million to political committees and spent $5.2 billion on lobbying. The Fixed Fortune 200 accounted for 26 percent of the total spent by 20,500 paying lobbying clients. When limited to these 200 top investors, presumably the most effective of all influencers, their ROI soars to the high range. Those 200 corporations received $4.4 trillion in federal business and support which "represents two-thirds of the $6.5 trillion that individual taxpayers paid into the federal treasury." For the average "dollar spent on influencing politics, the nation's most politically active corporations received $760 from the government," for a 76,000% ROI. A high ROI indicates how incredibly cheap it is to buy a politician.

Back at the low ROI end, another study calculated that for each $5.3 million in government contracts politicians receive an additional $201,220 in campaign contributions. Since there is a total of over $500 billion of annual federal procurement, this study suggests that this one profit center alone would account for at least $20 billion worth of kickbacks to politicians,. This last number sounds too high, given that this is just one source of kickbacks, and the ROI at a mere 2,500% seems too low, especially since it does not include lobbying costs. If accurate, this study would define the minimum in the range of returns on political investments available in the systemically corrupt plutocracy where government has been for sale ever since Buckley v Valeo (1976) legalized corruption.

This survey of available studies of the ROI in politics can only be suggestive of the ROI for a president. Assuming an ROI of 50,000%, or a multiple of 500, this would far exceed the Donald's ordinary real estate investment ROI for a venture having an even chance of success. If he decides to self-finance, rather than sell out to the plutocracy as Clinton has, he could profit handsomely yet at the same time save the country considerable money because of his lower ROI expectations. This possibility that their most profitable investment opportunity could be terminated during a Trump term is what is causing plutocrats to shift to Clinton. It is the same consideration that Trump's voters intuited, without all the math, when they supported a billionaire, even if a confessed briber, as a means to reduce the influence of money in politics.

If Trump would go all-in by promoting effective anti-corruption reform like a Jack Abramoff-style reformed practitioner of the black arts, something that Clinton and her neoliberal Democrats cannot do, Trump might become even more popular. But plutocrats would get even more alarmed at the potential long-term shuttering of their lucrative business model and give Clinton even more support. They know that Sanders will attempt this reform, and seem to worry that Trump might as well. This analysis leaves three choices in the 2016 election for near term and long term prospects for the plutocratic business model: 1) Sanders' definite no-ROI, and certain effort for systemic reform; 2) the Donald's possibly low-ROI, and conceivable attempt for systemic reform; and 3) the certain continuation of the status quo high-ROI, with the faux reform of another Clinton.

It's all about that ROI in the marketplace for politicians.

Sanders Goes Strategic

In Indiana, exit polls again showed that about 30% more Democratic primary voters find Sanders "honest and trustworthy" than they do Clinton. That much of the audience normally does not figure out the trick while a professional is still performing it. It took many years for a majority to figure out Obama. Sanders again overwhelmingly won voters under 45 (68%). These voters are the source of his success. But true to the pattern caused by his continuing refusal to give blacks a good reason to vote for him rather than the leading practitioner of identity politics, he again won only 26% of the 18% share of the Indiana Democratic primary voters who are black. Sanders has failed to communicate how plutocracy is inherently a civil rights problem, because those on top profit from disenfranchising to the point of enslaving those on the bottom. Specifically banksters got away with defrauding black homeowners out of enormous wealth in real estate, because they own the system. This is why Clinton, and her plutocratic backers, will only aggravate the current civil rights crisis, notwithstanding her family talent for identity politics. Sanders has also failed to take the best opportunity to dramatically and decisively demonstrate that blacks, and especially black women, are an indispensable and valued component of his progressive coalition and of its top leadership. Until May 6, Sanders unfortunately remained as resolute in this neglect of good strategy on this and other matters as he is with respect to the unwavering content of his campaign speech.

Where it counts, in open primary blue states where independent voters are not excluded from participating in the nation's taxpayer-supported presidential election run-off process, Sanders wins or virtually ties primary elections, and commonly overwhelms Clinton with landslide victories in the caucus states. Sanders has generally held his own in the non-southern red and purple states like Indiana, and even won handily in many western red states. Purple state outliers, Colorado, where Sanders won in a landslide (18%), and Ohio, where Clinton maybe did the same (13%), cancel each other out. The states remaining for Sanders to catch up to Clinton comprise a similar mixture of red states (e.g., West Virginia where Sanders is polling ahead), both open and closed election states, and blue states (e.g. Oregon, where Sanders is competitive). They are all outside the South - aside from Kentucky, a red border state. Time is also on Sanders side in that these final states in the run-off know him better than the early states did, and will likely provide more support than the similar early states.

Predictably good outcomes for Sanders in the remaining states and territories will not be sufficient to gain enough pledged delegates to win, although these contests will narrow Clinton's current lead of about 300 delegates. To win Sanders therefore requires a convention strategy that will include a challenge to the DNC rules.

Without any apparent support from the Sanders campaign, activists in New York are taking on the quintessential case of closed-state corruption that provides one essential leg of Clinton's lead. Closing run-off elections to outsiders, as New York does, preserves duopoly power. Sanders correctly told the Washington Post that "the convention and the Democratic National Committee can change the rules and can create a scenario that makes it clear that we want open primaries in 50 states in this country." But Sanders needed to do more than complain about closed primaries, and then say that he "accepts" the rules that he calls "dumb" and "absurd" for allowing such primaries. He needed to recalibrate the focus of his campaign on the reform of undemocratic DNC rules such as the rules that treat closed primaries as the equivalent of open primaries

After a long delay during which the strategic capacity of his campaign was doubted by this writer, Sanders has finally at nearly the last minute taken a decisive first step toward challenging the undemocratic rules of the Democratic Party. On May 6, 2016, Sanders formally protested the DNC's outrageous refusal to "assign even one" Sanders nominee to the key Rules Committee and also for its selection of other broadly unrepresentative standing committees. He charged that "the Democratic Party is not open to the millions of new people that our campaign has brought into the political process, does not want to hear new voices, and is unwilling to respect the broader base of people that this party needs to win over in November and beyond." Sanders threatened if "the process is set up to produce an unfair, one-sided result, we are prepared to mobilize our delegates" for a floor fight at the convention. Doubts whether the Sanders' campaign would be ready to wage such a floor fight over a rule change are somewhat allayed by this first known strategic action by Sanders' campaign. This will mark an important, historic, turning point in the campaign, if it is followed up with further effective strategic action to contest undemocratic DNC rules.

One kind of rule change would address the problem of closed primary states that Sanders mentioned. Sanders needs to prepare his delegates for this floor fight at the convention to change the rules so as to discount the credentialing of delegates from closed primary states. The discount of delegate strength would be based on documentation of the extent to which Independents were excluded from participation in the closed primaries, and the results were therefore unrepresentative of actual voter choice. The rules should factor-in poll results about Independents who were undemocratically denied a vote in what should be an open run-off election process, if the results are to be credentialed as democratic. The issue is really not what is good for the party, as Sanders expressed it, but what is good for democracy, and required under the constitutional principle of one person, one vote,

To help demonstrate this proposal, for example, 1.8 million New Yorkers voted in their state's closed Democratic Primary. Sanders claims that 3 million Independents were excluded. If solely for purposes of discussion we apply the nationwide ratio for Democrats to Independents of about 3 to 4, and assume equal turnout rates, an open primary would have included 2.4 million additional New York voters. Some of those Independents, around a third, might have voted for Trump or another Republican, Polls show that 74% of these voters do not consider Clinton "honest and trustworthy." (Q36) Rounding up to 75%,the figure of 70% of Independents that some pollsters claim vote for Sanders, Sanders would have received very roughly an additional 1.2 million votes, and Clinton the other 400,000. New York would have thus given Sanders about 57% of its vote in an open primary, exactly reversing the closed primary results. This alone would reduce Clinton's national delegate lead by 62 delegates. Similar calculations could be made for the four subsequent closed primaries which wrongly awarded more than double the delegates than New York did. Flipping those numbers as well would reduce Clinton's lead by a total of almost 200 delegates. Add to this number similar recalculations for the many other closed states, and Clinton's remaining 100 delegate lead would quickly evaporate going into the final round of contests after Indiana.

The above calculation is admittedly back-of-the-envelope and would require more reliable data to support its conclusions. It is presented here to make the point that closed primaries distort election results. The undemocratically help to nominate candidates who the American people dislike. In a vicious cycle, the more the party nominates disagreeable candidates, the more people leave the parties, and do not bother to vote at record levels, as in 2014. This creates more Independents. This year the two parties are set to nominate the most unpopular pair of candidates anyone can remember. A quarter of voters are so disgusted at the likely choice they report they cannot vote for either one. It is the year to break this cycle by contesting undemocratic party rules that produce such results. The party that acts first will reap the benefits of nominating a candidate who has net public acceptability, like Sanders, rather than having 20% to 40% more people who strongly dislike them than who strongly like them.

This one rule change could, as roughly calculated above, alter the outcome of the Democratic convention by shifting more than 200 pledged votes from Clinton to Sanders, in order to redress the intentional discrimination by duopoly parties against excluded Independent voters. A truly strategic campaign would already have been making its case against this systemic discrimination in court, claiming that closed primaries constitute a denial of equal protection under the 14th Amendment and even a denial of freedom of speech on the theory that voting is a First Amendment right. Cf. Doe v. Reed, 561 U. S. 2 (2010)(signing a referendum petition is speech). One should not be required to take loyalty oaths to, or involuntarily associate with, a corrupt party for a fixed period of time as a condition for exercising the right to vote in a run-off election. The run-off phase of an election is equally important as the general election phase. Every voter has an equal right to participate in elections which is denied by closed elections. The Constitution protects that right.

Though there is some adverse precedent on the books, e.g. Rosario v. Rockefeller, 410 U.S. 752 (1973)(upholding New York's exclusionary election rules for "preservation of the integrity of the electoral process"), closed primaries likely would not satisfy modern concepts requiring strict scrutiny of First Amendment violations. There now exists a narrower remedy for "party raiding" than excluding Independents. Criminal law enforcement against such conspiracies to abuse the run-off process, assisted by modern data mining, should suffice to preserve the integrity of the process against raiding. In any event, a high profile lawsuit against the DNC for facilitating the denial of constitutional rights of Independents, even if it were ultimately held non-justiciable, would prepare the public for understanding the constitutional dimensions of a convention fight over the same issue. One thing Americans agree on is the authority of the Constitution, even if not its meaning. The New York election fiasco provides a perfect context to support such a constitutional attack on a process inherently corrupt in conception and even further flawed in its execution.

Instead of taking such strategic actions to challenge closed primaries, and other undemocratic rules, the campaign originally expressed its interest in diverting its hard-won political capital at the convention into influencing the contents of the Democratic Party Platform. The Platform will have nothing at all to do with winning the nomination, much less the policies that will ultimately be pursued by Democrats if Clinton were to win. Clinton organization hacks actually encourage Sanders "to fight for a progressive platform. That won't hurt." A direct agreement between Sanders and Clinton clearly announced to the public rather than buried in the anonymous and irrelevant propaganda sheet which is the platform would be clearly preferable for increasing the likelihood of later compliance. But it would seem foolish to depend upon an agreement with someone whom a clear majority of the American people do not find honest and trustworthy. Far better to demand significant political change that can be delivered prior to the election. Democratic Party rule changes can be completed prior to the election. So can a recess appointment of a progressive Supreme Court justice.

Independents in blue and purple states will provide an electoral college victory, but not Clinton's red state supporters who represent most of her delegate advantage that is not the product of closed primaries. This should concern any part of the Democratic establishment which may be more interested in winning the election in November than in the pay-offs that superdelegates may have received, or expect to receive, from the Clinton organization. This provides motivation to avoid alienation of Sanders' Independent supporters who demand democratic reforms. The problem is that Sanders needs to get beyond the vacuous "electotainment" of talking about policies in the platform. Sanders needs to bear down on the strategic demands necessary to win the nomination this year, or at minimum clear the way for democratically conducted run-off elections in future years. Even in his historic May 6 letter Sanders continues to divert attention to the Platform committee, which is totally irrelevant to accomplishing anything of importance to his supporters. One hopes that this reference to platform change was inserted only as something to be bargained away in his sustained attack on the stacked Rules Committee which will control who gets the nomination in a contested convention.

Superdelegate strategy still in the haze

Even if Sanders wins rules changes on closed primaries, he will still likely have a superdelegate problem. Sanders has repeatedly appealed to the establishment, as represented by the superdelegates, to shift their support to him. He requests first that, in the states which he or Clinton has won by landslides, superdelegates should vote as their constituents have. This sounds reasonable, but it is contrary to the existing rule. Sanders' proposal would modify the current rule that leaves discretion entirely with the superdelegates. Enforcing this proposal would require a floor fight at the convention. Though Sanders has not yet suggested there will be a fight on this issue, Diane Russell of Maine who persuaded her state convention to adopt such a rule has said "I think you'll see this be an issue at the national convention. And if nothing happens, if nothing changes, you're going to see a real backlash." Rep. Russell, who speaks much more directly than Sanders on this issue, continues: "The superdelegate system is flawed, it is anti-democratic, and it needs to be changed." She should be hired by the Sanders campaign to manage the floor fight on this issue. The campaign can drop one of its TV ads to pay her to coordinate with other state conventions so delegates can be prepared for the fight in advance. If the rule is not changed as Russell demands, Sanders' proposal is probably meaningless in the form of a reasonable request, as Sanders presents it.

But even if Sanders persuaded superdelegates to implement this "winner-take-all" superdelegate rule, that would still leave Sanders hundreds of delegates short just among the superdelegates. As one analyst writes "mandating a way in which superdelegates have to vote doesn't really help Sanders much at all." He would thus still lose the nomination even if he did make up the difference among pledged delegates in the remaining run-off contests, which is surely a daunting task absent the closed primary rule change. Therefore this plea would seem to need further strategic thought. Sanders may have selected the worst of two alternative ways he could advocate a change in the Superdelegate rule. He should have advocated proportional distribution of the superdelegates rather than the landslide winner takes all approach. Under a proportional rule it would be theoretically possible for Sanders to win if he did win a majority of the pledged delegates.

By limiting his proposal only to landslide states, Sanders opens up the possibility for a second rule that he proposes for assigning the remaining delegates from non-landslide states. To get the rest of the way, Sanders appeals to superdelegates to exercise their discretion, as intended they should, to pick the strongest candidate against Trump, especially as shown by polling in the battleground states. This proposal would be difficult to formulate as a rule, without raising difficult questions. Should polling always be given preference over legitimate and experienced professional political judgment about who will make the strongest candidate? Or should judgment prevail? What is a legitimate basis for such judgment? The only legitimate basis suggested by this analysis would be that superdelegates from closed primary states should be mandated to cast their votes in a manner to compensate for the exclusion of Independent voters, or to compensate for exit poll disparity. DNC Rules could mandate use of Superdelegates for such democratic purposes.

The Superdelegate provision was placed in the DNC rules in 1982 to avoid precisely the situation in 1980 when Ted Kennedy was ahead of President Carter in the polls, but the party establishment preferred the sitting President Carter as the candidate more likely to win in November. Kennedy undermined Carter's chances for reelection with lasting disastrous consequences to the country generally classified under the rubric "Reagan." Instead of making a close analysis of why Kennedy failed to attract support in the primaries, the party establishment was empowered to exercise their unfettered discretion in expectation that they would block another counterproductive candidacy like Kennedy's. But in the era of Buckley this solution has become an instrument of corruption.

Sanders' current proposal, then, is more an ad hoc political argument that he will be the better candidate, than a principle to be captured by a new rule. If the Democratic Party cared more about winning than it does about plutocrats he might win that argument. But if Clinton has done what Obama did to her in 2008, these superdelegates are bound to her not by political judgment but by pecuniary inducement. Sanders' second proposal based on a political appeal to reason may thus be a losing, even naïve, strategy.

In addition to these two related innocuous but probably ineffectual pleas to superdelegates, which superdelegates are free to ignore, Sanders should be advocating the adoption of a conflict of interest recusal rule for application to the superdelegates. They could not ignore an ethical rule adopted by the convention as if it involved a question of personal political judgment. As a traditional ethics rule applied to government officials it would be both familiar to politicians and fairly easily formulated. Superdelegates, and also the members of the Rules and Bylaws Committee who approve rules changes, should be required first to disclose any pecuniary inducements from the Clinton organization, and then to recuse themselves from voting for Clinton in cases where any reasonable person would conclude that such inducements would create a conflict of interest. Not to suggest such a rule to buttress his two other requests would seem to naively ignore the way the Clinton organization wields power with resources derived from an influence-peddling "fundraising powerhouse" that "has no equal."

The conflict of interest enforcement approach has several benefits. First it is an ethical and moral question that goes to the very heart of the corrupt political system against which voters in both parties are protesting. By advocating such a simple litmus test of integrity in the nomination process, Sanders would more clearly distinguish his campaign from Clinton and the corrupt party she controls. The problem goes well beyond the party. Polls have shown that as few as 17% of Americans think the government even has the "consent of the governed," i.e., is still a democracy. Other polls confirm public understanding that, as Jimmy Carter has said, the United States is not a democracy because of money in politics. Such a demand that the Democratic Party reform to restore enforcement of conflict of interest rules to political investments would be consistent with such widely-held public views, if not with the views of the tiny percentage of eligible voters who enable Clinton corruption.

Second, raising this conflict of interest issue would be of value in explaining Sanders' principal campaign message against the lack of integrity in government, by showing precisely how he will accomplish his reform goals. In a recent abuse of office, Obama attacked Sanders by alleging: "When people put their faith into someone who can't possibly deliver his or her own promises, that only breeds more cynicism." Many have overlooked that Sanders' "democratic socialism" prioritizes the need to first restore democratic process before any of his popularly-supported "socialist" policy reforms will be possible. Corrupt influence peddling that prevents any such policy reforms is largely attributable to the fact that politicians have freed their campaign finance practices from existing conflict of interest rules. Sanders can win his revolution against the control of government by "the billionaire class" if he robustly prosecutes violations of traditional conflict of interest recusal law. Recusal (disqualification) would prohibit influence peddling politicians from exchanging policy for the corrupt payoffs received under the guise of campaign financing legalized by the Supreme Court.

Advocating the conflict of interest recusal rule in the context of a dramatic, televised, credentials fight at the convention would provide the answer to Obama's (and Clinton's) plutocratic propaganda. It would constitute an educational moment about how conflict of interest rules could be changed in all three branches of a corrupt government, if they can be imposed on the Democratic Party. In this moment Sanders could explain that these rules can extend to campaign finance without permission of the Supreme Court, unlike the piecemeal proposals given lip-service by Obama (and Clinton) to ineffectually regulate the supply-side of money in politics.

On the other end of the spectrum, too, some followers seem to believe that Sanders' campaign proves they can now directly pursue socialism, for example through a third party, without first recovering democracy. Education is needed on the prerequisite of achieving democracy first, and how to do it, before other policy goals can be successfully pursued. Contrary to Obama's fatuous edict, Sanders very well can deliver on his promises to enact programs supported by majorities, provided he can keep the focus on what is required to restore integrity to the democratic process.

Third, it is understandable that Clinton's delegates would resist changing the superdelegate ground rules at the last minute in the manner Sanders suggests in order to make them responsible to the strong preference of their states' voters, and also to the original failsafe function of superdelegates to select the strongest candidate in case the people fail to do so. They can simply respectfully disagree with Sanders' premises for shifting their allegiance. Such a request, though reasonable if raised by Sanders at the outset, can even be dismissed as sour grapes on his part at this stage of the process. Clinton superdelegates might argue that he waited too long, suggesting that Sanders would not be objecting if the shoe happened to be on the other foot. A moral principle by its nature will be more difficult to resist in this manner. Conflicts of interest are immoral as well as enabling the theft of a nomination. There is no time period for introducing such a rule because it is an enduring principle. This provides Sanders high ground, that is not subject to differences of mere political opinion.. Asking to change the rules so he wins rather than Clinton, absent such a moral principle, will not be treated as high ground.

Fourth, it is quite possible that if the Sanders campaign can organize its own pledged delegates behind this issue as the very opening floor contest over credentials, much as Ted Kennedy waged a rules floor fight in the 1980 convention, Sanders might attract enough of the Clinton identity politics crowd to win this issue on the high ground of morals and ethics. Clinton's delegates are not all committed to Clintonian corruption. Some of those who remain ignorant of it, or are in denial, might well be persuaded that ordinary rules of integrity should apply the superdelegates. Who can support, in principle, buying the votes of superdelegates? If the Party resists integrity in its nomination process, that would be grounds for abandoning the party as too corrupt to support, not just unfair or politically unwise. Clinton is vulnerable to the charge of corruption in the general election and cannot afford a party split over this particular issue.

If the convention supports recusal of superdelegates who are in the pocket of the Clinton organization, the remaining delegates might be sufficient to win other close rules fights, such as the reform suggested above for a rule to handicap closed-primary results. By winning the issue of integrity Sanders might even flip the superdelegates vote to favor him rather than to overwhelm him. There are likely few superdelegates, other than those conflicted by the Clinton organization, who would still favor Clinton as the nominee against the evidence that Trump can defeat her, though not Sanders.

The Donald himself tweeted directly to the point: "I would rather run against Crooked Hillary Clinton than Bernie Sanders and that will happen because the books are cooked against Bernie! ... The dysfunctional system is totally rigged against him!"

Before You Go

Popular in the Community