The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Even before Donald Trump's victory in Indiana yesterday, many Republican elites had increasingly begun to roll over for him. There is a widespread sense that Trump's winning of the GOP nomination is now inevitable. But that is not automatically the case. Trump could still be denied the nomination. And, even if not, there are still other ways of opposing him.
The Republican National Convention Rules Committee has almost unlimited power to change the rules by which the delegates vote. It could use that power to prevent Trump from being nominated.
The committee will be selected from delegates to the convention. But those delegates are often not genuine supporters of the candidate they are officially bound to vote for, and are certainly not required to follow the candidates' instructions as they make decisions on the rules. I am very far from optimistic that the Rules Committee will block Trump. But it certainly will have the power to do so, even if not the will.
One possible approach is to unbind all delegates by eliminating the requirement that they vote for the candidate they are pledged to on the first ballot, thereby instantly creating a contested convention. But the Rules Committee could go even further than this, and simply exclude Trump from consideration entirely. It could do so by adopting a rule banning consideration of candidates who resort to threats of violence or condone violence by their supporters. Trump has threatened "riots" if he does not get his way at the convention and repeatedly condoned violence by his supporters against even nonviolent protestors. If there has not been a rule against such behavior in the past, it may be because, until this year, no one imagined that a candidate who condones violence in the political process could get so close to the nomination.
Blocking Trump at the convention is just one of several strategies that his opponents on the political right still have available to them, if they cannot stomach supporting Hillary Clinton (in my view, still a distinctly lesser evil than Trump). Other options include mounting a conservative third party challenge, or supporting the likely Libertarian Party candidate, Gary Johnson, who is far more in tune with constitutionalist, limited government principles than Trump is every likely to be, and far better qualified to be president. Such third-party candidates are unlikely to prevail. But they could deny Trump the White House, remind people that Trump is not the sole face of the right side of the US political spectrum, and provide a haven for those conservatives and libertarians who refuse to be complicit in Trump's rise.
I. Why Blocking Trump is Consistent with Democratic Values.
The most obvious objection to blocking Trump is that it would be undemocratic to thwart the will of GOP primary voters. But, even aside from the fact that Trump has not won anywhere close to a majority of primary votes, using the rules to block Trump would enhance democracy far more than undermine it. At its heart, democracy is a system of majority rule, enabling the majority of the electorate to choose leaders they prefer. The ultimate electorate in this case are general election voters. And Trump is YUGELY unpopular with them. He would likely be the most unpopular major party nominee of modern times. Virtually any other remotely plausible Republican nominee would be more acceptable to the American electorate as a whole, and thus more likely to win the support of a true national majority, or at least offer them an option that a majority would consider to be a reasonable alternative to Hillary Clinton.
One of the reasons for giving party elites a say in the nomination process is to prevent the selection of a nominee who is utterly unacceptable to the general public; in some cases, elites are likely to be more sensitive to such considerations than primary voters are. This is pretty obviously one of those times.
Perhaps even more importantly, condoning and threatening political violence is itself a fundamental breach of democratic norms. Candidates who breach this norm, as Trump has, are a menace to democracy. Parties have every right to exclude them from the nomination process for that reason alone. That can help ensure that future nomination processes are free from threats of violence instigated by candidates egging on the worst elements among their supporters.
II. Why the Party Should Block Trump Even if it Really Would be Undemocratic to do so.
Republicans would also do well to remember that democracy is not the only important value. Principles such as life, liberty, and the pursuit of happiness, are far more fundamental. Trump's platform of mass deportations (including of innocent children born in the US), massacring innocent civilians, large-scale discrimination on the basis of religion, and undermining freedom of speech is a grave threat to those values. So too is the possibility that a victory for Trump might turn the GOP into a US version of neo-Fascist European parties, such as France's National Front. This horrendous agenda—combined with the dangerous prospect of giving such an unstable person control over the military and its nuclear arsenal—makes Trump a far greater menace than a merely ordinary flawed candidate would be.
Trump cannot be trusted with the other powers of the presidency either. As Larry Summers asks, "[w]hat will a demagogue with a platform like Trump's… do with control over the NSA, FBI and IRS?" We should not take even a small risk of letting Trump win the presidency. Extraordinary evils sometimes demand extraordinary remedies. And Trump's nomination easily qualifies as such. Given the nature of his agenda and temperament, the fact that Trump won some 40% of the GOP primary vote (a historically low number for a GOP nominee), is not sufficient reason to give in to him.
The Founding Fathers viewed unconstrained democracy with great suspicion, and sought to establish a constitutional system that would keep it in check. They understood that the fact that large numbers of people support a great evil does not make it right. They knew that voters are often influenced by ignorance and illogic, which are among the major causes of support for Trump. Even if blocking Trump really would be undemocratic, sometimes being undemocratic is the right thing to do. The Republican Party is a private organization, and does not have to follow a popular vote process in choosing its nominee. Indeed, such was not the process throughout most of of American history, up to the McGovern-Fraser reforms of the 1970s.
Blocking Trump would undoubtedly alienate many of his supporters, quite possibly costing the Republican Party the general election in the fall. But supporting Trump is at least equally risky, given his immense unpopularity with general election voters. Association with Trump and his misogynistic rhetoric and racialist, xenophobic platform could tar the party for years to come, particularly in the eyes of more educated voters, women, the young, and racial and ethnic minorities. A Trump nomination would also alienate many of the GOP's own longstanding supporters, especially those who care about protecting individual liberty, property rights, and constitutional limits on government power.
In truth, there is no easy way out for Republicans this year. Every available option is risky. But if you have to take a risk, it is better to do so by opposing a great evil than by getting in bed with it. As David Boaz of the Cato Institute puts it, "Republicans should be asking themselves, What will I say when my son asks, What did you do when Donald Trump knocked on the Republican party's door, Daddy?" History will not look kindly on those who choose the path of appeasement instead of resistance.
UPDATE: For those who may be hoping that the prospect of competing in a general election would lead Trump to change, he just doubled down on one of his most reprehensible positions.
UPDATE #2: It is worth noting that the Rules Committee has barred delegates from voting for some candidates in the past, as recently as the admittedly controversial enactment of Rule 40 in 2012.