An Open Convention

Author

Timothy Wirth
July 03, 2024

As the Democrats try to sort through the wreckage of last week’s debate, the route forward is an open convention. Greg Craig, a senior and deeply experienced Washington lawyer, former counsel to Obama, describes the process in this valuable article. T

Politico

Opinion | It’s Not Too Late to Replace Biden and Defeat Trump

Here’s how to do it.

Opinion by GREGORY B. CRAIG

07/02/2024 05:21 PM EDT

Gregory B. Craig, a veteran of multiple Democratic presidential conventions, was President Barack Obama’s White House counsel in 2009-2010.

President Joe Biden’s campaign is concocting many phony reasons why he must stay in the race for Democrats to have any hope of defeating Donald Trump in November. Perhaps the most prominent are the notions that replacing Biden is impossible or would invite chaos at the convention and lead to Trump’s victory.

As a veteran of multiple Democratic conventions over the years and as President Barack Obama’s former White House counsel, I can tell you that’s just not true.

It would be good for the Democratic Party and good for the country for Biden to release his delegates and allow them to pick someone else to run against Trump. Simply put, Biden is not the strongest candidate, and there is plenty of time to pick someone else.

In fact, party leaders could easily establish a transparent and orderly system for delegates to choose a new candidate in an open convention — a candidate who is best positioned to beat Trump.

Here’s how.

What the Rules Say

Biden’s team argues: “The rules won’t allow Biden to be replaced.”

That’s not right.

It is true that if Biden does not withdraw from the race on his own, release his delegates and open up the convention, there is no way that he can be denied the nomination, short of death or disability. If he does take himself out of the running, however, the Democratic National Committee has the authority to do whatever is necessary to fill the vacancy under its existing rules.

Article 3 of the Democratic Party’s national charter states that the DNC “shall have general responsibility for the affairs of the Democratic Party between National Conventions. ... This responsibility shall include filling vacancies in the nominations for the office of President and Vice President.”

The same is made clear in Article 2 [c] of the Democratic Party’s By-Laws.

Biden’s team argues: “If Biden were to withdraw, there would be chaos.”

This just does not have to be the case. Once again, there are clear rules that can govern this situation.

The delegates to the convention have already been chosen, and Biden’s withdrawal would not in any way alter the makeup of the convention. The delegates would still meet in Chicago from August 19-22, and they would still choose the Democratic Party’s nominee. There would be no need for the DNC to organize any additional proceedings for choosing delegates prior to the convention. As always, the DNC’s Rules Committee would organize the way in which the business of the convention would be conducted. If the convention were to be an open convention, the Rules Committee would simply take that fact into account in organizing the proceedings.

Running to Replace Biden

If Biden were to release his delegates and open the convention, there would be at least five or six individuals who might aspire to take his place. The potential replacements most frequently mentioned are Vice President Kamala Harris; Govs. Gavin Newsom of California, Gretchen Whitmer of Michigan, Josh Shapiro of Pennsylvania, JB Pritzker of Illinois, Andy Beshear of Kentucky; and Secretary of Transportation Pete Buttigieg. The DNC could invite all those who were interested to announce their candidacy and register with the Rules Committee.

If Biden withdraws by say, July 7, interested candidates might be given until July 15 to make their candidacy known. Then each candidate would be free to launch their campaign and run for the nomination in whatever way they saw fit. They would have over a month — between July 15 and the beginning of the convention on Aug. 19 — to make their case to the convention’s delegates.

How candidates chose to campaign for the nomination during this period would be up to them. The campaigns would almost certainly focus efforts on individual delegates to the convention, a total of 4,532 people. Some candidates might spend time in the largest states — California and New York and Illinois. Others might organize events and invite delegates to state or regional meetings. Some might organize televised debates with each other. All could be counted on to raise money and hire staffs. One would assume that the Association of State Democratic Party Chairs would cooperate — either regionally or state-by-state — in organizing events that gave candidates access to the convention delegates.

Picking the Candidates

If Biden does withdraw, the single greatest challenge for the Democratic Party would be to establish a generally accepted mechanism for identifying which individuals would be permitted to have their names formally nominated for consideration by the delegates of the convention. How would the DNC pick the candidates deemed eligible to have their names placed before the convention and eliminate others?

It would be a mistake for a small, self-selected group of senior Democratic Party officials and former officeholders to meet in a back room and come out with a list of nominees eligible for the convention to consider. Such an un-democratic process would turn an open convention into a brokered convention and would invite the kind of backlash that Biden aides have prophesied.

A better way of doing it would be to ask the delegates themselves to determine eligibility. If a straw vote were held among the convention delegates — in the earliest hours of the convention — the delegates themselves could make the decision as to which names deserved to be put into nomination. The Rules Committee might provide that the top five vote-getters would identify which candidates would be eligible to be nominated for consideration as the party’s nominee.

Uniting the Party

Those who want Biden to remain in the race contend that the idea of an open convention is not only an invitation to chaos, but that it would divide the party and cause the Democrats to emerge from their convention wounded and angry. They say, “Better to come out of Chicago with a convention united behind Biden.” They point to 1968, when Hubert Humphrey emerged from a chaotic convention with a divided party and narrowly lost the election to Richard Nixon. They point to 1980, when Jimmy Carter fought off a challenge from Ted Kennedy and then lost to Ronald Reagan.

But the divisions within the Democratic Party of 1968 and 1980 were much more profound and pervasive than the Democratic Party of today which is unified in its desire to defeat Trump. And in retrospect, those two candidates — Humphrey and Carter — were themselves weak contenders, not the best the party had to offer.

The process might not go entirely smoothly, of course. There is always the danger of litigation as a disruptive and intervening factor, but the courts have also been steadfast in resisting invitations to review the internal decision-making of political parties.

The Democratic Party is strong enough, smart enough and agile enough to pick a new candidate for the presidency should Biden make the right decision and withdraw from the race. There is enough time for that to happen. There are enough candidates of quality to make the process exciting and attractive. And whoever comes out of the process as the party’s nominee will be stronger and more compelling than they were going into the process. Most important, they’ll be ready to defeat Trump.