What Are Superdelegates?

With a close Democratic race for the presidential nominee, the role of delegates and super delegates could become increasingly more important leading up to the Democratic National Convention in August. Former Democratic strategist David Sirota and political legal analyst Stanley Brand explain why superdelegates are important.

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MICHEL MARTIN, host:

I'm Michel Martin, and this is TELL ME MORE from NPR News. Just ahead: our weekly visit with the Mocha Moms. They talk about what big families can teach smaller ones and how to keep the relationship strong with all the chaos of kids. But first, Democratic Party leaders are closely watching today's presidential primary contests in the nation's capital and neighboring Maryland and Virginia. That's because the contest between Senators Hillary Clinton and Barack Obama is so close.

But if neither candidate gets the 2,025 delegates needed to secure the nomination before the national convention, another fierce battle will arise, one for superdelegates. But just who are they? How do you get to be one, and what role are they supposed to play? Here to help us understand the role of superdelegates are David Sirota, a syndicated columnist and author and, in a past life, a Democratic strategist. We are also joined by Stanley Brand, founder of the Brand Law Group. He has served as general counsel to the U.S. House of Representatives and is a well known legal advisor in high profile political matters - high profile matters across the political spectrum, I should say. Welcome. Thanks for joining us.

Mr. DAVID SIROTA (Columnist, Author, Former Democratic Strategist): Good to see you.

Mr. STANLEY BRAND (Founder, Brand Law Group): Thanks for having me.

MARTIN: Stanley, let's start with you. Let's just establish, this is something the Democrats have. Republicans don't have a superdelegate system. This was put into place in 1982. Why?

Mr. BRAND: Well, it actually predates 1982. It goes back to the McGovern era, the post-Hubert Humphrey era when the party was taken over by activists. And elected officials basically had to run to be delegates to the convention, many of whom couldn't navigate successfully the rules that had been put in place. In fact, my old boss, Tip O'Neill, who at the time was Majority Whip, the third-ranking member in the House of Representatives, could not get to the 1972 Convention as a delegate. Over time, the rules were changed to give them a role. They were seen as a resource. They were seen as people who should be involved, who had constituencies and experience. And so there was a balance attempted to be made.

MARTIN: How are they selected and how do they differ from regular delegates? I mean, are they literally like super, like Class A versus Class B stock? Their votes count more?

Mr. BRAND: No. They have one vote, but they are selected differently. They are members automatically by virtue of having been elected or appointed to a position in the party, governors, members of Congress, DNC members, party chairs, that type of people.

MARTIN: David, there are some who are - this is one of those things I don't think people pay too much attention to until they need to. But now, some people are saying that gee, it seems a little undemocratic in a way to have people sort of have extra privileges. Is that a widespread feeling?

Mr. SIROTA: I think as people tune in to what's going on, I think there's a concern that the nominee is going to be chosen by superdelegates and not delegates, regular delegates that are elected by the small-D democratic process. When we have a primary, the primary in a state obligates regular delegates to vote for given candidates. That's a small-D democratic process. The concern is, is that if this convention, the Democratic Convention comes in with two nominees who neither have the 50 percent plus one of the regular delegates, that the superdelegates will actually choose the nominee. And we should remember that superdelegates are now 40 percent of the total of what is needed to win the nomination - 20 percent of the total delegates, but 40 percent of the total needed to win that nomination.

MARTIN: Are they pledged in any way? I mean, are they - is there the expectation that they will vote the way the popular vote went in their districts, or are they really - are they expected to use their own judgment? David first. I'd like to hear from Stan as well.

Mr. SIROTA: Well, I don't think there's any expectation. I mean, I think regular voters may hope that their superdelegates vote the way voters in their states and districts voted. But there's no obligation, and that's the key problem here, is that these - look, I'm in Denver, Colorado. We have a congresswoman here who endorsed Hillary Clinton, and the state went overwhelmingly for Barack Obama. So I think that, you know, people like that are in a really tough position.

MARTIN: Stanley, what do you think?

Mr. BRAND: Well there are a lot of myths out there. One is that even the elected delegates are bound. We had a fight in 1980 in which Ted Kennedy showed up to the convention with a substantial minority, and there was a move on the floor of the convention to unbind the delegates and allow them to vote their conscience. That's the prevailing rule now, although it's highly unlikely and highly unusual for anyone to break their assigned support on that first ballot. The other thing about these delegates, these superdelegates that you have to remember is, they're politicians. They are not likely to ignore the wishes of their own constituents or a substantial portion of the electorate who has voted for a particular candidate. So I think there's a lot of anticipation that this is going to be some kind of backroom brokered deal. I think it's too early to say that. I think you will see these superdelegates breaking toward the candidate who gets momentum and who appears to be winning, because many of their constituencies will want them to do that.

MARTIN: Can I ask a silly question? Are their votes secret or public?

Mr. BRAND: Well, it all occurs on the convention floor. The bartering and the negotiation that goes on behind the scenes in the state caucuses at the conventions and the state meetings is not. But everything on the floor of the convention is open to the world.

MARTIN: David, Stan talked about that this - these sort of fears might be sort of overblown. What is the sort of the fears? Is there fear that there's a - if the election is close in the end, why shouldn't these party leaders make their best judgment? Because that's what they do every day when they vote on the floor of the House or the Senate or as a former elected leader, like President Clinton or Dick Gephardt or as distinguished party leaders. They don't always vote sort of mathematically according to the will of their constituents. They are expected to use their best judgment. Why would it be any different here?

Mr. SIROTA: I think the fear is that you have one of the candidates who wins more of the primary contest, more actual votes of people, and that we have a situation like we had in the 2000 general election where we had a president elected without winning the popular vote. In this case, we could have a Democratic nominee who didn't win the popular vote of the Democratic party voters. And this is in reaction to Hubert Humphrey winning the Democratic nomination without winning a single primary back in 1968. So I think the fear is that the Democratic nominee will not represent the person who won the most primaries and will represent, instead, a politician who managed to get another set of politicians - in this case, superdelegates - to use their insider, backroom power to essentially, potentially steal the nomination from another candidate.

MARTIN: If you are just joining us, we are talking about the role of superdelegates with author David Sirota and attorney Stanley Brand, who is also a former general counsel, the U.S. House of Representatives. But everybody in this is a politician, aren't they? I mean there's no non-politicians running.

Mr. SIROTA: Well, that's certainly true. But I think the - again, the fear is that you'll have somebody - in this case for instance, one of the candidates has been there a longer time, has more institutional establishment support. That candidate may end up with less actual votes in the primary, but may have more institutional support. And so you have a situation where you may have the institution, the institutionalized establishment expressing its will and having its will go over the head of the will of rank-and-file Democratic voters.

MARTIN: Stanley is there any sense now - because there is this anxiety and obviously there is a long way to go before this all sort of plays out. But is there any talk now about procedural changes for the future because of the concerns that David's expressing?

Mr. BRAND: There's already that discussion, and there's also some concern about what happens with Michigan and Florida, since those states were, in a sense, punished for jumping ahead of the line. Do you ignore those people and not seat those delegates? Some of the candidates respected those rules, didn't campaign actively in those states. So you could have a credentials fight, and you could have a floor fight, unless someone comes out of this with an overwhelming lead by the time we get to the convention, which appears less likely as time goes on.

MARTIN: Stanley, let me just briefly ask you, why don't Republicans have superdelegates? Is it because their strategy of kind of winner-take-all primaries tends to establish a more clearcut sort of hierarchy as the process goes on?

Mr. BRAND: I'm not sure. I think, as David points out, this comes out of a particularly raucous and robust Democratic period of history, namely the 1968 Democratic Convention and hard feelings and historical wounds over that process. For people of my generation who lived through that, I think David's point is particularly compelling, that you want to avoid a replay. Because ultimately, aside from the policy implications of that or even the moral implications, the Democrats look at that period as a time when they began losing national elections on a consistent basis, and they don't want to go down that road again. If the superdelegates are perceived as taking us back to that era, I think we're going to have a major, major problem.

MARTIN: David?

Mr. SIROTA: Well, I absolutely agree. I think that, you know, I trace the history of this in my upcoming book called "The Uprising," and I think that what the Democrat Party fears is having an illegitimate nominee, or a nominee who is perceived to be illegitimate, perceived to not have the mandate of the party. And that could weaken it in the general election, and I think it could weaken its brand moving forward in a more general way.

MARTIN: You mentioned to one of our producers that you've been fielding calls about sort of end-game scenarios. And we sort of don't want you to speculate about things that have sort of no basis in fact. But how serious a concern do you think this is? I mean, is this mainly kind of insider speculation at this point, or is this the kind of conversation you think is sort of penetrating to the general public, to sort of the Democratic grassroots?

Mr. SIROTA: I think people are learning about this now. I think it's getting out there. I think they're asking questions about what's going to happen at the convention. The media has been asking what's going to happen at the convention. I think people are wondering, learning about the superdelegates, wondering how their superdelegates are going to vote. I think that this is starting to permeate. I think politicians are, I think a lot of politicians who are superdelegates are asking very genuinely, what should I do? What's the right thing to do? Because there hasn't been an across-the-board policy. And that's really the problem. There isn't an across-the-board policy about what's even the moral or the right thing to do. And I think that that debate is going to need to happen.

MARTIN: Stanley, you're - we only have about a minute left, and you're in the advice-giving business. What - are there kind of wise men and women who are sort of advising these folks at this point? What are they saying?

Mr. BRAND: There are, and then there are people like me who are saying, dust off your briefs from the Bush v. Gore litigation and get ready to go to court, because that's where we are going to have to go one way or another to resolve some of these issues - or to the floor of the convention. So it's a good time for us.

MARTIN: Okay.

(Soundbite of laughter)

MARTIN: Spoken like the head of a law firm. Stanley Brand of the Brand Law Group. David Sirota, author. His upcoming book is called "The Uprising." Thank you both so much for joining us.

Mr. SIROTA: Thanks for having me.

Mr. BRAND: Thanks.

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Superdelegates May Break Democrats' Dead Heat

Democratic candidates New York Sen. Hillary Clinton and Illinois Sen. Barack Obama have each won contests in a number of states, but what really matters is how many delegates they accumulate for the Democratic Party's National Convention in Denver in August.

The magic number of delegates needed to clinch the presidential nomination is 2,025. But neither candidate has gotten anywhere near that number in state voting. If that continues, it could eventually fall to so-called superdelegates to decide the Democratic race.

The 796 superdelegates make up nearly 20 percent of the overall Democratic delegation this year. They are members of Congress, governors, party elders and activists. Party officials created superdelegates in the early 1980s so situations such as a deadlocked convention could be resolved by party insiders, said nominations expert Henry Brady of the University of California at Berkeley.

"There was a concern that somehow there wasn't enough adult supervision actually by the rest of the party, and so one way to get more of the party politicos and pros into the process was to create these superdelegates," Brady said.

More than half of the superdelegates have already endorsed either Clinton or Obama. Because Clinton has snagged more endorsements, she is slightly ahead of Obama in the total delegate tally — even though he actually won more regular, pledged delegates. Both are assiduously courting undecided superdelegates such as Ohio Democratic Sen. Sherrod Brown.

"I think the superdelegates will pretty much reflect what the voters have done," Brown said. "I think by August, one of the candidates will have begun to get momentum and have a substantial lead. I think the superdelegates will, in all likelihood, as we should, reflect that."

And if that does not happen?

Brown won't say when he will make an endorsement. But another senator, Florida Democrat Bill Nelson, has already backed Clinton; he wants this race decided before it gets to the convention, although he is not sure that is possible this year.

"I don't think we want to go back to those wheeling, dealing, smoke-filled back-room days," Nelson said. "Right now, it looks like that's the only choice."

It's a choice that Minnesota Democratic Sen. Amy Klobuchar also thinks should be made before the convention. She has yet to endorse anyone.

"I will not go through the summer — I can tell you that — without endorsing a candidate. I'm not a big believer in smoke-filled rooms," she said.

Obama told reporters Friday that the superdelegates should be guided by the results of the primaries and caucuses, saying, "My strong belief is that if we end up with the most states and the most pledged delegates from the most voters in the country, that it would be problematic for the political insiders to overturn the judgment of the voters."

But Obama added that superdelegates should consider who is best able to defeat Republican John McCain in November.

Clinton told reporters Monday that superdelegates should exercise independent judgment: "You can look at this state-by-state and see that there are a lot of people in states that I've won who support him, a lot of people in states that he won that support me. That's what superdelegates are supposed to do."

If anyone knows the sting of a superdelegate vote, it is former Sen. Gary Hart. Today he is an Obama supporter, but in 1984, when he ran for president, neither he nor Walter Mondale had won a majority of delegates going into the Democratic convention.

"I think virtually every superdelegate voted for Walter Mondale. In the teeth of polls the weekend before the convention, showing that Fritz ran 15 to 17 points behind Reagan and I ran 4 to 5 points behind Reagan, they still voted for Mondale, and Mondale lost very badly," Hart said.

If superdelegates must break a stalemate this year, it is unclear how bound these supposedly free agents will feel to any promises they have made to either candidate.

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