In the study of any stratified system, the boundaries of caste or rank are identified by noting distinctions in privileges, expectations and penalties for members of different groups within that system. And so if we seek to understand the social system set up by Americans Elect for nominating candidates for president in 2012, we ought to identify the different positions in the Americans Elect system and the social protocol prescribed for each. The corporate bylaws of Americans Elect allow us to do just that.
Board of Directors
As Section 4 of the Bylaws specifies, “all corporate powers of Americans Elect shall be exercised by, or under the authority of, and the business of Americans Elect shall be managed by under the Board of Directors, subject only to the direction of Delegates in accordance with these Bylaws.” Drawing out the interplay of Delegates and the Board of Directors is of central importance to understanding Americans Elect.
New members of the Board of Directors are not appointed by Delegates. Rather, they are appointed solely by existing members of the Board of Directors (initial members of the Board of Directors appointed themselves), and may be removed only by members of the Board of Directors. The Board of Directors may, on the other hand, terminate delegates’ privileges and remove them from the Americans Elect system.
Section 4.1 contains a supremacy clause that’s important to notice:
Notwithstanding any provisions of these bylaws to the contrary, except for Section 2.5, the Board shall reserve extraordinary authority and power to take or compel any action necessary to assure that the purpose of Americans Elect is not defeated by the acts or omissions of any persons or parties.
This means that — except for the delegate powers specified in Section 2.5 — the Board of Directors may act in a manner that overrules any other provision of the bylaws. The delegate powers specified in Section 2.5 are listed in the Members and Delegates section below. If you read Section 2.5 carefully, you’ll notice that delegate powers must be exercised in accordance with Americans Elect bylaws and within the rules of the convention. The bylaws are written and amended by the Board of Directors (Section 10.4). The rules of the convention are written by the Rules Committee, which is appointed, serves at the pleasure of, and can be dismissed for any or no cause by the Board of Directors (Section 5.2). This means that even the powers reserved explicitly to the Delegates exist at the pleasure of the Board of Directors.
Delegates may toss out the convention rules presented to them, or may overrule the Board of Directors’ changes to the bylaws, but only under an extraordinary circumstance: a 2/3 vote of all registered delegates during the online convention scheduled at the earliest for April 2012 (Section 8.3). As Richard Winger points out, in a typical online venture at least a third of registered users never participate in the venture after they register. If this pattern holds for Americans Elect, it will be impossible for Delegates to reject any rules, bylaws or other actions of the Board of Directors; because fewer than two-thirds of all registered Delegates can be expected to participate, every motion, rule, bylaw and other feature of Americans Elect will be automatically “ratified” by Delegates — even if a supermajority of participating Delegates think the set-up is rotten.
The Board of Directors, in contrast, operates by direct majority-rule democracy, in which a majority of Directors may take any action (Section 4.7). This difference means it will be easy for the un-elected, insular Board of Directors to control the direction of Americans Elect but difficult to impossible for the Delegates to do the same.
Finally, members of the Board of Directors of Americans Elect are indemnified against claims, expenses and liabilities associated with their actions on the Board. They even have indemnity insurance purchased for them by Americans Elect. While other people participating in Americans Elect are constrained and even suffer monetary penalty for exercising free choice, as we’ll see below, members of the Board of Directors enjoy special protections.
Officers and Employees
Officers and employees may be appointed and removed at any time, with or without cause, by a simple majority vote of the Board of Directors. It is in their interest, therefore, to follow the direction of the Board.
Officers may be removed by a “ratification” vote of Delegates, but not until the beginning of a convention, which is specified not to begin until April 2012, by which time the bulk of the activity of the Americans Elect officers has been completed. As with all other “ratifications” by Delegates, an Officer will be deemed to be “ratified” unless 2/3 of all registered Delegates (active and inactive) vote to kick the Officer out. There is no provision for Delegates to remove employees.
Like members of the Board of Directors, Officers are not only held to be indemnified against claims, expenses and liabilities associated with their actions on behalf of Americans Elect, but may also have indemnity insurance purchased for them by Americans Elect. Employees, on the other hand, may be required “to give security for the faithful performance of their duties.” That phrase means employees may have to pay financial penalties if they dissatisfy Americans Elect.
Members and Delegates
Membership, open to all citizens of the United States, allows people to use the Americans Elect website but not to participate in any decision-making. To become Delegates, people must be Members, must prove their citizenship and status as a registered voter, and must agree to a loyalty oath as contained in a “Standard of Conduct” and a “Delegate Pledge” (Section 2.4). Delegates must agree to support Americans Elect, to follow the rules as dictated by the Rules Committee, to act with “respect,” and to “avoid incivility or personal disparagement” of any Member or Delegate — and all members of the Board of Directors are Delegates (Section 4.1). The Board of Directors or its agents may revoke Delegate status from any Delegate who in the view of the Board is too disrespectful or disparaging. That’s a loyalty oath and punishment of dissent.
All powers of Delegates except the following are subject to overrule by the Board of Directors (see “Board of Directors” section above):
- to follow the bylaws to ratify the rules of the online convention in a convention vote, specified in Section 8.2 to occur no earlier than April 1 2012. The standard of ratification specified in Section 8.3 is that unless 2/3 of all registered delegates vote against the rules, they are ratified.
- to follow the rules of the online convention in drafting and nominating presidential candidates, which Section 8.5 specifies shall be by majority vote
- to vote after Election Day 2012 to pledge Americans Elect’s Electoral College votes to the candidate of another party if Americans Elect doesn’t win the election, by a standard not mentioned in the bylaws
- to vote to kick other Delegates out by a procedure not mentioned in the bylaws
- to ratify the appointment of Officers by the now-familiar 2/3 standard (see above)
As explained above in the section on the “Board of Directors,” even these powers nominally reserved to the Delegates are subject to a close conditioning by the Board of Directors, because the exercise of those powers must occur within the limitations of convention rules and bylaws set by, and changeable by, the Board.
Electors are nominally unpledged in their vote for President, but practically speaking are constrained by a “Conditions of Appointment” contract to act according to Americans Elect bylaws, either to vote for the Americans Elect ticket in the Electoral College or to vote for the major-party candidate approved by Americans Elect should Americans Elect not win the presidency outright (Article 9).
If Electors waver from their “Conditions of Appointment” contract, they are liable for damages of half a million dollars, payable to Americans Elect.
What the bylaws lay out is not a grassroots democratic structure, but rather a four-tiered system. At the bottom are Electors and Employees, subject to absolute direction and dismissal by the Americans Elect Board of Directors and liable for financial penalties should they not obey. In the middle are Delegates, who nominally have democratic choices to make in the Americans Elect process but who will likely find it practically impossible to do anything other than “ratify” and comply with the rules and bylaws of the Board of Directors. If Delegates dissent or disparage Americans Elect leadership, they are subject to dismissal — which means disenfranchisement and a loss of the right to vote. Higher than the Delegates are the Officers, who have great freedom to act in the name of Americans Elect and who are protected, so long as they do not defy the Board of Directors. But if Officers defy the Board, they will be tossed out, creating a powerful incentive for them to follow the Board. In the top tier is the Board of Directors, which appoints its own membership, which writes the rules, which may overrule all actions of Employees and nearly all actions of Delegates, which constrains the actions of Delegates, and which is the only set of people in the entire Americans Elect system to make procedural decisions by democratic majority vote.
In short, Americans Elect is a corporate model applied to American politics, a modern day caste system. Whether or not that’s a good thing is up to you to decide.