Behind the Scenes:
Attorneys and the Republican National Convention

It’s over.  The Republican National Convention has come and (mostly) gone and now it’s time for the reckoning.  Just how many people came to town?  How many chicken sandwiches were consumed?  How many people demonstrated?  The numbers are being sorted, the story is being told, and somehow someone will decide if the event was a success, and by which standards. In the meantime, Bench & Bar would like to highlight one group whose praises are likely to go unsung in other forums: The legion of attorneys without whom this event simply wouldn’t have happened.

By Amy Lindgren

Your attention, please.  This is not a light bulb joke: How many attorneys does it take to turn on the lights at the Xcel Energy Center for a four-day political convention?

The answer?  Probably not as many as you think, but the scope of their work might surprise you.  First, a look at the legal issues that this event encompassed: campaign finance, election law, nonprofit incorporation, employment law, First Amendment issues, joint powers agreements, city services agreements, vendor negotiations, liquor licensing, march permits, housing and transportation contracts, entertainment contracts, misdemeanor prosecution…this list isn’t exhaustive, although it may be a touch exhausting.

Luckily, law is a collaborative field and the work was well distributed.  In terms of legal concerns and preparation, there were four primary groups involved, with lesser entities weighing in at key intervals.  Here’s a look at each of the four main players.

The Republican National Committee
Based in Washington D.C., the Republican National Committee is the hub of the wheel that is the convention.  Radiating out like spokes from the Committee are the logistical, legal, and process-based concerns that make up this and other RNC events.  Sean Cairncross, chief counsel for the Committee, oversees an office of clerks, administrative staff, and six attorneys, all engaged in the year-round work of advising and assisting the Republican National Committee.  The Committee itself is an unincorporated association comprised of three members from each state, whose job it is to pass bylaws and resolutions for the party, among other things.  And, although it is a highly visible production, the convention is really just the culmination of the Committee’s work every four years, Cairncross says.

On a daily basis, Cairncross says that he and his team are charged with “ensuring that each function of the Republican National Committee is compliant with the letter and spirit of the law.”  As he notes, “People think this is the wild, wild West, but a political party is one of the most heavily regulated entities in America.  Every day this building is interacting with the outside world in multiple contexts.  We are putting out messages, spending money in support of our candidates…each of those decisions is governed by a complex set of laws.”

As an attorney, Cairncross sees a variety of interesting issues in putting on a convention.  Initially, of course, there are the contracts to be negotiated and signed between the party, host committee, host city and others—relationships that Cairncross describes as having “multiple moving parts.”  Once those agreements were in place for the 2008 convention, immediately his concern shifted to finance and the regulatory issues governing the receipt of public funds and private donations.

In addition to these event-based considerations, Cairncross has also been keeping tabs on committee workings; his staff has been providing counsel for the internal party rulings on the states that held early primaries, for example.  The calendar also holds Cairncross’ attention, as the late date of the convention threatens to keep the party’s nominated candidate off the ballot in states with early ballot certification deadlines.  Not surprisingly, it’s a top priority to work with each state to ensure that voters see the Republican candidate on the ballot come November.

Which highlights another issue that Cairncross is deeply aware of: the bright spotlights that will, immediately and relentlessly, shine on him should his office make a mistake.  For his purposes, toiling in anonymity may be the preferred option.

The Host Committee for the Republican National Convention
While Sean Cairncross was keeping an eye on finance law and ballot certification deadlines, attorney John Knapp, a partner with the Minneapolis firm of Winthrop and Weinstine, was busy creating a $58 million corporation from scratch.  Knapp’s client is the 2008 Republican National Convention Host Committee, the organization whose job it is to raise (and spend) the $58 million needed to run the Republican National Convention in St. Paul.

What does it mean to have the host committee for a client?  Among other things—contracts, contracts, and more contracts.  First, of course, were the agreements with the Republican National Committee (bring Sean Cairncross back to the table, please). Then came the contracts with the parent corporation of the Xcel Energy Center, then the contracts with the cities of St. Paul and Minneapolis. Of course, this was just the paperwork, most of which needed to be done in the fall of 2006, even before the announcement of the convention in St. Paul had been made public.

Once the ink was dry on the paper, Knapp’s real work began.  Here’s the short list of steps he needed to complete as quickly as possible: transforming the host committee into a nonprofit organization, filing for tax-exempt status, registering with the IRS and the Federal Election Commission, registering as a charity in more than 40 states so donations could be solicited, hiring and setting up payroll for a staff of 10, leasing office space, and researching and acquiring multiple insurance policies including coverage for police liability.

Knapp and his cohorts were able to use some of the documents from the 2004 Republican National Convention in New York as a springboard for their work.  Even so, as Knapp points out, the two events differ quite a bit.  “You really have to recreate this every four years,” he says.  “Things change; laws change.  The ethics rules are much stricter than they were four years ago, for example.  Also, in 2004, almost all the host city infrastructure came from the City of New York.  In this case, it’s coming from the host committee.”

One thing that remains the same is the requirement of the Federal Election Commission that an audit be conducted of all the money raised and spent for the convention, an effort that Knapp will oversee in the coming months.  If that sounds a bit grueling, consider Knapp’s point of view: “It’s really a great job.  It’s been a lot of fun; I’ve met some super people.”

The Convention Facility: Xcel Energy Center
Some of the great people one meets when planning a gigantic event are the ones operating the arena.  In this case, that means the employees of Minnesota Sports & Entertainment, the parent company that manages both the Xcel Energy Center and the adjacent RiverCentre.  Kathy O’Connor, director of communications, has been in the facilities business awhile now and she is ready to say that this is the largest event that she and most of her colleagues can expect to ever work on in their careers.  “This is second only to the Olympics in scale,” she says, “either nationally or internationally.  This is by far the most involved and intricate event that we’ve ever done.”

What made the convention so much bigger than, say, four days of concerts?  First, O’Connor notes, a concert will typically load in and out in a day.  For the RNC?  Two months.  According to Chris Hofstad, partner with Faegre & Benson and counsel to Minnesota Sports & Entertainment, it’s the fact that the Republican National Committee and host committee took over the facilities that makes all the difference.  Everything, from lighting to wireless phone access to seat placement, was reviewed and, in many cases, replaced.  Hofstad notes that “an enormous amount” of construction ensued, with each item being built to look and feel permanent while actually being completely temporary.  The goal was to build in such a way that everything could be torn down quickly after the event, giving the arena staff time to prepare for the upcoming season of the Minnesota Wild hockey team.  Which means the facility had to be transformable from a haven for steaming rhetoric to layers of cold, skateable ice in no time flat.

In his role as counsel, Hofstad faced the same kinds of paperwork challenges as his colleagues Knapp and Cairncross, with this added element: in addition to multiple 65-page contracts for use of the Xcel and RiverCentre, he also assisted in leasing storage units and renting 18 semi-trailers to haul and store arena contents not needed by the Republicans—including 3,000 seats and the playing courts for the basketball and lacrosse teams.  Contract negotiations with utilities, builders, and news networks rounded out the process.

The City of St. Paul
St. Paul City Attorney John Choi also saw his share of contracts, including a city services agreement that he calls “a landmark” in terms of protecting the City of St. Paul.  But once the contracts and joint powers agreements were out of the way, he had bigger fish to fry.  As chief counsel to all city entities, it fell to him to navigate the thorny questions surrounding march permits for demonstrators and the delicate balance between public safety and the public’s Constitutional right to free assembly.

“The First Amendment issues are a strong value and priority for the city council and the mayor and the police chief,” he notes.  “You want to have some content-neutral way to organize all these things; a lottery system for the stage area, for example, and a permit process for marches, to not give preference to anyone and to not prioritize anyone’s speech over anyone else’s.”

Honoring that value also meant dedicating a prosecutor specifically to focus on police training.  The goal was to “connect with the cops to ensure we were getting them the right information and that they’re thinking through all the issues.  It’s not very frequent that police are going to be encountering First Amendment issues.  Typically they’re focusing on criminal behavior,” Choi notes.

Choi also needed to anticipate arrests and so coordinate with the courts, and with the sheriff’s office, which has the legal responsibility to house anyone who’s been arrested.  As part of this preparation, he studied state and federal legal decisions as well as the experiences of the past convention cities of Boston, New York, and Philadelphia.  “We took a best practices approach,” he says, in preparing for the St. Paul convention.

Same place, same time?
Best practices…practice…now that everyone knows how to do this, what’s next?  London has already sewn up the next Olympics and it’s unlikely we’d be seeing another national convention so quickly after this one.  Maybe we should petition to hold the new President’s inauguration in the Twin Cities.  How much trouble could that be?

The Role of Conventions in the Democratic Process

Fifteen thousand registered media personnel, tens of thousands of participants, 650,000 square feet of arena space, 60,000 phone lines…it’s easy to get caught up in the numbers and the excitement and the sheer size of a national political convention.  In doing so, however, we risk overlooking a provocative question: Do conventions still serve a purpose in our democratic process?

After all, it’s easy (and mostly correct) to argue that the key functions of a convention have been fulfilled long before the first delegate checks in.  Party platform?  Discussed and hammered out months earlier.  Candidate nomination?  Oh, please.  When was the last time the candidate was unknown before the convention doors opened?  Even if one believed that the democratic process was being served, one could still question whether the hugely expensive extravaganzas conventions have become are the best way to achieve the desired results.

To get more insight on this issue, Bench & Bar spoke with two local law professors, as well as the executive director of the American Civil Liberties Union of Minnesota.

Guy-Uriel Charles is the Russell Bennett Professor of Law at the University of Minnesota Law School, where he teaches courses on election law, politics, and law and democracy.  While Charles agrees that conventions have evolved away from their earlier decision-making roles, he still believes they are important to the democratic process.  “The reality is that the convention is the end of the process—the denouement.  It’s the end of one process and the beginning of another,” he says. “That’s not undemocratic.  We’ve had a long series of primaries and debates that were very democratic.  At the same time, it starts the official candidate’s campaign.  From that perspective, the convention is part of the democratic process.  It’s just not the democratic event.”

Given that the major decisions are no longer made in these forums, Charles says the best conventions, from the organizers’ perspective, are those in which no news is made.  “It is not the place where things are supposed to happen,” he says.  “We don’t want a floor fight for the candidates.  The purpose of the convention is more like a campfire: Let’s fire up the troops, let’s sing songs, hold hands—that’s supposed to generate excitement, but not drama.  We want momentum, the post-convention bounce that will help the candidate.”

C. Peter Erlinder, professor of constitutional and criminal law at William Mitchell College of Law, also notes the diminished decision-making role of conventions and their corresponding rise as “political theater” and “international spectacles.”  Still, even if they are not used to choose candidates and party positions, Erlinder can see an advantage for parties that use conventions to present finely honed images of themselves and their message.

That said, one way that today’s bigger, glitzier conventions might serve democracy is by concentrating the nation’s attention, however briefly, on political issues.  As Erlinder says, “Because the political parties gather in order to put forward messages of their choosing, and because they are broadcast to the world in real time, they become quite natural places for the expression of opinion, in a way that wasn’t possible when conventions were meetings taking place in smoke-filled rooms.  It would be a deceit if these people who had various points of view were foreclosed from putting forth those views when the whole world was watching.”

In other words, if candidates and political parties are grabbing the spotlight to unveil the already-unveiled, perhaps that’s justified by the fact that their spotlight also shines on those whose voices normally are not heard.  To that point, Erlinder says, “The political contest is happening both within the convention and outside the convention walls.”  And, “I think it’s fair to say that democracy is very often in the eyes of the beholder.”

As executive director of ACLU of Minnesota, Chuck Samuelson has thought more deeply about the role of conventions than most people—but from a nonpartisan perspective.  “The ACLU doesn’t care what happens inside the convention hall,” he says.  “We believe, clearly, that should be structured in any way that’s legal to suit the desire of the people who have rented the hall. Where the ACLU comes in is when they want to appropriate public property that they haven’t paid for, for their purposes.  And then when they begin squeezing out people who are expressing a different viewpoint.  That is viewpoint discrimination and it violates the First Amendment.”

Samuelson, who also questions the federal subsidy of $50 million per convention to help with security issues, feels the emphasis on security comes at the cost of free speech.  “I have to tell you, the judiciary doesn’t often agree with that,” he says.  “We’re sorry about that.  We think, respectfully, that they’re not putting enough faith in the individual people of the United States and their ability to do things without significant violence.”

So are conventions a good test of democracy?  “No, not really,” Samuleson answers.  “The people inside the hall believe in x, the people outside the hall believe in anti-x, but the people in the hall have the media and can repress the message of anti-x.  That’s true of both the Republican and Democratic conventions.  A part of me says, ‘A pox on both their houses.’  Part of me says, ‘Is there not a better way?’  But as the saying goes, when you’re up to your neck in alligators, you forget why you’re in the swamp.  I’m in the swamp right now.  What I do know is that the ACLU is expending a good deal of our financial resources and our people resources to protect the Constitutional rights of people who are interested in demonstrating on a whole variety of things.  There are just a whole range of people who want to make a statement, many of them baffling to me—but that’s one of the joys of the First Amendment.” — Amy Lindgren