Tuesday, August 28, 2012

Some Thoughts on the Proposed RNC Rules Changes for 2016, Part One

It was just last week that the Republican Rules Committee proposed and passed a set of 2016 presidential primary rule reforms for approval at the Tampa convention this week. FHQ put off unpacking it all for several reasons not the least of which was preparing for the trip down to Tampa. Trips aside I wanted a chance to read the rules and watch whatever reaction there was. Recall that the 2010 changes to the rules for this most recent cycle were viewed as sweeping changes with a huge potential impact.

The reality? Well, the calendar informally coordinated with Democrats helped to spread the calendar out some. Of course, the lack of any new and significant penalties in the 2012 rules left the gate open for Florida to keep its primary in January, pushing the start point up to the cusp of new years and spreading the primary calendar out even further.

That slowed the nomination of Mitt Romney down. What did not was the new proportionality requirement which, though it was hyped as a mechanism to reduce the speed of the process and create the type of deliberative, competitive and energizing nomination process the Democratic Party had in 2008. Requiring states with contests scheduled prior to April 1 to allocate their share of delegates in a manner that had an element of proportionality actually helped quicken the pace of the 2012 Republican nomination race. Under the 2008 rules, Rick Santorum would have gained slightly more delegates than he actually did deep into March. That would have also slightly reduced the margin in the zero sum fight for delegates.1

FHQ, then, is a little wary of trying to gauge the sort of impact new rules would have four years in advance. It is a fool's errand rife with very likely unintended consequences. But let's get a head start dispelling any notions of broad sweeping changes embedded in the rules proposals that will go before the full convention on Tuesday. It's never too early.

First, the changes. The rule in question for much of this discussion is Rule 15 in the 2008 Rules of the Republican Party. Let's take this piece by piece:

Current Rule 15(a):
(a) Order of Precedence.Delegates at large and their alternate delegates and delegates from Congressional districts and their alternate delegates to the national convention shall be elected, selected, allocated, or bound in the following manner:(1) In accordance with any applicable Republican Party rules of a state, insofar as the same are not inconsistent with these rules; or(2) To the extent not provided for in the applicable Republican Party rules of a state, in accordance with any applicable laws of a state, insofar as the same are not inconsistent with these rules; or(3) By a combination of the methods set forth in paragraphs (a)(1) or (a)(2) of this rule; or(4) To the extent not provided by state law or party rules, as set forth in paragraph (d) of this rule. 
Any statewide presidential preference vote that permits a choice among candidates for the Republican nomination for president of the United States in a primary, caucuses, or a state convention must be used to allocate and bind the state's delegation to the National Convention in either a proportional or winner-take-all manner, except for delegates and alternate delegates who appear on a ballot in a statewide election and are elected directly by primary voters.
Analysis of Change:
At its simplest, this change binds delegates to candidates based on the results of any statewide vote be it primary or precinct caucuses. The proposed rule does not allow for plans like those in Iowa or in some other Republican caucus states where delegates were unbound based on state rules. The change does not provide state parties with the same latitude those bodies had in 2012 and before.

But it also has the impact of opening up the method of allocation for all states (...based on this rule and the current Rule 15(b) that is on the chopping block).

Current Rule 15(b):
(b) Timing.* (Revised language was adopted by the Republican National Committee on August 6, 2010)(1) No primary, caucus, or convention to elect, select, allocate, or bind delegates to the national convention shall occur prior to the first Tuesday in March in the year in which a national convention is held. Except Iowa, New Hampshire, South Carolina, and Nevada may begin their processes at any time on or after February 1 in the year in which a national convention is held and shall not be subject to the provisions of paragraph (b)(2) of this rule.(2) Any presidential primary, caucus, convention, or other meeting held for the purpose of selecting delegates to the national convention which occurs prior to the first day of April in the year in which the national convention is held, shall provide for the allocation of delegates on a proportional basis.(3) If the Democratic National Committee fails to adhere to a presidential primary schedule with the dates set forth in Rule 15(b)(1) of these Rules (February 1 and first Tuesday in March), then Rule 15(b) shall revert to the Rules as adopted by the 2008 Republican National Convention. 
Proposed Rule 15(b):
For any manner of binding or allocating delegates permitted by these Rules, no delegate or alternate delegate who is bound or allocated to a particular presidential candidate may be certified under Rule 19 unless the presidential candidate to whom the delegate or alternate delegate is bound or allocated has pre-certified or approved the delegate or alternate delegate.
Analysis of Change:
This is the rule that has drawn so much backlash from Paul supporters, Santorum supporters and other state party officials and has threatened to throw the convention into a floor fight. Honestly, this change has the potential to be the proportionality requirement of of 2016: an overhyped rule with no real impact on the process. At the heart of the conflict is the notion that delegates being approved by candidates is a power grab at the expense of a state party's right to choose how it allocates its delegates. Further, it takes a grassroots activity meant to build the party and turns it over to the candidate or candidates. FHQ gets the rationale, but I struggle to see what fundamental impact the change will have.

Actually, I do see the impact it will have. Together with Rule 15(a) the candidate approval mechanism altogether ends the possibility that a statewide vote can be overturned in subsequent steps in a caucus process by enthusiastic and organized supporters of a candidate that did not comprise a majority or plurality of the statewide vote. We can call it the Ron Paul issue. It isn't a problem because the Paul folks and their supporters were behaving well within the confines of the rules laid out for the 2012 cycle. It is, however, perceived as a problem by the national party. It takes what has been an orderly process and leaves the order up to chance every cycle; opening the door to discord within the party and a less than cohesive national convention that could hurt the presumptive nominee for the party.

The counterargument is that this is still positive local and state party building, and it is good for the national party to broaden the tent to include passionate political actors. But you know who doesn't have a problem with party building in caucuses? The Democratic Party. Here is Rule 9.B.3 of the 2012 Democratic Party Delegate Selection Rules:
3. If persons eligible for pledged party leader and elected official delegate positions have not made known their presidential preference under the procedures established by the state pursuant to Rule 12 for candidates for district-level and at-large delegate positions, their preferences shall be ascertained through alternative procedures established by the state party, which shall require a signed pledge of support for a presidential candidate. Such an alternative system shall have a final deadline for submitting a pledge of support after the selection of all district-level delegates has been completed and must provide an opportunity for disapproval by the presidential candidate or the candidate’s authorized representative. 
Notice that italicized and bolded section. The Democratic Party has had an approval system in place for years and it has not really had an impact on delegate selection or enthusiasm in caucus states.2 Truth be told, there is evidence to suggest that caucus states are caucus states for a reason: maximizing power over the process. States with a party elite that does not converge ideologically with rank-in-file members of the party within the state are much more likely to turn to a restrictive mode of delegate allocation. More diverse states where the ideological line is blurred between those two groups are more likely to have a primary -- even an open primary (Meinke, et al, 2006).

This is obviously a struggle over the level of power the state party has in all of this. Those parties in Republican caucus states in particular do not want to cede that power to the national party or the candidates. But again, the Democratic Party has done this with little problem for years. Yes, I am aware that a "the Democrats do it this way" argument is going to do very little to win over the hearts and minds of Republicans trying to set much less operate under this particular rule, but still.

If the delegate slots are already bound to particular candidates based on the statewide vote, then all we are talking about is a candidate -- any candidate, Romney, Paul anyone -- approving of the delegates that fill their slots at the end of the caucus/convention process when typically the nominee is already known just not officially nominated yet. I can see state parties being up in arms over this, but if you are a supporter of a candidate what's wrong with receiving your fair share of delegates? Well, the problem is that there is a loophole in the current system that opens the door for those energized and organized supporters of a particular candidate. They don't want to lose that loophole and state parties don't want to lose the ability to, well, do whatever they want. That's a fertile environment for coalition formation.

Of course, there are reports tonight that a floor fight over this rule has been avoided and a compromise between the two sides has been reached. Now, the rule will prevent bound delegates from casting a vote for or nominating a candidate to whom they were not bound.3 This keeps the loophole for unbound delegates, but eliminates the oft-discussed loophole in the RNC rules that binds delegates supportive of another candidate to cast a vote for the bound-to candidate, but not necessarily to nominate that bound-to candidate. The real winner is the states in all of this. They keep exactly what they want, but Paul folks and the Romney/RNC contingent had to give something up.

We'll never know now, but I'll argue to my grave the point that this rule -- had it taken effect -- would not have had nearly the negative effect its detractors claimed after the amendment pass passed last week. The tone of the attacks is that the delegate decisions/approval will be preordained before the caucus rather than something that takes place at the end of the caucus convention process.

Proposed Rule 15(e)(3) [NEW]:
The Republican National Committee may grant a waiver to a state Republican Party from the provisions of 15(a) and (b) where compliance is impossible, and the Republican National Committee determines that granting such waiver is in the best interests of the Republican Party.
Look, this is another one of those "the Democrats do this already" sorts of things. There was no provision in the RNC rules to provide for a waiver and there will potentially be for 2016 pending approval by delegates on the floor on Tuesday. If a situation arose where a Democratic-controlled state moved a primary or caucus to a position out of compliance with the RNC rules, that state GOP would have no recourse without a formal waiver process in place (see Florida in 2008, but in reverse).


Stay tuned for Part Two where we will look at the impact of new sanctions and the heightened nomination requirements.

1 Where particular states moved their contests on the calendar and where they were regionally was also noteworthy. A different alignment of states would have affect the accumulation of delegates to the 2012 cast of candidates in the Republican race. 

2 FHQ should also note that the Meinke, et al work focuses on the Democratic side of the equation. Those relationships are clearer in Democratic caucus states because those are states are typically Republican states. A more liberal party elite wants to guard against the more conservative candidates a more conservative primary electorate might select. The choice of a caucus or primary is an easy one in that regard. But there is no similar corollary on the Republican side. There are no Republican caucus states with conservative state party elites in an overwhelmingly liberal state. There was a lot of talk about how conservative the Iowa Republican caucus attendees would be in 2012 and the impact that would have on winnowing the field, but that is not the same issue as the ideological divergence Meinke, et al address.

3 The proposed alteration will strike the proposed Rule 15(b) above -- the approval mechanism -- and add a second part to Rule 16(a). The former would have been a new subrule to the section on electing or selecting delegates, whereas the latter is an enforcement mechanism that belongs in the Enforcement of the Rules (Rule 16). Here is the text of the proposed addition:
Rule 16(a)(2). 
For any manner of binding or allocating delegates under these Rules, if a delegate 
(i) casts a vote for a presidential candidate at the National Convention inconsistent with the delegate’s obligation under state law or state party rule,  
(ii) nominates or demonstrates support under Rule 40 for a presidential candidate other than the one to whom the delegate is bound or allocated under state law or state party rule, or 
(iii) fails in some other way to carry out the delegate’s affirmative duty under state law or state party rule to cast a vote at the National Convention for a particular presidential candidate,
the delegate shall be deemed to have concurrently resigned as a delegate and the delegate’s improper vote or nomination shall be null and void. Thereafter the Secretary of the Convention shall record the delegate’s vote or nomination in accordance with the delegate’s obligation under state law or state party rule. This subsection does not apply to delegates who are bound to a candidate who has withdrawn his or her candidacy, suspended or terminated his or her campaign, or publicly released his or her delegates.

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