Tuesday, April 9, 2013

Thoughts on Where the 2016 Presidential Primary Rules Stand, Part Two

With members of the Republican National Committee descending upon Los Angeles this week for the party's spring meeting, the opportunity presents itself to revisit the current state of the rules that will ultimately govern the 2016 presidential nomination process.

Having established a baseline set of Republican delegate selection rules for the 2016 presidential election cycle in part one, FHQ will layer in the Democratic Party process and save our prospective look at the potential for future rules changes for a subsequent follow up post. It may also be helpful to look into the collective implications of the rules on both sides as they stand now. FHQ has spoken with some of the principals in both parties over the course of 2013, so the intent here is to be as concrete as possible without giving into the temptation of speculating. That said, FHQ would be remiss if it did not add the caveat that the rules are not set in stone on either side and will not be until the summer of 2014. In other words, there is going to be both intra- and interparty work on the rules and with that some give and take (read: rules changes) between now and then.

This post will focus more on the interparty dynamics and save the intra-party discussion for later.1

If one were to take the baseline set of Republican rules detailed in part one of this series and compare it to the only set of rules available on the Democratic side -- the rules utilized during the 2012 process2 -- there are some notable and consequential discrepancies that may affect not only the progression of the primary process in 2016, but the rules-making process as well.

Delegate Allocation:
As was pointed out in part one of this series of posts, there is currently a change embedded in the RNC rules for 2016 relative to 2012 in regard to the allocation of delegates. There is now a suggestion instead of a requirement that states (in some way) proportionally allocate delegates if they hold contests prior to April 1. This is a language issue within Rule 16 that the RNC is very likely to alter. However, this is largely an RNC issue. The Democrats have discussed allowing late states to hold winner-take-all contests as a means of speeding up an already-decided nomination, but the proportionality requirement for all states has held to this point. If the Democratic process is all proportional and the RNC allows some winner-take-all contests, then as many have discussed in the past, the Republican process could wrap up earlier if calendar and candidate/campaign dynamics are the same across the two parties' contests. That, though, is a large assumption. All of those factors -- delegate allocation requirements, the calendar and candidate/campaign dynamics -- interactively affect how any given nomination race progresses.

The bottom line is that this is not and would represent any new divergence between the two national parties' sets of delegate selection rules regardless of the RNC reinstating the proportionality requirement used in 2012.

Though both parties informally coordinated the basic structure of a primary calendar for the 2012 cycle, there is some break in that at this point in the 2016 cycle. That is not to suggest that there has been some sort of a divorce between the bipartisan group of rules-making principals who kept the lines of communication open with respect to the creation of the 2012 rules. However, there was a rules change coming out of Tampa that is somewhat consequential in a comparative light across the two parties' sets of rules.

FHQ will circle back to a broader discussion of the penalties in a moment, but the interparty divergence on the calendar is based on an intra-party discrepancy between the Republican guidelines in Rule 16 and penalties in Rule 17. In short, Rule 16 allows only Iowa, New Hampshire, Nevada and South Carolina to hold contests prior to March 1 (or one month before the next earliest contest). Yet Rule 17 does not penalize a state for holding a contest -- so long as it provides a proportional element in its method of delegate allocation -- on or after the final Tuesday in February.

As was mentioned in part one, this would provide states like Arizona and Michigan -- already scheduled for the last Tuesday in February according to state law -- with some cover. It provides a landing place for states that would like to hold early contests but potentially penalizes them based on the proportionality requirement penalty. [Yes there is a discrepancy between the "requirement" in Rule 16 and the penalty in Rule 17 here as well.] The states that have been willing to take the 50% delegation penalty for violating the rules on timing in the past -- Arizona, Florida and Michigan -- have also utilized a winner-take-all method of allocation. Under the current rules and penalties, all three could hold contests as early as February 23, 2016 and only lose 50% of their delegation, assuming no changes are made to the delegate allocation rules at the state level. That is a price each was willing to pay in 2012.

This does create a potential problem for the Democratic Rules and Bylaws Committee. As the rules stood during 2012, no state other than Iowa, New Hampshire, Nevada and South Carolina could hold a contest prior to the first Tuesday in March. If Arizona, Florida and Michigan all decide to move into that moderate, 50% penalty area of the calendar -- avoiding the superpenalty associate with going before the last Tuesday in February -- that means that those states would be subject to penalties on the Democratic side as well. The complicating factor and the saving grace here from the states' (Democratic) perspective is that Republicans control the decision on where the primaries in all three states end up. The complication is that Republicans could shift the contests in those states with no real recourse from state-level Democrats (either in the state parties or state governments). However, the Democrats in those states could petition the Rules and Bylaws Committee for a waiver for this very reason as long as some effort had been made by Democrats in the state to create changes that would bring the state into compliance with the Democratic Party rules (see the recently introduced bill in the Florida legislature).

Waivers aside, the question remains: Would the DNC really want a calendar that protected the carve-out states but has three medium-to-large states on their heels? A better question may be whether the DNC could do something about that anyway. One answer to the latter issue is to move up by one week (to the final Tuesday in February) the earliest date that non-carve-outs could hold contests. Of course, that has the potential of inadvertently inviting Democratic-controlled states to move up to that point on the calendar. In turn, that could put Republicans in the same position the Democrats now face: having to deal with states petitioning the party for a waiver. Additionally, if Arizona, Florida and Michigan are already positioned at that point on the calendar, the RNC would have two classes of states: the three aforementioned states penalized because they continue a history or winner-take-all allocation and a possible unpenalized group of states which have gained waivers.

This seemingly small change really does highlight the importance of some form or fashion of coordination between the two parties on their calendar rules and penalties. That one week window creates the potential for a messy situation between the national parties themselves, but the national parties and proactive states as well. This is an area where something is likely to give before both sets of delegate selection rules are finalized.

The mindsets of the two parties where penalties for rules violations are concerned are completely different. The RNC has arrived at a point where they as a party want penalties with teeth. Compliance has proven difficult in the absence of meaningful penalties. That is why there is now a 50% penalty for violating the proportionality requirement (assuming it is reinstated) and a superpenalty, knocking states delegations down to 12 delegates, for states that would violate the last Tuesday in February threshold. There is nothing similar on the Democratic side. There, there is a 50% penalty for violating the rules on timing and an additional penalty on candidates' delegates (should they campaign in a rogue state), but nothing more. That did not prove effective in deterring either Florida or Michigan in 2008 (though one could argue we have not seen the subsequent move from Florida and Michigan on the Democratic side).

Regardless, the Democratic Party approach is different. The teeth -- actually carrying through with the penalties at the convention as the RNC does -- is not something with which the DNC concerns itself. In the eyes of those on the Rules and Bylaws Committee, the penalty is effective in that it affects the candidate accrual of delegates during the process. By extension, by the time the nomination process reaches the convention, the decision has already been made and there is no need to penalize states and/or individual delegates. The obvious counter to this is what was witnessed in early February in 2012. Non-binding caucuses (Colorado, Maine and Minnesota) and primaries (Missouri) all received attention from the candidates and media despite there being no delegates at stake.

These two sets of rules do not and will not be carbon copies of each other, but there is the potential need for some coordinating action between the two parties on the rules, particularly those dealing with the calendar and to a lesser extent the penalties for violations. That action -- potential changes to the baseline rules -- is where FHQ will next turn its focus.

1 The one intra-party note to add in this context is that the Democratic National Committee rules-making process will look different in 2016 than it has during any other cycle in the post-reform era. The one seemingly consequential decision -- and it is more a functional change than a substantive one -- that was made when the DNC convened in Washington the same week as President Obama's second inauguration was that the Rules and Bylaws Committee would handle the recommendation phase of the rules-making process in-house. Traditionally, a commission has been created to examine the rules in the context of the previous cycle(s) and compile a list of recommendations for rules changes. For the 2016 cycle there will be no commission like the Democratic Change Commission following the 2008 cycle.

From FHQ's perspective, this signals a couple of things:
1) On some level, the decision on the part of the Rules and Bylaws Committee to forego the commission step of the process is indicative of some consensus behind the existing rules. But...
2) It is also a nod to the reality of the overall process across both national parties. Removing the commission in some ways centralizes the power to craft the rules in the RBC. FHQ says "in some ways" because the RBC has never been in a position of obligation relative to any of the commissions that have existed over the years. The RBC never had/has to act on the recommendations made. But by removing the commission and considering changes in-house, the RBC is theoretically better able to adapt to any changes the RNC makes to its process. The other positive is that this saves the DNC from the needless creation of a body that would examine, compare and make recommendations for rules changes based on a potential moving target on the Republican side. Recommendations are worthless if they are based on in some way an outdated reality in the Republican rules.

2 This is an obviously flawed comparison. The 2012 Democratic Party rules being carried over to 2016 is entirely dependent upon 1) there being a desire among the members of the Rules and Bylaws Committee to alter the rules and 2) what exactly the RNC changes about its current rules. Barring wholesale changes to the RNC rules (i.e.: unilaterally instituting a regional primary system), the expectation based on past precedent is that there would be only minor changes to the rules from the previous cycle.

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