Wednesday, December 11, 2013

A Closer Look at What the RNC Subcommittee on 2016 Delegate Selection Rules Has Been Up To

Back in September -- actually on the eve of the government shutdown -- FHQ took part in what has become a fairly regular series of meetings with party rules officials (and a handful of academics) from both national parties that the National Presidential Caucus has organized for several years running now. It is always a fascinating experience of which I'm thankful to be a part. I say that because these meetings offer 1) a rare opportunity to see folks from the Democratic and Republican parties constructively discuss remedies to some of the rules-based problems that are common to both parties and 2) a limited -- The parties folks play it close-to-the-vest. -- glimpse into some of the changes that are being considered for 2016.

Those events are bookmarked in FHQ's head for days like today as well; a day when news of the progress of one of the parties' rules-making comes to light. Peter Hamby has a great rundown of the situation on the Republican side as of now, about nine months before the rules for 2016 cycle will be set in stone. There's fodder in there for several posts, but let's have a more thorough look at some of the things being considered by the RNC. [Quotations below are from Hamby.]
1) "The first four early-voting states -- Iowa, New Hampshire, South Carolina and Nevada -- would continue to hold their contests in February."
This is certainly what both the RNC and DNC would like. However, other states will have a say in whether or not the carve-out states actually hold their contests in February (More on this in a moment.). One thing that should be noted is that I'm sure the Republicans that Hamby spoke with said February. And that is what the party wants. Yet, that is not what the current RNC rules say. The rules that came out of the Tampa convention last year and currently govern the 2016 process give Iowa, New Hampshire, Nevada and South Carolina a window of a month before the next earliest contest in which to schedule their primaries or caucuses (Rule 16.c.1). Now, that language is obviously apt to change -- That is what the subcommittee is up to, after all. -- but FHQ is of a mind that it will not. Ideally, those four contest occur in February, but things may push into the latter half of January.
2) "To prevent other states from jumping the order and compelling the first four to move their dates even earlier as they did in 2012, any state that attempts to hold its nominating contest before March 1 would have their number of delegates to the convention slashed to just nine people or, in the case of smaller states, one-third of their delegation -- whichever number is smaller."
If you have read FHQ closely since the conventions last year, you will note a couple of either potentially subtle or subtle changes to this particular penalty. The most obvious is the addition of a super penalty for smaller states that break the timing rule. Now, it isn't the super penalty did not apply to smaller states before. It did. Rather, the reason for the change is that the fewer delegates a state had the less the "strip them of all but nine delegates" penalty mattered. As FHQ has pointed out, there was a very small number of small states that could move their contests around and receive a penalty smaller than 50%. The RNC proposal described by Hamby closes that loophole; slicing those smaller loophole states' delegations by two-thirds if they violate the timing rule.

The less obvious matter has to do with that March 1 cutoff. Again, as FHQ has detailed, there is a window of time between the last Tuesday of February and the first Tuesday in March in which the timing rules laid out in Rule 16 are not consistent with the penalties described in Rule 17 for violating those timing rules. Rule 16 currently sets the threshold for a state having violated the timing rules at the first Tuesday in March (not March 1). But the penalty from Rule 17 is only assessed if a state holds its contest before the final Tuesday in February. One would imagine that this discrepancy would be fixed at some point -- FHQ has been told by a number of Republican rules officials that it would be addressed. -- but the above only indicates intention, not the actual rules change.

One other minor point on this one: There is a lack of consistency across a couple of other rules here that FHQ will address in a later post, but it should be noted that delegations will technically be stripped down to 12 delegates instead of nine once the three national party (automatic) delegates are added to the total. Those folks -- the state party chair, the national committeeman and the national committeewoman -- will be a part of the delegation.
3) "Any state holding a primary or caucus during the first two weeks of March must award its delegates proportionally, rather than winner-take-all."
Relative to the 2012 rules, this proposal condenses the proportionality window to just two weeks. Last year, that window encompassed any non-carve-out state with a contest prior to April 1. For all practical purposes, then, the proportionality window stretched all the way from the Florida primary on January 29 to April 1 in 2012.1 This really is a minor shift. As the Growth and Opportunity Project Report aptly noted earlier this year, the method by which states allocate delegates does not have a very clear impact on the nomination process. Stated differently, the impact the delegate allocation rules have is dependent upon the dynamics of a given nomination race. Recall, it was the dispersion of the calendar of events that made Mitt Romney's march to 1144 so slow in 2012 and not the proportionality requirement.2

The change may be minor in terms of the actual allocation of delegates in 2016, but it does give states an extra two weeks in March in which to schedule their delegate selection events without penalty. This is a small carrot of sorts from the RNC to the states. After Super Tuesday Lite on March 6, 2012, there really were not a lot of contests until April. There was a southern swing during the second week, followed by trips to Illinois and Louisiana to close out the month. In other words, the thinking here on the part of the RNC subcommittee is that that is a spot early enough (but not too early) on the calendar to warrant a few more contests. As footnote two indicates below, Texas will already be much earlier in 2016. Those last two weeks could prove advantageous to states with traditional winner-take-all rules but which have also been later on the calendar in the past. This is speculative, but the talk among some California Republicans during 2011 when the Golden state primary was being moved from February to June was that Democrats controlling the state would just move it back in 2016 (when their party had a competitive nomination race). California Republicans have typically utilized a winner-take-all by congressional district allocation plan. If (and this is a big IF) Democratic legislators in the state actually do move the primary back up into March as they did for the 1996 cycle, Republicans in the state could continue that practice and not be penalized.

And that small extra two week window is absolutely being used by the national party as a means of enticing later states to move up. But they are also using a stick.
4) "The Republican National Convention will be held either in late June or early July, though ideally on a date before the July 4 holiday."
"Moving the convention to June would have the effect of ending the primary campaign in May because of RNC rules that require state party organizations to submit their delegate lists to the national party at least 35 days before the convention." 
"States with primaries scheduled for June 2016, including California, New Jersey and New Mexico, would essentially be holding nothing more than beauty contests. Party organizations in those states would instead submit their delegate lists to the RNC ahead of time, before any primary vote takes place, Republicans said."
The stick -- and you will have to bear with me here while I fully lay this out -- is that with an earlier convention, those late states would be meaningless beauty contest events. Well, that is the description used, but FHQ doubts very seriously that that is the case.


Read through those three paragraphs from Hamby again. Now, let's dissect that and reassemble it sequentially.
A) The RNC wants/sets a late June convention date.
B) However, the national party requires delegates to be submitted from the states 35 days in advance. This is a very real logistical issue.
C) Late states -- especially late May and June primary and caucuses/convention states -- are then in a bind as to how to select delegates.
[This is an issue that FHQ has raised before. How does a party motivate late states to stomach the expenditure necessary to shift up the dates of their contests, typically contests that are held concurrently with the nominations for down ballot races? The answer is not very easily. But...]
D) Late states are forced to submit delegates ahead of time -- ahead of their contests -- to the RNC to stay within RNC rules.  
There are two things here that require careful explication.
1) Let's take the beauty contest angle first. Did you catch the omission? Those late contests are not beauty contests. They aren't anything like the Missouri Republican primary in 2012, when voters went to the polls to cast a meaningless ballot. Well, they aren't so far as FHQ sees it, anyway. What's missing is the binding of delegates. That is the primary purpose of any primary election is the binding of delegates. In most cases, primary states still have some form or fashion of a caucuses/conventions system for actually selecting the delegates who will go to the convention. But the results of the primary bind the delegates.

There is nothing in Hamby's synopsis about the binding of delegates. A state could theoretically, then, select and submit delegates to the RNC ahead of a primary contest, the results of which would later actually bind the delegates to particular candidates (see, for instance, Romney-bound delegates who were Ron Paul supporters in 2012 -- The new RNC rules that came out of Tampa have made any mischief from those types of delegates impossible.).

Got that? Now here's one other wrinkle that brings things full circle. The new RNC rules also require the binding of delegates based on the results of the earliest statewide contest. This eliminated the beauty contest loophole that early caucuses states have used in the past to avoid the timing penalty (see Colorado and Minnesota in 2012). Those first step, precinct caucuses are the results used to bind delegates to particular candidates now. If state parties in late states use a caucuses/convention system as usual to select delegates, the precinct level results -- results in an election before the primary -- could supersede the primary results as the statewide results.


In reality, all this really does is put the onus on the states to be very clear about what their processes -- selecting and binding -- entail. Keep in mind also that Hamby's description of this via his sources in the RNC is that it is the state party that is submitting the list of delegates; not necessarily with any input from a caucuses/convention process. When a dispute between Paul and establishment delegates in Nevada led to the cancelation of the Nevada Republican State convention in 2008, the state central committee ultimately selected the delegates who went to the St. Paul convention. To FHQ, this is the sort of process that is being described.

…and those delegates would be bound based on the results of the primary. That isn't a beauty contest. However, the fact that those primaries are late and the race will have likely been decided by that point renders it almost a beauty contest; maybe even technically so. Generally though, when we talk of beauty contests, what makes them so is the absence of a binding mechanism. It isn't clear to me that that is missing in this case. FHQ would be surprised if that was true in practice.

2) The other thing about this particular idea is that it makes for a potentially unhappy compromise. On the one hand, Tea Party folks might like the prospect of wresting control of a state party away from the establishment wing of the party. That is something about which the Tea Party faction of the Republican Party has become increasingly organized at least up to 2012. Theoretically, it gives them -- once in control -- the ability to name their folks to these delegate lists in late primary states. As has been witnessed over the last few years, however, instances of the Tea Party taking over state parties have been pretty limited in number. What this accomplishes in most cases, on the other hand, is that it provides more fuel for the fire of dissension within the Republican Party. All that does is potentially give state-level Tea Party factions one more thing to grouse about within the frame of RNC/establishment unfairness.

Both the delegate slates and beauty contest/binding issues are messy. Want to avoid them as a state party? Move your contest up. That is a pretty clever stick, folks.

…at least on paper. But states have proven clever in their own right in responding to national party rules. The problem for the states is that the national parties have wised up. They've adapted by moving to close the loopholes that states have exploited in the past.

Will it work? Time will tell.

As a coda to this discussion, FHQ should note the procedural barriers that the RNC now faces in changing its rules. According to Rule 12, three-quarters of the full 168 member RNC has to sign off on any rules change. That is a very high bar. First however, the subcommittee proposal -- and it will likely be introduced as a package to be voted on rather than in pieces -- will have to clear the Rules Committee. The threshold for passage there is only 50%, but something that passes the Rules Committee by a bare majority will likely not fare well before the full RNC. A near-unanimous vote in the Rules Committee may prove a necessary signal to the full RNC or at least three-fourths of them. Whether that will be sufficient in the eyes of that many RNC members remains to be seen. Three-quarters is awfully high and makes potentially big, fundamental changes with unclear ramifications that much more difficult. FHQ has spoken to a number of RNC rules folks and there are differing opinions on this. They run the gamut from confidence that the chairman can push the changes he wants through (as has typically been the case) to doubt based on how high the bar for change has been set.

It will make for an interesting set of winter and spring RNC meetings. Expect the subcommittee to issue its recommendations at the winter meeting and for them to be more fully debated and voted on at the spring or summer meeting next year.

1 Well, the 2012 Republican delegate selection rules did not allow for a double penalty; one for both a timing violation and a proportionality violation. As such, the Florida delegation was only officially reduced by 50% for the timing violation.

2 On that point, it should be noted that the Texas primary and its large cache of delegates will be in March 2016. A battle over redistricting in the Lone Star state forced the primary to late May 2012.

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