Monday, March 21, 2016

Changing the Rules [at the Convention] Changes the Game

For a placeholder rule, Rule 40 in the Rules of the Republican Party has gotten entirely too much attention during the 2016 presidential election cycle.

One of the least understood parts of the Republican presidential nomination process is that the delegates -- two from each of the 56 states and territories on the Convention Rules Committee -- write the rules that will govern them at the national convention. Under normal circumstances in a more typical cycle, this process is little more than a formality. Of the three basic types of rules in the Republican Party rulebook -- party organization rules (Rules 1-12), nomination process rules (Rules 13-25) and convention rules (Rules 26-42) -- the first and third types tend to be carried over from cycle to cycle with little more than some tweaking here and there. The changes to the second type, the nomination process rules, set the baseline of rules that will govern the nomination process in the next cycle, but only a baseline.1

Rule 40 obviously sits among the rules in the convention rules section. The delegates to the 2012 convention changed the provisions in that rule, upping the requirement for a candidate to have his or her name placed in nomination at the convention to a majority of delegates from at least 8 states. It is a small change but with a large potential impact. But that rule applied in 2012 and was designed to keep Ron Paul off of the presidential nomination roll call ballot. At the 2008 convention, Rule 40 called for a candidate to have only a plurality of delegates from just five states; a far lower bar (but one that Paul was flirting with heading into the national convention).

That flirting was enough to trigger the action that raised the threshold for having a candidate's name placed in nomination. And to be clear, that rules change was a one written by and for the delegates at the 2012 convention; a normal part of the sequence of events under the Republican rules. Just as the 2012 delegates on the 2012 Convention Rules Committee looked over the landscape of the 2012 process and opted to up the requirements to qualify for nomination, the 2016 delegates on the 2016 version of that committee may choose to lower or alter those thresholds and consider other rules changes.

It is that context that made Georgia Republican National Committeeman Randy Evans' comments at a local county caucus -- a part of the delegate selection process in the Peach state -- over the weekend so interesting. Rather than some of the more chaotic scenarios that have risen to the top in some recent media accounts of the possibility of convention rules changes, Evans provided a calmer look forward to rules and rules changes to be considered before (but not adopted until at) the national convention.2

Evans basically pointed toward three rules changes likely to be considered (at the RNC spring meeting and later in the lead up to the convention):
  1. Unbinding the delegates. This change would diminish the importance of winning primaries and caucuses during primary season and render the delegate allocation process going on now largely moot. While doing that, unbinding the delegates would simultaneously raise the importance of the delegate selection process; the parallel fight to fill allocated slots with party and/or campaign loyalists. Needless to say, this one would be rather contentious. Unbinding the delegates so that they may vote sincerely carries the potential of overturning the outcome of primary season in a way similar to the way superdelegates are viewed in the context of the Democratic Party process.3 Since this one is laced with toxic outcomes no matter the choice, the status quo is likely to be maintained. 
  2. Some change to Rule 40. Georgia's Evans mentioned that perhaps the eight state threshold could revert to the five state required before 2012. That is consistent with conversations FHQ has had with others in the RNC. That level has not always been at five. At one time, there was no such threshold and then it became a three state threshold before being upped again. Thresholds of both three and five have been mentioned, but there was also a discussion at the RNC winter meeting in Charleston about lowering the qualifying threshold to have a candidate's name placed in nomination at just one delegate. That's one delegate, not one state. The majority/plurality control threshold is another area that could potentially see some change in Rule 40. It seems like something may have to give with the way Rule 40 is currently constructed. The 2012 working rule does not seem to fit well into the 2016 process. It seems likely that Rule 40 will change, but there is a lack of consensus at this time about what may replace it. 
  3. Pledging delegates. This one is pretty fascinating. The idea is that a rule would be written -- again by and for the 2016 delegates at the 2016 convention to fit 2016 conditions -- that would allow candidates to pledge bound delegates to other candidates. On the one hand, the intent is to facilitate an easier and perhaps more orderly resolution to a contested convention. However, on the other hand, as Evans points out, individual delegates would lose discretion under such provisions. That may bear some support in the party, but in other areas would be strongly opposed. 

To be sure, this is not a laundry list of proposed rules changes. And there will be others that will likely come along at the national convention. Most of those proposed changes are likely to occur in an effort toward setting the rules baseline for the 2020 cycle, however. While that is and will be important, more eyes will be on the shorter list of changes made to the convention rules that will govern the 2016 convention.

1 If Rule 12 survives the 2016 convention, then the party will once again be able to alter the nomination process rules outside of the convention (as it did following 2012 when Rule 12 was created). Even given that power, the party only slightly changed the process rules between 2012 and 2014.

2 It should be noted that it is consistent with expectations that members of the Republican National Committee would in the vast majority of cases urge caution and to let the rules play out rather than give into the chaos angle.

3 There are risks involved whether there is a clear presumptive nominee with more than 1237 delegates bound to him heading into the convention or if there is a candidate with a plurality of delegates.

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David K said...

While you keep on claiming Rule 40 doesn't matter, it seems to me you're not considering the optics. While legally it may make no difference, in practice it would be much easier for anti-Trump forces to justify denying Trump the nomination if the rules simply said you need a majority to nominate, and Trump failed to get the majority, as opposed to requiring the rules be changed first. Most people object viscerally to changing the rules in the middle of the game. You can argue up and down that the rule wasn't really a rule, and the rules say the rules can be changed, but I don't think that will persuade Trump supporters or much of the broader public one whit.

Furthermore it seems to me virtually certain that if Cruz makes it over the current Rule 40 line, he and Trump will collude to ensure that Rule 40 stays in place-- thus ensuring that on the first ballot theirs are the only two names in nomination, and freezing out Kasich (or another alternative) on the floor.

Josh Putnam said...

It is inaccurate to suggest that I have claimed that Rule 40 in its current form "does not matter".

What I have said a number of times is basically, "if it is a problem, it will be changed". What I have always meant by that is 1) if the rule in its current form fails to project to facilitate a nomination, then it will have to change and 2) that the party itself -- the RNC -- has admitted that it is a placeholder rule and may be targeted for change in the lead up to and during the convention.

To expand on #1 above, in December when I first wrote an extensive post on the issue -- before any votes had been cast -- the context was a larger field of candidates, and the concern then was that no one would qualify under the current Rule 40. Again, it would have to be changed.

But as the process got into primary season and the field winnowed, the issue became (or has become, as this is still developing) that multiple candidates could qualify and others with a chunk of delegates would fail to.

The RNC will examine this next month during their spring meeting and again in the summer meeting that will be tied to the convention itself. There may be recommended changes, but the Convention Rules Committee may opt to ignore those recommendations. And hypothetically ignoring those proposals may, in fact, be a function -- should it come to pass -- of resistance from Cruz and/or Trump forces on the Convention Rules Committee itself. As you said, and rightly, campaigns operating as if this was going to be a rule and stay that way may be motivated to keep the rule the way it is for various reasons.

But again, Rule 40 is a temporary rule. It was a rule crafted in 2012 for the 2012 convention. That may not fit in 2016. There may be support for changing the rule in some way, shape or form, but there may also be factions in and out of the campaigns that may want to see it remain as is.

And to be clear in closing, none of this should be interpreted as Rule 40 not mattering in its current form. That is a false interpretation.