Friday, January 19, 2018

Rules and Bylaws Committee and the Unity Reform Commission Recommendations

The following is part four in a series of posts on the recommendations passed by the DNC Unity Reform Commission during the group's final public meeting on December 8-9. Unlike the previous posts in the series, this one will focus less on the substance of the recommendations and more on the next steps in the Democratic Party process of amending its nomination rules for the 2020 cycle.

Part three: Superdelegates recommendations


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On to the Rules and Bylaws Committee

Under what one might consider the normal protocol of nomination rules reform within the Democratic Party, post-reform, the process tends to work through the following sequence.

  1. Initially, the preceding national convention creates the terms for a commission to examine the successes and failures of the immediately prior nomination process and reexamine and recommend rules changes for the next cycle to further buttress successful practices and correct any real or perceived shortcomings. 
  2. Those recommendations are then passed on to the DNC Rules and Bylaws Committee (RBC) for their consideration. This step can entail a simple up or down vote on the package of recommended reforms, but more often, the RBC deliberations are more in-depth. Usually, the depth of consideration is conditioned by a number of parallel factors operating concurrently alongside the substance of the recommendations. Was there consensus behind some or all of the recommended changes on the commission feeding into the RBC? Are individual components in package of proposed tweaks doable, advisable and/or a priority? Are they specific or has the commission passed on an ambiguous task that creates more work for the RBC? Recommendations that meet those criteria -- near unanimous support, specific, doable, advisable, a priority -- are the ones that tend to pass muster with the RBC. In most cycles, by extension, some recommendations get the green light from the committee while others do not.
  3. Finally, full DNC votes on -- in whole or in part -- the original or amended package of recommended changes out of the RBC. The first step runs through the year following a presidential election year, while step two tends to occur during the first half of the midterm election year before the DNC finalizes the rules for the next cycle by the end of summer of the midterm year. 
Now, the above sequence is, in part, an oversimplification of the sequence, but it is a decent shorthand for the process through which the nominations rules change within cycles. Sometimes there are deviations. The 2016 rules, for example, were developed through a process that skipped the first step. But on the whole, the Democrats have worked through these three steps in settling on the overarching rules that govern the presidential nomination process.

Currently, the 2020 rules-making process finds itself on the cusp of step two on the Democratic side. The Unity Reform Commission has issued its report and the Rules and Bylaws Committee convenes in Washington on January 19-20 to begin its deliberations on the recommendations contained therein. On the surface, then, 2020 looks like a normal cycle in terms of the above sequence. However, drilling down a bit, there are some important differences between the process now and the more routine processes that have been the norm for Democrats in the post-reform era. 

The clearest distinction between the the RBC now in its consideration of the Unity Reform Commission package and the committee stage of this process in the past is the treatment of the RBC itself. Unlike other cycles, the RBC potentially finds its role constrained for 2020. It is not that the committee will have no impact on the rules that will govern the nomination process. They undoubtedly will. Yet, that authority is colored by the convention resolution that created the Unity Reform Commission and by extension the URC itself. Far from a toothless middleman in all of this, the RBC is nonetheless compelled by the convention resolution to consider and implement the recommendations of the URC report. That much is consistent with past relationships between the RBC and the various rules commissions over time. 

However, part of the agreement between Clinton and Sanders proxies that led to the creation of the URC was that should the RBC fail to enact in a timely manner the recommended reforms -- within six months after the transmission of the URC report -- then the URC would retain the ability to place the package before the full DNC for consideration. In essence, that would skip the Rules and Bylaws Committee. 

But the process heading down that particular path assumes a level of hostility between the URC and RBC that has yet to manifest itself to this point in the cycle. And it may not develop at all between those two entities before the rules are finalized for 2020 later in 2018. That tension is currently more fully animated between and among certain vocal quarters of the broader party coalition loosely encamped along the lingering border established during the 2016 Democratic presidential primary race. But again, those cross pressures have not yet seeped into the 2020 rules-making process in any injurious fashion.

To get a sense of whether such division may be triggered at any point during or in the immediate aftermath of the RBC consideration of the URC recommendations, a decent place to start is the checklist established in the RBC section (#2) above.

Unanimity
With respect to the 2020 rules-related items the URC was tasked with examining -- primaries, caucuses and superdelegates -- all the component parts therein saw broad, unanimous support with just two of exceptions. The first was the two dissenting votes to the superdelegates section creating a bound segment of the automatic delegates. [More accurately, the dissent over the segment of superdelegates that were left unpledged as before.] But even those votes were more symbolic than anything else given clear mandate the resolution creating the URC handed the group with respect to superdelegates. 

The only other break in unanimity was within the caucuses section. A coalition of Sanders appointees and caucus state Clinton appointees, comprising half of the URC, blocked an amendment dealing with states that opt for caucuses despite the presence of a state-funded primary. That amendment would have included passive language presuming the three states in that category -- Idaho, Nebraska and Washington -- would use the primary option in the future. But blocking that amendment had the effect of tabling not only it but the underlying section it sought to change. 

The original language for a recommendation would have presumed -- not necessarily required -- the use of primaries in states with that option in states with five or more congressional districts. That would have exempted Idaho and Nebraska from the presumed use of state-funded primaries, but not Washington. And five congressional districts is not an arbitrary threshold. It would theoretically confine the use of caucuses to smaller states in which it could be argued they are better/best suited. But perhaps more importantly, that particular threshold would exempt Iowa and Nevada should either -- through no fault of Democratic state legislators -- ever pass laws establishing a state-funded primary option. Both Iowa and Nevada are currently protected as early states on the calendar, and both fall just below that five congressional district threshold (with some leeway to account for population and thus congressional seat changes, post-census). 

Save for those two exceptions, however, there was nothing but unanimous support for the laundry list of other items the URC recommended from easing registration and caucus participation burdens through the system for binding DNC member automatic delegates. Importantly, that is a clear signal to the RBC. The URC report was not a package of reform recommendations narrowly passed along Clinton/establishment-Sanders lines. Instead, despite those underlying differences, the URC report was a product of compromise, compromise that drew widespread support for the majority of its component parts from the various factions represented on the URC. 

The signal, then, is clear and that clarity provides the URC some leverage over the RBC moving forward that it would not have otherwise had if the report passed along factional lines. If the RBC balks at the recommendations in whole or in part, the URC has not only the ability to take the recommendations before the full DNC, but a leg to stand on in arguing for an affirmative vote there. The RBC, in other words, would have to have good reasons for ignoring, in whole or in part, recommendations that garnered consensus URC support.  

Those reasons may or may not exist now or develop during the RBC consideration of the URC recommendations, but that feather in the URC's cap -- unanimity -- will potentially place a check on the RBC, potentially constraining the RBC if not role, then collective desire to stray too far from the recommendations. 

Workability, Advisability and Prioritization  
The remainder of the checklist items are interrelated with the unanimity point above and with each other. Nothing in the URC report is technically unworkable, and that is consistent with past rules commissions. They tend to be given a fairly defined, but not necessarily narrow, mandate in the originating resolution. That, in turn, indicates at least some appetite within the party to examine the rules in some areas; typically those where a flaw in the system has been exposed and/or exploited in the previous cycle. After the 2008 cycle, for instance, there was cause to explore the rules-based conditions that gave incentive to states to encroach on the privileged positions Iowa and New Hampshire enjoy on the primary calendar or to curb superdelegate creep. In other words, rules changes to those items were more doable because they were already advisable and/or prioritized within the party. It was already baked in by the time it got to the RBC. 

And again, that is not atypical for the how the rules-making process progresses within cycles. However, each of those items is certainly in the eye of the beholder -- how workable, advisable or prioritized an action item is. And the RBC is often the beholder. It represents the step in the process where those determinations are made; where recommendations become implementable rules.

Specificity
That transition -- from recommendation to rule -- hinges on another input from the commission empowered by the preceding convention: the specificity of the recommendation. Some are very detailed like the current URC recommendation for binding a segment of the (potentially former) superdelegates. That specificity can limit the RBC action in response. On one hand, the commission could have handed off a ready-made rule in the form of a recommendation. But on the other, the recommendation may be so complex as to make it irreconcilable with the baseline delegate selection rules being amended. In the latter case, the RBC is almost forced to ignore the recommendation or devise a workable alternative consistent with the intent of the original recommendation. It is that path that can lead to division between the preceding commission and the RBC. 

Lack of specificity can also be an issue and in a few ways. First, rather than having a ready-made rule, an ambiguous recommendation makes the transition to implementable rule a steeper climb. It potentially creates more frontend work for the RBC or knocks it down the list of priorities. Take section 4 of the caucuses recommendations. This is the one that calls for the DNC to work with caucus states to "create consistent standards and guidelines across all caucuses". It goes on to use a term -- best practices -- that was used in the context of the Democratic Change Commission recommendations on caucuses in 2009. It is a desirable recommendation, but has proven tough to turn into a specific rule (or priority). 

Second, ambiguity in commission recommendations can create distance between the intention of said recommendation and what, if anything, the RBC devises in terms of a rule. This, too, can trigger more friction between two groups in the way the URC and RBC are currently aligned. Anything that produces a discrepancy between the recommendations and the rules is potentially problematic as the process moves to the DNC stage.

Finally, a lack of specifics in the recommendations can also make more work for the RBC on the backend, actual implementation.1 This is an important point and something distinctive on the Democratic side of the equation. Ambiguous -- and that is perhaps an imperfect descriptor in this particular case -- recommendations can make it difficult to develop clear rules and to then, in turn, implement them across all 57 states and territories. For example, the URC has a raft of recommendations on primaries. But only one of those recommended changes -- a requirement for states to pursue later party switching deadlines -- suggests specific means for implementing that recommendation: a delegate penalty.

The remaining primaries recommendations/requirements lean more on the RBC. To transition those recommendations to implementable rules on action items like the requirement for same-day or automatic registration, the RBC has a choice. It can add delegate reduction penalties rules to coax states into compliance -- a frontend protection for the national party -- or it can punt enforcement to the backend of the process, making approval of state party delegate selection plans contingent on hitting proposed new requirements for registration just as it does and has for delegation diversity requirements or primary calendar/timing requirements. Each route is workable, but the latter, while effective, adds to the workload of the RBC in the delegate selection plan approval phase of the Democratic process. That is a step unique to the DNC, a codified layer the RNC does not have in its concurrent process. The national party approves of plans ahead of time and uses delegate penalties first as a negative incentive up front, but also potentially as a last resort if compliance is not forthcoming from a given state party.

One could argue that a few more items to check is no big issue for the RBC. That is fair. But a few more items tacked on to the extant list becomes more daunting when one considers the impact those new items might also have on the waiver process the state parties have to undertake to either avoid penalty or gain approval for a plan (especially one affected by a state government not under Democratic control, for example).

None of the above is to be dismissed. And as the Democrats ease into the second step of the rules-making process for 2020, the Rules and Bylaws Committee will have much to consider as it deliberates about the Unity Reform Commission recommendations.

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1 The backend is the role the RBC plays in determining whether states comply with the delegate selection rules that are now in the process of being finalized. Alternatively, the frontend is the role the RBC has in helping devise those rules in the first place.

Friday, December 22, 2017

DNC Unity Reform Commission Report

Although FHQ previously posted and commented on many of these recommendations (see links below), the full Unity Reform Commission Report is embedded below. These recommendations will now proceed to the DNC Rules and Bylaws Committee for the 35 member group's consideration. The RBC has six months to consider and adopt the recommendations as they are and send them on to the full DNC. Otherwise, the RBC can send along to the full DNC their version -- either edited or completely reworked -- but if those changes do not adequately match the intent of the URC recommendations, the URC can place before the full DNC the recommendations below.

The RBC will convene on January 19-20, 2018 to begin its deliberations on the 2020 delegate selection rules. Those rules will be completed by August 2018.

Part three: Superdelegates recommendations

Wednesday, December 20, 2017

Unity Reform Commission: Superdelegates Recommendations

The following is part three in a series of posts on the recommendations passed by the DNC Unity Reform Commission during the group's final public meeting on December 8-9. While the text below matches the language presented at that meeting, there may be some subtle differences between the language here and the final report the URC will deliver to the Rules and Bylaws Committee by January 1, 2018. Those changes, if any, are unlikely to affect the intent of the substance below. Instead, the aim would be to tighten the language.

Below are the six URC recommendations for superdelegates. Any emphasis added -- bold and/or italicized language -- is FHQ's and is mainly focused in this section on any action verbs; an attempt to capture the commission's emphasis on particular goals. The vote of the commission on a given measure follows bolded in brackets. Further notes are added below each recommendation, indicating any amendments and whether/to what extent those amendments were adopted.

Part one: Primaries recommendations
Part two: Caucuses recommendations

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Superdelegates/Unpledged Delegates Recommendations
1. The commission concurs with the determination of the 2016 quadrennial Democratic national convention that the reduction of over 400 unpledged delegate votes equaling nearly 60% of the total unpledged delegate votes in 2016 will strengthen the grassroots role in our presidential nominating process. It is important to the commission that the grassroots voice in the presidential nominating process be amplified. 
[unanimous]

2. In regards to current unpledged delegates, the commission concurs with the 2016 Democratic National Convention that Democratic members of Congress, governors, and distinguished party leaders remain automatic delegates and unpledged on all matters before the convention, and that DNC members remain automatic delegates, but that their vote be pledged [bound] only with respect to the first ballot of the presidential roll call vote. 
[unanimous]
NOTE: Weaver requested unanimous consent to change what was presented originally as "pledged" be changed to "bound" throughout the section on unpledged delegates. The request was made to clarify the difference between types of delegates. On the one hand, those delegates elected through the delegate selection process to fill a slot allocated to a particular candidate based on the results of a primary or caucus are pledged (but not bound). Weaver sought to differentiate between those delegates and the segment of superdelegates -- automatic delegates, not elected but guaranteed a delegate position -- who would be bound under the provisions of this recommendation to candidate. A candidate has the loyalty of the former group, but an enforceable binding mechanism is required to regulate it in the latter. 
There was never an objection to the request for unanimous consent. With no objection the use of "pledged" was changed to "bound" throughout the unpledged delegates portion of the recommendations (with respect to the recommended creation of the automatic but bound categories of delegates). 

3. The commission recommends that the DNC will ensure that all party officials who have a role in the execution of the actual primary or caucus process in their state must be scrupulously neutral, both in reality and perception, in their administration of electoral activities. Any person who violates this important commitment to impartiality could be subject to loss of delegate status or other privilege they may hold at the DNC. 
[unanimous] 

4. The Commission recommends the creation of three categories of automatic delegates, one of which would remain unpledged and two of which would be bound on the first ballot of the presidential roll call.
A. Category one: Democratic members of Congress, governors and distinguished party leaders who remain automatic delegates and unpledged. 
[13-2 in favor with one additional abstention; Konst and Turner in opposition]

B. Category two: state elected DNC members, DNC members elected as a state chair, vice chair, state committeeman or woman who are not part of category one would remain automatic delegates. However, on the first ballot of the presidential roll call vote, their votes would be proportionally allocated based on the outcome of the primary or caucus in the state which elected them [subject to the same thresholds that apply for the awarding of at-large, pledged delegates]. 
[unanimous with one abstention] 
NOTE: The bracketed portion in the text was added as an adjustment after public approval by the URC and revealed during reconsideration of tabled items.
C. Category three: Officers at-large and affiliated members who are not part of category one or two would remain automatic delegates. However, on the first ballot of the presidential roll call vote, their votes would be proportionally allocated based on the national outcome of the primaries and caucuses [as measured by national allocation of pledged delegates subject to the same thresholds that apply for the awarding of at-large, pledged delegates].
[unanimous with one abstention] 
NOTE: The underlined portion in the text above is an FHQ correction to what was passed as "category two or three" by the URC. The creation of the three groups here was done to comply with the convention resolution that created the Unity Reform Commission. It was the intent of the group to have a hierarchy of categories from the remaining unpledged delegates down through the two necessary types of newly bound automatic delegates.1 Subsection C seeks to create the lowest/third category in that hierarchy, defining it by differentiating that group from the higher two categories. Category three cannot, therefore, differ from both category two and itself.
NOTE: The bracketed portion in the text was added as an adjustment after public approval by the URC and revealed during reconsideration of tabled items.
5. With respect to the actual mechanism of how these new automatic but bound categories will be allocated, the commission provides two options for the Rules and Bylaws Committee to review and adopt. Pursuant to the mandate of the 2016 Democratic National Convention, if the RBC adopts a different mechanism, this commission will review it to determine whether it constitutes a substantial adoption of the commission's recommendation. The commission anticipates that the deliberations of the RBC in this regard will be consultative in nature with the commission to ensure the joint goals of unity and reform are achieved. In drafting the two options, the commission considered but did not adopt alternate mechanisms that, while less complicated, would substantially increase the number of delegates. For all purposes, the use of the word state shall include the states, the District of Columbia, the territories, and Democrats Abroad. The Commission, therefore, provides the following mechanisms for first ballot voting for the presidential nomination to the RBC to review and adopt.

A. Pooled Vote Option
The votes of category two and category three delegates will be allocated as defined above. The state parties shall announce these allocations for category two delegates no later than when the state party certifies their pledged delegates to the DNC secretary. The DNC shall announce the allocations for category three delegates within ten days of the last nominating contest that awards pledged delegates. At the national convention, the votes from category two and three delegates shall be automatically reported by the secretary of the convention at the time of the presidential roll call vote or [and?] entered into the state tally sheet and voted in the normal order without ascribing the votes to any specific delegate.

B. Alternate Voting Option
No later than five days after the state's primary or caucus, the state chair shall poll the presidential preferences of the state's category two delegates and each category two delegate must make his or her binding preference known to the state party chair within 24 hours. If the proportion of category two delegates supporting each candidate matches the allocation to which each candidate is entitled, the state chair shall collect the written, binding presidential preference of each category two delegate and submit those preferences to the DNC. If the proportion of category two delegates for each candidate does not match the allocation to which each candidate is entitled, the state chair shall poll category two delegates currently supporting a candidate who has too many delegates and determine who is willing to change his or her binding presidential preference to another candidate who has fewer category two delegates than that to which she or he is entitled. If enough of these polled delegates agrees to change preference to provide a match to the number needed, the state party chair shall submit those changed preferences to the DNC. If the state chair determines that there is still an insufficient number of category two delegates supporting candidates proportionally, the state chair shall by lot determine which category two delegates supporting a candidate or candidates with an excess of delegates shall pass their vote at the national convention to a credentialed alternate delegate willing to support a candidate in deficit on the first round of balloting for the party's presidential nomination. Category two delegates chosen by lot in this manner shall retain all other voting rights, including the right to vote on all other matters other than the first round of balloting for the presidential nomination. Following this determination, the state party chair shall then collect and transmit to the DNC the written, binding presidential allocation of all category two delegates and alternates, if applicable, to the DNC. The DNC shall make public the identity of each category two delegate and any alternates as applicable and the candidate for which they have submitted a written, binding presidential allocation.

Those delegates who are in category three would be allocated similarly to those in category two as follows. The DNC would announce the allocation of category three delegates to presidential candidates no later than five days after the last nominating contest that allocates pledged delegates. If there are insufficient category three delegates to fill a presidential candidate's position, alternate delegates would be elevated to provide the needed presidential preferences. Once the DNC has achieved the requisite number of supporters for each candidate to match the allocation to which each candidate is entitled, the DNC shall then collect the written, binding presidential preference from each category three delegate and alternates as applicable. The DNC shall make public the identity each category three delegate and any alternates as applicable and the candidate for which they have submitted a written, binding presidential preference. 

If the state chair or the DNC determines that there is still an insufficient number of category two delegates or category three delegates, respectively, supporting candidates proportionally after attempting to allocate alternate delegates, the state chair/DNC shall still determine by lot which category two or category three delegates, respectively, supporting a candidate or candidates in excess shall pass their vote at the national convention. However, instead of passing the vote to an alternate, the vote of the delegates chosen by lot would be voted as abstain on the state tally sheet and as abstain during the roll call of the states. The secretary of the convention would then automatically announce and report a requisite number of additional votes to achieve the proportions required to reach the correct presidential candidate allocation of category two and category three delegates. 
[unanimous with one abstention]
NOTE: Both options in the subsections of section five were voted on together unlike the three subsections of section four above. 

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FHQ Thoughts:

Hands tied
There never really was all that much suspense over what kind of recommendations were going to emerge from the Unity Reform Commission with respect to superdelegates. It was set in stone by the same resolution that created the group at the 2016 national convention. As FHQ wrote at the time:
While the open primaries mandate was passive, the part of the amendment devoted to superdelegates had more teeth to it. In any event, there was more clarity as to the specifics of the superdelegates mandate of the commission. While the group will broadly consider the superdelegates' role in the process, it will specifically recommend that elected officials -- Democratic members of Congress, governors and distinguished party leaders (presidents, vice presidents, etc.) -- remain as unpledged delegates. However, the second part of the recommendation shifts the remaining superdelegates (approximately two-thirds of them) out of the unpledged category and into a pledged territory (to be proportionally pledged/bound based on the results of primaries and caucuses). [Emphasis added now by FHQ]
In other words, the URC had to make this recommendation to the Rules and Bylaws Committee. They could not recommend that any additional delegate be added to or removed from the unpledged category. And while the URC was stuck with this particular recommendation, it remains to be seen whether the full DNC will stick with these recommendations as currently constructed. FHQ is not suggesting that the DNC will not adopt the measure as written, but rather that the convention resolution does not bind the DNC in the way it did the URC on the matter.


Easier said than done (part one) -- Categorization
The catch in all of this is that it much easier to say that a particular segment of the heretofore superdelegates will in the future have their role/power constrained than it is to actually design and implement a system that accomplishes that goal. So while the recommendation was cut and dry, the system of achieving that directive was considerably more difficult in light of the fact that there are different types of DNC members (based on how they are chosen and/or end up on the DNC). Step one in this process was categorizing in Section 4 the delegates affected by the mandated recommendation. The segment unaffected by the changes -- elected officials and distinguished party leaders (former presidents and party chairs, etc.) -- is clear enough. But different DNC members would have to be treated slightly differently in shifting from unpledged to bound. That transition requires a different mechanism for state-elected DNC members (state party chairs, for example) and at-large or affiliated members (members who hail from states and have been a part of home state delegations in the past, but who are selected/elected nationally by the DNC).


Easier said than done (part two) -- Allocation:
Categorization in place, the URC designed in Section 5 not only a mechanism for allocating those delegates (in the introductory portion of Section 5), but two options (subsections A and B) for binding the DNC member delegates in categories two and three. The allocation part of the sequence naturally follows from the categorization step. Category two (state-elected DNC members) delegates would be allocated to candidates based on results in primaries and caucuses. The method is similar to how at-large delegates are currently allocated: proportionally to candidates with greater than 15 percent of the vote in the statewide result. In other words, that would layer an additional calculation into the statewide formula to go alongside that for at-large delegates and pledged party leader and elected official (PLEO) delegates. This third, separate calculation would allocate, for example, approximately 30 percent of the category two delegates in a state to a candidate who has won 30 percent of the statewide vote.2

But category three (nationally elected DNC members) delegates are allocated similarly, albeit with a catch. Rather than being proportionally allocated based on statewide primary or caucus results, the nationally selected DNC member delegates would be proportionally allocated based on the final national results in all primaries and caucuses. The qualifying threshold would be the same 15 percent, but nationally instead of statewide.


Easier said than done (part three) -- Binding:
The first option laid out by the URC for binding, the Pooled Vote Option, borrows a concept employed by the RNC for the first time during the 2016 cycle. Essentially, the pooled vote option would do two things: 1) pool all of the category two and three delegates and 2) automatically have the secretary of the convention count their votes. This is akin to the binding mechanism the RNC instituted for the 2016 convention. And the intent in this case as in the RNC one is the same: to keep bound but conflicted delegates in line. Imagine a number of Sanders-bound but Clinton-sympathetic delegates at the Philadelphia convention, for instance, if this provision had been in place during the last cycle. Those delegates would not be unlike the Trump-bound, but Cruz/Kasich/Rubio-sympathetic delegates who were locked into Trump votes by the convention secretary during the roll call vote at the Cleveland convention.

How does the party/convention prevent mischief -- violating the binding by voting in line with the conscience -- in this type of scenario? There are two schools of thought. The first is to do what the pooled vote option lays out. It would remove the action/decision -- the ability to vote -- from the individual delegates on the first ballot nomination vote (and that vote alone). Once those delegate slots are allocated to the candidates at the time of certification of the state results (category two delegates) or once primary season is over (category three delegates), that is it. They would be added to the overall tally (and the state tallies for category two delegates) at the commencement of the first ballot roll call vote. The "who" filling that slot would be meaningless. In fact, it would be entirely withheld. The voting slots would be allocated, but remain basically unfilled; empty slots with votes automatically cast for a particular candidate on the first ballot.

Alternatively, a party/convention could employ a replacement strategy. This is what the DNC rules provide for in the case of all other pledged delegates. If, for example, a Sanders allocated slot is filled with a delegate candidate who is not loyal to -- or willing to vote for -- Sanders at the convention, then the Sanders team would have the ability to replace that delegate candidate with one who would at least be more likely to support that outcome. This is a concept FHQ raised when discussing the constraints the URC would face in dealing with a new class of automatic and bound delegates. After all, it would be a different proposition altogether to replace elected DNC members than it would be to fill allocated pledged delegate slots with loyalists as among pledged delegates now.

And while the DNC did not provide a full replacement option for the RBC to consider in lieu of the pooled vote option, it did attempt to thread the needle on a more complex alternative. The Alternate Vote Option allows DNC member delegates to retain their actual voting privileges on the first ballot nomination vote while attempting to mitigate some of the conscience and replacement issues with some constraints.

For category two delegates -- those elected on the state level -- this would work in a series of steps:
  1. Poll the preferences of state-elected DNC members. If the outcome of the preference poll matches the proportional distribution resulting from the state primary or caucus, then those automatic delegates would submit a written binding agreement to the DNC. If not, then the process would move to step two.3 
  2. Volunteer alternates: If a candidate has a surplus of preference votes as compared to the primary/caucus vote-based allocation, then the state party chair would ask for volunteers from the surplus candidate's supporters to volunteer to be bound to another candidate via the same type of written binding agreement in step one above. Should fewer volunteers come forth than would be necessary to right the allocation, then move on to step three. 
  3. Bound by lot alternates: If the surplus still exists, then the appropriate number of the surplus candidate's supporters would be chosen by lot to be bound by written binding agreement to another candidate to correct the allocation for the first round roll call vote. 
There is no mechanism at the secretary of the convention level to enforce the binding mechanism in a manner similar to the pooled vote option. However, the party would have the written binding agreement on which to lean, and additionally would make public the identities of the category two DNC members and the candidate to whom they are bound. That is, perhaps, a marginally softer binding process than the more severe pooled vote option.

For category three delegates, the process is slightly different. If, after the post-primary season allocation, there is a mismatch between the number of nationally elected DNC members aligned with still active candidates and the number of slots allocated to that candidate, then alternates would be elevated to correct the count.

Now, there are a couple of factors to note here. First, it is not clear from where these alternates come nor the process (if any) whereby they are selected in order to be elevated. Presumably, this task would fall to the RBC if they opt to pursue this option rather than the pooled vote or other option. Bear in mind also that these alternates would only replace the group of mismatched category three delegates on the first ballot nomination vote. The original DNC members would retain voting privileges on all other matters. And again, those mismatches represent an unknown number of additional bodies for whom the DNC would have to logistically plan. That means finding a large enough space to hold a convention and location/city that can accommodate them (and media). This is something the DNC is sensitive to since it reduced the number of base delegates by 500 between 2012 and 2016. This is likely why the URC did not recommend a similar alternate elevation process for category two delegates under this alternate vote option.

Secondly, the timing is important with respect to this process for the category three delegate allocation. It occurs at the end of primary season when typically the process has run its course. Typically. If there is one candidate remaining -- the presumptive nominee -- then this process is potentially easier to complete. Candidates who have withdrawn would have far less incentive to push for the elevation of alternates for a vote on the nomination they are not seeking.4 Then again, this is a mechanism for a competitive conclusion in which the nomination is unsettled heading into the convention. Even then, with fewer superdelegates, the margin would have to be within the margin of unpledged category one delegates if the choice was binary. If there were multiple candidates still vying for the nomination, however, things would be a bit messier.

And it seems like that multiple candidate convention scenario is the one that the final section of 5.B, is directed toward; the situation in which after all of the preceding maneuvering, neither the state party nor the DNC has the proper number bound category two and three delegates allocated to each candidate. Given that set of conditions, the remainder would be determined by lot but counted as abstain on the roll call tally and/or the state tally before being automatically added at the conclusion by the secretary of the convention.

One cannot say that the URC did not account for most things in these options. However, they are increasingly detailed and complex. It is easier to say delegates would be bound than to actually put a process in place to bind them.


Release the bounds
And what of the potential release of the newly bound delegates? The open secret about the Democratic nomination process is that all the delegates are technically free to vote for whichever candidate they choose. However, due to the manner in which the vast majority of delegates are selected -- essentially slated by the candidates (an oversimplification) -- those delegates rarely stray from the candidate to whom they are pledged. This differs from a Republican process that binds delegates to particular candidates based on the results in primaries and caucuses, but allows for the release of those delegates should the candidate to whom they are bound withdraw from the presidential nomination race.

There is no specified mechanism in the URC recommendations that accounts for that combination of possibilities. What happens to automatic delegates bound to candidates no longer actively seeking the party's nomination? The above recommendation implies that those delegates would be bound regardless of whether a candidate continues to actively seek the nomination or not. But again that is not specified. It is also unclear whether this task was punted to the RBC. However, it is something that they would likely have to consider particularly with respect to Category Two delegates. The Category Three at-large and affiliated members would be bound based on the national results rather than the state-by-state results. While Category Two delegates could conceivably be bound to candidates who cleared the 15 percent qualifying threshold, it is less likely, though not completely out of the question, that a candidate could stay above 15 percent nationally without having competed in all or most contests. But one could see that happen much more frequently on the state level, especially in the earlier states on the primary calendar. This is not an issue that will affect a lot of delegates, per se, but it is one with which the RBC will have to potentially contend when the rules baton is passed their way. That is also an area that could be a point of departure between the RBC and the URC.


Unanimity again (but with caveats)
As with the other two sections more directly linked to the delegate selection process, the voting on the unpledged delegates section of the recommendations saw more unanimity as a rule. However, unlike the draft recommendations in the primaries and caucuses sections, there were exceptions. Yes, RBC chair, Jim Roosevelt, abstained from voting on any measure that would come before the committee he chairs. That was consistent throughout the URC voting process. But in one case there were votes of dissent. When the matter of the preservation of unpledged, automatic status for members of Congress, governors and distinguished party leaders came up for a vote, two Sanders-appointed URC members -- Nina Turner and Nomiki Konst -- voted against. The remaining Sanders-affiliated members on the commission voted for the recommended change mandated by the resolution creating the URC. This was more symbolic than anything. The recommendation still passed with overwhelming support, and despite the break in what proved to be regular unanimity, the vote signals strong support to the Rules and Bylaws Committee and the DNC.


Superdelegates versus Automatic delegates
The above distinctions raise another related delegate distinction that merits some discussion as well. FHQ got some pushback on social media during the final URC meeting for stating that the number of superdelegates would be reduced under the provisions of this recommendation. The major point of contention was that italicized portion. Some contended that the number would remain the same, but that in the future, some would be bound and others would remain unpledged. This is a fair point, but it raises an interesting question: What makes a superdelegates super? The above pushback suggests that the automatic delegate status is sufficient to a delegate being considered super. But FHQ would/could counter that it is both the automatic status and the delegate's unpledged status combined that make them super. And if a superdelegate loses those unfettered voting privileges on the first ballot of the presidential nomination at the convention, then they are less super or not super at all. Should the DNC adopt these recommendations as they are currently crafted, then, for the sake of clarity, FHQ will refer to category one above as superdelegates and those of categories two and three as automatic bound delegates.

Of course, the DNC nomenclature on this has been different from that generally used by the public since the party added superdelegates to the nomination equation for the 1984 cycle. The national party has always tried to keep the label "superdelegates" at arm's length; preferring to call them unpledged delegates instead. In fact, both the URC resolution and subsequently the URC have referred to them in this manner -- unpledged -- adding "or as they are also sometimes known, superdelegates" to the discussions regarding this portion of their mandate. As such, one could also simply call these new categories (automatic) unpledged and (automatic) bound and move on.


(Over)reaction:
FHQ will not belabor the point here. This has gone on a bit already. Yet, for a recommendation that was set in stone from the birth of the Unity Reform Commission at 2016 Democratic National Convention, it is worth noting that this compromise on superdelegates has been the most contentious of the lot throughout the life of the commission. No, that has not necessarily been the case on the URC itself. Again, despite the diversity of opinion on the commission, their hands were tied on the matter. The group had to make this recommendation to the Rules and Bylaws Commission.

While those various viewpoints were voiced in the context of the commission's work, most of the contentiousness was on the outside. Banners were raised for the cause of abolishing superdelegates and countered by others wanting to maintain the status quo. And that is all fine. In the context of the URC and the document that guided it, however, that sentiment -- on either side -- was misplaced. The group could have the discussion, but it was not going to affect its mandate to recommend a middle ground; a specific reduction in the number and role of superdelegates. The only lingering questions were always over implementation.

The matter -- where to come down on this superdelegates recommendation -- will ultimately be a balancing act for the full DNC. And balancing is nothing new to the DNC, or parties generally. In a recent New York Times op-ed in the wake of the final URC meeting, Julia Azari and Seth Masket spoke of a party's task of balancing the "need to win elections but also find a way to channel the different voices within their coalitions." But that second part -- the channelling of voices -- contains its own delicate balance. As Jennifer Victor described in an exchange with FHQ on superdelegates before the final round of URC meetings, "Effective democracy requires a balance of populism and elite control. Too much of one, or the other, produces suboptimal outcomes."

And that is essentially the crux of this. Superdelegates have been a part of the Democratic Party attempt at balancing populist and elite voices in the process since and during the era following the McGovern-Fraser reforms. Those who pushed through and won those reforms at and after the 1968 Democratic convention did not anticipate the proliferation of primaries that followed. Theirs was a vision of a wading into democratization, not the cannonball that states ultimately provided. To comply with the delegate selection rules changes the DNC instituted for the 1972 cycle, more states opted for the easier, state-funded primary route than the caucuses many of those behind the reforms expected. It was one of the earliest unintended consequences of the reforms.

But at its core, those changes were about the balance between the populist and elite voices in the party and the nomination process. Superdelegates were added for 1984, in part, to recalibrate the balance between the two. Not to tip in one direction or another, but rather to account for both in the process.

And although the process both internally and externally has evolved in the time since 1984, there has not been a concerted effort to revisit that balance. The issue of superdelegates has certainly been raised, but the share of superdelegates to total delegates has remained in the 15-20 percent range. And that was true even after the formula was tweaked after the 2008 cycle.

This URC recommendation is bigger than a tweak and gets at the type of change to the populist/elite balance that Victor cited. Is it too much of a lurch in the populist direction or not enough? That is the question. If the parties could go into the lab and try these things out in a dry run before the real thing they would. Instead, they are stuck with trial and error in real time during the actual primaries. That is often a road toward unintended consequences. And if one were to try to pinpoint one of those in any of the delegate selection recommendations from the URC, then the conventional wisdom of the current time would likely hold that, ahead of a competitive nomination race with no lack of prospective candidates, this superdelegates reduction is it. Is it? Will it be? Time will tell that tale.

...but the DNC will have to adopt these recommendations first.



Part one: Primaries recommendations
Part two: Caucuses recommendations


--
1 It should be noted that there is an order to this division of automatic delegates. Should any of the delegates fit into multiple categories, then such a delegate would, for the purposes of this recommended change and its possible implementation, be counted in the highest of the categories. A delegate who is both a member of Congress and a DNC member, for example, would fall into Category One above and be treated as such rather than being slotted into one of the two bound categories.

2 The at-large, PLEO and category two (automatic bound) delegates would be separately allocated in this manner -- three separate calculations -- rather than being pooled and allocated together as one statewide group of delegates. This is how at-large and PLEO delegates have been treated in national party delegate selection rules and resulting state delegate selection plans.

3 This outcome is possible, though perhaps not probable.

4 It is conceivable in that case that the convention votes to unbind those delegates (and perhaps category two delegates previously bound following state contests) for the roll call of states.

Friday, December 15, 2017

Unity Reform Commission: Caucuses Recommendations

The following is part two in a series of posts on the recommendations passed by the DNC Unity Reform Commission during the group's final public meeting on December 8-9. While the text below matches the language presented at that meeting, there may be some subtle differences between the language here and the final report the URC will deliver to the Rules and Bylaws Committee by January 1, 2018. Those changes, if any, are unlikely to affect the intent of the substance below. Instead, the aim would be to tighten the language.

Below are the six URC recommendations for caucuses. Any emphasis added -- bold and/or italicized language -- is FHQ's and is mainly focused in this section on any action verbs; an attempt to capture the commission's emphasis on particular goals. The vote of the commission on a given measure follows bolded in brackets. Further notes are added below each recommendation, indicating any amendments and whether/to what extent those amendments were adopted.

Part one: Primaries recommendations
Part three: Superdelegates recommendations

--
Caucuses Recommendations
The commission makes the following recommendations:
1. A caucus state delegate selection plan for presidential nominating caucus shall only be approved if it...
A. requires absentee voting.
B. demonstrates that the submitting state party has the financial and technical ability to successfully run the caucus.
C. requires same day voter registration and party affiliation changes at the caucus location.
D. requires the public reporting of the total statewide vote count for each candidate based on the first round of voting [expression of preference by caucus participants].
NOTE: Weaver amendment (to 1.D.):
This made the technical change from "round of voting" to "expression of preference by caucus participants". The latter appears in brackets above and is the adopted language of the recommendation.
[unanimous]
E. requires votes for the presidential nominating process to be cast in writing in a method to be determined in each plan to ensure an accurate recount or re-canvas is available. One model option could be the adoption of the firehouse caucus.
F. includes the standard and procedure by which a recount or re-canvas can be requested by a presidential candidate and carried out in a timely manner.
G. locks allocation of all national delegates based on the initial round of voting.1
NOTE: Voted on as a block
[unanimous with one abstention]

2. A state delegate selection plan for presidential nominating caucus must include a narrative of the specific actions the state party is taking to limit the impact of any voter suppression or disenfranchisement being imposed on the electoral process by the state. 
[unanimous with one abstention]

3. In states with five or more congressional districts that hold a state-run Democratic presidential primary, there should be presumption that the state's delegate selection plan use the outcome of primaries to allocate delegates for the respective presidential candidates rather than a caucus.
[tabled during amendment discussion and not returned to during public reconsideration of tabled items]
NOTE: Huynh amendment (to 3):The change would remove "in states with five or more congressional districts that hold a state-run Democratic presidential primary," thus removing the exception carving out for Nebraska the ability to use a caucus format when there is also a state-funded primary option in the Cornhusker state.  
[tabled and not reconsidered] 
Motion to table the Huynh amendment came to 9-9 tie, but the chair and vice chair both sided with the "to table" side, thus tabling the amendment.
[11-9 to table]
4. The commission further recommends that the DNC institute a national training program and convening that provides best practices guidance on selecting accessible locations, ideas on making caucuses a positive and inclusive experience for voters and outlines rules the DNC has provided to ensure that caucuses are open and transparent. 
[unanimous with one abstention]

5. The commission recommends that the DNC work with state parties to create consistent standards and guidelines across all caucuses that allows for the implementation of best practices for information dissemination and reporting of votes. The DNC should also explore technology resources available to support state parties in creating a tracking and reporting system that candidates can use to streamline the registration and reporting process. 
[unanimous with one abstention]

6. Finally, the commission recommends that the appropriate steps be taken to ensure caucus voters like those in primary states have a right to participate in the caucus process. These steps should include any required rule changes and the proper education and outreach to ensure the right to caucus is enshrined in our process at every level. 
[unanimous with one abstention]


--
FHQ Thoughts:
  • Laundry list: The list of seven items in section one of the caucuses recommendations above is perhaps not as important as the clause prefacing those items. That line provides a hurdle over which caucus states must jump. In order to have their delegate selection plans approved by the Rules and Bylaws Committee in 2019, caucus states must hit each of those seven benchmarks if these recommendations are ultimately adopted and implemented.  In some ways this lends teeth to the provisions in a manner similar to the recommended changes to Rule 21(B) included in the primaries recommendations. Whereas primary states will now presumably have to demonstrate to the RBC that they have taken steps including pursuing litigation to alter state law in conflict with national party rules -- particularly on the converging of deadlines for party registration and switching -- caucus states will have to provide for absentee voting, for example, in order for the RBC to sign off on the plan. Of course, there is a difference between the two groups of states under these proposed changes. Primary state Democrats would have to demonstrate an/every effort has been made to make changes to state law (even in Republican-controlled states). However, caucus state Democrats would have no such potential partisan hurdle to clear. They would have to account for all seven items on the list or not have the delegate selection plan approved. 
  • Laundry list, part two: Looking over seven items in section one, the reality as recognized by the URC and intent are clear: Caucuses are inevitable under certain circumstances (red states with no state-funded primary option), but where that is the case, caucuses should, and in fact, would function as much like primaries as possible. Simply put, these provisions, if adopted, would fundamentally alter the way in which caucuses are conducted in the context of the Democratic presidential nomination process. Results may vary in terms of how and to what extent caucus states provide for absentee voting, for example, but no longer would the demands of participation have to include gathering, conversing and congregating in a room for potentially hours at a time while presidential preference (among other things) is gauged. Again, results will vary across states in terms of how and to what extent this is all implemented. A caucus state can have absentee voting in place but how far reaching is it? What is the ease of that process in terms of drop off and number of locations? That is something -- the kind of bare minimum standards and allowance for variation across caucus states -- that the RBC will have to flesh out on its end. On this matter, it should be noted that both sections two and six bolster this establishment of a baseline in the process.
  • Penalties: No, there are no penalties included or specified in this section, but the included RBC approval hurdle functions in that manner without specific penalties. The RBC may later add delegate reductions or bonuses, but the committee may also find that unnecessary and superfluous to the approval barrier. 
  • Unanimity: As was the case in the consideration of the primaries recommendations, those for caucuses were also unanimously supported by the members of the Unity Reform Commission. The exceptions similarly were on two fronts. First, the votes to abstain were all from RBC co-chair, Jim Roosevelt, who abstained so as to not prejudge any matter that will ultimately come before and be debated by the RBC. The second break in unanimity was again, as in the primaries section, on amendments consideration. And the signal from that is clear. Essentially it amounts to the commission having agreed to certain language, but that it would entertain additional changes. The more controversial the change -- as in David Huynh's amendment to section three -- the less likely it was to be adopted. 
  • Caucus confinement: Speaking of section three and Huynh's proposed amendment to it, there are a couple of important factors to highlight; one indicative of how the DNC views caucuses and the other procedural in nature. Indicative: In an overarching sense, section three would further define the DNC's evolution on caucuses if adopted and implemented by the RBC. This section builds on the RBC quietly ending the two-step primary-caucus in Texas in 2015. Prohibiting that practice and augmenting it with this section makes clear the end goal: to confine the overlap of caucusing and delegate allocation to smaller states where they are better (though perhaps not ideally) suited and only in larger states if no primary option exists. With Colorado, Maine and Minnesota voluntarily joining the ranks of the primary states for 2020, Democratic caucusing is a western phenomenon in mainly smaller red states. The exception is Washington, and this provision eliminates caucusing in the Evergreen state as a possibility since Washington has a state-funded primary option. If this recommendation is adopted and implemented, then the largest Democratic caucus states will be a handful of four congressional district states: Iowa, Nevada and Utah. Despite a state-funded option, Nebraska is exempt since it has fewer than five congressional districts (amendment to section three discussion not withstanding). Procedural: Now, it should be noted that the provisions of section three of these caucuses recommendations are presumptive. It is presumed that the if a state provides a primary option, the state party will utilize that option. However, it is not required as some of the provisions of section one are. Neither is this included in section one. The provisions of section three -- the limitations on caucus usage -- are not preconditions for state delegate selection plan approval. There are, then, fewer teeth to this section. Yet, this is a matter on which the RBC will have some latitude in crafting rules. Not to deliver false hope to those hoping to see further curbs on caucuses, but the RBC could choose to elevate section three from presumption to requirement/precondition for plan approval.
  • Training programs are the new best practices: The development of best practices in caucusing was a priority of the Democratic Change Commission, the Unity Reform Commission's 2009 predecessor. But that was an aspirational goal, and one that continues to linger for the most part eight years later in section five above. The inclusion of training programs for better conducting caucuses in section four is similarly aspirational. Both are mostly out of the rules-making capacity of the RBC and instead lie under the broader domain of the DNC and its ability to finance such programs. 
  • Election night data nerds and election practitioners rejoice: Requirements for caucus voting in writing (in order to provide for a recount/recanvas process) and a cataloging and public reporting of first presidential preferences in caucusing are wins for those who want more out of caucus night than state delegate equivalents on and after those caucuses. [Yes, that one is self-serving.] 

Part one: Primaries recommendations
Part three: Superdelegates recommendations

--
1 It is unclear whether the Weaver amendment above affects the last portion of 1.G. as well as 1.D. The section and its seven parts were voted on as a block. But the discussion of "round of voting" versus "expression of preference by caucus participants" was specific to 1.D and what would follow "first" in that subsection. For consistency purposes (and perhaps because the section was voted on together rather than piece by piece), the language may eventually be carried over to 1.G. as well.

Thursday, December 14, 2017

Unity Reform Commission: Primaries Recommendations

The following is part one in a series of posts on the recommendations passed by the DNC Unity Reform Commission during the group's final public meeting on December 8-9. While the text below matches the language presented at that meeting, there may be some subtle differences between the language here and the final report the URC will deliver to the Rules and Bylaws Committee by January 1, 2018. Those changes, if any, are unlikely to affect the intent of the substance below. Instead, the aim would be to tighten the language.

Below are the nine URC recommendations for primaries. Any emphasis added -- bold and/or italicized language -- is FHQ's and is mainly focused in this section on any action verbs; an attempt to capture the commission's emphasis on particular goals. The vote of the commission on a given measure follows bolded in brackets. Further notes are added below each recommendation, indicating any amendments and whether/to what extent those amendments were adopted.

Part two: Caucuses recommendations
Part three: Superdelegates recommendations

--
Primaries Recommendations
The stated principles the Unity Reform Commission sought to establish in this section were to 1) emphasize inclusivity in the process and 2) party building through primaries. As URC vice chair, Larry Cohen said, the group wanted to "push to the limit" on those principles. That effort is reflected more clearly in the language of recommendations 1-5. Each includes the use of "all means" the party has at its disposal and all but one establishes a requirement for state parties to account for in their delegate selection plans for 2020. 


Recommendations:
1. The DNC and the party at all levels shall use all means including encouraging legislation and changing party rules to expand the use of primaries wherever possible.1
[unanimous but with one abstention]

2. The DNC and the party at all levels shall use all means including encouraging legislation and undertaking litigation to require states to use same day or automatic registration for the Democratic presidential nominating process.
[unanimous]

3. The DNC and the party at all levels shall use all means including encouraging legislation, changing party rules and undertaking litigation to require states to use same day party switching for the Democratic presidential nominating process. As part of those efforts, it shall be the position of the Democratic party as an example that an otherwise eligible voter should be able to participate in a Democratic presidential primary if she or he presents officials at the polling location with written notice that she or he wishes to be enrolled in the Democratic party.
[unanimous]

4. The DNC and the party at all levels shall use all means including encouraging and opposing legislation, changing party rules and undertaking litigation to resist any attempts at voter suppression and disenfranchisement. Voter suppression and disenfranchisement includes but is not limited to laws or regulations that make it more onerous for people to vote as well as administrative actions or inactions related to issues such as the number and placement of voting locations and the adequacy and accuracy of state voting rolls including party identification where required. In advance of the 2020 Democratic nominating process, the DNC should identify such issues on a state by state basis and seek to remedy them prior to voting in 2020. This would include the timely pursuit of prospective judicial relief where appropriate.
[unanimous]

5. The DNC and the party at all levels shall use all means including encouraging legislation, changing party rules and undertaking litigation to require states to allow voters to switch parties at least as late as the deadline for registering to vote. With respect to any state that has a deadline for party switching which is earlier than the deadline for voter registration, the rules of the party shall be amended to impose an appropriate penalty which could include a reduction in the number of pledged delegates to the Democratic national convention to which the state would otherwise be entitled or potential adjustments to state party support. State parties that are able to demonstrate that all provable steps including litigation as determined by the Rules and Bylaws Committee have been taken to change the party affiliation deadline but were not successful in the efforts should not be penalized.
[unanimous]
NOTE: Weaver amendment on open primaries/independent participation {Proposed 5.A.}:
The DNC and the party at all levels shall use all means including encouraging legislation, changing party rules and undertaking litigation to require that states permit non-aligned voters, also known as indpendent or no party preference voters, to participate in the Democratic presidential nominating primary. With respect to any state that does not permit non-aligned voters to participate in its Democratic presidential nominating primary, the rules of the party shall be amended to impose and appropriate penalty which could include a reduction in the number of pledged delegates to the Democratic national convention to which the state would otherwise be entitled or potential adjustments to state party support. State parties that are able to demonstrate that all provable steps including litigation as determined by the Rules and Bylaws Committee have been undertaken to require the participation of non-aligned voters but were not successful in the efforts shall not be penalized.
[11-6 against. Vote broke along Clinton/Sanders lines among the membership of the Unity Reform Commission (with the three chair-appointed members on the Clinton side).]

6. The party must develop a strategy to prioritize and resource education programs directly to voters in those states due to no fault of the party that continue to have confusing timelines for registration and party affiliation [and the process for running for delegate] in order to ensure everyone knows the rules and timelines in place and the impact they have on voter participation.
[unanimous] 
NOTE: Bracketed portion in section 6 above added "for emphasis" by Zogby amendment. [unanimous] That phrase was signified "for emphasis" because it is at least somewhat duplicative of current delegate selection rules/remedies requiring the public reporting of the process for running for delegate.

7. The DNC shall publicly report on an annual basis its efforts and the result of those efforts to secure the changes in paragraphs 1-6 above.
[unanimous]

8. The Rules and Bylaws Committee and the Democratic National Committee shall review the allocation of national delegates to ensure it reflects the principle of proportionality among the several jurisdictions as well as any bonus delegates allocations currently being used.
[unanimous]

9. The Rules and Bylaws Committee shall modify the requirements for provable positive steps as provided in Rule 21(B) to include legal remedies as a corrective measure to bring a state law into compliance with our rules.
[unanimous]


--
FHQ Thoughts:
  • Open primaries: Much has been and will be made of the fact that the open primaries amendment -- a requirement for having and (an unspecified) penalty for not having -- offered by former Sanders campaign manager, Jeff Weaver, was rejected. It was included as most big ticket amendments more for symbolic purposes.2 That was clear from the procedure for consideration and voting put in place by the URC. The group was working from a baseline draft of recommendations and had a packet with not only those draft recommendations but some pre-drafted amendments as well. The nine baseline recommendations were non-controversial as evidenced by the unanimous votes on each while the open primaries amendment was more controversial in nature. Unlike the nine baseline recommendations, the open primaries amendment broke along Clinton/Sanders lines on the commission, and was inconsistent with the thread binding the nine recommendations together: those goals of inclusivity and party building. Together, all nine are about getting the national party on record as prioritizing both symbolically (in words) and structurally (in rules) an easing of the burdens on registration in the presidential nomination process. That is paired with a desire on the commission to have voters go into the voting booth enrolled as Democrats whether via same day or automatic registration, a party registration switch or other means. In other words, make it as easy as possible to register, but go vote as Democrats. The former hits the inclusivity goal while the latter gets at the party building aspect. But there is no new requirement nor penalty for open primaries.
  • ImplementationAs FHQ has noted elsewhere, these changes -- to participation and/or registration requirements -- are easier said than done. There is a potentially partisan/adversarial state legislative/state government component to be accounted for in this equation. Democrats, as Scott Meinke noted to me via Twitter during the URC meeting, face a much different environment now than they did when the party was first implementing and tweaking the McGovern-Fraser reforms during the 1970s. Unlike then, Democrats will find far less sway with Republican-controlled state governments across the country than the Democratic majorities that were far more typical then. Yes, that can and maybe even likely will change in 2018, but the tide is not likely to extend to the beach head the party found greeting the sweeping rules changes after 1968. 
  • Penalties: There are a lot of new usages of "require" peppered throughout these recommendations. However, there are not many penalties in place here to help enforce those new requirements. The only suggested penalties are for any states with deadlines for switching party affiliation that are sequenced well ahead of party registration deadlines. In every other instance -- on same day or automatic registration, on the expansion of primaries, on same day party switching -- there is no suggestion of penalty. This does not mean that penalties will or will not be put in place on those matters. Rather, it indicates 1) a prioritization of the mismatched registrations deadlines issue (more on that one below) and 2) that the URC has deferred to the Rules and Bylaws Committee the task of tailoring the best implementation of these recommendations. If penalties are a part of that implementation, it will be the RBC that devises and specifies them. 
  • Expansion of the use of primaries: Again, this recommendation is more about getting the party -- the DNC -- on record in terms of what its priorities will be in the presidential nomination process moving forward. And this recommendation, in combination with those on caucuses, demonstrates 1) the recognition that caucuses are nearly inevitable in  a small handful of states and territories, but 2) primaries are the preferred option where available. The latter is covered by the first recommendation above while the former will be discussed at length in the caucuses section.
  • Proportionality: The DNC has mandated a proportional allocation of pledged delegates in its delegate selection process since the 1980s. However, due to the way in which those pledged delegate slots are classified and allocated, the proportionality mandate has never made mathematical proportionality statewide the goal. Some delegates are allocated statewide, and others by congressional district. That split -- the different classifications -- can disrupt what FHQ will refer to as true proportionality. Additional factors disrupt a true proportional allocation as well. First, the other component to the proportionality mandate is the qualifying threshold. Candidates must receive 15 percent of the vote statewide and/or congressional districts to be allocated any delegate slots. Any delegates not allocated to those not meeting the threshold are allocated to those who have. Second, the size of the state matters. Proximity to true proportionality is more likely in larger states. But in smaller states with a smaller number of total delegates, true proportionality as a goal can be more difficult. Differently stated, it is more difficult to proportionally allocate a small number of delegates in a congressional district (or other subunit as in one congressional district states) than a larger number of delegates at-large/statewide in larger states. These types of issues were particularly acute in a state like Wyoming in 2016 where the pledged delegates were evenly split between Clinton and Sanders despite Sanders having won more delegates to the state convention.3 Regardless, it is the recommendation of the URC that the Rules and Bylaws Committee review that proportionality process.
  • Rule 21(B): This is a fairly important modification that FHQ will dwell on in a subsequent post. However, the short version is that Rule 21(B) lays out the procedure for state parties to pursue in the event that the state government in that state has laws -- on primary timing, on registration, etc. -- that conflict with the national party rules on delegate selection. To avoid sanction, states parties in conflict would have to demonstrate that they have taken provable positive steps toward bringing about a resolution to the conflict (changing state law). Those provable positive steps now include a state party pursuing non-frivolous litigation to bring about the change. And that is a higher bar for state parties to achieve and a potentially much more costly one; one that will likely require an assist from the DNC. When URC vice chair, Larry Cohen, said in leading the primaries section discussion that the recommendations would push the limit, this litigation addition was the meat of the push. But it does give the Rules and Bylaws Committee something significant to consider during its deliberations. 
  • New York and party switching: The primaries section, again, is geared in part toward reducing the burdens on registration; focusing on the pursuit of automatic/same-day registration and the ability to switch party registration as easily. But there is also some singling out of what the URC sees/saw as bad practices. One of those -- and it is the one area where the URC actually suggested the need for penalties of some variety -- was the lengthy gap between the registration deadline and the change in party affiliation deadline in New York. Constantly held up as a problem child through many of the URC meetings, New York has in place a deadline more than six months in advance of the presidential primary for switching parties but a much later deadline for registering. There are a handful of other states that also have similar, though not as large, gaps between the two deadlines. Recommendation #5 above is about singling out that small group of states and cleaning up those issues. And to be clear, this is not the only instance of singling out what has been deemed bad behavior. There is more of that in the caucuses section as well.
Part two: Caucuses recommendations
Part three: Superdelegates recommendations

--
1 The conversations around this recommendation among the URC members revealed that "primaries" referred to a state-run option.

2 Contrast the Weaver amendment to section 5 with the more extemporaneous Zogby amendment to section 6. The former was in the packet from which the commission was working while the latter was not. The former was also more sweeping in nature, and thus what FHQ will call here a "big ticket item" for consideration by the commission.

3 A part of the issues in Wyoming is a caucuses story overlapping with the proportional allocation. The results in Wyoming were counted in terms of delegates to the state convention won and not the raw votes in the initial local caucuses. This is an issue the URC tackled in its recommendations on caucuses.

Tuesday, December 5, 2017

Unity Reform Commission: If both sides are complaining, then you must be doing something right.

Recently, FHQ spent some time discussing Sanders-appointed Unity Reform Commission member, Nomiki Konst's charge that the URC has been or could end up being a "dog and pony show" in part because it is "stacked" with members who will vote against the reforms Sanders himself is promoting.

These sorts of accusations are not and have not been exclusive to the Sanders wing of the URC. Whichever name one settles on, the Clinton/establishment/anti-Sanders faction on the commission and its supporters have also made similar statements, whether calling the URC [potentially] "rigged" in Sanders' favor or that the URC will have been a "sham" if it does not accomplish this reform or shoot down that proposal. Both of those quoted charges above come from Armando over at Daily Kos. And, look, both pieces (see links) and any subsequent ones in the series are worth a read. But each suffers from a level of Sanders conspiracy theorizing that just does not jibe with reality of discussions on the commission.

Everything there centers on the same hypothetical proposal that FHQ discussed at length back in September (excerpted below) and has been a drum Armando has continued to beat in the time since:
While the spotlight is on caucuses, I want to take an opportunity to address a rather strange narrative on caucuses that has blossomed during the summer months. The idea, as proffered by Armando at Daily Kos and picked up by some in the national media, amounts to this: Sanders-affiliated members of the URC are aiming to propose "a rule that will call for the the Democratic Party Presidential nominating rules to require a state either hold open primaries or if the state refuses, and instead holds a closed primary, that a state party hold a caucus instead to select presidential nomination delegates." 
Now, on the one hand, this would create an expansion of the types of contests in which Sanders was most successful during the 2016 presidential primary calendar. That would be an understandable push for Sanders-appointed members on the Commission, and the behavior would not necessarily be that atypical. Proxies advancing the interests of their candidates in these settings is nothing new. What would be different is the Sanders folks attempting to include such a proposal among the recommendations the URC will make as 2017 comes to a close. 
I say that for a number of reasons. 
1) Nothing along these lines has come up at any of the three Unity Reform Commission meetings. 
NOTE: That was true again following the fourth meeting of the URC in Las Vegas. Nothing in the context of the caucuses discussion indicated that this open-primaries-or-else-caucuses proposal was among the Sanders faction's demands. Instead, the focus from the Sanders-affiliated "convener" of the caucuses subgroup was on training of those conducting caucuses, making that training uniform across precincts within state and across states, and on reporting first-tier results in a standardized system housed at the DNC (with an eye toward streamlining the challenges process).
2) It is not that the Sanders appointees cannot push a measure like this, but rather, that they would likely have a difficult time garnering the votes necessary -- a majority -- to make such a recommendation. Clinton-affiliated members outnumber those appointed by Sanders, and new party chair, Tom Perez, filled the remaining three slots on the URC. And even if the votes were there, the measure would still have to make it through the Rules and Bylaws Committee and the full Democratic National Committee to be enacted. 
3) That is even less likely given that the supposed proposal would face some of the same roadblocks as a rule eliminating caucuses, namely, funding. The Democratic National Committee would find it difficult to force a state/state party to have caucuses in lieu of a closed primary. First, the political landscape currently is not amenable to opening primaries as has been dealt with already. Republicans, at the moment, control too many of the state-level levers of power. That may change in 2018, but is unlikely to be reversed to an extent that newly-empowered Democrats could -- or even would -- open up primaries. And to force states in that category to hold caucuses would be unnecessarily and historically (in this context) punitive. State parties would have to give up a funded election and foot the bill for caucuses. Some states do that, but they are, as was pointed out above, very few in number. 
4) It would be odd to allow states constrained by state-level partisan factors to apply for a waiver from penalties on something like what Minnesota Democrats faced in 2012 because of their statutorily mandated caucuses scheduling and not on something like how opened a primary is to unaffiliated voters. There would be an inconsistency there. There are inconsistencies in the delegate selection rules to be sure, but they tend to be on matters much less consequential than penalties on violating states. 
5) The history of carrots and sticks offered by the DNC does not match this hypothetical proposal. Those have been used to combat issues where there was a widespread view that the matter was problematic. Frontloading is a great example. That increasingly more states were moving up their delegate selection events and clustering on earlier dates was seen -- regardless of which candidate one was rooting for on past rules commissions -- as a problem for the nominating system, not just a particular candidate. This proposal would mark a significant departure from that pattern of rule making. 
Until the evidence changes and such a proposal is put forth, this is not something that should be taken seriously. The reality is that this proposal and the weird narrative around it are an engineered vehicle for some within the broader Democratic Party coalition to vent about some of the more vocal Sanders appointees on the URC if not Sanders supporters more broadly. It just would not be a serious proposal even if all of the Sanders appointees on the URC were publicly in favor of it. Those folks are still in the minority on the Commission.  
In the end, it would still be more likely to see Sanders acolytes do what Ron Paul/Tea Party folks did after 2008. That is, attempt to fairly take over state parties and opt for closed caucuses over wider turnout primaries. The Tea Party era attempts failed in that bottom line, and it is still a likelier end point for Sanders folks than this unserious "proposal".
Continuing to fear monger about something that there is little, if any, evidence is actually on the table and just simply is unlikely to pass muster with the URC (even if it was on the table) is misguided. And it is not as if Sanders' points do not have their flaws. They do. The bulk of them face structural issues (pardon the "storifying" of these):



And Armando, to his credit, fits some discussion of those limitations into his pieces. However, there are a few additional spots in the first piece where he overstates just how clear the mandate is on the URC and how we should handicap what is likely to emerge in terms of recommendations.

First, on the caucuses and primaries, he states:
"The bare minimum the DNC can do to “encourage the expanded use of primary elections” is to prohibit state parties from using caucus results when their state governments hold primaries. If the URC fails to propose this reform, you will know this process was a sham. The DNC can also encourage the use of primaries by favoring states using  them with an award of more delegates than states that use caucuses."
This "bare minimum", it could be argued, aims quite a bit higher than what is in reality the true bare minimum the URC could offer in this area. The eighth tweet in the thread above on open primaries presents a clear example of this. Want to encourage the use of primaries over caucuses? Encourage primaries over caucuses. Just insert that language with the necessary caveats that acknowledge the structural roadblocks that stand in the way. That is what the DNC has done on the inclusivity of unaffiliated voters for cycles now. 

The same type of caveats apply to caucuses in states where there is a primary on the books. Yes, those states tend to have open primaries as Armando notes. But they also have tended to be primaries that occur later in the calendar. That was true for both Nebraska and Washington. In fact, the primary-to-caucus switch in Nebraska in 2007 was calendar-based. Washington has always been a bit complicated. But, then again, stories in caucus states typically are. There are idiosyncrasies under the surface that lead to states falling in the caucus category, and more often than not, they are some combination of political/partisan and financial, not suppression.

But that is a charge -- suppression -- that has been leveled more vocally this time around that may push the URC or the DNC to go beyond a passive encouragement and to instead do something with some more teeth. That passive encouragement, however, is the bare minimum here. 

Caucuses, then, will survive into 2020, but with a reduced footprint even before new delegate selection rules are crafted. Already ColoradoMaine and Minnesota have made moves to add state-funded primary options for the next presidential nomination cycle. But what of the remainder? Here Armando mentions the requirement that the URC consider so-called "firehouse caucuses".
"The DNC of course cannot require states to hold primaries, so some state parties will have no choice but to hold caucuses. But here the URC enabling resolution is also quite clear—it calls for making caucuses as much like primaries as possible. The express mention of “firehouse caucuses”—which entail providing as many voting locations as possible for the longest possible voting hours, with no requirement for spending long hours at a caucus standing in corners, is also indicative of the desire to diminish the use of traditional caucuses."
That "consider" is important. The URC's predecessor, the Democratic Change Commission, was charged with considering absentee voting in caucuses after 2008. And while there was experimentation with the practice it was not widespread in either 2012 or 2016. 

Firehouse caucuses are an extension of the firehouse primary concept. In fact, they are the same thing: a party-funded primary. As one looks at the state-level landscape, there are no longer any party-run primaries. South Carolina and Utah Democrats had the remaining party-run primaries, but found state funding or switched to caucuses during the first decade of the 21st century. And there is a reason there are not many party-run primaries. They are expensive. It is one thing for a state/local party to rent out locations across a state for precinct caucuses for a few hours at night. But to staff and rent out locations all day or during voting hours is something that most states faced with the option have rightly or wrongly avoided. That is the trade-off: lower turnout or less money in the coffers for other party business (and/or general elections). This is the tough part and why the national party has mostly deferred to the state parties to settle on a solution that fits them best. 

Finally, Armando raises the bonus delegates as incentive to draw states/state parties into doing what the national party wants. 
"The only proposal I can think of here that is consistent with encouraging the use of primary elections is to provide bonus delegates to states that use same-day registration. Note the mandate here is not for open primaries that permit Republican voters to cross over and vote in Democratic primaries. Rather it is to permit unaffiliated voters to vote in Democratic primaries. Since the DNC can’t dictate to states, its only option appears to be to provide extra delegates to states that permit same-day registration."
This is an idea that has come up a number of times surrounding and within the context of the Unity Reform Commission. Yes, the DNC has used a bonus delegate regime to help keep states in line on the primary calendar -- go later, get more delegates -- and to encourage states to cluster their contests -- hold a contest alongside other regional partners, get some additional delegates. But the record on these incentives is spotty at best. 

Actually, they have not really worked. The Republican Party had a similar system and dropped it due to its ineffectiveness and curbing frontloading. And the successes the DNC has had have been due to already late states staying late (see Arkansas, North Carolina and Pennsylvania for much of the post-reform era) or Democratic-controlled states moving back in non-competitive cycles (see the bloc of mid-Atlantic/northeastern states that shifted out of non-compliant February positions to April 2012 and stayed in 2016). California similarly shifted back after 2008, but did so not for extra delegates, but for budgetary reasons. That often proves more instrumental in the decision-making among state legislators than some extra delegates here or there. 

It is not clear, then, that delegate bonuses would have the desired effect of eliminating caucuses in primary states or opening primaries, as has been mention by occasional Armando foil and Sanders URC member, Nomiki Konst at the Vegas meeting. 

Carrots have not generally worked. Sticks have. Delegate penalties have been more effective -- offered across party lines -- at keeping states in line. But it is not at all clear that that is an option for Democrats and they will not necessarily have buy-in from Republicans on similar penalties. Caucus states do not match up across the parties, nor does a desire to have more open, inclusive processes. No, having Republicans onboard is not a goal in and of itself. Most Democrats would balk at the idea. But presenting a united front on penalties often helps make them more effective, albeit on common problems. 
Look, FHQ does not mean to nitpick here, but if one is setting a bar on what to expect from the URC, then aim for something more modest. A divided commission (in terms of how it came into being) such as this one is more likely to agree on smaller, incremental changes than larger ones that are more likely to drive a wedge or wedges between the two camps. And keep in mind, the DNC will have the final say, influenced not only by the URC but by the deliberations of the Rules and Bylaws Committee as well. Again, this fifth URC meeting and the recommendations/report is but the end of the beginning.