RNC Rules Committee Shunts Reexamination of Presidential Nomination Rules to Subcommittee

After the unanimous vote this morning in Boston at the summer RNC meeting all anyone really wants to talk about is the presidential primary debate stance of the party. FHQ will have some things to say on that matter at some point (in addition to what I have already had to say via Twitter), but first thing's first.

Actions taken Thursday afternoon in the RNC Standing Committee on Rules are going to have some bearing on whatever the party decides to do with debates among a host of over rules matters affecting the 2016 delegate selection process on the Republican side. It was there, in the Westin Boston Waterfront, that the Rules Committee essentially hit the pause button on a continued piecemeal approach to tweaking the nomination rules and gave the greenlight to a subcommittee charged with developing a more sweeping proposal. That is likely -- if we are to see anything more on debates from the RNC -- to produce any rules affecting any and all presidential primary debates during the 2016 cycle. But that proposal is also likely to include a number of fixes to the existing rules.

For one thing, the may/shall issue in Rule 16(c)(2) -- bringing back the proportionality requirement for pre-April 1 primaries and caucuses -- is likely to be handled from within the subcommittee context. A fix to Rule 17 -- to help it better coexist, as intended, with Rule 16 -- will also likely emerge from those subcommittee deliberations at future meetings between now and next August when the 2016 rules will be finalized. Part of the inconsistency is the may/shall loophole. Like the Supreme Court's voiding of the current Section 4 formula in its Shelby case decision that effectively struck down the Section 5 preclearance rules regime, without "shall" in Rule 16(c)(2), the initial portion of Rule 17(a) is meaningless. There is no 50% penalty for states that violate a Rule 16(c)(2) provision that is a suggestion, not a mandate from the national party. The intent of the original combination of Rules 16 and 17 was to put in place a super penalty affecting states that held contests before the final Tuesday in February. But it was also supposed to leave in place the 50% penalty for states not abiding by the proportionality requirement before April 1. The combination of the two rules was suppose to leave an overlap for that last week in February where just the 50% penalty would apply (but only if states are not proportional in their allocation plans).

Of course that still leaves a small loophole in that last week of February where states could hold contests in that window and allocate delegates in a proportional manner to avoid any penalty. That could also be something the RNC Rules subcommittee could examine in the coming months. Indeed, Nevada Republican National Committeeman, Jim Smack, had an amendment that was deferred to the subcommittee yesterday dealing with an inconsistency between those two rules. [FHQ has not seen that amendment.]

But this is all a process and the RNC -- now through a subcommittee of the Rules Committee -- will deal with the primary rules in due time. Our best bet is to take the existing rules as our baseline and mix in the Growth and Opportunity Project Report as a broad guide to what may come out of these discussions.

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A Deeper Dive on the New RNC Rules Subcommittee

It is perhaps premature to start talking about the implications of the newly created subcommittee that the RNC Standing Committee on Rules created last week to reexamine the party's rules regarding its presidential nomination process. There are, after all, no recommendations on the table yet; no formal proposal for reform large or small. All we have is a list of member names and one informal discussion to go on here. And the details of the latter are quite limited. At this point, that is not really all that surprising. There is still a year before the RNC will finalize the rules, so it is an ongoing process.

Still, there is a bit of tea-leaf reading that can be done in this case about what may emerge from this group's efforts and go before the full Rules Committee and possibly the full RNC. At its most basic level, there should be some line of inquiry about the 17 folks on the subcommittee. I mean, are we talking about a slew of establishment types, a bunch of Paulites or something in between? The make up of the group has some bearing on what rules changes -- if any -- it is likely to recommend.

Though it is perhaps a crude measure, FHQ is of the opinion that the roll call vote the Rules Committee had at its April spring meeting on Morton Blackwell's package of amendments is an initially good lens through which to examine the new subcommittee. Recall that the Virginia national committeeman's laundry list of changes to the rules that came out of the Tampa convention would have essentially reversed course and have reverted the rules to their 2012 nomination state. Further, that vote was a narrow victory (28-25) for the establishment, rejecting a return to the old rules. On some level, then, this vote is a pretty good proxy for a change back (grassroots)/stay the same (establishment) set of camps involved in any future subcommittee discussions.

First, let's have a look at the membership: The RNC member's state-level position is in parentheses. The vote on the the Blackwell amendment package -- where a Yes vote means changing the rules back -- as well as any other notes about the member's proximity to either the establishment or grassroots camp is also included where available.

• Bruce Ash (AZ national committeeman; Rules Committee chair) -- Yes on Blackwell.
• Shawn Steele (CA national committeeman) -- Yes on Blackwell.
• Randy Evans (GA national committeeman) -- No on Blackwell.
• Carol Mumford (RI national committeewoman) -- No on Blackwell; opposed some Tampa rules changes; supported Minority Report; endorsed Romney during the 2012 primaries.
• Henry Barbour (MS national committeeman) -- No on Blackwell; endorsed Romney during the 2012 primaries; co-author of the Growth and Opportunity Project Report.
• Bob Bennett (OH national committeeman) -- No on Blackwell; architect of 2008 Ohio Plan compromise to reform the Republican primary process; member of 2009-10 Temporary Delegate Selection Committee.
• Enid Mickelsen (UT national committeewoman) -- No on Blackwell.
• Solomon Yue (OR national committeeman) -- Yes on Blackwell; faced the ire of Paul backers in Oregon in 2012; worked to cut a deal with Paul faction on Rules Committee at RNC spring meeting in LA.
• Steve Duprey (NH national committeeman) -- No on Blackwell.
• Pat Rogers (NM national committeeman) -- No on Blackwell.
• Steve Munisteri (TX state party chair) -- Yes on Blackwell.
• Jeff Kent (WA national committeeman) -- No on Blackwell.
• Peter Feaman (FL national committeeman) -- Yes on Blackwell; was talk that Romney campaign removed from Republican National Convention Rules Committee; but was working with Romney/making the case for seating a full Florida delegation in Tampa.
• James Smack (NV national committeeman) -- Yes on Blackwell; has taken up the Ron Paul banner in the past; but has something of a pragmatic streak as well.
• Reince Priebus (RNC chair) -- n/a
• Louis Pope (MD national committeeman, RNC vice chair) -- No on Blackwell.
• Demetra Demonte (IL national committeewoman, RNC secretary) -- No on Blackwell.
• John Ryder (TN national committeeman, RNC general counsel) -- No on Blackwell.

That's ten No votes and seven Yes votes on the Blackwell package of amendments, plus any vote Chairman Priebus may have in the subcommittee process in the future. The reason that vote is a crude proxy is that there were a host of changes in there. Some of those Yes votes may have been for part of the changes specifically rather than the entire package. Once or if that is disaggregated and individual changes are dealt with in the subcommittee setting, some of those votes -- on either side -- could change.

Still, this is a rough proxy. We know, for instance, that the establishment position has the upper hand based on the numbers above. We have that as a baseline and know that the full group fits the "somewhere in between" distinction described earlier. That points toward some changes being made to the current set of rules, but not necessarily a fundamental rewriting of them or reversion to the 2012 model.

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

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

Those events are bookmarked in FHQ's head for days like today as well; a day when news of the progress of one of the parties' rules-making comes to light. Peter Hamby has a great rundown of the situation on the Republican side as of now, about nine months before the rules for 2016 cycle will be set in stone. There's fodder in there for several posts, but let's have a more thorough look at some of the things being considered by the RNC. [Quotations below are from Hamby.]

1) "The first four early-voting states -- Iowa, New Hampshire, South Carolina and Nevada -- would continue to hold their contests in February."

This is certainly what both the RNC and DNC would like. However, other states will have a say in whether or not the carve-out states actually hold their contests in February (More on this in a moment.). One thing that should be noted is that I'm sure the Republicans that Hamby spoke with said February. And that is what the party wants. Yet, that is not what the current RNC rules say. The rules that came out of the Tampa convention last year and currently govern the 2016 process give Iowa, New Hampshire, Nevada and South Carolina a window of a month before the next earliest contest in which to schedule their primaries or caucuses (Rule 16.c.1). Now, that language is obviously apt to change -- That is what the subcommittee is up to, after all. -- but FHQ is of a mind that it will not. Ideally, those four contest occur in February, but things may push into the latter half of January.

2) "To prevent other states from jumping the order and compelling the first four to move their dates even earlier as they did in 2012, any state that attempts to hold its nominating contest before March 1 would have their number of delegates to the convention slashed to just nine people or, in the case of smaller states, one-third of their delegation -- whichever number is smaller."

If you have read FHQ closely since the conventions last year, you will note a couple of either potentially subtle or subtle changes to this particular penalty. The most obvious is the addition of a super penalty for smaller states that break the timing rule. Now, it isn't the super penalty did not apply to smaller states before. It did. Rather, the reason for the change is that the fewer delegates a state had the less the "strip them of all but nine delegates" penalty mattered. As FHQ has pointed out, there was a very small number of small states that could move their contests around and receive a penalty smaller than 50%. The RNC proposal described by Hamby closes that loophole; slicing those smaller loophole states' delegations by two-thirds if they violate the timing rule.

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

One other minor point on this one: There is a lack of consistency across a couple of other rules here that FHQ will address in a later post, but it should be noted that delegations will technically be stripped down to 12 delegates instead of nine once the three national party (automatic) delegates are added to the total. Those folks -- the state party chair, the national committeeman and the national committeewoman -- will be a part of the delegation.

3) "Any state holding a primary or caucus during the first two weeks of March must award its delegates proportionally, rather than winner-take-all."

Relative to the 2012 rules, this proposal condenses the proportionality window to just two weeks. Last year, that window encompassed any non-carve-out state with a contest prior to April 1. For all practical purposes, then, the proportionality window stretched all the way from the Florida primary on January 29 to April 1 in 2012.¹ This really is a minor shift. As the Growth and Opportunity Project Report aptly noted earlier this year, the method by which states allocate delegates does not have a very clear impact on the nomination process. Stated differently, the impact the delegate allocation rules have is dependent upon the dynamics of a given nomination race. Recall, it was the dispersion of the calendar of events that made Mitt Romney's march to 1144 so slow in 2012 and not the proportionality requirement.²

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

And that small extra two week window is absolutely being used by the national party as a means of enticing later states to move up. But they are also using a stick.

4) "The Republican National Convention will be held either in late June or early July, though ideally on a date before the July 4 holiday."

"Moving the convention to June would have the effect of ending the primary campaign in May because of RNC rules that require state party organizations to submit their delegate lists to the national party at least 35 days before the convention." 

"States with primaries scheduled for June 2016, including California, New Jersey and New Mexico, would essentially be holding nothing more than beauty contests. Party organizations in those states would instead submit their delegate lists to the RNC ahead of time, before any primary vote takes place, Republicans said."

The stick -- and you will have to bear with me here while I fully lay this out -- is that with an earlier convention, those late states would be meaningless beauty contest events. Well, that is the description used, but FHQ doubts very seriously that that is the case.

Why?

Read through those three paragraphs from Hamby again. Now, let's dissect that and reassemble it sequentially.

A) The RNC wants/sets a late June convention date.
B) However, the national party requires delegates to be submitted from the states 35 days in advance. This is a very real logistical issue.
C) Late states -- especially late May and June primary and caucuses/convention states -- are then in a bind as to how to select delegates.
[This is an issue that FHQ has raised before. How does a party motivate late states to stomach the expenditure necessary to shift up the dates of their contests, typically contests that are held concurrently with the nominations for down ballot races? The answer is not very easily. But...]
D) Late states are forced to submit delegates ahead of time -- ahead of their contests -- to the RNC to stay within RNC rules.  

There are two things here that require careful explication.
1) Let's take the beauty contest angle first. Did you catch the omission? Those late contests are not beauty contests. They aren't anything like the Missouri Republican primary in 2012, when voters went to the polls to cast a meaningless ballot. Well, they aren't so far as FHQ sees it, anyway. What's missing is the binding of delegates. That is the primary purpose of any primary election is the binding of delegates. In most cases, primary states still have some form or fashion of a caucuses/conventions system for actually selecting the delegates who will go to the convention. But the results of the primary bind the delegates.

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

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

Confused?

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

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

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

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

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

Will it work? Time will tell.

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

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

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

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

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For RNC Members, A Rules Contradiction That Would Affect Them in 2016

The Republican National Committee is on the eve today of another annual winter confab. This meeting will likely see the Rules Committee take up and consider -- if not vote on and send to the full RNC -- a series of tweaks to the 2016 delegate selection rules that came out of the party's Tampa convention in August 2012. This will not be the first time the Rules Committee and then the full RNC has revised those rules.¹ However, this time around, the changes are likely to be more substantial both in terms of quality and quantity. That is a function of the alterations coming out of a special rules subcommittee that was tasked last August -- at the summer meeting -- with reexamining the process by which the Republican Party nominates its presidential candidates; the delegate selection portion anyway.

One seemingly minor change that is likely to be included in the full series of proposed rules changes concerns the convention voting rights of the automatic delegates. Recall that the automatic delegates are the three members of the RNC from each state: the state party chair, the national committeeman and national committeewoman. In most but not all cases, these delegates are free to select any candidate of their choosing. They are an unbound part of the state delegation to the national convention.

That said, there has been some discussion as to how these automatic delegates should be treated at the convention should the state they represent violate the delegate selection rules on timing. In 2012, the rules the Republican Party utilized removed the voting privileges of the RNC members/automatic delegates from states in violation of those rules (Rule 16.e.1). On its surface, then, the penalty was supposed to strike at a group of people -- those RNC members involved in state party politics -- in a position within the national party to presumably deter state-level moves that would bring a state into violation of the rules. This obviously is something that is easier said in rule-making than done in practice. Regardless, the stick was put in place.

The effectiveness of such a penalty is not entirely clear, but it can be quite difficult for a state party chair or national committeeman/committeewoman to prevent a state legislature and governor -- potentially of a different party -- from acting in a manner consistent with the Republican National Committee delegate selection rules. Still, that language persists in the rules that will govern the 2016 Republican presidential nomination process.

Rule 17.f.1 (the same exact language as Rule 16.e.1 in 2012):
(f) If a state or state Republican Party is determined to be in violation:
(1) No member of the Republican National Committee from the offending state shall be permitted to serve as a delegate or alternate delegate to the national convention.

Yet, that seems to be undermined by the language describing the new super penalty earlier in Rule 17. Here's the relevant portion of Rule 17.

Rule 17.a (emphasis FHQ's):
If any state or state Republican Party violates Rule No. 16(c)(1) of The Rules of the Republican Party with regard to a primary, caucus, convention or other process to elect, select, allocate, or bind delegates and alternate delegates to the national convention by conducting its process prior to the last Tuesday in February, the number of delegates to the national convention shall be reduced to nine (9) plus the members of the Republican National Committee from that state...

Now, regular readers will be acquainted with what may be perceived as an annoying practice: FHQ's insistence on saying that the super penalty reduces a state delegation to nine delegates plus the three automatic delegates should a state violate the nomination rules. That is a function of the above language. Yet, that language in Rule 17.a is contradicted by the two-part rule fully described in Rule 17.f.1-2.

The RNC members -- the three automatic delegates from each state -- have convention voting rights in one section of the rule but not the other. The RNC is aware of this issue, but it remains to be seen what the ultimate remedy will be. The penalty stripping RNC members from violating states of their convention votes is one that has passed muster with the group in the past, but given the out -- and given the reality that RNC members may have very little sway in how the timing of their state's primary, for instance, is decided -- the RNC may also opt to retain the voting privileges of their membership at the expense of other delegates from the a violating state's delegation.

Again, it is not clear what proposed changes the RNC rules subcommittee will bring to the Rules Committee on this issue and a number of others, but details will emerge as the RNC convenes tomorrow.

--
¹ There was a cosmetic change to Rule 16.a.2 at the 2013 spring meeting that clarified the procedure for dealing with potential rogue delegates and their votes at the national convention.

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Unclear What Shape Final RNC Super Penalty May Take

With the 2014 RNC Winter Meeting looming toward the end of the month, and some consideration, if not vote, on a new set of rules proposals likely to occur, it appears as if the intricacies have not been fully settled on. There is no doubt in FHQ's mind that whatever rules the RNC subcommittee comes up with in regard to the 2016 Republican presidential nomination debates will grab all or most of the headlines. But there will be other rules or rules changes that come out of the RNC meeting that will warrant some discussion as well.

One of those rules is the new super penalty the RNC passed in Tampa in August 2012. Recall that the Republican National Convention implemented for 2016 a stricter penalty (Rule 17) for states willing to violate the timing rules (Rule 16) by scheduling their delegate selection events earlier than the first Tuesday in March. Instead of stripping a state of half its delegation as was the case in 2012 and before, the RNC would reduce a rogue state delegation to just nine delegates (plus the three party/automatic delegates). The intent is to shrink the potential power of any rogue state down to something smaller than what any of the four carve-out states -- Iowa, New Hampshire, Nevada and South Carolina -- would have to offer in terms of their individual number of delegates. That, in turn, keeps the candidates away and focused on the carve-outs.

…theoretically.

However, as FHQ noted once that super penalty came to light in January 2013, there was a loophole for a select few small states. The more draconian penalty would actually have been severe for big states, but less than the 50% penalty those same states would have been subject to in 2012 and before. The new proposals includes a provision to correct that discrepancy.

But it isn't clear what exactly this fix is.

As was originally reported by Peter Hamby last month, the RNC subcommittee remedy was to penalize rogue states by knocking them down to nine delegates (plus the three party/automatic delegates) or one third of their originally apportioned delegates, whichever is number is smaller. That one third provision was the remedy to the original super penalty intended to target those smaller loophole states.

Yet, in Saturday's New Hampshire Union Leader, Garry Rayno describes a slightly different penalty for those very same smaller states. Instead of being left with one third of their delegates, smaller rogue states with fewer than 30 apportioned delegates (originally, pre-penalty) would be stripped of all but six delegates (presumably plus the three party/automatic delegates). That is not a huge difference, but that is a different penalty than the one Hamby detailed in December.

Let's look a state or two under both plans (Hamby and Rayno descriptions) and the original super penalty. In 2012, there were 17 states and five territories with 30 or fewer delegates. Given that 30 delegate threshold in Rayno's description there are two groups of states to examine. States in the 25-30 delegate range and those with 24 or fewer delegates in their delegations.

• State in the 25-30 delegate range: Wyoming (28 delegates in 2012)

Let's assume that Wyoming opts to hold (what will now have to be binding) precinct caucuses in February 2016. That would run afoul of the new RNC rules.

Original super penalty reduction: 9 delegates (plus the three party/automatic delegates); 12 total. That is a 57% reduction.

Hamby super penalty reduction: 9 delegates or one third of original delegation (9.33 delegates), whichever is smaller. Most of the rounding rules for 2016 indicate that fractions would be rounded down. That would leave Wyoming with 9 delegates (plus the three party/automatic delegates); 12 total. That's a 57% reduction.

Rayno super penalty reduction: 6 delegates (presumably plus the three party/automatic delegates); 9 total. That's a 68% reduction.

• State with 24 or fewer delegates: Maine (24 delegates in 2012)

Let's assume that Maine opts to hold (what will now have to be binding) precinct caucuses in February 2016. That would run afoul of the new RNC rules. 

Original super penalty reduction: 9 delegates (plus the three party/automatic delegates); 12 total. That is a 50% reduction.

Hamby super penalty reduction: 9 delegates or one third of original delegation (8 delegates), whichever is smaller. That would leave Maine with 8 delegates (plus the three party/automatic delegates); 11 total. That's a 54% reduction.

Rayno super penalty reduction: 6 delegates (presumably plus the three party/automatic delegates); 9 total. That is a 62% reduction.

• State with 24 or fewer delegates: Delaware (17 delegates in 2012)  -- Smallest state/non-territory delegation

Let's assume that Delaware opts to hold a primary in February 2016. That would run afoul of the new RNC rules.

Original super penalty reduction: 9 delegates (plus the three party/automatic delegates) [NOTE: less than 50% reduction]; 12 total. That is just a 29% reduction.

Hamby super penalty reduction: 9 delegates or one third of original delegation (5.67 delegates), whichever is smaller. Most of the rounding rules for 2016 indicate that fractions would be rounded down. That would leave Delaware with 5 delegates (plus the three party/automatic delegates); 8 total. That is a 53% reduction.

Rayno super penalty reduction: 6 delegates (presumably plus the three party/automatic delegates); 9 total. That is a 47% reduction. 

In all cases, the penalty decreases as the size of a state's delegation decreases. But the proposal Hamby described sees a very slight decrease as a delegation gets smaller as compared to the original conception of the super penalty or the version Rayno reported.  Understandably, the corrections are more severe than the original, but the Rayno version reduces a delegation more than the one Hamby described in December. For all states (not including those territories with just 9 delegates) with fewer than 30 delegates, the Hamby-described penalty is roughly 55% of the delegation (with a range of 53-57%). On the other hand the Rayno version is more severe on the "bigger" small delegation states. The reductions on states with fewer than 30 delegates range anywhere from 47-68%. 

Now, these are very subtle differences. A handful of delegates here and there makes a difference in terms of what the weight of the ultimate penalty is on an individual state. None of these states were chosen at random either. All three have at various points in the post-reform era tested the resolve of the national parties by moving in on the turf of the carve-out states (generally New Hampshire). The RNC, then, would have some incentive to close any loophole that might entice any or all of those states to jump up the calendar into, say, February.

But how to do that is the question. Pick your poison. 

The main remaining question is whether this will be enough of a deterrent to prevent states, small and big alike, from encroaching on the turf of the carve-out states. That is a question that will have to wait until 2015 for an answer. In the meantime, the RNC will have to settle on what its small state super penalty will be. 

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How Can a National Party Manage or Control Presidential Primary Debates?

And Can the RNC Accomplish That Goal Through New Rules?

FHQ chose to lead with this manage/control dichotomy because I think former New Hampshire governor, John Sununu, was absolutely right in January when he told the winter conference of the National Association of Secretaries of State -- in a panel FHQ was on -- that national parties are often fighting the last battle when it comes to how they will govern future presidential nomination rules. He expanded on his point by adding that those same national parties -- or at least the internal struggles within them -- attempt to control a process that can only really be managed.

Problems in the process in one cycle are not necessarily problems the next time around. And new attempts at rules often have unintended consequences. A great case in point is the addition of superdelegates to the Democratic Party process for the 1984 cycle. The intention of adding superdelegates was to empower a group of party elites to serve as arbiters in any unresolved nomination contest. But that sort of scenario did not happen in 1984. It was not until 24 years later that the term superdelegate crossed any lips outside of Democratic circles.

Another such issue, but on the Republican side, was the addition of the proportionality requirement for 2012. Now, some will argue that the lack of winner-take-all contests prior to April 1, 2012 did help to slow the Republican nomination process down. That wasn't the case. Instead it was the distribution of contests across the entire calendar -- no contests throughout much of February after a January start point and only a small trickle of contests between Super Tuesday in early March and late April when there was a Mid-Atlantic/Northeast subregional primary.

But the point is that I think of those talking points every time a new set or portion of delegate selection rules comes along. A national party has to be deliberative and careful in laying out any new rules. And sadly, there is no test facility to where either Democrats, Republicans or both can head to try these things out. Unintended consequences only come around in the midst of a primary campaign. And then it is too late.

This is a lengthy way of FHQ saying that I agree with most who have responded to the RNC debates resolution -- the one ending any potential partnering relationships between the party and CNN and NBC for the purposes of presidential primary debates -- with skepticism.

No, the party really has no control over candidates or state parties when it comes to whether they agree in principle with any debates overtures they receive from either "rogue" media outlet. If a candidate or state party wants to debate and can agree with one of those networks on the parameters of a debate, then there will likely be a debate. Granted, this is all somewhat situational. If, by 2015, there is a clear or even marginal frontrunner in the race for the Republican nomination, then said candidate is perhaps less likely to go along with an increasing number of debates.¹ That has the impact of potentially insulating an establishment candidate. However, the RNC and any establishment candidate/campaign may actually want more debates if that establishment candidate is not the frontrunner candidate. If a frontrunner is insulated and the establishment candidate -- if there is one emergent establishment candidate -- is behind, then that desire for fewer debates dissipates.

Again though, planning -- or attempting to control -- for those types of scenarios is very difficult this far in advance. That is the sort of trap that national parties can let themselves get dragged into in efforts to fix the past. No party can fix the past, but they can affect the future in ways they cannot expect.

That's why FHQ thought former RNC chair and current co-chair of the Commission on Presidential Debates, Frank Fahrenkopf, was dead on in his comments to Politico about regulating presidential primary debates.² By expanding the certainty of what a bipartisan debates commission produces from the general election to the primary phase as well may open the door to an open discussion that produces a plan that eliminates the problems in the process that affect both parties. Coordinating -- even if only loosely -- the process across parties can generate a plan that may not overreach into the area of unintended consequences in the way that a one-party effort might.

The primary process has witnessed something similar over the last few cycles in terms of how the parties have collectively dealt with the issues of rogue states and frontloading of delegate selection events on the calendar. There is now a set of semi-coordinated rules and penalties in place across both parties to deal with both. That the parties are now -- even if only partly -- a united front it is better than two different mindsets on the problem.

Of course, there are two different mindsets on the debates "problem". The Democratic Party has not had the same sort of issues that the Republican Party appears to have had in 2012 and thus, does not see the need for a change. Yet, that is not that different from the differences between the parties on the above rogue/frontloading problem. After 2004, the Democratic Party wanted to nip frontloading in the bud. What it came up with was a rules-based plan to penalize not only states but candidates if states moved into non-compliant dates on the calendar and candidates campaigned in those states. Both would lose delegates.

Now, a Florida and Michigan mess later, it would not appear as if the plan worked. However, that had more to do with the fact that Democrats had attempted to go it alone rather than a flawed system. Without Republicans onboard, the plan was much less likely to succeed. Witness the provocative Florida maneuver in 2007. Florida Republicans, though they ultimately had some Democratic support in the state legislature, orchestrated the move of the Sunshine state presidential primary into January 2008.

After a second consecutive cycle that saw primary season kick off in Iowa on January 3, both parties are largely on the same page on this issue. Both national party apparatuses recognize the need for some informal coordination of rules and penalties for those would-be rogue states and candidates willing to flaunt the rules. The RNC, then, ultimately converged with the DNC on its thinking concerning doling out and enforcing penalties on rogue states; though the penalties were different across parties.

There is, though, a divergence between national parties on the thinking behind the debates issue. What the RNC sees as a problem, the DNC does not. Coordination is difficult under those circumstances. But, then again, it does not appear to FHQ that coordination is necessarily needed in this instance. It might help, but coordination is not necessary in the same way that it was on the timing and primary calendar issues above.³ [But truth be told the certainty of a united front between/across both parties on the issue of primary debates could be a good thing.]

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Given that there is no convergence between the parties now, what can the RNC do to get what it wants in the realm of presidential primary debates. The resolution from the RNC summer meeting this week in Boston is one part. Theoretically, reducing the number of partnering media outlets could help to also reduce the number of debates. But that cannot be the only part or the RNC gets right back to where it started from: with uncertainty over whether candidates and state parties are actually going to toe the company line.

This is the exact reason that FHQ -- in reaction to the creation of a Rules subcommittee charged with reexamining the rules of the primary process -- mentioned that that subcommittee would be the forum in which the regulation of debates will be deliberated. They will be.

But the question remains: What can the RNC do to either manage or control this process?

There is one model out there that may provide those curious about where the party is going rules-wise with some guidance. FHQ should note that unlike some of the other rules discussions in this space -- namely the proportionality requirement and timing rules -- I have no "inside information" on the RNC's intentions. That said, there are only so many options available to the RNC and the party has a very fine needle indeed to thread to even approach getting this debates issue "right".

The truth of the matter is that the presidential nomination process involves a confluence of political interests: Those of the national party, those of the states (governments), those of the candidates and those of the state parties. [Oh, and hey, perhaps those of the voters as well.] What one group wants is not necessarily what another group desires. So, while the RNC may want to decrease the number of debates, there still exist very difficult-to-manage incentives for state parties and the candidates and their campaigns to resist that call. The answer for the national parties -- the model, it appears -- is to remove those incentives. How?

The process has seen this play out before, albeit in another area. Again, the Democratic Party devised in the wake of a second consecutive defeat to George W. Bush in 2004 a way to keep states and candidates in line in terms of the constant calendar jumping. The way that the party dealt with rogue states and candidates in the rules for 2008 was to strike at the interests of those entities. Go earlier than is required by the party rules? Lose half (then all, then half, then none of) your delegation. Campaign in a rogue state? Lose your delegates from that state at the convention.

Did Florida and Michigan defy those rules? You betcha. But the party meted out a penalty that was in effect until it was clear that 1) it would not have changed the outcome at the convention and 2) it was serving an injurious purpose to the party and its nominee by angering convention activists in two typically competitive states.

On the other end, did the penalty work on the candidates? Yes, it did. No one campaigned in Florida until after the primary -- when the rules allowed a resumption -- and no one campaigned in Michigan after it was clear in the late summer of 2007 that Michigan was, in fact, going rogue.

[It should be noted that the process of deriving and instituting these rules was partially dependent on the the campaigns -- and their surrogates within the DNC -- and the usual band of carve-out state representatives being onboard. The early states were and the would-be campaigns were as well. That was the glue that kept the rule together.]

Is this a roadmap for the RNC regulating presidential primary debates?

Yeah, I think it is one potential course of action. And on the positive side of the ledger, it is not even really something that requires buy-in from the DNC. By and large, there are not a huge number of coordinated primary debates across the parties. I can think of one coordinated, double debate that happened in New Hampshire on the eve of the primary in the Granite state in 2008. But those are the exception rather than rule. Unlike regulating the movement of primary contests -- something that involves getting past bipartisan interests within states -- this debates issue is something that can potentially be handled in-house.

The drawbacks take this conversation back to something FHQ said early on in this post. To make rules like this work, a national party almost has to get it right the first time. If the penalty isn't right (see 50% penalty for violating the RNC timing rules in 2012), then the move could backfire. There is no testing ground for this other than an actual nomination race.

So how does the RNC provide disincentive for state parties and candidates on partnering with or participating in a supposed superfluous debate (...whether on CNN, MSNBC or otherwise)? The obvious answer is by taking away delegates as the DNC did for timing violations and campaigning in 2008.

But how much? Debates are not like primaries. A primary or caucuses in a state are one-off events. They are held and over in one fell swoop. Debates are not like that. There are, for instance, multiple debates in, say, Iowa or New Hampshire or South Carolina during the ramp up to the actual delegate selection events in those states. Does a national party go straight for the jugular and penalize everything or a sizable amount of delegates for one rogue activity? Alternatively, does the party attempt to mete out a penalty based on the number of violations? Complicating matters, does the RNC also devise a separate penalty for partnering with unsanctioned networks? Before this notion is dismissed out of hand, recall that the RNC had no answer in 2012 for a state that violated the proportionality requirement and the timing rules. There was only one 50% delegate hit a state could receive. Once one rule was violated, the RNC had no further stick to use against multiple violations.

FHQ does not have the answers to these questions. But they are important questions that the RNC Rules subcommittee on primary rules will likely consider if they are serious about regulating these presidential primary phase debates.  If regulation is the end goal, then attacking the existing incentive structure is the only path for the party to take.

...but does that veer off into fighting the last fight or fall under the category of an evolutionary management of the system?

We'll see.

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¹ And yeah, there was a bit of savvy to the RNC resolution. It served two purposes. First, the move played to the base of the party by going after a familiar whipping boy: the liberal media. But as many have pointed out, it also has the byproduct -- by reducing the number of outlets for debates -- of helping to reduce the number of actual debates that take place in the lead up to and during primary season in 2015 and 2016.

² Those comments:

Former RNC Chairman Frank Fahrenkopf encouraged Priebus after the election to set early parameters for the number of debates and coordinate with Democrats, who will face similar pressures for tons of debates — especially if Clinton decides not to run.
“My friends at the networks make a carnival atmosphere out of it all,” Fahrenkopf said. “You’ve got to this situation where a candidate was afraid not to participate in a debate, even if they didn’t want to.”

Fahrenkopf, who is co-chairman of the Commission on Presidential Debates, points to the certainty in a general election context of always hosting three presidential debates and one vice presidential debate.

“It gives the candidates cover from the standpoint of not being compelled to do every single debate because they’ll offend some interests,” he said. “I don’t know whether the right number is 10 or 12 or 8. That’s not for me. But they ought to say there will be [X] sanctioned debates. Then a candidate can say when the Lion’s Club in some small town … calls, ‘We’ve already agreed to the two sanctioned debates in New Hampshire.’”

³ That said, one could certainly see a future where there is some convergence between the parties on the presidential primary debates issue. Regardless of whether any speculative new rules work for the Republican Party in 2016, the Democrats could -- as the Republicans ultimately did on the calendar issues -- come to the same conclusion. Debates are too numerous and detrimental to the nomination process and/or the success of the party's nominee in the general election. That may not happen in 2016 or even 2020, but one could envision a time when the Democrats' are pushed in that direction.

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RNC Passes 2016 Delegate Selection Rules Proposals

The full RNC voted early this afternoon to pass a series of changes to the national party's delegate selection rules; the rules that will govern the process by which the party selects its next presidential nominee. Neither the Rules Committee process nor the full RNC consideration today were all that contentious. In both meetings where the changes were considered -- and ultimately passed -- there were just a handful of dissenting votes.

In other words, there was some consensus within the RNC membership behind the changes that the Rules subcommittee devised and submitted for consideration at this winter meeting.

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FHQ will certainly have a more robust analysis about the exact changes made in the coming week(s), but for now some reactions to, well, the reactions to these alterations.

A few of the talking points emerging in reaction to the changes are nothing new. They tend to fall in at least a couple of categories. On the one hand, there is skepticism that it will ever work in their intended fashion; in this case, to rein in not only a chaotic calendar formation process, but to tweak the overall nomination process. On the other, there are comments about the national parties fighting the last war; mistakenly making changes to account for problems from the last cycle.

I don't know. Those observations certainly aren't wrong, but in both cases, miss the all-too-important nuance. The "last war" line strikes me as off base in the narrow context of the relationship between the national parties and the states (whether state parties and/or state governments).¹ Of course the national parties are fighting the last war when they assemble to devise a delegate selection plan for an upcoming presidential nomination cycle. They move forward with the uncertainty-addled information they have. This is, and has been since the 1972 cycle, an iterative and sequential process. The national parties make rules and the states (and candidates) react to those rules -- some in compliance, but some, and usually only a handful, not. Wash, rinse repeat.

Only, it really is not that simple. There is no way of testing these rules changes ahead of their implementation. The only laboratory is either the experience from previous cycles or the combination of the invisible primary and primary season for the next cycle in real time. A national party does not know and often cannot (adequately) rectify midstream (see Florida and Michigan in 2008) problems that may come up along the way. That is the sequential part of the process. The national parties have to have their rules in place so that the states can react to them, to plan for the upcoming election. Only, some states don't play by the rules, or haven't in a select set of cases over the 2008 and 2012 cycles.

And that is where the probably-warranted skepticism comes in to play. State actors may behave seemingly rationally; moving a primary up and out of compliance with national party rules under the assumption that delegate sanctions will not be enforced. That line of reasoning was used numerous times in 2012 during the formation of the Republican presidential primary calendar. But for the second consecutive cycle, the RNC actually did enforce its penalties. And this is where the national parties have become more sophisticated in their responses to rogue activity. The combination of enforcement and an incremental closing of loopholes that states have exploited in the past have made it harder to states to misbehave.

FHQ spent a lot of time in 2011 and 2012 talking about the work both parties had done to coordinate the basic structure of a presidential primary calendar. We spent still more time talking about the fact that a lack of meaningful and coordinated penalties. One of the missed opportunities in 2012 was the fact that both parties had seen the ineffectiveness of the 50% delegate reduction penalty on states. It worked for most, but some were willing to take that type of hit to their delegation in order to impact the nomination process.

States may not be similarly willing to take a much deeper cut at their delegations in 2016. Nine (in the case of small states) or twelve (for big states) total delegates is a significant reduction. But you know what is missing from a lot of the reaction pieces penned in the wake of the RNC rules changes? The Democratic Party.

Oh, sure, there are certainly some light comparative mentions -- usually having to do with the respective fields of candidates and she who must not be named -- but nothing that comes close to identifying the impact the DNC's eventual delegate selection rules will have on whether the RNC will be successful in its endeavor. On the surface, that's a strange concept. It almost sounds like the DNC would be helping the RNC. [That would never happen!] But that isn't the case. This is more a matter of shared interests -- common nuisances -- among the two national parties. If the DNC ups its penalties, for example, it would go a long way toward determining whether the RNC will get the type of primary calendar it is angling for.

But if you want potential unintended consequences, look to the potential for cross-party differences over some of the Rule 20-based changes the RNC just made. These are the rules pushing up the end of the primary process. Now sure, the RNC made allowances for waivers for Democratically-controlled states that may not be able to comply with those rules (depending on what the DNC does).

That's not all of the unintended consequences either, but FHQ will save that for another time.

The bottom line for now is that the national parties are doing exactly what one would expect them to do. While they are still susceptible to rogue states, the national parties have gotten more sophisticated in their responses to them. The traditionally-exploited loopholes have largely been closed. Want rogue states in 2016? Look at the usual suspects FHQ has been mentioning for months. It won't be Florida. It'll be Arizona, Michigan, Missouri and North Carolina.

And start looking to the end of the calendar too. We may see some creative rogue states in 2016. The reactions the curbs on late May and early June contests may provide for some unconventional "rogue" activity.

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¹ In the broader context of the overarching delegate selection process, there may be something to this. Again FHQ is reminded of John Sununu's comments on this at the National Association of Secretaries of State meeting in January 2013. I'm paraphrasing here, but he mentioned that national parties often tread this line of managing or controlling the delegate selection process. He said that when parties attempt to control the process rather than manage it, they often get themselves into some form of trouble. Whether what the RNC has done this week falls into the control or manage category likely is in the eye of the beholder.

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Another Take on the RNC's Efforts to Alter the Presidential Nomination Rules for 2016

S.V. Date has a nice synopsis up over at NPR today about what's different about the RNC work to reign in the 2016 presidential delegate selection rules relative to 2012. What is particularly worth reading is the discussion of the prospective penalties as compared to the penalties that were. The short version: In 2012, there was just one 50% penalty that could be levied once against states -- whether they violated the timing rule or the proportionality rule. In 2016 there will be a couple of sanctions; one for each type of violation.

The problem with the short version is that it glosses over a lot of the nuance.

The main issue with Date's account is that it hinges on a flawed understanding of the history of the rules the Republican National Committee has used in its delegate selection process. This flaw led to many missing out on the true essence of the proportionality rule the RNC added for the 2012 cycle. And it looks like it is going to carry over into 2016 in some cases.

Here's the line that stuck in FHQ's craw (emphasis mine):

"If this thinking sounds familiar, it should. The RNC tried to accomplish similar goals heading into 2012. The four early states were given the month of February. Other states could start holding contests on March 1 if they allocated delegates proportionally, and on April 1 if they awarded all the delegates to the top vote-getter. A state that violated either rule faced a 50-percent loss of delegates."

There was a proportionality requirement in 2012, but this makes it sound as if there was something of a winner-take-all requirement as well. There was not. The point of the April 1 threshold in 2012 was that states that chose to hold contests on or after that point on the calendar could allocate their delegates to candidates in any RNC-sanctioned method; not just winner-take-all. That was consistent with how the party had viewed delegate allocation at any point the calendar in years prior. The national party viewed that as a decision that was completely at the discretion of the states -- parties or governments.

In other words, the RNC provided no mandates -- no guidance -- to the states on the issue of delegate allocation. It was up to the states. That is just how it was for any state that held a delegate selection event on or after April 1, 2012. States were certainly allowed to allocate delegates in a winner-take-all fashion after that point on the calendar, but there was no rush by states with contests beyond that point to do so. The majority of states took the road of least resistance: they left their delegate allocation alone. The only newly added winner-take-all states to the back end of the 2012 calendar were the ones that moved beyond April 1 to protect the winner-take-all allocation they had utilized in the past (see Maryland and Wisconsin).

The point here is to point out this faulty view of the history of these rules. The Republican nomination process has never been a bastion of rampant winner-take-all rules. If anything was or has been rampant, it has been states having the freedom to choose their methods of allocation. There were curbs -- or attempts at curbs -- on that freedom for the first time on the Republican side in 2012. With a new super penalty added to the mix in 2016, there are hopes within the RNC that they have gotten things right this time.

As the party's general counsel, John Ryder, said, "I think this strikes a good balance."

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FHQ will have more on this story later.

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Morton Blackwell on RNC Rules Subcommittee Proposals for 2016

Virginia Republican National Committeeman, Morton Blackwell, has posted over at RedState an open letter to RNC Chair, Reince Priebus, concerning the forthcoming Rules subcommittee proposals tweaking the 2016 delegate selection rules. The prevailing sentiment is opposition to the changes. Yet, even that is nuanced.

Some of it takes the form of a suggestion box entry. There is a call for clearer language in Rule 16(a)(1) where there appears to be an allowance on the part of the RNC for either proportional or winner-take-all allocation rules (regardless of timing). That is perhaps not completely consistent with the restrictions on winner-take-all allocation laid out later in Rule 16 and penalized in Rule 17.¹

Other points -- like the one on the width of the proportionality window -- show some resistance, but not outright defiance. The impact of an all-proportional March versus a half-proportional March (March 15 cutoff) is indeterminate. It may or may not slow down or speed up the pace with which the ultimate nominee accrues delegates. Much of that depends on the dynamics of the race -- who is still in the race, what the terrain is (what the sequence of events is).

The fact the tone is this way on these proposed rules changes may be a function of either the scale of the change or the fact that the issues in the proposed changes have been discussed and find some consensus within the Rules Committee and/or the RNC.

The new wrinkle, and where the discussion in the Rules Committee gathering at the RNC winter meeting this week in DC is likely to be interesting,² is the change proposed to Rule 20. Peter Hamby brought this up in his rundown of the proposed changes a few weeks back. This is the rule that accounts for the certification of the election/selection of delegates.

The reason that this is somewhat contentious is that this is the potential provision that would allow state Republican central committees to select delegates in states with late primaries that may conflict with the logistical requirement of having delegates in place 35 days before the convention. In other words, this is something that is necessary in order to lay the groundwork for a late June or early July convention. [FHQ has more on this here (in the discussion of providing incentive to late primary states to move up).]

Blackwell views this as an overreach of the RNC, infringing on a state's ability to select delegates to the convention as it sees fit. Whether this is eventually a contentious discussion at the meeting remains to be seen. Much will depend on the calculus of RNC members present and voting on the change. Will they see Blackwell's way or will they value the earlier convention that Chairman Priebus and others with the party want?

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¹ Mr. Blackwell also points out the inconsistency regarding automatic delegates in Rule 17 that FHQ described here.

² FHQ does not necessarily mean heated or controversial here. Rather, it may take some time to unpack and explain everything on the proposed rules change in the context of the meeting.

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The RNC Already Increased Penalties on Potential Rogue Primary States

There is a lot of chatter this morning about what the RNC will be up to these next couple of days in Washington, DC. One thing neither the Rules Committee nor the full RNC will do -- despite the bulk of reports today -- is to increase the penalties on states that move their delegate selection contests ahead of the March 1 threshold or state parties that do not allocate delegates in accordance with the rules laid out by the national party.

Why?

Mainly, the RNC will not be upping the penalties because it has already done so. Some seem to have conveniently forgotten the struggle over the rules in the Rules Committee meetings in the week leading up to the 2012 Republican National Convention in Tampa. Perhaps the increased penalties got lost in the shuffle of Rule 40 changes that had Ron Paul delegates up in arms during the actual convention.

But the point is, the Bennett rule -- named for former Ohio GOP chair, Bob Bennett who devised the penalty -- had already been added, stripping rogue state delegations down to nine delegates (12 including the automatic delegates) for holding primaries or caucuses too early. The rules coming out of Tampa also included a 50% penalty on states that did not follow proportionality requirement. None of that is new. None of that will be new after the RNC winter meeting concludes.

What will potentially be new is:
1) The proportionality requirement will see some changes. The rules package will reduce the window of the proportionality requirement from all of March to just the first two weeks of March. Additionally, the language of the rule (described in Rule 16(c)2) will be ever so slightly altered. As it is now the word "may" appears, suggesting that states allocated delegates in a proportional manner before March 15. The new rule will, as was the case in 2012, mandate this with the word "shall". All that is doing is insuring that there is an actual proportionality requirement for the 50% penalty already described in Rule 17 to apply to.
2) The super penalty described in the Bennett rule will be tightened up to close a loophole that a very small number of small states could have exploited. FHQ has covered those discrepancies for nearly a year.

There are some other matters -- particularly Rule 20 -- that may be noteworthy during the Rules Committee meeting today. But that rule has nothing to do with penalties. It is something that will from the RNC perspective help lay the groundwork for an earlier convention. Everything else will be about tightening up the language for the penalties that are already there.

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Candidates who participate in unsanctioned debates should be penalized 30 percent of their delegates

That's Reince Priebus from Kansas City discussing the 2016 Republican presidential nomination process before the Midwest Republican Leadership Conference.

Here's the full context from David Lieb with the AP:

Priebus defended plans to shorten the primary season by imposing "a death penalty" for any state that jumps ahead of the national party's calendar, cutting their delegates to the national convention to "next to zero." He proposed to hold no more than eight GOP primary debates, with the party picking the host partners and moderators. Candidates who participate in unsanctioned debates should be penalized 30 percent of their delegates, Priebus said.

Now, FHQ will try not go too deep on this. After all, this just an idea that is floating around out there.¹ The "death/super penalty" is on the books, but earlier conventions and presidential primary debates sanctions among other things are not. These are all matters that will be discussed, tweaked or completely changed by the RNC's new Rules subcommittee.

On some level, this is a long way for me to say, "Hey. Look at that 'should' in 'should be penalized' in Priebus' comment about primary debates." Despite the presence of some uncertainty as to the final version of the RNC rules for 2016, the 30% figure does continue to leave us with some questions about any proposed penalties and how they are meted out. And truth be told, those questions are the same basic questions FHQ posed several weeks ago during and in the aftermath of the RNC summer meeting in Boston. But now we have something concrete from the chairman of the national party in the way of sanctions.

First of all, this statement makes clear that the RNC is considering a plan similar to the DNC rules that attempt to rein in rogue states on the primary calendar. The DNC instituted a plan for the 2008 cycle that would not only hit those states in violation of the rules, but also penalize candidates who campaigned in those states. Given Chairman Priebus' comments, the RNC may look to go in a similar direction though seemingly directed more at the candidates than the states/state parties.

The new question that emerges is, "30% of which delegates?"

Is this 30% of the overall delegates a candidate has/will have?  

Is it 30% of the delegates won from a state that holds a rogue debate? 

Why are states/state parties not penalized for holding unsanctioned debates?

The first two subquestions are direct alternatives to each other. Either the RNC under this plan would penalize 30% of all of a candidate's delegates from all states or just rogue debates states. The latter seems more "fair" but if the objective is keep the candidates away from presidential primary debates that are conducted minus the national party's blessing, then that former may prove more effective. If you are Newt Gingrich, for example, then losing about 8 of 23 delegates after having participated in a hypothetically rogue South Carolina debate is probably better than losing 41 delegates from your eventual 135 delegate total.2 Candidates, depending on the race and their relative positioning among each other can probably shrug off the loss at the state level, but would find it much more difficult to do the same if the penalty affected the overall total.

Extending this, what would happen in the case of multiple violations?3 If the penalty is assessed on the state total and not the overall delegate total, the multiple violations problem is somewhat minimized but not completely eliminated. Under that rule/sanction, candidates would be penalized for participating in hypothetical rogue debates in Iowa and New Hampshire, for example. They would lose 30% of their delegates in each state. Under the alternative "penalize the overall total" there is nothing left for the party to use once the penalty is handed down. A candidate could rationalize continued participation in rogue debates by saying either, "I've already been penalized, what's to stop me from taking part in this next unsanctioned debate?" or "There's no way the RNC is actually going to stick to this penalty. I'll go ahead and attend this next debate."

Of course, the same sort of rationale exists for the candidates under the state-level sanction as well if there are multiple rogue debates in one state. They can't be penalized twice.

All of this makes the final subquestion above all the more interesting. Why not penalize the states/state parties as well? To some extent, the penalize the candidates strategy is sound, albeit with some backwards logic. By penalizing the candidates, the candidates are bound to stay away from rogue debates and thus state parties will not hold them. That could happen, but if you are the RNC, why leave it to chance? Even if the frontrunner is an establishment-type candidate, it will be hard for such a candidate to stay away from all of these debates should others participate.

Why?

I keep thinking of the 1980 general election presidential debates, particularly that Reagan/Anderson debate. They took aim at Carter instead of each other for nearly the entire time. Carter had no equivalent way to respond. If states/state parties are not checked in some way, what is to prevent them from allowing a similar forum for any and all also-rans through viable alternative candidates from participating and raking the aforementioned frontrunner through the coals for an hour to an hour and a half. Actually, those candidates would have incentive to do so -- attack -- in order to negate the deficit created by the 30% delegate penalty. The objective is to reduce the number of delegates for a frontrunner by making that candidate less palatable to voters. And again, without a debate stage, it is most difficult for a non-participating candidate to respond in kind. How does a national party disincentivize this outcome without penalizing the states/state parties as well.

Overall, this is a tough calculus for the campaigns to undertake. It isn't as if what we're talking about here are real delegates allocated after a given state votes. Rather, the issue to attempting to ascertain the impact of all of these movements on a virtual delegate count in the months leading up to the Iowa caucuses.

This can go any number of ways in practice. The cautionary tale of the unintended consequences nested in seemingly innovative or simple rules changes in the post-reform era is or should be ever present for the national parties. That said, there are two paths that FHQ sees as more likely than some of the others:

1. Backfire. The rules change instituting a candidate penalty backfires. Either an establishment-type candidate is frontrunner and is baited into participating in rogue debates as a defense mechanism or a candidate other than an establishment-type is the frontrunner, is able to stay away from any rogue debates, and begins primary season against a group of candidates who, on the offensive, were forced to participate in unsanctioned debates and are at a delegate deficit before any delegates are actually allocated. 
2. A redefined invisible primary. Let's call this one the "Only winning move is not to play" strategy. No, I'm not talking about not playing in any rogue debates; I'm talking about not playing at all. If the calculus of all of this is so rigorous, why not skip it? Delay jumping into the race as much as possible. If you are a frontrunner (or potential frontrunner), establishment-type candidate and incentives exist in the altered rules for your adversaries to attack and attack and attack you in rogue and sanctioned debates, why not remove the target? Don't run or delay running until the last minute. [Think of the possibility for white knight stories!!!] This option seems like a magic bullet for the RNC, but one that looks good in theory, but not necessarily in practice. Yes, there may be an emergent and perverse pressure among the viable candidates to hold out as long as possible, but 1) It is hard to invisibly/unnoticed put in place the infrastructure necessary to run for a presidential nomination; 2) Given that reality, states/state parties may still have incentive to host rogue debates; and 3) Additionally, the press involved in those hypothetical debates would be potentially likely to ask participants about the policy positions of looming candidacies whether they have an presidential nomination exploratory committee or not. 

Some form of backfire seems most likely. However, the bottom line here is that tinkering with rules in this particular area borders on being a fool's errand. It crossed the line from managing the presidential nomination process to attempting to control it. National parties that have crossed that line in the post-reform era have been the parties that have faced unintended consequences -- often bad ones -- when the rules go from paper to practice.

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¹ Granted, the idea is one that is coming from someone -- the RNC chairman -- with some power over the process, but still, it's just an idea; not a rule.

2 This exercise utilizes Gingrich's delegate figures from 2012 in South Carolina and overall.

3 Recall, that the multiple violations problem was an issue for the RNC in 2012. There was no contingency in place for states that violated both the timing rules and the proportionality requirement. There was only one 50% penalty that could be levied whether one or both rules were broken by states. Florida, for instance, did not face two 50% penalties for holding a non-compliant January primary and allocating its delegates in a winner-take-all fashion.

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