Friday, October 11, 2013

"Can it stick?"

That's Dave Catanese asking whether "no primaries before February 1" will happen in the Republican presidential nomination race in 2016.

The answer is no. There are at least two reasons for that.

First, there is nothing in the current RNC rules for delegate selection that sets February 1 as a point on the calendar beyond which no primaries and caucuses can occur. That was the rule for the 2012 cycle, but that rule has been tweaked for 2016. The idea for 2012 was that February was carved out for Iowa, New Hampshire, Nevada and South Carolina and that the remaining states would fall in line on or after the first Tuesday in March. That, as Mr. Catanese points out, did not really work out so well.

However, for 2016, in addition to the new super penalty, the carve-out states were given a bit more latitude by the RNC for their primary and caucus date-setting. Now, the four carve-out states are no longer fettered by the limitations of a February 1 threshold. Those limitations included not only an ever-decreasing number of days in February in which to schedule those four contests -- assuming some state or states made the jump into February -- but the application of the 50% delegate reduction if any of the carve-outs jumped the February 1 barrier.

What the RNC did in Tampa was allow for the carve-outs to have a month prior to the next earliest contest in which position their primaries and caucuses. That is both a protection of the four earliest states and a nod to the reality that it requires approximately one month of days for Iowa, New Hampshire, Nevada and South Carolina to space their contests they way they like or to comply with what state law calls for.

And that brings us to the second reason that "no contests before February 1" is not likely to stick in 2016. The way the Republican rules are constructed now, there is an incentive to actually schedule a contest for the last Tuesday in February. And in 2016 that last Tuesday in February is an early last Tuesday -- February 23. Unless Nevada and South Carolina hold concurrent contests on the Saturday prior to that last Tuesday, there is no way both Iowa and New Hampshire can fit into February and remain consistent with state laws. Mainly this has to do with the New Hampshire law. Though Iowa law calls for an eight day buffer between its caucuses and the next contest, the Hawkeye state parties have scheduled their caucuses within that range of New Hampshire in each of the last two cycles; just five days before in 2008 and a week in 2012.

New Hampshire sticks to its statute as numerous times over the last generation have borne witness but most recently in 2012 when Secretary Bill Gardner held the line against the Nevada caucuses positioned on the Saturday after the Tuesday he was eyeing for the Granite state primary. If Nevada and South Carolina did not have a history of weekend contests, it would be easier for New Hampshire and then Iowa to fall into place with all four within a span of time of less than one month. As it stands, Saturday contests in Nevada and South Carolina increases the New Hampshire buffer to eleven days instead of seven. The law does not change, but the secretary cannot follow the state law by scheduling the primary for a point on the calendar just four days in advance of another contest.

But that is somewhat tangential to all of this. The real point is that the RNC has allowed the carve-outs a month prior to the fifth contest or next series of contests (if there are multiple states on that next earliest contest date) in which to schedule their contests. That could mean that all four end up in February, but that is less likely now because there are already a couple of states scheduled for that last Tuesday in February. And Arizona and Michigan are there without penalty at the moment. That is the incentive mentioned above.

Now, the intent of the Republican rulesmakers in Tampa last summer was to create a two part penalty: a super penalty for any state with a contest prior to the last Tuesday in February and a 50% penalty for any state before the first Tuesday in March. The thinking was that the super penalty would hit any state willing to jump beyond the last Tuesday in February and the proportionality requirement would assess a separate 50% penalty on Arizona and Michigan -- neither of which had proportional allocation in 2012.1 But there currently is no proportionality requirement in the RNC rules (see may/shall issue) and even if that loophole was closed, there is no penalty that would be assessed to a proportional state with a primary schedule in that area of the calendar between the last Tuesday in February and the first Tuesday in March.

But the RNC rules aren't finalized yet. Those loopholes may be closed and the incentives removed for other states wishing to get in on Arizona's and Michigan's turf. Even if that incentive is removed (and/or other states don't challenge the enforcement of the super penalty), Arizona and Michigan are still positioned on the last Tuesday in February. And given the carve-out state conflicts touched on above that is very likely to push at least Iowa into late January.

Things will change between now and late 2015 -- when the calendar is set -- but right now, the calendar will include at least one January contest. And folks, that's an improvement over 2008 and 2012 that the parties can tolerate.

1 Michigan was suppose to have been proportional (at least the two statewide at-large delegates were), but didn't really end up that way.

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Thursday, October 3, 2013

In which FHQ begs George Will to just once dig a little deeper into the presidential nomination process

Admittedly, FHQ has unreasonable expectations regarding reporting and commentary on the ad hoc system of rules that governs the presidential nomination process. But let's disregard that reality for a moment. George Will is apparently bored again because he has deigned it necessary to return to the fount that is the messy presidential primary system in one of his columns. This is not the first time Will has taken to that space to discuss the process, nor is it the first time that FHQ has taken exception to the commentary.

There is a certain amount of care that should be taken in describing not only the presidential nomination process, but the Republican Party's efforts to alter theirs for 2016. Without some thoroughness, one can quite easily misrepresent what is happening and what the outcome of reform is likely to be. If one is to use a megaphone at least have the courtesy to do it right. Having dispatched with that, a few rules of thumb for commenting on the quadrennial invisible primary rules-tweaking that goes on in both parties:

1. Look at the calendar. States have laws. Some of those laws relate to elections. In particular, some of those elections laws specify the dates on which presidential primaries -- funded by the state in most cases -- are to be held. Don't, for instance, say, "The four prima donnas — Iowa, New Hampshire, South Carolina and Nevada — probably will have February to themselves because this entitlement, like all entitlements, is immortal." That is not true now, and if FHQ had to wager, will not be true in 2016. Why? Michigan and Arizona have laws on the books in their respective states that schedule presidential primaries for the last Tuesday in February. Those four prima donnas will react accordingly and push slightly earlier. Given the constraints of scheduling -- or more appropriately of spacing -- those four contests, the Michigan and Arizona primaries will likely extend the process into late January at the latest.

2. Look at the calendar, part two: June conventions have absolutely been talked about and somewhat seriously in Republican circles; even at RNC meetings. But a June convention is simply put a logistical nightmare of unintended consequences for the party. Period. This idea is dead on arrival because if, as Will says, "[t]he last delegates would [have to] be selected no later than mid-May", then a number of states will have to move their delegate selection events to comply. So what? States move their primaries and caucuses all the time. True, but the those states at the end of the calendar represent a who's who of states that have been stuck in place -- at the end of the calendar -- for much of the post-reform era. These are the states that have not been motivated as others have to push to ever earlier dates in the interest of garnering increased candidate attention or affecting the nomination process.

There is a structural explanation for this. Those states hold consolidated presidential and state/local primaries. To move up means either spending additional state money to fund a separate and earlier presidential primary election or moving everything else up which has implications for the primary elections that state legislators themselves have to contest. There are instances of states going the "move everything" route, but those are the exceptions rather than the rule.

A June convention in 2012 would have meant that a quarter to 30% of the available delegates would have come from contests after mid-May. What happens to those states? Are they penalized for not following the potential rules that call for a June convention? What if the state legislature or state government has divided partisan control or is controlled by Democrats unwilling to move the contests up? Do those factors make it more likely that state parties in those states opt for earlier caucuses for the purposes of selecting and allocating delegates to comply with the rules and not be penalized? Isn't such an outcome -- increased numbers of caucus states -- counter to the Growth and Opportunity Project Report the RNC put out last spring?

See, unintended consequences.

3. Make sure examples are up to date. Yes, Florida has been a rules breaker for two straight cycles now. No, Florida is not necessarily a bad example in the grand scheme of things. [People would remember that example over a number of others.] However, Florida is currently compliant with the existing Republican delegate selection rules. Given a change to state law this past spring, Florida will most likely have -- depending upon when national party penalties kick in on the calendar -- a March primary, thus avoiding the super penalty Will describes. And no, because of a contradiction in the RNC rules/penalties, neither Arizona nor Michigan would have their delegations reduced to nine delegates for late February primaries. North Carolina, on the other hand, might be a good example because of the move to anchor the primary there to the prima donna South Carolina primary. But saying the Tarheel state would be reduced from 55 delegates -- or the closer to 75 delegates the state will have in 2016 because of bonus delegates -- to nine is less eye-opening than going "from more than one hundred to nine."

4. Be clear about the rules. Will's paragraph on delegate allocation in early Republican contests is a mess of "is" and "should be". In 2012 there was a requirement that all Republican contests prior to April 1 had to proportionally allocate at least some of the state's delegates. That is technically not true now because of the switch of one word in the Republican rules. The "shall" of 2012 is now a "may" in 2016. What that means is that there is now a suggestion that states proportionally allocated their delegates if its contest is prior to April 1, but no mandate like 2012. It also means that there is a penalty later in the rules associated with a violation of a mandate that does not exist.

And as a footnote, it should be said that rules changes require 50% support in the RNC Rules Committee and 75% support of the full RNC. That latter threshold almost requires near unanimity in the Rules Committee to pass. Food for thought on that may/shall question (among other potential rules changes).

5. What is the other party doing? If one writes a column or anything really about the presidential nomination process on one side of the political spectrum and doesn't ask about what the other party is doing then one is doing it wrong. What the Democratic Party is doing -- actually has yet to do -- with its rules absolutely has an impact on what the Republicans are likely to get out of any reform efforts. The RNC can enact any rules change it wants, but some of those changes will be more easily enforced if the DNC is along for the ride as well. Look no further than the changes the Democrats made to their rules for the 2008 cycle for an example. The DNC added a 50% penalty for violating the timing rule and penalized candidates who campaigned in would-be rogue states as well (similar to what the RNC is proposing for debates sanctions). Further, the DNC had a failsafe option that allowed the Rules and Bylaws Committee the discretion to levy additional penalties against rogue states. That did not stop Republicans (with Democratic help of varying degrees) in Florida or Michigan from scheduling primaries that were not compliant with the DNC rules. It takes (a united) two to police these things; something the national parties are cognizant of and talking about. ...together.

Yet, there is no mention of the Democratic process in any of Will's comments.

FHQ will steer clear of the debates issue as there are still no concrete rules on the matter. Still, that particular endeavor on the part of Chairman Priebus and the RNC is a tough nut to crack.

Are there reform efforts underway in the Republican Party with respect to their 2016 delegate selection rules? Yes, there are. Is it reform or merely the tweaking of rules that the system gets every four years to address the problems of the previous cycle? That is in the eye of the beholder and will almost certainly depend on what the RNC is able to pass between now and next summer. Does this subject deserve more attention? Well, FHQ is biased on that one. Of course it does.

But does it deserve a better discussion than what George Will haphazardly put together for his readers today? Yeah, it does.

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