Friday, March 2, 2018

On Caucuses, Petitions and the Rules and Bylaws Committee Stage of the 2020 Democratic Presidential Nomination Rules

As day two of the second DNC Rules and Bylaws Committee (RBC) meeting of 2018 gets underway, FHQ will revisit a topic that hovered around the periphery of the group's first meeting in January and is likely to be dealt with in a more concerted manner at this stage of the RBC's work: caucuses.

Specifically, part of the news coming out of the first RBC meeting was a petition making the rounds external to the meeting to resurrect a tabled amendment/section on caucuses left off the Unity Reform Commission (URC) report. The narrative of the petition, spearheaded by Adam Parhomenko, a former Clinton campaign operative, amounts to the following:
  • The Unity Reform Commission resolution/mandate called for the encouragement of expanded primary use.
  • While the URC deliberations and report included provisions attempting to open up/ease primary and caucus participation and pushed to make caucuses more primary-like, the group failed to more forcefully "encourage the expanded use of primaries".
  • Additionally, the main failure of the URC on this front was that the group voted down an amendment that would have curbed the use of caucuses in states where a state-funded primary is available. 
  • To add insult to injury, the vote to table said amendment was actually a tie among the membership of the URC. A tie that was broken by the chair (Jennifer O'Malley Dillon of the Clinton campaign) and vice chair (Larry Cohen, a Sanders appointee to the URC).
  • The RBC should act where the URC failed to fulfill its mandate.
This is an oversimplification, but gets at the heart of the petition and its request for the RBC. The source material -- the original recommendation and amendment, and the petition, both in full -- are linked above.

Having established that, there are at least a couple of contextual threads that are missing in this discussion.

1) a) The chair, Jennifer O'Malley Dillon, is probably mostly wrongfully accused in all of this. "Clinton supporter votes down caucus-curbing measure, siding with Sanders contingent" is a nice headline, but obscures a lot about the progression of the series of URC meetings and sequence of the final one in particular.

FHQ will start with the latter (because the former touches on the second contextual thread). That there was a tie on the motion to table David Hyunh's amendment in the first place is noteworthy. The URC was set up with 19 members (not counting the chair and vice chair): nine Clinton appointees, seven Sanders appointees, and three additional members appointed by DNC chairman, Tom Perez. But the tie that was ultimately broken by the chair and vice chair ended up 9-9. First, Clinton appointee, Charlie Baker's absence looms large. Had he been there on day two, this vote may have gone in a different direction. Also, Clinton/Perez appointees, Marcia Fudge and Jan Bauer joined the Sanders faction to equalize the votes on each side.

b) From a procedural perspective, the discussion of the caucus section did not have the benefit of the overnight period that the primaries, superdelegates, and party reform sections had. All three of those "buckets" were dealt with on day one of the final URC meeting, and subgroups of members coordinated language clean up sessions on elements of those sections and amendments to them for outside of the public meeting. The caucus section did not have the benefit of that time following the section discussion early in day two.

Disputes in the caucuses section, then, did not have the amount of post-discussion time for clean up that others had. Additionally, that ran into the time crunch of wrapping up a meeting that, at that point in day two, was already stretching into the afternoon when it was to have adjourned around noon. Members were not only fighting fatigue at that point, but also the need in some/many cases to catch flights out of DC.

In some ways, then, O'Malley Dillon's vote was one to table a discussion in a stalemate with no time -- or perhaps not sufficient time -- to fix. It punted the issue to the RBC.

2) Now all of that belies the fact that the caucuses section fell fourth in the order and was discussed alone on day two before the URC turned to tabled items from day one. That may indicate something about how the issue was prioritized within the group.

However, taking a step back and looking at the final meeting and the five URC meetings in total, there was progress in this area. Hyunh's amendment was to an apparent compromise coming out of the working subgroup on caucuses. That original recommendation looked like this:
In states with five or more congressional districts that hold a state-run Democratic presidential primary, there should be presumption that the state's delegate selection plan use the outcome of primaries to allocate delegates for the respective presidential candidates rather than a caucus. 
[FHQ note: There were three such states that fell into this category in 2016: Idaho, Nebraska, and Washington.]
It is the distinction at the outset that is important. The "five or more congressional districts" clause carves out an exemption for smaller states with state-funded primaries. And it is in those smaller states where the caucus/convention process is better-tailored. Better-tailored, not ideal or best. And that is demonstrated in the data that Parhomenko's petition raises:
"In 2016, Democrats witnessed first-hand that caucuses inherently disenfranchised voters, especially communities of color, working families and individuals part of the disability community. In Nebraska, a little more than 20,000 voters participated in the party's caucuses on March 5, 2016, but over 80,000 voters participated in the Nebraska non-binding presidential primary held May 24, 2016. Those 80,000 votes cast by Nebraskans were simply ignored for the purposes of electing our Democratic nominee. In Washington State, an estimated 230,000 voters participated in the party caucuses on March 26, 2016, but over 800,000 voters participated in the May 24th non-binding presidential primary. Those 800,000 votes were basically thrown away as if they were never casted. Under the current Democratic nomination process--the one that some members of the Unity Reform Commission want to remain in place, Party leadership can simply ignore the larger results of the presidential primaries and use the results of lesser-attended party caucuses to allocate its delegates."
More were affected in Washington than in Nebraska. Again, that is not to suggest that anyone affected in that caucus-to-primary gap in the Cornhusker state was not "harmed" in some way, but rather to say that fewer were than in a larger state like Washington.

And there are partisan and procedural elements involved here in addition to the big state/small state difference. The line drawn between Washington on the one hand and Idaho and Nebraska on the other, is one that separates a competitive-to-Democratic state from two rural and Republican states. Those latter two states (and potentially others that might join the group), as was pointed out by Nebraska Democratic Party chair, Jane Kleeb, are more apt, given their Republican control at the state level, to operate under practices and procedures as well as administer the primary election in a manner that does not necessarily improve the quality of the delegate selection process. In other words, it creates a trade-off between increasing/decreasing turnout and poorly run primaries/better-run caucuses. That is a trade-off with no clear winning position.

But the bottom line is that the distinction made was an important if incremental step in the direction of the URC mandate of encouraging expanded use of primaries. Yes, by just one state that currently falls into the category of "has a state-funded primary and has more than five congressional districts," but that is more than the zero currently affected by the non-recommendation made.

And why did that original recommendation not make it into the final URC report?

To answer that question, one must look at the tabled amendment cited above. David Hyunh, delegate and ballot access chief from the Clinton campaign and URC member, raised an entirely germane point during the discussion of the originally proposed recommendation. In a nutshell, the argument was much like Parhomenko's:
If the URC resolution calls on the group to make recommendations to encourage the expanded use of primaries, then why not include all states where a state-funded primary option exists? So not just Washington, but Idaho and Nebraska as well. 
And Hyunh's amendment reflected that, removing the "five or more congressional districts" from the beginning of the proposed recommendation. But that amendment triggered a diverse discussion that ended in stalemate, tabling not only the amendment but the underlying original proposal it sought to change. In an effort to rope Idaho and Nebraska into the coverage of the recommendation, then, Washington was lost, the caucuses working subgroup compromise was lost.

Moreover, it is reasonable to assume that the compromise -- the distinction drawn between larger and smaller states with state-funded primaries -- would have passed muster with the full URC if considered. Looking at the votes across all of the sections -- primaries, superdelegates, party reform, and caucuses -- there was a lot of unanimity. Sure, there were a couple of symbolic votes in dissent of the creation of superdelegates categories, but it was just that, symbolic (from the Sanders wing of the URC). Everything else was virtually unanimous, demonstrating deference to the work of the working subgroups in each section if not outright support of the recommendations included.

Would the effort to curb caucus usage to just small states with state-funded primary options have similarly passed? That answer is not clear, but was is is the part the amendment played in derailing the originally proposed recommendation.

Now, none of that ultimately affects whether the Rules and Bylaws Committee acts on this matter. What the URC handed the RBC was a list of recommended changes. The RBC can follow them, ignore them, or augment them. But the URC retains the ability to take the full set of recommendations to the full DNC for consideration if the RBC strays to far from the recommendations in the collective view of the group.

[Such considerations could also end in stalemate.]

But FHQ will close with a point we made on the proposed recommendation and amendment in question after the final URC meeting in December. That proposed change would have made for a fairly weak recommendation. Even if either one of those options -- the original subgroup compromise or the amended version -- had made it into the URC report, it merely would have presumed that a state with a state-funded primary would utilize that state-run election. In other words, neither version of the recommendation would have required a state to opt for a primary.

Ultimately, the report the Unity Reform Commission passed on to the Rules and Bylaws Committee is a series of recommendations; suggested changes to the rules, bylaws and charter of the Democratic National Committee. And much of the recommendations lacked specifics. More often than not, the bulk of the document serves as an aspirational document, punting the role of determining how and if to implement them to the RBC. And the RBC, now two meetings in, is very clearly fulfilling that role.

Postscript (3/3/18):
On the point about specifics in the URC report immediately above, it should be noted that there were clear instructions in the convention resolution that created the Unity Reform Commission to "make recommendations to encourage the expanded use of primary elections". The URC report echoed that call in part one of its primaries recommendations:
1. The Democratic National Committee and the Party at all levels shall use all means, including encouraging legislation and changing Party rules, to expand the use of primaries, wherever possible.
In the second Rules and Bylaws Committee meeting on Thursday and Friday of this past week, it became clear that...

1) The RBC in that meeting took issue with the burden that the "shall" in that recommendation placed on states/state parties. That it was language for a requirement; language that did not sufficiently recognize some of the conflicts that caucus states tend to have (i.e.: states with no state-funded primary).

2) Instead the RBC seemingly leaned in the direction of a move to "express a [DNC] preference for primaries" as part of the call for the convention. Although, there was mention of adding it as a part of a proposed amendment to Rule 2 of the DNC delegate selection rules (regarding participation). That amendment, offered by Frank Leone (DNC & RBC member, VA), would consolidate much of the primaries recommendations section into a Rule 2 that would set a threshold for state parties to "take provable, positive steps" toward, in this case, more open participation in the process. In the past, states were required to take provable, positive steps with respect to changing primary and caucus timing when in violation of the party rules. In states where Democrats were not in control of the state legislature, minority party Democratic legislators proposing legislation to change a primary date -- even if ultimately stymied -- was a sufficient provable, positive action, for example.

But, again, the RBC seemingly leaned in its second meeting in the direction of a more passive expression of preference for primaries over caucuses than anything more active, including either of the options for the limited number of caucus states with state-funded primary options discussed above in the original post.

FHQ will note, however, that the URC discussion of such a primaries-usage requirement for that group of states -- caucus states like Idaho, Nebraska, and Washington with state-funded primary options -- was apparently footnoted in the documentation the RBC had before it at the second meeting. Said footnote was raised by David McDonald (DNC & RBC member, WA), but did not lead to any further discussion among the members of the RBC. Take that as further proof of the RBC's leanings on the matter if one will.

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