Wednesday, September 7, 2022

2024 Democratic Party Rules Changes: May versus Shall in Rule 21

It has been a month since the DNC Rules and Bylaws Committee (DNCRBC) met in Washington and adopted the bulk of its rules package to govern the 2024 presidential nomination process. Heading into the confab, the panel undercut itself to some degree by announcing that it would punt until after the midterms the decision on its most-anticipated item on the 2024 rules docket: the primary calendar. But that decision -- to supplant Iowa, New Hampshire (or any of the first four carve-out states) or not in the early window -- hinges on factors mostly outside of the committee's power. 

Yes, the loss of that time -- between now and the midterms and/or when the decision is ultimately made -- hurts state-level preparation of delegate selection plans. [State parties will still have to submit those to the DNCRBC for review by the beginning part of May 2023.] But knowing who controls state legislatures in some of the prospective target replacement states, for example, has significant bearing on just how feasible any calendar change may be for the 2024 cycle. And feasibility matters. If Michigan Republicans, for example, retain control the state legislature in the Great Lakes state after November, then the Democrats' prospects of substituting the Michigan primary in for the Iowa caucuses at the front of the Democratic presidential primary calendar order for 2024 greatly dim. Republicans there very simply have no incentive to cross RNC rules to help Democrats in the state jump Iowa in the queue. National Republicans have held strong on an Iowa, New Hampshire, South Carolina and Nevada order again for 2024 (and have until the end of September to make calendar changes the party has shown no signs of changing). That means that Michigan Republicans would have to swallow the RNC super penalty to help Great Lakes state Democrats move into an advantageous calendar position. 

And that is very unlikely to happen. 

And so the DNCRBC waits. It waits to see if control of the legislature in Michigan or elsewhere changes in November thus greasing the wheels on a rules change that would reshape the early calendar in a meaningful way for the first time since the 2008 cycle

But just because the calendar decision was shunted until December does not mean that the DNCRBC sat idly by in August. While some (most?) may have been disappointed that no decision was made on the 2024 calendar, it did not mean that the committee made, as some said, only "minor" changes to the 2024 rules.

Well, in truth, what may superficially appear to be a minor change may actually carry more significant weight. Take, for instance, one of several alterations made to Rule 21, the section that sets out penalties for rules violations. Starting with the 2008 cycle, Rule 21.C.1.b has read...
A presidential candidate who campaigns in a state where the State Party is in violation of the timing provisions of these rules, or where a primary or caucus is set by a state’s government on a date that violates the timing provisions of these rules, may not receive pledged delegates or delegate votes from that state.
That rule, as written, has given the DNCRBC for four cycles now the latitude to strip any candidate who campaigns in a state in violation of the rules on timing -- when a primary or caucus can be held -- of any delegates won in such a state. But that threat has not proven to be all that much of a deterrent (in an admittedly small number of actionable instances over time).

One has to work backwards to see the logic in this. A candidate may or may not be deterred from campaigning in a rogue state if there is only a threat that delegates won there may be taken away by the national party. And if candidates may or may not be discouraged from campaigning in a rogue state, then there may be enough uncertainty at the state governmental level for decision makers to roll the dice on a noncompliant calendar position. "Hey," the thinking may go, "if candidates see no real disincentive to campaign, then they may come here to our early (but in the eyes of the national party, noncompliant) state to contest our primary or caucus." There is, in other words, just enough downstream weakness in the rules regime to topple the whole thing. 

Moreover, this is absolutely the sort of issue that the DNCRBC would seemingly have to resolve in order to tighten its system in the event that it makes an attempt at a fundamental shift in the early calendar lineup in the coming months. If the party is intent on replacing Iowa at the front of queue, then the DNC must have an answer to "Yeah, but what happens when Iowa goes first anyway and candidates campaign there as normal?

What would they do? 

Well, in this case, the DNCRBC has gone as far as the Democratic Party has ever gone toward preventing any state -- Iowa or otherwise -- from tipping over the first domino and setting off a cascade of rogue decision making at the campaign level and among states. The first component in that effort was replacing the may cited in Rule 21 above with shall. The national party raised the ante, upping the language from "We may strip you of your delegates." to "We will strip you of all of your delegates."

Now sure, the obvious response here is to question the changing of one word. One word?! But this particular one word change is always important when it comes to delegate selection rules. Republicans had a similar issue after the 2012 convention where the shall associated with the party's proportionality requirement became a may. The result was that the requirement to proportionally allocate delegates during the early part of the primary calendar embedded in Rule 16(C) became a suggestion. That would have had a significant impact on state-level decision making about delegate allocation ahead of 2016 as well as the resulting candidate strategy concerning how to approach particular states. But that substitute may was replaced with shall in 2014 when the rules that governed the 2016 Republican presidential nomination process were finalized. 

In the Democrats' case for 2024, the insertion of shall in Rule 21.C.1.b means that instead of the national party retaining merely the latitude to take away the delegates won by a candidate who has campaigned in a noncompliant state, such a candidate would lose them upon violation. 

Additionally, the DNCRBC buttressed that penalty with the expansion of the definition of "campaigning" included in the rule. That definition was already robust, but gained even more teeth during the August meeting. Now included in that definition of "campaigning" is "placing a candidate's name on the ballot or failing to take action to remove it from the ballot."1 That widening of the definition significantly lowers the bar for what qualifies as a violation and thus increases the likelihood that a candidate would be penalized.

And although the committee removed its latitude in penalizing candidates in the may-to-shall transition described above, the DNCRBC did add one more sentence to Rule 21.C.1.b that provided the DNC chair with some discretion in the matter. "The National Chair shall take appropriate action to enforce these rules." This one is clever in its ambiguity. 

Initially, when that rule change was being considered, it read, "The National Chair shall take appropriate action which may include adjusting debate participation, to enforce these rules." The striking of the debate-specific language is noteworthy, but only insofar as it gets at the ultimate intent of the resulting rule. Debate access sanctions are not off the table even without the inclusion of debate access language in the rule itself. That matter remains at the discretion of the DNC chair if he or she chooses to use that to enforce the rules/penalties against candidates. Ultimately, the DNCRBC collectively decided it did not have the power to legislate on primary debates, but empowered someone -- the DNC chair -- more involved in negotiating that process with the candidates and media partners. 

And those are the three legs upon which this more robust DNC penalties regime for 2024 is built. 
  1. Firming up delegate penalties (may-to-shall change).
  2. Lowering the bar for what constitutes "campaigning".
  3. Empowering the DNC chair to potentially limit debate access.
Look, FHQ will close where it often does with discussions of rules changes. Parties are limited in what they can do to rein in rogue actors whether they are candidates or states. 

In the end, if Iowa Democrats want to go first, then they will go first. But it will come at a more significant price under the 2024 Democratic delegate selection rules. Is it worth it to Iowa Democrats and some or all of the prospective candidates to hold and compete in a glorified straw poll? Candidates may gamble that a win in a beauty contest caucus will provide enough momentum heading into subsequent contests with actual stakes (read: delegates) on the line. But will they be less inclined to do so if debates access is on the line? Or does/do such a candidate or candidates just dare the DNC to prohibit them from participating? 

We do not know.

That is the thing about all of this. Nominations happen in real time not in a lab where one can simulate and test what particular actors' reactions will be under certain circumstances. The intent on the DNCRBC's part here in this particular section of rules is to create a psychology, a psychology where rules-based deterrents to future candidate behavior have some bearing on the decisions states and state parties make with respect to primary and caucus scheduling. Iowa Democrats may jump anyway if the protection of their first position on the calendar is not ultimately included in the 2024 rules. But these rules changes will make them think twice about that and about whether any candidates will gamble and show up if they do move into a noncompliant position. 

And that may be enough for the DNC. May.

1The latter encompasses states where presidential primary ballot access is determined not by specific candidate filing but by state actors such as secretaries of state.


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