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.

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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.

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

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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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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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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.

--
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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June Conventions?

Why does this keep coming up? 

...with no details about how a June convention is even logistically possible in the context of a primary calendar that stretches into that month?

The draws of an early convention are obvious. Candidates, nay, presumptive nominees, can make the financial transition to the general election warchest. That can be a big deal for said nominee following what may be a moderately to very difficult nomination race that has run deep into the well of primary phase money. This makes sense.

But the drawbacks -- or more appropriately the political and structural impediments -- to shifting up a convention to that early a point are quite onerous. Again, recall that the Republican autopsy of the 2012 election and the primary process -- the Growth and Opportunity Project Report -- mentioned that a nominee needs "an estimated 60-90 days to prepare for the Convention". That is, there should be 60-90 days between the conclusion of the delegate selection process and any subsequent national convention. Even a late June convention means that delegate selection will have had to run its course in all states two to three months in advance. In the best case -- 60 day -- scenario, that's some time in April.

As the autopsy's convention point goes on:

"If the Convention were to be held in July, the last primary would need to be held no later than May 15. If the Convention were to be held in late June, the final primary would need to be held no later than April 30. Moving primaries up will require states and state parties to cooperate."

FHQ is less concerned with those date thresholds, but that last statement is noteworthy. Moving primaries up will require states and state parties to cooperate. Does that mean the same states and state parties that have cooperated in the post-reform era in not moving up to non-compliant dates on the front end of the calendar?

Actually it does not. The rogue states have been the same cast of characters for quite a while. By now, regular readers here can reel them off from memory quite quickly. And Arizona, Delaware, Florida, and Michigan are not really the ones the RNC needs to worry about. They are already compliant with not being in that April to June window that would be problematic for a June convention.

No, the states that litter the latter part of the primary calendar are a different lot and offer a different set of issues.

...all while potentially facing the same sort of penalties that have dogged the rogue states challenging the early end of the calendar.

What sorts of issues?

For starters, there are partisan concerns. California and New Jersey -- two states that dropped early and separate presidential primaries in favor of later (June) consolidated primaries in 2012 -- strike FHQ as states not necessarily willing to budge on the move in the future. That may or may not have anything to do with the inertia of making yet another change, but it will certainly have something to do with which party is in control of the date-setting apparatus in those states. In the Golden state, Democrats maintain unified control of the legislature and the governor's mansion and will not shift the date unless there is some clear benefit to the Democratic Party or one or more of the potential Democratic candidates.¹ An RNC directive will not do much to move that needle. A similar DNC measure may affect some change in California and other Democratic controlled states at the back of the calendar queue. Granted, Democrats are not necessarily high on the idea of a June convention. Folks FHQ has chatted with in the DNC are willing to go along an earlier convention, but not as early as June.

Those sorts of partisan divisions -- or lack of unified control -- now exist not only in California and New Jersey but in New Mexico, Montana, Arkansas, West Virginia, Oregon and Kentucky among the May and June states alone. That could be problematic if the end goal for the RNC is a June primary.

But let's assume for a moment that those states look more like, say, South Dakota after midterm or state elections in 2014 or 2015. That is, they are controlled by Republicans. That rids the national party of a political problem but does not erase a very real structural one. Revisit that California/New Jersey discussion above. The issues in those states were a combination of partisan and structural. Beyond the partisan complications that we have assumed away in this thought experiment, there is some benefit to pretty much every state at the end of the calendar having consolidated primaries -- combined presidential, state and local primaries.

Altering that structure would mean moving everything up -- presidential, state and local -- or creating and shifting up a separate presidential contest like what North Carolina did just this past week. The former is something that state legislators of all partisan stripes are not always open to. It affects their reelections whether a threat exists affecting those chances or not. The system has worked for those legislators in winning office one or more times in the past. Why change it? In other words, if it ain't broke, don't fix it. The alternative is to create and fund a separate presidential primary election. Not every state requires the $100 million it takes to fund such a contest in California, but state governments are not racing to expend multiple millions of dollars in the current economic environment for these sorts of purposes. That outlook may change between now and 2015 when these date-setting decisions will be made, but don't place any wagers on that just yet. That dilemma, if it was even a dilemma, did not seem to affect the calculus in North Carolina recently. The General Assembly in the Tarheel state charged ahead with the primary change with little or no mention of the estimated $4 million price tag of a separate presidential primary.

Still, as FHQ has shown, one of the primary determinants of state movement -- or non-movement in this case -- in the post-reform era has been whether a state holds its presidential primary concurrently with the primaries for state and local offices. Those with consolidate primaries have been much less likely to move.

Given those constraints, what is the RNC to do if the end goal is a June convention? Well, it can press forward of course. But the party is very likely to find some resistance, more so from states than state parties. If that is what happens -- the RNC moves on this initiative and finds widespread state-level resistance to the idea -- the only move left at the national and state parties disposal at that point is to transition from a non-compliant consolidated and late primary to earlier and compliant caucuses.

...but that conflicts with another recommendation in the GOP Report: "discouraging conventions and caucuses for the purpose of allocating delegates to the national convention". But the caucus route may be the only one open to the RNC in a number of late states because of partisan or structural complications. However, that would mean the addition of as many as ten or eleven new caucus states; an increase of around 100%. That opens the door to a number of unintended consequences that possibly exacerbates any rift in the party or reverses the inroads made toward cooperation.

A June convention is an uphill battle. Even late July seems tough given the apparently required 60-90 day window.

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¹ The partisan picture is similar in New Jersey minus Democratic control of the governor's mansion. But a party potentially needs to have unified control of the legislative and executive branches to make these primary moves happen.

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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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In Answer to a Nagging Question About the RNC Delegate Selection Rules

In view of the fact that Morton Blackwell does not appear to be introducing in Boston the same series of amendments to the RNC rules that he issued at the spring meeting in LA, this perhaps is not necessary.

But FHQ did get an answer to one of the questions that came out of the RNC spring meeting back in April. First, the context:

If you will recall, the Virginia committeeman submitted and then argued for a series of amendments to the RNC delegate selection rules at the LA meeting that would basically have restored the overall rules to the version that governed the 2012 Republican presidential nomination process. Those changes would have reversed some of the more controversial changes made at the Tampa convention that did not sit well with those in the Paul/libertarian/grassroots faction of the Republican Party.

However, some of those revisions called for changes to rules outside of those the RNC is permitted -- by rule -- from altering outside of conventions. One of the rules added in Tampa -- Rule 12 -- gave the RNC the power to make changes to the delegate selection rules, but only the ones not specifically dealing with the ways in which the subsequent convention would be conducted. The bottom line is that the RNC can change Rules 1-11 and Rules 13-25. Everything else -- including Rule 12 (which was controversial in its own right) -- is off limits.

Yet, Blackwell's long list of rules revisions at the spring RNC meeting stretched beyond those rules indicated in Rule 12. Rule 41, for instance, was altered in Tampa. The former Rule 40 -- one higher for 2016 because of the addition of Rule 12 -- stated that for a candidate to have his or her name placed in nomination at the convention, said candidate had to control the delegations from at least five states. The new Rule 41 raised that threshold from five to eight states. Again, that was something that stuck in the craw of those in the grassroots faction of the party; something Blackwell sought to change back in LA for 2016.

How, though, can a rule outside of the purview of Rule 12 be amended and how would that be dealt with in the context of all the other rules changes in the Blackwell series? This was something that FHQ and Zeke Miller at Time (and perhaps Politico's James Hohmann as well) went back and forth about via Twitter during the Rules Committee portion of the spring meeting. Does the fact that the amendment contains changes to rules not indicated in Rule 12 void the whole set of revisions? Is their inclusion ignored and only the rules included in Rule 12 changed as a result of the amendment? In April that was unknown.

FHQ fell more toward the latter camp, but the true answer -- after some guidance from the RNC -- is a bit more nuanced. If Blackwell were to have brought back up in Boston the same LA amendment -- reversing the Tampa changes -- and it had passed with a majority of the Rules Committee and three-quarters of the full RNC, then here is what would happen:

The rules able to be changed would be changed immediately as Rule 12 indicates. However, any rule outside of the parameters of Rule 12 included in an amendment -- yet passed by the committee and RNC -- would be sent to the next convention as a recommended change to be dealt with in that context.

As FHQ said at the outset, given that Morton Blackwell has scaled back his amendments from LA for the Boston meeting, the point seems to be moot.

But if it comes up at a future RNC meeting, this is an FYI.

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Much Ado About Nothing RE: 2016 Rules at RNC Summer Meeting in Boston?

That all depends.

If the question being posed entering the three day confab in Boston is "Will the RNC put in place rules for 2016 that reflect the initiatives called for in the Growth and Opportunity Project Report?", then the likely output -- as in January in Charlotte or April in LA -- will underwhelm. However, just because the GOP Report is not going to be imminently implemented does not mean the Republican meeting in the Bay state will be a wash.

What should we be on the look out for and what should we expect out of Boston 2016 rules-wise over the next few days?

One big question that FHQ has asked RNC members recently is whether they were of the opinion that Virginia committeeman, Morton C. Blackwell, would once again propose the same laundry list of changes to the entire body of the RNC delegate selection rules as at the LA meeting? The answer I have gotten has been a number of I don't knows. But the best indication of Blackwell's intentions came a little over a week ago when he posted on RedState a letter/rules proposal that he was sending to RNC Chairman Reince Priebus.¹

The laundry list has been pared to down to probably the most minimal (yet fairly significant) rules change possible. And close FHQ readers should be familiar by now with the "may/shall" issue in Rule16(c)(2). This is something FHQ has been pointing out since we first got a hold of the RNC rules back in January, and is something that some higher ups I spoke with at the Charlotte meeting around the same time were aware of and assured me would be changed.

As a quick refresher, Rule 16(c)(2) lays out the proportionality requirement for states that hold primaries or caucuses prior to April 1 in a presidential election year. For 2012, the rule read that states with contests before that point "shall" allocate delegates to the convention in a proportional manner. It was a mandate (...but one that provided great latitude for states to achieve proportionality). But at the RNC convention in Tampa last year that shall -- as Blackwell mentions in his letter -- became a "may", making the mandate more of a toothless suggestion. It also rendered (actually, it still renders in the present tense) the penalty for violating the suggestion in Rule 17 meaningless.

In lieu of the sweeping return to the the bulk of the pre-convention rules that he and others fought for in LA, Blackwell is taking a more pragmatic approach in Boston by addressing the proportionality issue alone.

This seems like a rare bit of common ground between the Blackwell camp and some in the establishment of the RNC over delegate selection rules. But will we actually see that change made this week?

Maybe, maybe not.

And here's why: The "may/shall" switch may be quietly made and the Rules Committee and RNC move on to other issues. That could happen, but the party could also wait to make that change. The other thing that FHQ has heard is being considered and may come out of this meeting -- or more specifically the Rules Committee deliberations and then the RNC -- is a study committee to examine the whole set of rules that can be altered between conventions according to Rule 12. In other words, Rules 1-11 and Rules 13-25; everything but the convention-specific rules. The "may/shall" issue may be thrown into that group's work as one of several things to address (...later) about the nomination process.

The "may/shall" thing is actually quite significant as it serves as one of multiple rules-based barriers to states moving to earlier dates on the primary calendar and/or threatening the carve-out states' positions. It, then, is a big change if it occurs. And the study committee idea is not without merit either. It just isn't a significant a change. It does potentially provide a medium through which those not happy with the rules can air grievances about the rules, a byproduct of which may be more streamlined Rules Committee meetings at future seasonal RNC meetings. The context of my question to RNC members about the list of Blackwell amendments from LA coming up again, was/is that that had the potential to hijack the Rules Committee meeting at future meetings, making it harder to get any work -- Blackwell's, the party's or otherwise -- done.

But that is what everyone with an eye toward the rules governing the 2016 nomination process should be on the look out for this week out of Boston.

--
Well, you might also see some stern warnings from some over North Carolina's recent primary move. It will certainly be a topic of discussion, but there will not be any solution to the problem now.

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¹ This is part of the protocol of Rule 12. That any proposed change to the RNC rules must be submitted and circulated in advance (10 days) of any meeting where said amendment will be considered.

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2016 RNC Rules: A Loophole and Another Layer for Would-Be Rogue States to Consider

Last week, FHQ examined more closely the so-called super penalty that is now a part of the Republican National Committee presidential delegate selection rules for 2016. That sanction is specific to states that violate the timing rules -- when a state can hold its delegate selection event -- and would reduce the delegation size of any state holding a primary or caucus before the final Tuesday in February  to twelve delegates. The point of the exercise was to show the degree to which the new restriction seemingly tamps down on would-be rogue states. It turns the knob up on the penalty on large and/or willing (and able) states and significantly whittles down the list of small states that may also want to crash the early calendar party.

Of course, the RNC rules assume that states willing and able to move up at all costs will remain mostly stationary and will not be proactive as 2016 approaches. In particular, the rules assume that 1) Republicans in especially Arizona, Florida and Michigan will find the super penalty a significant barrier to primary dates earlier than February 23, 2016 and 2) each of those states will maintain their traditional (or if not that, current) methods of delegate allocation. With regard to the former, that may be. For those states, a penalty-induced reduction to twelve delegates is going to translate to a greater than 75% penalty. Still, it will be up to actors in each state to determine whether that penalty hurts their respective states more than an earlier-than-February-23 primary would help. The RNC is betting that that will be a sufficient penalty. [FHQ tends to agree, but it is an open question from our vantage point here in 2013.]

Yet, there is some recourse for all three usual suspects (and others, if it comes to that). As FHQ has mentioned previously, the timing rules are but one area in which the RNC levies penalties. The other is in the area of delegate allocation. As the rules stand now, there is no proportionality requirement for contests held prior to April 1 as was the case in 2012. The "may/shall" question may or may not be addressed at future meetings of the RNC.¹ The calculus would be different for both the RNC and states, but if "may" is reverted to "shall" at some point, and the proportionality requirement is reaffirmed, then the door is still left open to states to skirt, or perhaps more appropriately, game the rules.

Obviously, if the there is no proportionality requirement, then the process reverts to what it was in 2008: states determine how they want to allocate their apportioned delegates regardless of the what-would-then-be meaningless penalties discussed in Rule 17.

But if there is a proportionality requirement, that 50% penalty for using non-compliant methods of allocating delegates is back on the table. The assumption within the RNC is that Arizona and Michigan could stay on February 23 -- where both states' primaries are currently scheduled according to their respective state laws -- but if they maintain their current methods of delegate allocation would be docked 50% of their delegation. That serves as a pseudo-penalty for holding a delegate selection event prior to March 1 (the first Tuesday in March in 2016). In other words, if Arizona, Michigan and also Florida want an early primary date and do not also mind a 50% penalty -- a penalty that has not proven to be a deterrent to any of those states over the course of the last two presidential election cycles -- then each state has a landing place somewhere in the week prior to March 1, 2016.²

But that 50% penalty would only be in place if those three states with a history of violations maintained non-compliant, winner-take-all methods of delegate allocation; not because they were "too early". And if you have not noticed the flaw above, let FHQ point out that under the proportionality guidance that the RNC provided in 2011 and would/will likely extend to 2016 if the proportionality requirement is reinstituted, Michigan would be rules-compliant. Well, Michigan would be rules-compliant if it utilizes the original delegate selection plan it put in place for the allocation of a full, unpenalized delegation. That is, Great Lakes state Republicans would allocate congressional district delegates in a winner-take-all fashion dependent upon who won each congressional district and the remaining at-large delegates would be proportionally allocated based on the statewide results (to candidates who surpass a 15% of the statewide vote threshold).

If that is the plan Michigan Republicans use in 2016 and the primary remains on February 23, then Michigan would face no delegate reduction. Technically, Michigan would violate Rule 16 (no contest prior to March 1), but not "qualify" for the sanction in Rule 17 (timing penalty assessed to states with contests before the last Tuesday in February).

What's interesting is that Arizona, Florida and other states could follow suit. But, focusing on Arizona and Florida, a change could be made to the method of delegate allocation, and the two states could still come out in better positions relative to their  respective 2012 allocations. What FHQ is driving at here is that Arizona and Florida could make a change from a true winner-take-all method to one of the several proportional options the RNC allows and potentially still not lose any influence.

How?

Well, a transition from a true winner-take-all allocation to a true proportional allocation is likely giving away too much; leaving too much to chance. If there is a runaway frontrunner, then it is not likely to make much difference. However, if a race is hypothetically more competitive, then a switch from winner-take-all to proportional is unnecessarily injurious in terms of the delegate advantage the state may provide the ultimate winner.

The question, then, given the combination of rules above, is whether a state such as Arizona or Florida could make a switch from a true winner-take-all system to proportional and still come out ahead.

To best highlight this we can reallocate the 2012 delegates -- unsanctioned -- and look at the difference in the delegate margins between candidates/across methods if any. This simulates a situation where either or both of the states in question could modify their delegate allocation method to avoid any sanction from the national party, even with a pre-March 1 date. To reiterate a point FHQ made ad nauseum during 2011-2012, the lowest threshold for achieving proportionality in the eyes of the RNC is the method described above: winner-take-all by congressional district and (conditionally) proportional statewide.³

Recall that Mitt Romney won both Arizona and Florida in 2012 and claimed all 29 and 50 delegates from them, respectively. In other words, the former Massachusetts governor and eventual Republican nominee left those states with either a +29 or +50 delegate margin. Those are our baselines for comparison. If Florida and Arizona were winner-take-all by congressional district, but proportional in terms of the statewide delegates (and assuming 2016 rules), both states would have potentially doubled their delegation sizes, and/but have put more delegates on the table for candidates other than the winner.

In Arizona, 58 total delegates would have been at stake. That is 27 congressional district delegates, 28 at-large delegates and 3 automatic (party) delegates. Romney won all eight congressional districts.⁴ Additionally, he carried over 52% of the vote among the three candidates who cleared the 15% threshold. [The others over 15% were Newt Gingrich and Rick Santorum.] That would have meant 24 congressional district delegates and 15 proportionally-allocated at-large delegates for Romney. Santorum would have netted 8 at-large delegates and Gingrich would have pulled in 5.⁵ With 39 total delegates, Romney would have been 31 delegates clear of his next closest rival; an advantage of two delegates more than he left the state with under the sanctioned, winner-take-all rules in 2012.

And in Florida?

Instead of a penalized total of delegates set at 50 under the winner-take-all rules, Florida would have had a total of 99 delegates at stake if Sunshine state Republicans had been compliant with the RNC rules on "proportional" delegate allocation. Encompassed in that total would have been 81 congressional district delegates, 15 at-large delegates and 3 automatic (party) delegates. In this scenario, Romney won 22 of 25 congressional districts and 59% of the statewide vote (among the two candidates who cleared 15%).⁶ The former governor, then, would have ended up with 66 congressional district delegates and 9 at-large delegates (75 total delegates). Newt Gingrich's second place finish in the January 31 primary would have meant 6 at-large delegates, and by virtue of having won three congressional districts, 9 additional congressional district delegates (15 total delegates). That leaves Romney +60 over his nearest competitor; a gain of ten delegates over the cushion he had coming out of the state under straight winner-take-all rules in 2012.⁷

In both instances -- Arizona and Florida -- the winner came out better under revised and compliant rules than under a non-compliant and penalized delegate allocation method.

Now, caveats abound in this simulation. Sure, neither state lost any influence (as measured by the delegate margin it provided the winner under the assumptions of the simulation) and in the process did not also lose any delegates. However, if the rules had been different, candidate strategy surely would have been adapted accordingly. Santorum may have opted to spend some time and resources in Arizona as opposed to focusing everything on the Michigan primary the same date (after non-binding victories elsewhere earlier in the month). Also, Gingrich could have pulled some resources from Florida and redistributed them both outside the state in preparation for subsequent contests and/or on a handful of additional Florida congressional districts where he may have been more competitive and/or could have won.

On the states' side of the equation -- or their attempts to maximize their influence in the context of the nomination process -- this does add an additional layer to the 2016 calculus. There is a new tradeoff that would-be rogue (but not so rogue in the eye of the RNC penalties) would have to or could consider. On the one hand, why lose delegates when you don't have to? Any of these three states could go earlier than March 1 and modify their delegate allocation rules to maintain compliance and not lose any delegates (as long as the contests were not scheduled before the final Tuesday in February). That is weighed, of course, against putting all of the delegates on the table in a potentially more competitive environment that may end up diluting the influence of the state in the grand scheme of winnowing the presidential field and/or proving kingmaker for the nominee, thus effectively wrapping up the nomination.

As is the case with a great many of these sorts of tradeoffs (i.e.: When is the best time to hold a primary or caucus?), it can be difficult to definitively answer the question in advance. There is too much uncertainty. Uncertainty about the identity of the candidates who may run. About how they perform in earlier states. About which candidates would still be viable at the point in the calendar when your state is scheduled. About which other states are also considering similar moves. About the usual issues of the timing of these decisions also. The decisions are often made well in advance of when a great many of those questions above can be answered so as to allow the delegate selection plan to be implemented (i.e.: to administer to the election process). The national parties do both have deadlines for when states should have in a place a plan for the upcoming delegate selection process (usually in the late summer or early fall of the year preceding a presidential election).

But states like Florida and Michigan and Arizona have shown in the past that they want to have their cake and eat it too. Threading this particular needle -- though it may be considered and ultimately acted on -- is a tough one to do in advance. If the invisible primary has seemingly produced a clear frontrunner, the gamble is easier; not so much of a gamble. The rationale among state-level actors would be, "Hey, we know the likely outcome, let's alter the delegate allocation rules so as not to lose any delegates through penalty." The closer/more competitive it looks like the race will be, though, the harder it becomes for states to pull the trigger on a plan that may or may not reduce the state's influence.

After all, a win may be a win no matter what the delegate advantage is coming out of any given state (see Santorum's early February victories in non-binding contests in Colorado, Minnesota and Missouri in 2012).

This bears watching not only in Arizona, Florida and Michigan but in other states that may opt to alter their rules to maximize their influence. Of course, none of this is likely to be taken up until state parties hold off-year conventions or executive committee meetings to make these determinations in 2015.

--
¹ The 2012 rules held that states "shall" allocate delegates in a proportionate manner if they hold contests prior to April 1 (Rule 15.b.2). The current Rule 16.c.2, however, states that states "may" hold proportional contests before that same point on the calendar. There is, then, little to no force behind the rule. It is a suggestion for 2016 instead of the mandate the rule was in 2012.

² That March 1 threshold is assumed and has proven to be a point on the calendar over which most states are unwilling to cross due to the penalties both parties have put in place.

³ Some states used this method but took advantage of a provision in the RNC definition of proportional that allowed a conditional allocation of the at-large/statewide delegates based on the results of the primary. If a candidate received a majority of the vote statewide either all of the state's delegates (congressional district delegates included) or all of the at-large delegates could be allocated to the winner. Otherwise, the allocation of the at-large would be proportional.

⁴ The strange thing about this is that neither Arizona nor Florida had newly drawn congressional districts at the times at which their primaries were held. New lines had been drawn to account for the new district in Arizona and the two new districts in Florida, but neither plan had been precleared as part of both states' coverage under the Section 5 provisions of the Voting Rights Act (as, for instance, South Carolina had in late 2011 ahead of the January presidential primary in the Palmetto state). There was still activity between the Department of Justice and both Arizona and Florida as late as April. To FHQ's knowledge, neither state overtly lobbied the RNC with the argument that lack of Section 5 preclearance effectively infringed on the states' rights to determine their own method of delegate allocation and subsequent abilities to comply with the rules. Without clearly defined and approved congressional district lines, neither Arizona nor Florida had the ability to choose any of the "proportional" methods of allocation by congressional district. Their options were either a true winner-take-all allocation or a true proportional allocation. Both obviously opted for the former; methods both states had traditionally used in the pre-proportionality requirement days (before 2012, then). This is not to suggest that those sorts of pleas would have been successful, but the argument could have been made that certain options that were available to some states were not available to Arizona or Florida. New York, for instance also had redistricting issues as well (but those were not Section 5 related) and had to have contingencies in place for the method of allocation under a 27 and 29 congressional district alignment. Those contingencies were not in place in either Arizona or Florida; some evidence that there had been no Section 5-related argument put forth by either state party before the RNC.

⁵ Due to the issue cited in footnote 4, those three congressional district delegates from the ninth district are unaccounted for in this exercise and the three automatic delegates are treated as unbound.

⁶ See footnote 4.

⁷ Due to the issue cited in footnote 4, those six congressional district delegates from the twenty-sixth and twenty-seventh districts are unaccounted for in this exercise and the three automatic delegates are treated as unbound.

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