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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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.

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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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A Closer Look at the RNC Super Penalty for 2016

The RNC spring meeting in Los Angeles last week briefly shone the light back on the party's 2016 presidential delegate selection rules. There are a couple of matters that FHQ will deal with later this week in reaction to that meeting, but there are also some leftovers from the three part series of posts (which wrapped up last week) on the current state of the rules that we would like to circle back to.

To start with, FHQ will focus on the so-called super penalty the RNC has put in place to deal with states that may be willing and able to break the timing rules laid forth in Rule 16(c). The new penalty is described in Rule 17(a):

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

All states, then, that hold a delegate selection event prior to the last Tuesday in February -- in 2016, that is February 23 -- would have their delegation to the convention reduced to 12 delegates. If this penalty had been in place in 2012, Florida's January 31 primary, for example, would have seen the state's delegation shrink from 99 delegates to 12; instead of the 50% penalty that knocked the Sunshine state down to 50 delegates.

The innovative aspect of all of this is that the new Rule 17 puts in place a sliding scale of penalties -- variable by state size -- that ends up buttressing the so-called "on ramp" that the Growth and Opportunity Project report indicated the party values. In other words, big states with large delegations would be taking more of a gamble in breaking the timing rules than small states. Taking the original, pre-penalty 2012 delegate numbers, we can assess just how large the super penalty would have been had any state held a binding primary or caucus prior to the last Tuesday in February:

The result is that the knob is turned up on a seemingly ineffective 50% penalty for over three-quarters of the states and territories.¹ California's delegation would be docked 93% of its delegates while Vermont would face a much smaller 29% penalty. This has the practical effect of amping up the penalty on those states that have proven to be the most willing to jump the queue. Florida would face an 88% penalty to its delegation. Michigan and Arizona, though both are currently compliant with February 23, 2016 primary dates, would face 80% and 79% penalties, respectively, for moving up into the window of time on the calendar reserved for the carve-out states. 

The question is whether this incentivizes smaller states moving up, gambling that their delegation is already small and calendar position is more important. Does the penalty change tip the balance in that direction? Well, eyeballing it, probably not. Look at the 13 states and territories with a penalty of 50% or less. New Hampshire already has protected status. New Mexico, DC, Rhode Island, Delaware and Vermont are all primary states controlled by Democrats. That leaves the territories -- most of which could not incur any penalty because the size of their delegation is already below 12² -- Maine and Hawaii as potential rogue states with an incentive to shift to an earlier and non-compliant date. Hawaii is a tough sell during primary season. Getting candidates out there and/or spending money is not something the system has seen much of in the post-reform era. 

That leaves us with Maine. And Pine Tree state Republicans have held early February caucuses for the last couple of cycles. But are they willing to flaunt the rules and take an approximately 50% penalty to remain there in 2016? That is the question.

All in all, unless one of the big states opts to go nuclear -- by blowing up their delegation -- this is theoretically a potentially effect penalty. It is variable in its treatment of states; giving larger states a poison pill and reducing the list of possible/rational violators to smaller states -- those where the on ramp of retail politics would be enhanced instead of hinder (as would be the case with larger states).

It will be interesting to see how this one plays out in 2015.

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¹ Calling the 50% penalty ineffective is somewhat misleading. That penalty was more than sufficient in forcing compliance in the vast majority of states in 2012 and before. Where is was less than effective was under the circumstances where a limited number of states were willing to incur the penalty in exchange for what actors in states like Florida in 2008 and 2012 perceived as a more influential position on the calendar. 

² Puerto Rico has a larger delegation and may actually prove interesting in this context should Republicans on the island opt into the primary again in 2016.

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Thoughts on Where the 2016 Presidential Primary Rules Stand, Part Three

Future Changes to the Rules

Having set the baseline of 2016 delegate selection rules for both parties and having examined the pressing divides between those -- Democratic and Republican -- baselines, FHQ will now turn its sights in part three of this series on the possibility of change and what shape those changes may take.

[NOTE: Some of what follows relies on the reader being familiar with the discussions in the first two parts to this series of posts.]

The question of change to the national party rules guiding the 2016 delegate selection process in two competitive presidential nomination races is first dependent on a couple of things. The first is rules-based: Do each of the parties have the ability to alter their respective rules? The second is one of timing: When can rules changes be made?

As we have already described in some detail the rules that came out of the 2012 Republican National Convention in Tampa, FHQ will start there. Obviously, no major changes came out of the RNC winter meetings in Charlotte in January. But FHQ does not know that there was any widespread expectation of altering the rules at that meeting anyway. Rule 12 of the 2012 Rules of the Republican Party -- the rules that will govern the 2016 process -- give the RNC the latitude to make amendments to the rules between conventions; something that did not happen before the 2012 cycle. Again, as FHQ highlighted in the previous post, the bar is pretty high for changing the rules (a majority vote on the Rules Committee and a three-quarters vote among the full RNC membership). Whether the rules change or not, we can say that it takes the full RNC to make any changes which means that said changes will only occur at the regular meetings of the RNC. The group meets at least three times a year in accordance with Rule 8 and we furthermore know that the deadline for making changes is September 30, 2014. We can surmise for that that there are approximately four or five more RNC meetings before that time.

The DNC set up is similar, though there is less guidance in the party's bylaws about what constitutes a winning coalition on any amendment before either the Rules and Bylaws Committee or the full Democratic National Committee. [One would assume a simple majority is sufficient.] The DNC does meet at least two times a year according to Article II, Section 7 of the party bylaws.

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Opportunities for change aside, the groundwork was laid in Charlotte to potentially make changes to the Republican rules at the spring meetings this week in Los Angeles. What that entails is a more difficult question to answer. Here also there are two matters to consider.

First, the Growth and Opportunity Project report has been released in the time since the RNC winter meeting. Now, as FHQ mentioned in reaction to the report, the provisions on the presidential nomination process contained deep in the document amounted to some rather sweeping changes to the delegate selection process. These are long-term and potentially controversial/divisive changes. And while there may be some discussion of the G.O.P. report during a lengthy Rules Committee meeting on the agenda for this afternoon, the debate and actual changes -- should any emerge from this gathering -- are likely to center on other matters.¹

What other matters? Well...

The second consideration, and one that was deeply embedded in the groundwork laid for the LA meeting in January in Charlotte was about the rules handed down from the Tampa convention. FHQ does not think it will come as any surprise to those who either closely followed the 2012 Republican presidential primary process or the convention in Tampa (or both) that there were factions within the party did not like how the process had been conducted in the primaries (and caucuses) or how the future rules were crafted at the convention itself. The Paul faction -- part of which has gained some institutional footing within the RNC -- remains rather agitated over both.

But that faction remains just that: a faction. And it is not a majority faction within the Rules Committee or the RNC as a whole. Yet, the discontent over the rules that emerged from Tampa was something that stretched beyond just the Paul-aligned faction of delegates (and now RNC members). What that group seeks is a sort of retrogression to the rules package that was agreed to by the Rules Committee in meetings the week prior to the Tampa convention but ultimately altered by folks aligned with the Romney campaign. The face of those changes -- changes that were perceived as having centralized power over the nomination rules in the establishment wing of the party² -- was Romney lawyer and DC national committeeman, Ben Ginsberg. And the ongoing effort to revert the rules to what they were prior to Tampa, as best voiced by Virginia national committeeman Morton Blackwell, has been called an effort to "de-Ginsberg" the rules.

Factoring in both of the above considerations creates a push and pull effect on the rules in their current form. The Growth and Opportunity Project report pushes for broader changes to the rules, well beyond where they stand now, while the de-Ginsberging effort would pull the rules back to basically what they were during the 2012 cycle. Now, FHQ should note that the latter is more of a micro-, inside baseball sort of battle (The fight is not necessarily small nor does it lack controversy or philosophical scope.³) while the former is more macro; a sweeping and potentially new philosophical approach to the nomination process that would entail and almost fundamental rewriting of the rules.

This push and pull does have an impact on the ways in and pace with which change is likely to occur at future RNC meetings. In the context of the meeting in LA this week, it means that the changes are likely to occur along the de-Ginsberg axis rather than on the Growth and Opportunity Project report axis. However, that movement (likelihood of change) is somewhat limited. Rule 12 allows amendments to rules 1-11 and 13-25, but none of the mostly convention-specific rules that are higher in number than 25. That means that the changes to Rule 40 would/could not be included in any amendments.⁴ But it also means that the delegate allocation and binding rules (and penalties) are on the table. Two things viewed negatively there are the Rule 16.A change that forces delegates to observe their binding during the nomination roll call or be forced to resign their position and the may/shall discrepancy (see part one)  in Rule 16.B.2 that seemingly eliminated the proportionality requirement established for the 2012 cycle.⁵

Those are not inconsequential changes, but they are the items that are likely to change (if any change is to occur) coming out of the ongoing RNC spring meeting.⁶

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Thus far, FHQ has focused almost entirely on the Republican side of the equation. As has been mentioned previously, that is a function of the RNC actually having made some efforts in the area of 2016 rules. The Democrats have yet to begin their process and will not until later in the summer (2013) when the Rules and Bylaws Committee convenes. As such, the DNC is in a kind of "wait and see" mode. They are waiting to see what comes of the RNC process -- in the way of incremental or sweeping changes -- before making any definitive moves about the rules of their own 2016 process. FHQ mentioned in part two that there were no pressing issues -- no overt desire for any fundamental reform to the 2012 process -- that emerged from the RBC meeting following President Obama's inauguration. The expectation for future change to the Democratic Party delegate selection rules is almost entirely dependent upon what happens with the Republican process of reform. The DNC is currently in the position of reacting or adapting to any changes that come from the RNC.

While the Growth and Opportunity Project report recommends a series of rather big changes, many of them, as FHQ has pointed out, are not possible without Democratic Party buy-in. In other words, there cannot or will not be unilateral and significant change to the process without both parties on if not the same page, then at least in the same chapter. And even then it is difficult because of state party and state governmental interests in the process out of the national parties' control. Incremental change like those called for in Blackwell's de-Ginsberged rules and reaction/adaptation is more likely than G.O.P. report-type alterations to the rules.

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¹ FHQ would link to it, but it seems to have disappeared from the RNC website. When it was still up, the draft agenda showed a 1-5 or 6pm (Pacific) meeting of the Rules Committee.

² See particularly the changes to Rule 40 (discussion in footnote here) but also the addition of Rule 12 (allows changes to be made outside of the convention) and Rule 16 (concerning delegate binding and allocation).

³ To say that the de-Ginsberging effort is not based on philosophical concerns is to suggest that a mobilized, grassroots part of the Republican Party is not seemingly against a more establishment part of the party. These are bottom-up versus top-down approaches, respectively.

⁴ The Rule 40 change in Tampa raised the bar for candidates to be placed into nomination at the convention from controlling five state delegations to eight delegations.

⁵ For a better idea of what is at stake in these de-Ginsberg proposals, here is a marked up/edited version of the current rules with de-Ginsberged substitutes. In addition to the Rule 16 changes, this motion also includes the removal of the Rule 17 loophole discussed in part two that would potentially invite some states to move into a last Tuesday in February primary or caucus (something that would conflict with Democratic Party rules regarding the calendar).

⁶ The other noteworthy discussion will be over Rule 12 itself. There is an open question as to how Rule 12 should be interpreted. At question is the amendment process. FHQ has discussed the thresholds for passing measures through the Rules Committee and then the full RNC, but there is some question as to whether amendments raised at one point could be amended at another. In particular, there is no guidance in the rules about whether an amendment that has passed the Rules Committee can be amended at the RNC stage of its consideration. See Matthew Hurtt's diary at RedState containing excerpts from an email correspondence from Morton Blackwell to RNC Chairman Reince Priebus for more.

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Thoughts on Where the 2016 Presidential Primary Rules Stand, Part Two

With members of the Republican National Committee descending upon Los Angeles this week for the party's spring meeting, the opportunity presents itself to revisit the current state of the rules that will ultimately govern the 2016 presidential nomination process.

Having established a baseline set of Republican delegate selection rules for the 2016 presidential election cycle in part one, FHQ will layer in the Democratic Party process and save our prospective look at the potential for future rules changes for a subsequent follow up post. It may also be helpful to look into the collective implications of the rules on both sides as they stand now. FHQ has spoken with some of the principals in both parties over the course of 2013, so the intent here is to be as concrete as possible without giving into the temptation of speculating. That said, FHQ would be remiss if it did not add the caveat that the rules are not set in stone on either side and will not be until the summer of 2014. In other words, there is going to be both intra- and interparty work on the rules and with that some give and take (read: rules changes) between now and then.

This post will focus more on the interparty dynamics and save the intra-party discussion for later.¹

If one were to take the baseline set of Republican rules detailed in part one of this series and compare it to the only set of rules available on the Democratic side -- the rules utilized during the 2012 process² -- there are some notable and consequential discrepancies that may affect not only the progression of the primary process in 2016, but the rules-making process as well.

Delegate Allocation:
As was pointed out in part one of this series of posts, there is currently a change embedded in the RNC rules for 2016 relative to 2012 in regard to the allocation of delegates. There is now a suggestion instead of a requirement that states (in some way) proportionally allocate delegates if they hold contests prior to April 1. This is a language issue within Rule 16 that the RNC is very likely to alter. However, this is largely an RNC issue. The Democrats have discussed allowing late states to hold winner-take-all contests as a means of speeding up an already-decided nomination, but the proportionality requirement for all states has held to this point. If the Democratic process is all proportional and the RNC allows some winner-take-all contests, then as many have discussed in the past, the Republican process could wrap up earlier if calendar and candidate/campaign dynamics are the same across the two parties' contests. That, though, is a large assumption. All of those factors -- delegate allocation requirements, the calendar and candidate/campaign dynamics -- interactively affect how any given nomination race progresses.

The bottom line is that this is not and would represent any new divergence between the two national parties' sets of delegate selection rules regardless of the RNC reinstating the proportionality requirement used in 2012.

Calendar:
Though both parties informally coordinated the basic structure of a primary calendar for the 2012 cycle, there is some break in that at this point in the 2016 cycle. That is not to suggest that there has been some sort of a divorce between the bipartisan group of rules-making principals who kept the lines of communication open with respect to the creation of the 2012 rules. However, there was a rules change coming out of Tampa that is somewhat consequential in a comparative light across the two parties' sets of rules.

FHQ will circle back to a broader discussion of the penalties in a moment, but the interparty divergence on the calendar is based on an intra-party discrepancy between the Republican guidelines in Rule 16 and penalties in Rule 17. In short, Rule 16 allows only Iowa, New Hampshire, Nevada and South Carolina to hold contests prior to March 1 (or one month before the next earliest contest). Yet Rule 17 does not penalize a state for holding a contest -- so long as it provides a proportional element in its method of delegate allocation -- on or after the final Tuesday in February.

As was mentioned in part one, this would provide states like Arizona and Michigan -- already scheduled for the last Tuesday in February according to state law -- with some cover. It provides a landing place for states that would like to hold early contests but potentially penalizes them based on the proportionality requirement penalty. [Yes there is a discrepancy between the "requirement" in Rule 16 and the penalty in Rule 17 here as well.] The states that have been willing to take the 50% delegation penalty for violating the rules on timing in the past -- Arizona, Florida and Michigan -- have also utilized a winner-take-all method of allocation. Under the current rules and penalties, all three could hold contests as early as February 23, 2016 and only lose 50% of their delegation, assuming no changes are made to the delegate allocation rules at the state level. That is a price each was willing to pay in 2012.

This does create a potential problem for the Democratic Rules and Bylaws Committee. As the rules stood during 2012, no state other than Iowa, New Hampshire, Nevada and South Carolina could hold a contest prior to the first Tuesday in March. If Arizona, Florida and Michigan all decide to move into that moderate, 50% penalty area of the calendar -- avoiding the superpenalty associate with going before the last Tuesday in February -- that means that those states would be subject to penalties on the Democratic side as well. The complicating factor and the saving grace here from the states' (Democratic) perspective is that Republicans control the decision on where the primaries in all three states end up. The complication is that Republicans could shift the contests in those states with no real recourse from state-level Democrats (either in the state parties or state governments). However, the Democrats in those states could petition the Rules and Bylaws Committee for a waiver for this very reason as long as some effort had been made by Democrats in the state to create changes that would bring the state into compliance with the Democratic Party rules (see the recently introduced bill in the Florida legislature).

Waivers aside, the question remains: Would the DNC really want a calendar that protected the carve-out states but has three medium-to-large states on their heels? A better question may be whether the DNC could do something about that anyway. One answer to the latter issue is to move up by one week (to the final Tuesday in February) the earliest date that non-carve-outs could hold contests. Of course, that has the potential of inadvertently inviting Democratic-controlled states to move up to that point on the calendar. In turn, that could put Republicans in the same position the Democrats now face: having to deal with states petitioning the party for a waiver. Additionally, if Arizona, Florida and Michigan are already positioned at that point on the calendar, the RNC would have two classes of states: the three aforementioned states penalized because they continue a history or winner-take-all allocation and a possible unpenalized group of states which have gained waivers.

This seemingly small change really does highlight the importance of some form or fashion of coordination between the two parties on their calendar rules and penalties. That one week window creates the potential for a messy situation between the national parties themselves, but the national parties and proactive states as well. This is an area where something is likely to give before both sets of delegate selection rules are finalized.

Penalties:
The mindsets of the two parties where penalties for rules violations are concerned are completely different. The RNC has arrived at a point where they as a party want penalties with teeth. Compliance has proven difficult in the absence of meaningful penalties. That is why there is now a 50% penalty for violating the proportionality requirement (assuming it is reinstated) and a superpenalty, knocking states delegations down to 12 delegates, for states that would violate the last Tuesday in February threshold. There is nothing similar on the Democratic side. There, there is a 50% penalty for violating the rules on timing and an additional penalty on candidates' delegates (should they campaign in a rogue state), but nothing more. That did not prove effective in deterring either Florida or Michigan in 2008 (though one could argue we have not seen the subsequent move from Florida and Michigan on the Democratic side).

Regardless, the Democratic Party approach is different. The teeth -- actually carrying through with the penalties at the convention as the RNC does -- is not something with which the DNC concerns itself. In the eyes of those on the Rules and Bylaws Committee, the penalty is effective in that it affects the candidate accrual of delegates during the process. By extension, by the time the nomination process reaches the convention, the decision has already been made and there is no need to penalize states and/or individual delegates. The obvious counter to this is what was witnessed in early February in 2012. Non-binding caucuses (Colorado, Maine and Minnesota) and primaries (Missouri) all received attention from the candidates and media despite there being no delegates at stake.

--
These two sets of rules do not and will not be carbon copies of each other, but there is the potential need for some coordinating action between the two parties on the rules, particularly those dealing with the calendar and to a lesser extent the penalties for violations. That action -- potential changes to the baseline rules -- is where FHQ will next turn its focus.

--
¹ The one intra-party note to add in this context is that the Democratic National Committee rules-making process will look different in 2016 than it has during any other cycle in the post-reform era. The one seemingly consequential decision -- and it is more a functional change than a substantive one -- that was made when the DNC convened in Washington the same week as President Obama's second inauguration was that the Rules and Bylaws Committee would handle the recommendation phase of the rules-making process in-house. Traditionally, a commission has been created to examine the rules in the context of the previous cycle(s) and compile a list of recommendations for rules changes. For the 2016 cycle there will be no commission like the Democratic Change Commission following the 2008 cycle.

From FHQ's perspective, this signals a couple of things:
1) On some level, the decision on the part of the Rules and Bylaws Committee to forego the commission step of the process is indicative of some consensus behind the existing rules. But...
2) It is also a nod to the reality of the overall process across both national parties. Removing the commission in some ways centralizes the power to craft the rules in the RBC. FHQ says "in some ways" because the RBC has never been in a position of obligation relative to any of the commissions that have existed over the years. The RBC never had/has to act on the recommendations made. But by removing the commission and considering changes in-house, the RBC is theoretically better able to adapt to any changes the RNC makes to its process. The other positive is that this saves the DNC from the needless creation of a body that would examine, compare and make recommendations for rules changes based on a potential moving target on the Republican side. Recommendations are worthless if they are based on in some way an outdated reality in the Republican rules.

² This is an obviously flawed comparison. The 2012 Democratic Party rules being carried over to 2016 is entirely dependent upon 1) there being a desire among the members of the Rules and Bylaws Committee to alter the rules and 2) what exactly the RNC changes about its current rules. Barring wholesale changes to the RNC rules (i.e.: unilaterally instituting a regional primary system), the expectation based on past precedent is that there would be only minor changes to the rules from the previous cycle.

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Thoughts on the Growth and Opportunity Project Recommendations

The Republican National Committee today unveiled its Growth and Opportunity Project report this morning which contained a number of recommendations that would affect the 2016 presidential primary process if passed by the full RNC. Needless to say there has been some reaction to the sliver of suggestions that would specifically alter the primary rules as well as the rest of the nearly 100 pages of the report. FHQ has spent some time already on the matter of debates regulation, and will focus on the primary changes instead.¹

Here are the presidential primary process recommendations (see pages 72-73)²:

1. The Republican Convention should be held earlier in the summer. It should be movedto late June or sometime in July, allowing our nominee more time to begin thegeneral election phase. (Note: The 2016 Olympics will be held August 5–21.) 
2. Because the nominee will still need an estimated 60–90 days to prepare for the Convention,changes will need to be made to the primary calendar. 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.
   
3. We take no position on whether a contest should be winner take all or proportionate.
   The fact is, both methods can delay or speed up the likelihood of a nominee being chosen.It all depends on who is winning and by what margins in each primary or caucus election.
   
4. To facilitate moving up primary elections to accommodate an earlier convention, the
   Party should strongly consider a regional primary system or some other form of a majorreorganization instead of the current system. The current system is a long, winding, oftenrandom road that makes little sense. It stretches the primaries out too long, forces ourcandidates to run out of money, and because some states vote so late, voters in thosestates never seem to count. Such a change would allow for a broader group of Republicansto play a role in selecting our nominee.
   
5. Recognizing the traditions of several states that have early nominating contests, the newlyorganized primaries would begin only after the “carve-out” states have held their individualelections. It remains important to have an “on ramp” of small states that hold unique primarydays before the primary season turns into a multi-state process with many states voting
   on one day. The idea of a little-known candidate having a fair chance remains important.
   
6. We also recommend broadening the base of the Party and inviting as many votersas possible into the Republican Party by discouraging conventions and caucusesfor the purpose of allocating delegates to the national convention. Our party needsto grow its membership, and primaries seem to be a more effective way to do so.The greater the number of people who vote in a Republican primary, the more likelythey will turn out and vote again for the Republican candidate in the fall election.
   

Let's look at these one by one:
Earlier Conventions:
This is nothing more than a strategic move. An earlier convention means a nominee can begin spending (and continue raising) general election funds earlier. This was an issue in both 2008 and 2012 for the Republican Party presidential nominees, but for different reasons. John McCain was stuck in the federal matching funds system in 2008 and was hamstrung by those limitations relative to his Democratic counterpart, Barak Obama, who had opted out of the same system and was able to raise an unlimited amount of funds. That hurt but so too did the point at which McCain could tap into that money; after the September 2008 convention. It is worth noting that Republicans held the second convention in that year. That is only a minor difference though (one week).

In 2012, Mitt Romney was also facing Obama, but an incumbent Obama. With no competitive primary, the president's campaign could utilize his cash on hand more strategically (i.e.: with the general election in mind) than his opponent before the conventions. Meanwhile, Romney was forced to fend off his would-be nomination challengers. That put him at a competitive disadvantage as he emerged from primary season and headed into the summer months of a general election campaign that was not a general election campaign from a campaign finance perspective until late August.

That will not be an issue in 2016 with or without an earlier convention. The Democrats, as the report points out, will have a competitive nomination race as well. The scenario where history repeats itself is the one that has the Democratic nomination race wrapping up quickly while the Republican race continues into the spring. Even under those conditions, the "lead" the Democratic nominee will have will not be the same as the lead that an incumbent Democratic president would have.

Earlier conventions, part II:
To accommodate an earlier convention, the party would also have to conclude its pre-convention delegate selection processes at the state level earlier as well. Nebraska Republicans, for instance, could not continue with their July convention to select delegates. Some have questioned how this would affect other states' processes (i.e.: Oregon, Texas). One matter FHQ has constantly raised on issue of forcing changes to state laws is that it is easier said than done. There has to be motivation on the state-level to make the change, but there also has to be some ability. Republicans pushing for change in a Democratic-controlled state may find some difficulty in complying with the new rules. See Oregon for a good example of not only that very partisan conflict, but the costs of creating an all new and separate presidential primary election. As it stands now in the current RNC rules, all non-carve-out states must conduct their primaries within a window from the first Tuesday in March to the second Tuesday in June. The more the party shifts up the backend of that window the more states will have to make changes. And it should be noted that most of the states that populate the tail end of the primary calendar typically hold the presidential contest concurrent with the contests for state and local offices.

This is kind of a big one. States that cannot comply with the rules would not be penalized any in terms of the number of delegates in their convention delegations (under the current rules), but they would run over into that 60-90 day window the party wants between the end of delegate selection and the convention. That could force some of those state parties to hold earlier caucuses to comply with the rules. That obviously conflicts with the above recommendation to reduce delegate selection by caucus/convention (Recommendation #6).

Winner-take-all versus Proportional:
Nothing states the impact of these delegate allocation rules better than, "...both methods can delay or speed up the likelihood of a nominee being chosen. It all depends on who is winning and by what margins in each primary or caucus election." In other words, it is difficult to measure the impact of these rules changes without prior knowledge of the conditions facing the party in any given election year. If there is a consensus candidate, then it will matter very little what the rules are. 2012 demonstrated that minor changes on the state level from 2008 to 2012 did very little to alter the Republican nomination race. The calendar changes did, the allocation rules changes did not.

Regional primaries:
As FHQ mentioned via Twitter earlier in the day in reference to regional primaries: If moving primaries was easy, it would have been done by the parties long ago to combat frontloading. Yet, this site still exists and the issue of states flaunting the party rules are still around as well. It is an open question as to how effective a regional primary system would be compared to the current system. Every body involved -- national parties, state governments, candidates, state parties, etc. -- all basically know what they have in the current system. They would not with a fundamentally altered system. Overlay that on state-level partisan conflicts and financial costs of elections -- much less multiple elections within one state -- and all those knowns become unknowns.

Gaining compliance on this issue requires buy-in at the state-level and to get to that point, the RNC, to implement a regional primary plan, would have to have buy-in from the DNC. The Democratic Rules and Bylaws Committee has yet to meet to discuss 2016 rules, but it is not clear such a system is a direction in which the party wants to take its process. Without the DNC onboard, though, the RNC potentially would have a number of non-compliant states in a regional primary plan. And that creates even more uncertainty for those involved in the nomination process.

Carve-out states:
If 2008 and 2012 were not confirmation of this, then the rules coming out of Tampa and the Growth and Opportunity Project report should be: the parties (at least the RNC) has settled the carve-out question. Iowa, New Hampshire, Nevada and South Carolina have protected status at the beginning of the calendar. Case mostly closed (depending on how other states position their own contests and the window of time left for the carve-outs).

Primaries > Caucuses/Conventions:
Primary elections have greater turnout. That we know. Whether bringing more people to the polls during primary season is more effective than grassroots activism through caucuses and conventions is up to a party to decide (at the peril of offending some within the party apparently). Both types of contests are and can be positive for a party by mobilizing voters in different ways. FHQ has no dog in this fight, but we do have a question in response to this recommendation: What is the penalty for any state that would violate a no-caucuses rule? Once new categories of states/rules are created, there have to also be attendant penalties associated with them. This is not an area to which the Republican Party has traditionally gravitated. Historically, the RNC has left these matters up to the states to decide. The only exception to that prior to 2012 was the issue of timing. In 2012, differentiating between states with differing delegation allocation formulas also created a new penalty; one that had to be refined for the current 2016 rules.

This one seems like a tough one to enforce; particularly in light of the window issues an earlier convention would create (more potential caucuses).

--
To reiterate something FHQ said above, delegate selection rules and the like are all party business. It is up to the party to determine how best to nominate candidates who would serve the party well in a general election. Some of the critiques in the report are likely warranted. FHQ will not pass judgment on those. However, the primary rules recommendations that were handed down from the Growth and Opportunity Project have some holes that will need to be addressed by the RNC Rules Committee when and if they take these measures up. Some things are easy to control; others are not. FHQ has heard tell that the delegate selection process can be managed, not controlled. I wonder if this report is attempting the latter or the former.

--
¹ One huge point that many are glossing over is that the report contains recommendations for rules changes; not rules changes themselves. The RNC had just a few votes to spare on some of the more controversial changes made to the rules in Tampa that netted the 2012 Rules of the Republican Party (The rules that will govern the 2016 delegate selection process.). It is an open question as to how successful the party would or will be in pushing some of these other rules changes before the entire RNC. Some have argued that the RNC chairman has unrivaled power to muster supermajorities within the RNC on votes to change the rules. In the face of the passage of Rule 12 -- the rule granting the party the power to alter the rules between national conventions -- that may be true, but the margin for error is quite small given the margin of the vote in Tampa.

FHQ should mention that, though the Growth and Opportunity Project report may have the backing of Chairman Priebus, that is the only (and consequential) thing that separates it from the quadrennial commissions that have made recommendations for tweaking the delegate selection rules on the Democratic side -- most recently the Democratic Change Commission. Recommendations can be made, but the question always remains: Can they be passed by the party?

² Here also is the full report from the Growth and Opportunity Project:

RNC Growth and Opportunity Project Report (2013)

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Thoughts on Where the 2016 Presidential Primary Rules Stand, Part One

Way back in August 2012 -- in the midst of the Republican National Convention -- FHQ promised to revisit the proposed or final Republican rules. Granted, we did not get access to the 2012 Rules of the Republican Party -- the rules that will govern the 2016 nomination process -- until about two weeks ago, so FHQ did not have the opportunity to comment in full on what emerged from Tampa.¹

...until now.

However, rather than deal with just the Republican rules, FHQ will examine the state of the 2016 rules across the two parties in a two part post. Most, but not all of the news on this front is coming from the Republican side, but that is mainly a function of the GOP having to address the bulk of their rules at the preceding convention (...as mandated by, well, the party's rules). I'll use the second post as a platform for discussing the collective implications of both parties' sets of rules on the 2016 process.

The key thing concerning the development of the 2016 RNC rules coming out of Tampa was the addition of one rule in particular, Rule 12:

Amendments:The Republican National Committee may, by three-fourths (3/4) vote of its entire membership, amend Rule Nos. 1-11 and 13-25. Any such amendment shall be considered by the Republican National Committee only if it was passed by a majority vote of the Standing Committee on Rules after having been submitted in writing at least ten (10) days in advance of its consideration by the Republican National Committee and shall take effect thirty (30) days after adoption. No such amendment shall be adopted after September 30, 2014. 

Now, if you will recall, the rules handed down from the 2008 Republican National Convention in St. Paul empowered a panel -- the Temporary Delegate Selection Committee (a group to be mostly selected by the RNC chair) -- to examine the party's delegate selection rules and make recommendations for rules changes to the full RNC membership. This was the group that delivered the proportionality requirement and the calendar requirement changes that better aligned with the Democratic Party rules.

FHQ has detoured to 2008 as a means of pointing out the differences the party has in changing its rules between conventions for 2016 as compared to the 2012 cycle. While the Temporary Delegate Selection Committee did not have carte blanc to alter the rules adopted in St. Paul, the body was uniquely empowered and had the full weight of the national party chair behind it. That is not to suggest that Rule 12 above does not, but the ability to change the rules after the convention is more constrained ahead of 2016 than they were for 2012. And the bar for affecting any changes is much higher. It requires a majority of the Republican Rules Committee to agree on the alterations and then a three-quarters supermajority of the full 168 member RNC to enact the change(s).

In practice, that likely translates to some relationship between the scope of change and how likely said change is to pass the full RNC. Stated differently, controversial changes would be more difficult to ram through than less substantive corrections that might apply to language or punctuation within the rules. Again, change can occur -- even potentially controversial change -- but the trick is going to be getting the requisite number of votes.

We start with that rule because the following rules discussion will be based on rules that could be changed prior to September 2014. And truth be told, do not expect any wholesale changes. But let's have a look at how the rules and penalties regarding the timing of delegate selection events and the method of allocation stack up for 2016 relative to 2012.²

Timing
Then (2012): Rule 15 (b):

(1) No primary, caucus, or convention to elect, select, allocate, or bind delegates to the national convention shall occur prior to the first Tuesday in March in the year in which a national convention is held. Except Iowa, New Hampshire, South Carolina, and Nevada may begin their processes at any time on or after February 1 in the year in which a national convention is held and shall not be subject to the provisions of paragraph (b)(2) of this rule. 

Now (2016): Rule 16 (c) [changes in bold and italics]:

(1) No primary, caucus, convention, or other process to elect, select, allocate, or bind delegates to the national convention shall occur prior to March 1 or after the second Saturday in June in the year in which a national convention is held. Except Iowa, New Hampshire, South Carolina, and Nevada may conduct their processes no earlier than one month before the next earliest state in the year in which a national convention is held and shall not be subject to the provisions of paragraph (c)(2) of this rule. 

Implications:
Looking at the changes, there is not a whole lot there; nothing more than subtle changes.

The "other processes" addition provides the RNC with some cover should state parties attempt to circumvent the rules with, say, a hybrid allocation process similar to the primary-caucus Texas Democrats use (the so-called Texas two-step). Any step that has any direct bearing on the election, selection, allocation or binding of delegates is covered under the rules.

The "March 1 or after the second Saturday in June" addition -- replacing "first Tuesday in March" -- is also not a significant change. March 1 is the first Tuesday in March in 2016. The insertion of the second Saturday in June clause merely brings the Republican window in line with the Democratic Party window in which contests can be held. This helps the party avoid the "Utah primary on the last Tuesday in June" problem and gives the party some extra time to certify and credential delegates to the convention. [It should be noted that there has been some talk within the RNC about holding an earlier convention in 2016, instead of holding one in August. This move provides the party with a little extra cushion to fulfill the above activities before the convention, should it actually occur earlier.]

The biggest change in this rule is the "no earlier than one month before the next earliest state" portion that applies to the scheduling of the four carve-out states. But even that is pretty limited in scope and only really bows to the reality of the calendar process over the last couple of cycles. That one month time span, if you look at the calendars from 2008 and 2012, seems like (about) the requisite amount of time for Iowa, New Hampshire, South Carolina and Nevada to schedule their contests. This rules change just puts that potential scheduling on something of a sliding scale. If, for instance, the Missouri primary does not budge from its current February 2 date, then Iowa, New Hampshire, South Carolina and Nevada could not hold a contest earlier than January 2 (or earlier than January 4 or 5 if Iowa and New Hampshire respectively wanted to keep their contests on their traditional Monday or Tuesday positions). If Missouri moves, the Arizona and Michigan become the problems at the end of February. That would mean a potential end of January beginning to the calendar -- an improvement over 2008 and 2012.

All in all, there is not too much groundbreaking stuff here. The carve-out states gain some potential leeway, but only under certain circumstances: if the next earliest state goes earlier than the first Tuesday in March.

Allocation
Then (2012): Rule 15 (b):

(2) Any presidential primary, caucus, convention, or other meeting held for the purpose of selecting delegates to the national convention which occurs prior to the first day of April in the year in which the national convention is held, shall provide for the allocation of delegates on a proportional basis. 

Now (2016): Rule 16 (c) [changes in bold and italics]:

(2) Any presidential primary, caucus, convention, or other process to elect, select, allocate, or bind delegates to the national convention that occurs prior to April 1 in the year in which the national convention is held may provide forthe allocation of delegates on a proportional basis. 

Implications:
Subtle is the word in Rule 16 (c) (2) as well. However, the impact as of now is pretty great. But FHQ will get there.

Changing meeting to processes and then including the actions being regulated is loophole protection and nothing more. That is the same as was the case in Rule 16 (c) (1).

That is true for the change from first day in April to April 1. There is no substantive change there.

However, the switch from "shall" to "may" is hugely consequential. As it stands now -- with "may" in the rule -- state parties are not forced to be proportional if those states hold contests prior to April 1. Rather, those states have a proportional allocation of delegates as an option. This is actually pretty big. It negates the need for the enforcement mechanism specified in Rule 17. It is also something that the RNC is aware of and a change to "shall" is under consideration by the Republican Standing Committee on Rules. [FHQ will circle back to this a little later on.]

Before we move on to the penalties in Rule 17, let me draw your attention to one other change to Rule 16. You will  have noticed that the relevant Rule 15 (2012) rule is subsection (b) whereas the same section in Rule 16 (2016) is subsection (c). That is due to the addition of a subsection (a) to Rule 16. Here is that rule:

Rule 16 (a):

Binding and Allocation.(1) Any statewide presidential preference vote that permits a choice among candidates for the Republican nomination for President of the United States in a primary, caucuses, or a state convention must be used to allocate and bind the state’s delegation to the national convention in either a proportional or winner-take-all manner, except for delegates and alternate delegates who appear on a ballot in a statewide election and are elected directly by primary voters.

(2) For any manner of binding or allocating delegates under these rules, if a delegate (i) casts a vote for a presidential candidate at the national convention inconsistent with the delegate’s obligation under state law or state party rule, (ii) nominates or demonstrates support under Rule No. 40 for a presidential candidate other than the one to whom the delegate is bound or allocated under state law or state party rule, or (iii) fails in some other way to carry out the delegate’s affirmative duty under state law or state party rule to cast a vote at the national convention for a particular presidential candidate, the delegate shall be deemed to have concurrently resigned as a delegate and the delegate’s improper vote or nomination shall be null and void. Thereafter the secretary of the convention shall record the delegate’s vote or nomination in accordance with the delegate’s obligation under state law or state party rule. This subsection does not apply to delegates who are bound to a candidate who has withdrawn his or her candidacy, suspended or terminated his or her campaign, or publicly released his or her delegates. 

I'll spare you the highlighting here and mention that you do not get too far into reading the above rules without realizing that they are part of the rules-related reaction to the Paul campaign delegate strategy in 2012.

Subsection (1) addresses the caucus shenanigans. The attempt here is to make the first statewide step of a caucus (or any other contest) binding in terms of the ultimate allocation of delegates. This presumably does away with the confusion over how delegates in those January and February 2012 caucus states like Iowa, Colorado, Maine and Minnesota are counted/allocated. In other words, no more waiting until the convention to determine (or to hope to finally determine) which candidate the delegates are actually supporting at the convention. This is a good thing for the national party and the candidates (in terms of having a firm running tally of delegates within the context of an evolving campaign), but has not been greeted with enthusiasm by state parties that see this change as an infringement on their ability to determine their own method of delegate allocation. The rules are always about trade-offs among the various interests involved.

In subsection (2), the intent is to account for the enforcement of the binding mechanism discussed in subsection (1) and later in the rest of Rule 16 (discussed above). This rule helps the RNC to avoid the "bound to Romney but really a Paul supporter" loophole that was discussed in the lead up to the Tampa convention. Under this provisions of this rule, bound means bound. And either the delegate votes according to how they are bound or they are removed and the delegate's vote is recorded as if the delegate had voted in accordance with how they were bound. The bottom line is that this in tandem with the changes to Rule 40 sets in stone the convention vote for nomination ahead of time.³ Again, this is a loophole closing action that the RNC wanted but the Paul folks at the convention were not too keen about.

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Broadly speaking, the above are the "rules" that affect the responses of state parties' delegate selection plans. The following are the "penalties" portion of the rules if states violate any of the provisions in Rule 16.

Enforcement of Rules
Then (2012): Rule 16:

(a) If any state or state Republican Party violates The Rules of the Republican Party relating to the timing of the election or selection process with the result that any delegate from that state to the national convention is bound by statute or rule to vote for a presidential nominee selected or determined before the first day of the month in which that state is authorized by Rule No. 15(b) to vote for a presidential candidate and/or elect, select, allocate, or bind delegates or alternate delegates to the national convention, the number of delegates to the national convention from that state shall be reduced by fifty percent (50%), and the corresponding alternate delegates also shall be reduced by the same percentage. Any sum presenting a fraction shall be increased to the next whole number. No delegation shall be reduced to less than two (2) delegates and a corresponding number of alternates. 

Now (2016): Rule 17:

(a) If any state or state Republican Party violates Rule No. 16(c)(2), the number of delegates and the number of alternate delegates to the national convention from that state shall each be reduced by fifty percent (50%). Any sum presenting a fraction shall be decreased to the next whole number. No delegation shall be reduced to less than two (2) delegates and a corresponding number of alternate delegates. If any state or state Republican Party violates Rule No. 16(c)(1) of The Rules of the Republican Party with regard to a primary, caucus, convention or other process to elect, select, allocate, or bind delegates and alternate delegates to the national convention by conducting its process prior to the last Tuesday in February, the number of delegates to the national convention shall be reduced to nine (9) plus the members of the Republican National Committee from that state, and the corresponding alternate delegates shall also be reduced to nine (9). 

(b) If any state or state Republican Party violates Rule No. 16(c)(2) of The Rules of the Republican Party, the Republican National Convention shall provide for the allocation of the selected at large delegates (excluding members of the Republican National Committee) among the candidates who received more than 10% of the votes cast in such primary, convention or caucus in accordance with and in proportion to the votes cast for each such candidate as a part of the total of the votes cast for all such candidates in that primary, convention, or caucus. 

Implications:
There is a lot here. So, buckle up and let's have a look around.

The first thing to note is that a second subsection has been added to the 2016 rules that did not exist in 2012. That is with good reason. If you will recall, the 2012 rules ran into a problem when Arizona and Florida not only broke the timing rules but the allocation (proportionality) rules as well. There was no provision in the rules in 2012 that applied any penalties to more than one penalty. In other words, once the rules were broken, they were broken. However, states were not necessarily being treated equally in that instance (not that that was the goal). The same 50% delegation reduction was applied to any state that broke one rule as they were states that broke more than one of those rules. There was no provision for a second penalty and as the RNC noted in the midst of primary season there were to be no double penalties. There was nothing in the rules to account for either.

The changes to the 2016 enforcement alter that dynamic by adding a specific penalty for a specific violation. According to subsection (a), states violating the proportionality requirement -- assuming that "shall" is reinserted in Rule 16 [see above] -- receive the 50% reduction that was standard in 2012. Florida, for instance, would have been reduced from 99 delegates to 49 for having stuck with a straight winner-take-all allocation of delegates.

There are a couple of additional notes to make about the proportionality requirement while we are on the subject.

1. Notice that Florida was reduced from 99 delegates to 49 delegates. If you recall the penalty that was actually levied against Sunshine state Republicans in 2012, you will remember that the total number of delegates at stake was 50. This is to account for another change to the rule. Half of 99 is 49.5. In 2012, that rounded up to 50. In 2016, fractional delegates are rounded down to the nearest whole delegate. 
2. If you shift from subsection (a) to subsection (b), you will also notice that the RNC has provided for the forced proportional allocation of delegates should states continue to maintain non-compliant winner-take-all rules in contests scheduled prior to April 1. Should the state parties not voluntarily allocate/bind the delegates proportionally, the RNC will do that for them at the convention. The threshold for candidates receiving delegates is 10%. Any candidate receiving over 10% of the primary or caucus vote is apportioned delegates approximately proportionate to his or her share of the vote among those candidates over 10%. This is akin to how New Hampshire has always allocated and bound delegates as mandated by state law. It is worth noting that states staking out a hardline position on this issue (maintaining winner-take-all rules) forgo some of the other less stringent methods of achieving proportionality as called for in the 2012 RNC legal counsel memo laying out the definitions.⁴ This is noteworthy because violators who claim such a position on proportionality lose latitude in determining their own method of allocation. Again, there is more than one way to get to proportionality, but if violating states maintain winner-take-all rules, they lose that leeway.  

Now, let's look at the penalties associated with timing violations (the second half of subsection (a) above). This gets tricky based on a discrepancy in the language between the "rule" and the "penalty". Looking back at Rule 16, the cutoff for determining a violation of the timing rule is March 1. However, the penalty in Rule 17 does not mention March 1. Instead, Rule 17 sets that cut point for the last Tuesday in February. That means that there is a weeklong window -- between February 23 and March 1, 2016 -- for states to hold contests with no penalty. As the calendar stands now, Arizona and Michigan, both of which are currently scheduled according to their respective state election laws for February 23, would not be penalized for holding their primaries then. Both states seemingly violate the provisions of Rule 16, but are not affected by the penalty in Rule 17 because of the language therein.

Coming out of Tampa, as was pointed out in the comments to our Arizona post last week, there was CNN item spelling out a slightly different rules/penalties alignment. As Peter Hamby reported, states that went ahead of the last Tuesday in February would be hit with a "super penalty" (more on that in a moment), but states that fell in the buffer zone between the last Tuesday in February and March 1 would face a less harsh 50% reduction. That may have been or may be the intention of the rules, but that is not what is described above in Rule 17.

Rule 17 (a) calls for states violating the timing rule -- going before the last Tuesday in February -- to have their total number of delegates reduced to 12 (9 delegates plus the three automatic RNC delegates). Additionally but separately, states that violate the proportionality requirement would be subject to a 50% reduction. There is still no double penalty provision. States that violate both rules would have 12 delegates. But a state that holds a contest in the last Tuesday in February to March 1 window and allocates delegates proportionally is within the rules and would not lose any delegates. States with contests in that window with winner-take-all allocation methods would be docked 50% of their delegates.

The fact remains, however, that a state can hold a contest before March 1 and not be penalized for it. There is no 50% penalty associated with scheduling a delegate selection event in that week before March. Again, that may be the intent -- and where the rules ultimately end up -- but that is not where they are now.

Either way, the practical implication of this is that there is some incentive for states to move up into that "buffer zone". Whether states actually do that remains to be seen. Arizona and Michigan are already in that window on the calendar. Arizona would lose 50% of its delegates only if the state Republican Party fails to alter its allocation/binding mechanism from winner-take-all. Michigan would have been compliant on both counts in 2012 (...but not without some issues).

The other big question that emerges from this -- and there are others -- is "What about Florida?"

Indeed.

What about Florida?

Would actors in Florida be enticed by a free landing spot on February 23 alongside Arizona and Michigan; one without penalty assuming the RNC does not change the rule or assuming that the Republican Party of Florida shifts away from a winner-take-all allocation of delegates. Granted, Florida has demonstrated over the last two cycles that a 50% reduction to their delegation is not a deterrent to a non-compliant primary date.

Furthermore, would the Presidential Preference Primary Date Selection Committee charged with setting the date for the primary be winning to share a date with Arizona and Michigan? Would they consider moving back to a non-traditional (non-Tuesday) position on the calendar but also during that last week in February? A Saturday primary may be workable, but that would put Florida at least seventh in the order of states on the calendar. Decision-makers in the state in 2011 were adamant about being fifth in that order behind the carve-out states. Again, FHQ says that would place Florida at least seventh because other states could opt to move into that window before March 1.

That may force Florida to take the poison pill and push ahead of February 23 on the calendar, reducing the state's delegation to 12 in the process and pushing the carve-out states even earlier (at least one month ahead of Florida if the state is ahead of February 23). The rationale within Florida could very easily be that the nomination process is less about delegates that early on than it is about momentum. Still, falling to 12 delegates would certainly affect how the candidates' campaigns perceive Florida in that calculus. That was kind of the point from the RNC perspective.

One last thing about the carve-out states and timing: They gain some added protection, but FHQ doesn't think it is as much as some let on coming out of Tampa. Instead of a "no earlier than February 1" restriction, the carve-out states have a sliding "one month ahead of the next earliest contest" window in which to schedule their contests without penalty. The carve-out states are still not subject to the proportionality requirement, but are subject to the timing reduction (12 delegates) if the four states cannot manage to fit all of their respective contests into the month window before the next earliest contest. This likely is not an issue, but it could be if Florida pushes its primary into January and the calendar flirts with new years again. The month long period may not -- depending on how the calendar shakes out -- be enough for the carve-outs to schedule everything with the spacing they like or require based on state law. In addition, even if the rules allowed the carve-outs to hold late 2015 contests, there would likely be resistance to actually doing so. Not for reasons based on the rules so much as having to coordinate the contests during the holidays.

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Finally, the RNC also added to the rules for 2016 a waiver provision specific to the timing and proportionality requirements in Rule 16. There was a waiver process in 2012 but it only referred to violations of the October 1 deadline for finalizing delegate selection plans in the year before the presidential election. Additionally, allowances were made for states that could not meet that deadline or use the delegate selection plan from the previous cycle due to a conflict. Regardless, everything was specific to the October 1 deadline and not the timing or proportionality requirements. There is now a waiver process in place for states that cannot meet the requirements in Rule 16.

Rule 16 (f):

(3) The Republican National Committee may grant a waiver to a state Republican Party from the provisions of Rule Nos. 16(a)(1) and (2) where compliance is impossible and the Republican National Committee determines that granting such waiver is in the best interests of the Republican Party. 

Compliance can be difficult when the opposing party is in control of the apparatus that would make those requisite changes to state law. There is no clear example of that on the Republican side as of now. One can, however, envision such problems on the Democratic side with Republican-controlled early states like Arizona, Florida and Michigan.

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This is probably way too much even for the first part of a two part post, but FHQ will leave you with the foundation of the Republican rules and return later to talk about the potential for rules changes on both sides and what that may mean for the calendar and the process in 2016. Stay tuned for part two.

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¹ Here also are the the full 2012 Rules of the Republican Party as adopted at the Republican National Convention in Tampa:

2012 Rules of the Republican Party by

² Due to the insertion of Rule 12 all subsequent rules for 2016 are one number higher than they were in the 2012 rules. Rule 15 laying forth the timing and proportionality requirements (among other things) is now Rule 16 in the current rules.

³ FHQ will deal with the changes to Rule 40 in a footnote. These alterations have been more widely discussed in the media in the immediate aftermath of the Tampa convention.

Nominations (at the convention):
Then (2012):

(b) Each candidate for nomination for President of the United States and Vice President of the United States shall demonstrate the support of a plurality of the delegates from each of five (5) or more states, severally, prior to the presentation of the name of that candidate for nomination. 

(d) When at the close of a roll call any candidate for nomination for President of the United States or Vice President of the United States has received a majority of the votes entitled to be cast in the convention, the chairman of the convention shall declare that the candidate has been nominated. 

Now (2016) [changes in bold and italics]:

(b) Each candidate for nomination for President of the United States and Vice President of the United States shall demonstrate the support of a majority of the delegates from each of eight (8) or more states, severally, prior to the presentation of the name of that candidate for nomination. Notwithstanding any other provisions of these rules or any rule of the House of Representatives, to demonstrate the support required of this paragraph a certificate evidencing the affirmative written support of the required number of permanently seated delegates from each of the eight (8) or more states shall have been submitted to the secretary of the convention not later than one (1) hour prior to the placing of the names of candidates for nomination pursuant to this rule and the established order of business. 

(d) When at the close of a roll call any candidate for nomination for President of the United States or Vice President of the United States has received a majority of the votes entitled to be cast in the convention, the chairman of the convention shall announce the votes for each candidate whose name was presented in accordance with the provisions of paragraph (b) of this rule. Before the convention adjourns sine die, the chairman of the convention shall declare the candidate nominated by the Republican Party for President of the United States and Vice President of the United States. 

Implications:
The functional impact of the above changes is to raise the bar on would-be challengers to the presumptive nominee of the party. Instead of controlling delegations of five states, a fringe candidate seeking nomination, according to subsection (b), is required to control the delegations (have controlling majorities) in eight states and to get the signatures of delegates from those eight states to the secretary of the convention an hour in advance of placing the names of candidates in nomination. In referencing the other party rules herein and the rules of the House of Representatives (the parliamentary procedures under which the convention is conducted), the changes to Rule 40 (b) cut off any parliamentary maneuvering the supporters of a challenging candidate may employ. As in Rule 16, the changes close loopholes that were exploited by the Paul faction leading up to and during the convention.

Presumably, the agenda of the convention will specify when the placing of names in nomination is to occur. Otherwise, the point an hour ahead of that time is somewhat ambiguous to would-be challengers and their delegates.

Echoing the "votes set in stone" point in the Rule 16 discussion above, the changes to subsection (d) provide very little wiggle room to would-be challengers to the nomination. Either the votes are there ahead of time across eight states to nominate such a candidate or they are not. That announcement is and the business of the convention continues.

In total, these rules changes in tandem with those above seemingly and effectively hamper the type of strategy the Paul campaign utilized or attempted to utilize in 2012. It gives, for better or worse, the power over the nomination (at this late stage of the process) back to the RNC. That is good for the party and its presumptive nominee, but may leave a bad taste in the mouth of any candidate attempting to vie for the parties nomination at the convention; something that hasn't happened on the Republican side (in some way, shape or form) since the Ford-Reagan clash in 1976.

⁴ These definitions of proportionality or the ways of achieving proportionality are still not directly included in the rules document. The 2008 Rules of the Republican Party (the rules for 2012) have that memo appended to the document, but it is more or less assumed -- not explicitly laid out -- that those same definitions apply in 2016.

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