2016 Rules: Penalizing Candidates for Participating in Unsanctioned Debates?

This idea has been floating around since the RNC Chairman Reince Priebus mentioned it to reporters during the RNC Winter Meetings in Charlotte in January. But now the idea of penalizing presidential candidates delegates for participating in primary debates not sanctioned by the Republican National Committee is making the rounds again in an item by Ramesh Ponnuru over at the National Review.

In my discussions with folks involved in the rules-making process in the RNC this debates/delegate penalty never came up. That is not to suggest that it has not come up or will not be pushed in some form at future RNC meetings. There is some sincere frustration over the perceived impact those primary debates had on the process within the party, but this seems more like an idea that is being floated more than a directive for change from the chairman.

That is the FHQ interpretation of it anyway. Here's why:

This is a tough [TOUGH] penalty to enforce. Again, that is not to say that it cannot be enforced, but it is something that is difficult to achieve. Functionally, it works more as a threat than an actual penalty. The Democratic Party had something similar on the books in 2008 (and 2012). The rule did not apply to debates. Rather, it was a penalty put in place to dissuade candidates from campaigning in states that violated the rules on timing. In 2008, that meant that none of the candidates could campaign in Florida and Michigan until the day after the primary in the violating state. If the candidates had campaigned in either state they would have lost any and all pledged delegates won in that primary (Rule 20.C.1.b).

But no candidate violated that rule. And that was probably fortunate for the DNC and its Rules and Bylaws Committee. Imagine if that question had been layered into the Clinton-Obama delegate fight in the waning days of primary season in 2008. [That threat also worked (or mainly worked) because Iowa, New Hampshire, Nevada and South Carolina were in on it. Each collectively and effectively threatened the support for and to any candidates who campaigned in any states jumping the queue.]

Again, as in that 2008 case, it is easy to threaten to take away delegates from candidates, but tough to enforce without also potentially hurting the state parties, not to mention individual delegates, in the process. How does the national party identify which delegates get the axe? What is the percentage? How does the party account for the varying penalties that will occur based on different methods of delegate allocation? Furthermore, does would the RNC ultimately care? [The standing, yet unofficial, rule on the Republican side has always been to just leave it up to the states. But there has been an evolution to that since 2008. In other words, instead of "do what you want states" it is "these are the rules, do what you want/can states".]

Ultimately, this really is not a penalty on the candidates. Yes, the proposal targets them, but the reality is that this but the first step in how the RNC likely sees this playing out. As was the case with the Democrats in 2008, the likely intent is to in some way curb the incentives state parties and other groups have in scheduling these debates in the first place. If the state parties are rational, they will not want to hold/sponsor a debate if it means the party will potentially not have a full slate of candidates -- or at least the main competitors -- participate.

But what is the mechanism by which state parties or other groups acquire the RNC's blessing for holding a debate? Is there a mechanism at all or will early states (or perhaps competitive general election states) have the upper hand in planning and orchestrating such debates?

All we really have in Chairman Priebus' comments is the wisp of a plan. It is not fully fleshed out and as such is rife with unintended consequences.

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Footnote:
FHQ should also mention one of the other talking points circulating in response to this already: That this is a rules change that seemingly advantages the supposed establishment candidate; something those in the grassroots and/or among the Tea Party would not necessarily be favorable toward. That response is apt, but focuses too heavily on the candidate-specific penalties instead of the state angle proffered above. Functionally, I think candidate angle is correct. A frontrunning establishment candidate is motivated to participate in as small a number of debates as possible. This just provides some institutional national party-based cover for that candidate or candidates. That, in turn, affects the calculus of those planning these debates in the first place. But again, that is the goal of this particular rule should it ever come to fruition.

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A Brief Note on 2016 Democratic Nomination Rules

Unlike Tampa, there is not much going on in Charlotte regarding the rules governing the 2016 Democratic presidential nomination. The Rules and Bylaws Committee met in Charlotte on Saturday, completed their business and will make their report presentation to the convention tomorrow. But the bottom line is that the real work on 2016 will take place on the Democratic side next year and into 2014. The RBC report will likely involve the creation of a commission to examine the rules procedures, which will in turn make any recommendations for changes to the system to the Rules and Bylaws Committee. That will happen in 2013 and the RBC will act -- if any changes are to be made -- the following year.

I was fortunate enough to have run into RBC co-chair Jim Roosevelt in the Charlotte Convention Center yesterday while picking up my media credentials for the convention. He confirmed that the RBC report was done and would be presented on Tuesday at the convention. I also asked him for his thoughts on the rules changes the Republican Party seems to have made. He, too, had not seen the final language on the rules that was passed in Tampa (thus limiting either his or my ability to do anything other than speculate on what has been reported), but agreed with me that the proposed stiffer penalties represented a hopeful step toward calendar order in 2016.

FHQ will have more on this from the convention tomorrow when the RBC gives its report.

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Some Thoughts on the Proposed RNC Rules Changes for 2016, Part One

It was just last week that the Republican Rules Committee proposed and passed a set of 2016 presidential primary rule reforms for approval at the Tampa convention this week. FHQ put off unpacking it all for several reasons not the least of which was preparing for the trip down to Tampa. Trips aside I wanted a chance to read the rules and watch whatever reaction there was. Recall that the 2010 changes to the rules for this most recent cycle were viewed as sweeping changes with a huge potential impact.

The reality? Well, the calendar informally coordinated with Democrats helped to spread the calendar out some. Of course, the lack of any new and significant penalties in the 2012 rules left the gate open for Florida to keep its primary in January, pushing the start point up to the cusp of new years and spreading the primary calendar out even further.

That slowed the nomination of Mitt Romney down. What did not was the new proportionality requirement which, though it was hyped as a mechanism to reduce the speed of the process and create the type of deliberative, competitive and energizing nomination process the Democratic Party had in 2008. Requiring states with contests scheduled prior to April 1 to allocate their share of delegates in a manner that had an element of proportionality actually helped quicken the pace of the 2012 Republican nomination race. Under the 2008 rules, Rick Santorum would have gained slightly more delegates than he actually did deep into March. That would have also slightly reduced the margin in the zero sum fight for delegates.¹

FHQ, then, is a little wary of trying to gauge the sort of impact new rules would have four years in advance. It is a fool's errand rife with very likely unintended consequences. But let's get a head start dispelling any notions of broad sweeping changes embedded in the rules proposals that will go before the full convention on Tuesday. It's never too early.

First, the changes. The rule in question for much of this discussion is Rule 15 in the 2008 Rules of the Republican Party. Let's take this piece by piece:

Current Rule 15(a):

(a) Order of Precedence.Delegates at large and their alternate delegates and delegates from Congressional districts and their alternate delegates to the national convention shall be elected, selected, allocated, or bound in the following manner:(1) In accordance with any applicable Republican Party rules of a state, insofar as the same are not inconsistent with these rules; or(2) To the extent not provided for in the applicable Republican Party rules of a state, in accordance with any applicable laws of a state, insofar as the same are not inconsistent with these rules; or(3) By a combination of the methods set forth in paragraphs (a)(1) or (a)(2) of this rule; or(4) To the extent not provided by state law or party rules, as set forth in paragraph (d) of this rule. 

Proposed Rule 15(a):

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.

Analysis of Change:
At its simplest, this change binds delegates to candidates based on the results of any statewide vote be it primary or precinct caucuses. The proposed rule does not allow for plans like those in Iowa or in some other Republican caucus states where delegates were unbound based on state rules. The change does not provide state parties with the same latitude those bodies had in 2012 and before.

But it also has the impact of opening up the method of allocation for all states (...based on this rule and the current Rule 15(b) that is on the chopping block).

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Current Rule 15(b):

(b) Timing.* (Revised language was adopted by the Republican National Committee on August 6, 2010)(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.(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.(3) If the Democratic National Committee fails to adhere to a presidential primary schedule with the dates set forth in Rule 15(b)(1) of these Rules (February 1 and first Tuesday in March), then Rule 15(b) shall revert to the Rules as adopted by the 2008 Republican National Convention. 

Proposed Rule 15(b):

For any manner of binding or allocating delegates permitted by these Rules, no delegate or alternate delegate who is bound or allocated to a particular presidential candidate may be certified under Rule 19 unless the presidential candidate to whom the delegate or alternate delegate is bound or allocated has pre-certified or approved the delegate or alternate delegate.

Analysis of Change:
This is the rule that has drawn so much backlash from Paul supporters, Santorum supporters and other state party officials and has threatened to throw the convention into a floor fight. Honestly, this change has the potential to be the proportionality requirement of of 2016: an overhyped rule with no real impact on the process. At the heart of the conflict is the notion that delegates being approved by candidates is a power grab at the expense of a state party's right to choose how it allocates its delegates. Further, it takes a grassroots activity meant to build the party and turns it over to the candidate or candidates. FHQ gets the rationale, but I struggle to see what fundamental impact the change will have.

Actually, I do see the impact it will have. Together with Rule 15(a) the candidate approval mechanism altogether ends the possibility that a statewide vote can be overturned in subsequent steps in a caucus process by enthusiastic and organized supporters of a candidate that did not comprise a majority or plurality of the statewide vote. We can call it the Ron Paul issue. It isn't a problem because the Paul folks and their supporters were behaving well within the confines of the rules laid out for the 2012 cycle. It is, however, perceived as a problem by the national party. It takes what has been an orderly process and leaves the order up to chance every cycle; opening the door to discord within the party and a less than cohesive national convention that could hurt the presumptive nominee for the party.

The counterargument is that this is still positive local and state party building, and it is good for the national party to broaden the tent to include passionate political actors. But you know who doesn't have a problem with party building in caucuses? The Democratic Party. Here is Rule 9.B.3 of the 2012 Democratic Party Delegate Selection Rules:

3. If persons eligible for pledged party leader and elected official delegate positions have not made known their presidential preference under the procedures established by the state pursuant to Rule 12 for candidates for district-level and at-large delegate positions, their preferences shall be ascertained through alternative procedures established by the state party, which shall require a signed pledge of support for a presidential candidate. Such an alternative system shall have a final deadline for submitting a pledge of support after the selection of all district-level delegates has been completed and must provide an opportunity for disapproval by the presidential candidate or the candidate’s authorized representative. 

Notice that italicized and bolded section. The Democratic Party has had an approval system in place for years and it has not really had an impact on delegate selection or enthusiasm in caucus states.² Truth be told, there is evidence to suggest that caucus states are caucus states for a reason: maximizing power over the process. States with a party elite that does not converge ideologically with rank and file members of the party within the state are much more likely to turn to a restrictive mode of delegate allocation. More diverse states where the ideological line is blurred between those two groups are more likely to have a primary -- even an open primary (Meinke, et al, 2006).

This is obviously a struggle over the level of power the state party has in all of this. Those parties in Republican caucus states in particular do not want to cede that power to the national party or the candidates. But again, the Democratic Party has done this with little problem for years. Yes, I am aware that a "the Democrats do it this way" argument is going to do very little to win over the hearts and minds of Republicans trying to set much less operate under this particular rule, but still.

If the delegate slots are already bound to particular candidates based on the statewide vote, then all we are talking about is a candidate -- any candidate, Romney, Paul anyone -- approving of the delegates that fill their slots at the end of the caucus/convention process when typically the nominee is already known just not officially nominated yet. I can see state parties being up in arms over this, but if you are a supporter of a candidate what's wrong with receiving your fair share of delegates? Well, the problem is that there is a loophole in the current system that opens the door for those energized and organized supporters of a particular candidate. They don't want to lose that loophole and state parties don't want to lose the ability to, well, do whatever they want. That's a fertile environment for coalition formation.

Of course, there are reports tonight that a floor fight over this rule has been avoided and a compromise between the two sides has been reached. Now, the rule will prevent bound delegates from casting a vote for or nominating a candidate to whom they were not bound.³ This keeps the loophole for unbound delegates, but eliminates the oft-discussed loophole in the RNC rules that binds delegates supportive of another candidate to cast a vote for the bound-to candidate, but not necessarily to nominate that bound-to candidate. The real winner is the states in all of this. They keep exactly what they want, but Paul folks and the Romney/RNC contingent had to give something up.

We'll never know now, but I'll argue to my grave the point that this rule -- had it taken effect -- would not have had nearly the negative effect its detractors claimed after the amendment pass passed last week. The tone of the attacks is that the delegate decisions/approval will be preordained before the caucus rather than something that takes place at the end of the caucus convention process.

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Proposed Rule 15(e)(3) [NEW]:

The Republican National Committee may grant a waiver to a state Republican Party from the provisions of 15(a) and (b) where compliance is impossible, and the Republican National Committee determines that granting such waiver is in the best interests of the Republican Party.

Look, this is another one of those "the Democrats do this already" sorts of things. There was no provision in the RNC rules to provide for a waiver and there will potentially be for 2016 pending approval by delegates on the floor on Tuesday. If a situation arose where a Democratic-controlled state moved a primary or caucus to a position out of compliance with the RNC rules, that state GOP would have no recourse without a formal waiver process in place (see Florida in 2008, but in reverse).

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Stay tuned for Part Two where we will look at the impact of new sanctions and the heightened nomination requirements.

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¹ Where particular states moved their contests on the calendar and where they were regionally was also noteworthy. A different alignment of states would have affect the accumulation of delegates to the 2012 cast of candidates in the Republican race. 

² FHQ should also note that the Meinke, et al work focuses on the Democratic side of the equation. Those relationships are clearer in Democratic caucus states because those are states are typically Republican states. A more liberal party elite wants to guard against the more conservative candidates a more conservative primary electorate might select. The choice of a caucus or primary is an easy one in that regard. But there is no similar corollary on the Republican side. There are no Republican caucus states with conservative state party elites in an overwhelmingly liberal state. There was a lot of talk about how conservative the Iowa Republican caucus attendees would be in 2012 and the impact that would have on winnowing the field, but that is not the same issue as the ideological divergence Meinke, et al address.

³ The proposed alteration will strike the proposed Rule 15(b) above -- the approval mechanism -- and add a second part to Rule 16(a). The former would have been a new subrule to the section on electing or selecting delegates, whereas the latter is an enforcement mechanism that belongs in the Enforcement of the Rules (Rule 16). Here is the text of the proposed addition:

Rule 16(a)(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 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.

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2016 Starts in Tampa

Back in June FHQ gave a rundown of a bipartisan working group meeting of rules officials within both national parties concerning the 2016 delegate selection rules.¹ The intent of the meeting was not necessarily to reform the system so much as bridge the gap across parties and discuss ways to streamline how Americans select their presidential nominees. As the current cycle heads into convention season, the 2016 cycles looms. That is because the RNC will vote on the rules governing the process of nominating the party's 2016 nominee in Tampa. In other words, if the parties are to do anything about the Florida/Michigan/Arizona problem it starts in less than two weeks.

Now, the word streamline above is a kind of catch-all phrase for what the group discussed at Harvard. Below is the declaration that emerged from that May meeting:

NPC 2016 Declaration
You can find more at the National Presidential Caucus blog.

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¹ See those previous posts describing the May meeting FHQ was asked to participate in at the Harvard Institute of Politics here and here.

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Do the RNC Rules Allow a VP Selection to Be Dumped by the Convention?

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Do the RNC Rules Allow a VP Selection to Be Dumped by the Convention?

Sure they do.

But of course, that won't happen in Tampa. And FHQ is not suggesting that it is a possibility. Rather, this is in answer to Jonathan Bernstein's follow up to Seth Masket on the influence of party over the vice presidential selection.

First the rules:
In the 2008 Rules of the Republican Party -- the rules governing the 2012 nomination process and convention -- Rule 40 covers nominations. Yes, the same Rule 40 that came up back in March and was the basis for all the talk about Ron Paul controlling a plurality of delegates in at least five states. The same is true for vice presidential nominations, but the procedure there is less regulated than for presidential nominations. By that I mean that delegates are not bound on the vice presidential roll call votes in the same way that they are on presidential roll call votes for nomination (...something Jon Ward covers here). I am not suggesting that there will be any Ron Paul delegate mischief or any other efforts to second guess Romney and oust Paul Ryan from the ticket in Tampa. Instead, the point is to show that it is possible.

Now the implications:
Within the framework of the party -- writ large -- influencing the selection of a vice presidential nominee, this merely adds another layer. But that is certainly a layer that strengthens the party's hand. It really is not unlike a president's decision in selecting a nominee to fill a Supreme Court vacancy. There is a more than adequate supply of able jurists in the pool, but only a constrained number of them will ever be considered by any given president. There is a calculus to the decision and presidents can push the envelope -- ideologically speaking or in some other manner -- but the extent of said pushing goes only so far as the administration's perception of what/who is likely to get the requisite 60 votes in the US Senate for confirmation.

Similarly, Presumptive Nominee Romney wants/wanted to select a running mate that was palatable to members of the Republican Party. Any of the finalists -- Ryan, Portman, Pawlenty -- would have accomplished that. Additionally, there was a reason certain trial balloons failed: They weren't passable in a convention setting. FHQ has attempted to raise the issue of breaking from the script moments at the Republican convention in Tampa. Mostly that was within the context of the role of Ron Paul delegates. But the same rule applies in this case. Selecting, for example, a pro-choice running mate like Rice or Sandoval would have been vetoed -- in Bernsteinian? Berenstain? terms -- by the convention. It may not have been enough to derail the ultimate nomination of that type of candidate, but it definitely would ruin the harmonious party atmosphere with which the two national parties like to leave conventions.

The last thing any party or nominee wants is discord within the party before, during or after a convention. And that is the power of party in this particular political decision.

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Don't Bet on the Iowa Caucuses Going Anywhere in 2016

No, FHQ wouldn't even bet on it if Ron Paul won the caucuses on January 3.

Now, I won't go as far as to say that it won't happen, but the odds are against Iowa's caucuses being removed from its position at the front of the calendar. And in the end that will have very little to do with Iowans or campaign surrogates there saying the caucus process was "hijacked". Assuming Paul does win the caucuses and then fails to capture the Republican nomination, that really is no different than Iowa caucusgoers choosing wrong in the past in nomination races in both parties. As FHQ has said previously, Iowa's role isn't to predict the nominee, but rather to winnow the field. Iowa caucusgoers don't necessarily anoint the frontrunner, they usually pare the field down to either that candidate (if the invisible primary has been at all conclusive) or the frontrunner and another couple of candidates (if the invisible primary has been inconclusive). Iowa's success rate at picking the nominee isn't/wouldn't necessarily be any better or worse than any other state in that position.

But I don't want to defend Iowa's position on the calendar again.

...not that I am.

FHQ is just mindful of the reality of the process that produces a presidential primary calendar every four years. The decision of whether to keep Iowa and/or New Hampshire, Nevada and South Carolina up front is up to the national parties. If the parties want them there, then there those contests will be. If not, the delegate selection rules will be crafted in a way as to (attempt) to prevent that. And sure, that brings up a perfectly valid point: Why couldn't Iowa Republicans and Democrats just pull a Florida and ignore the national party rules if those rules didn't protect Iowa's spot at the head of the queue?

They could. But the problem is -- and Romney is demonstrating this to some extent this cycle -- that candidates can keep Iowa at arms length if they feel they can win the nomination without Iowa. No, FHQ doesn't mean skipping. No candidate would ever skip the first state, but they could choose to limit their time there, biding their time until the right point. That, however, takes a certain type of candidate; a frontrunner or a self-/well-financed challenger. Iowa Republicans are really worried about that -- those internal factors like candidate visits/spending -- instead of the RNC changing the rules and reshuffling the order at the beginning of the process -- an external factor.

Let's look at those externals first and then revisit the other end of the Iowa equation. First of all, if a Republican wins the White House next year -- regardless of whether the Iowa caucuses correctly predict the nominee -- then Iowa will not be an issue in 2016. It may be, but it isn't likely. Why? Parties in the White House rarely tinker with their rules; especially if the objective is to renominate/reelect the president (see Klinkner, 1994). If there is one thing the Democratic Rules and Bylaws Committee said last year, it was that their main objective -- the party's really -- was to reelect President Obama. They were not going to discuss anything -- and certainly not a contentious "Iowa and New Hampshire shouldn't be first" debate -- that was going to rock the boat. Buttressing that issue, there is no evidence that the Democratic Party would push Iowa from its lofty perch. If anything gives a state party an argument for being in a particular position on the calendar (early, in other words), it is the other party in the state holding down an early position. And in Iowa's case, there is a tradition of the two parties holding caucuses on the same date.

It is slightly more likely that Iowa would be in danger if Obama is reelected. The Republican Party would potentially be willing to reexamine just about anything within their 2016 nomination process -- Iowa's position included -- if they lost in 2012. And the Democratic Party would be more willing to go along if there is some consensus -- intra-party and inter-party -- behind moving Iowa from the top or reforming the system in some small measure. [BIG ifs.]

No, I think what is most probable -- even if Ron Paul wins on January 3 -- is that Iowa is simply left alone. Neither party was particularly interested in opening up that Iowa/NewHampshire debate in the last round of delegate selection rule tweaking and it isn't clear that they would want to in the future. It's complicated as I think much of the writing on FHQ will attest. This whole thing -- the Iowa conundrum -- has more to do with the dynamics of this race and within the Republican Party right now. If there was a clear frontrunner right now and a win in Iowa  was viewed as the first win in a string of fairly sure victories (think George W. Bush in 2000), then said frontrunner will be there and so will the other candidates. However, if you have no clear frontrunner and instead someone who is kind of sort of ahead in the polls (or at least consistent in them) and overspent and got burned in Iowa four years prior, then you have a recipe for an indecisive Iowa result. It really is as simple as that. The dynamics of the last two Republican races have hurt Iowa -- as it would have a great many other states that could have been at the front -- if the measure is defined as Iowa choosing the eventual nominee. But that isn't Iowa's role in this process and that is part of the reason they aren't likely to go anywhere anytime soon.

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Texas Presidential Primary to Stay on March 6

The Texas House today passed SB 100, the amended version of which does not have the April presidential primary provision contained in it. The original, Senate-passed version did not call for the primary to be moved to April either. Together, that ends the April presidential primary talk in the Lone Star state.

[Click to Enlarge]

The move -- non-move really -- does put the Texas Republican Party in a bit of a bind, though. The party has typically used winner-take-all delegate allocation rules in the past, but the Republican National Committee will not allow that in 2012 before April 1. Texas Republicans are further constrained by the fact that the party's delegate allocation rules cannot be changed between now and the March 6 primary. Those sorts of changes can only be made at the state convention and the 2011 state convention has already come and gone. The party, then, is in the proportional window, but with winner-take-all rules, leaving Texas Republicans open to penalties (half the delegation or more) from the national party.

NOTE: Technically, HB 318, the bill to move the Texas primary to February, is still active. However, that legislation has been stuck in committee since February, and with the legislature set to adjourn next week, that is unlikely to change. FHQ, thus, feels comfortable in shifting Texas into the settled category on the calendar.

See the updated 2012 presidential primary calendar here.

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Floor Amendments Strip Out April Presidential Primary Provision from Texas House Bill

The Texas House on Tuesday considered the House Committee Substitute to SB 100. The bill, as it emerged from the Defense and Veterans' Affairs Committee, would have shifted the Texas presidential primary -- as well as the primaries for statewide and local offices -- from the first Tuesday in March to the first Tuesday in April. One of the five amendments adopted on the House floor yesterday struck that part of the legislation and substituted the original Senate version of that section that addressed just the timing of the runoff election.

That means that the Texas legislature has chosen to go the constitutional amendment route. The debate was over whether to move the primary date back or to change the filing deadline date to comply with the mandates of the federal MOVE act. With the former now eliminated as an option, the decision has been made to change the filing deadline. But that requires a slight change to the resign-to-run provision in the Texas constitution that requires politicians seeking higher office to resign their current position if more than a year remains in the term of that position. The filing deadline has subsequently been set for January 2 in the year of an election, allowing ambitious politicians the ability to throw their hats in the ring of a contest for higher office with less than a year on their current term. In other words, they don't have to resign. To shift that deadline into December would force potential candidates' hands. The only way to remedy that discrepancy in light of the requirements of the MOVE act is to amend the constitution to change the resign-to-run provision in some way.

Such an amendment has been running along a parallel track to SB 100 all along. SJR 37 would amend the Texas constitution and lengthen that window (the time left in the term of one office) from one year to one year and thirty days. That resolution passed the state Senate in mid-April and passed the House and was enrolled yesterday. The change would allow candidates holding lower office to file for a higher office in December of the year preceding a general election without having to resign their current office.

Constitutional amendments aside, the bottom line here is that Texas will maintain its first Tuesday in March presidential primary. Assuming Colorado and Missouri finalize their moves to March 6, Texas, Oklahoma, Missouri, Tennessee, Colorado and Virginia would form a contiguous grouping of contests at the beginning of the window in which primaries and caucuses can officially be held.

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Time Running Out, House & Senate at Odds on Texas Primary Decision

May 30 is the final day of the 2011 Texas state legislative session, and while there are any number of important issues before legislators as the session draws to a close, FHQ is keeping close watch over SB 100. The bill seeks to bring the Texas elections schedule in line with the mandates put forth by the federal MOVE act. We have discussed the details elsewhere, so I'll spare you this time around. The crux of it is that there are now two options facing the full legislature.

The Senate passed a bill that keeps the presidential primary on the first Tuesday in March but shifts the filing deadline up a couple of weeks. The latter would require a constitutional amendment which is a different and more time-consuming option. The House is currently considering a version of the bill that would leave the filing deadline -- and constitutional amendment -- issue alone, focusing instead on moving the presidential and state/local primaries back from the first Tuesday in March to the first Tuesday in April. The House Defense and Veterans' Affairs Committee has voted in support of the April primary plan, and the bill is now at a stage where it should be placed on the calendar for consideration by the full House some time next week.

Should the full House sign off on the committee-endorsed plan, it would put the House and Senate at odds with each other and force a conference committee to hammer out these thorny issues. Both the House sponsor of the bill, Rep. Van Taylor (R), and the Senate sponsor, Sen. Leticia Van de Putte (D), are of the opinion that this riddle can be solved by the time the legislature adjourns the week after next. Yet, that doesn't mean it will be easy as FHQ surmises Ms. Van de Putte's comment on the April primary idea suggests:

State Sen. Leticia Van de Putte, R-Plano, said both Democrats and Republicans in the Senate "are vehemently opposed to a primary in April." Among the concerns is that any runoffs would not receive much attention as they would be held in late June.

Bipartisan opposition to the House plan exists in the Senate, then. But they may be stuck. The constitutional amendment path is going to be difficult to complete in time and it isn't clear that is something that would pass the legislature either. What's odd is the partisan juxtaposition on this issue in Texas relative to what's happening with primary movement nationally. Democrats nationally, where they have been able, have moved back into April or later in an effort to maximize their delegation size for 2012. Republicans, by and large, have chosen to go as early as possible except in states where winner-take-all allocation rules are valued over early influence over the Republican nomination. Texas Democrats -- at least those in the legislature -- are not thus far in support of this move and Texas Republicans, wary of penalties from the national party, have come out in favor of an April primary. According to Sen. Van de Putte, though, that group of Republicans does not include state Senate Republicans.

There are no easy options in Texas on an issue that will have to be fixed to ward off penalties from both the RNC (delegate selection rule mandates) and the federal government (MOVE act mandates), and it remains to be seen whether all of this can be fixed before May 30. FHQ will be watching.

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Texas House Committee Report with April Presidential Primary Provision is Posted

After having passed the House Defense and Veterans' Affairs Committee over a week ago, the House Committee Report for SB 100 has now been filed with the committee coordinator and distributed/posted on the Texas legislative website. That version, which includes a new provision -- different from what the state Senate passed -- to move the Lone Star state's presidential primary (and those for other statewide offices as well) back to the first Tuesday in April, now moves to the floor for consideration before the full state House.

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A Follow Up on the April Presidential Primary in Texas: Signals from the Republican Party of Texas

Though news of the Texas House Defense and Veterans' Affairs Committee having unanimously passed SB 100 has been out for over a week, little in the way of confirmation that that committee version included a provision for an April presidential primary has emerged. Yes, some news outlets reported it, yet there was no new version -- one that includes the April primary amendment -- posted on the Texas legislature website. Unfortunately, that is still the case, but now there is a slightly more official source confirming the April primary provision in the bill. The Republican Party of Texas has confirmed it by communicating the change to its members. From the RPT press release:

As has been mentioned in the last two Chairman's Updates for March and April, the RPT has been closely following the progress of SB 100, specifically as it applies to the date of the Texas Primary Election. To give some background - the federal MOVE Act has been crafted to give our overseas military a greater amount of time to receive and cast their vote by mail. For our state to comply with the MOVE Act, there are changes mandated to the election calendar that lengthen the period of time between filing for office and election day. In the case of Texas, our best solution is to move the primary date back into April with a runoff date in June. In addition to changes mandated by the MOVE Act, the Republican National Committee has passed rules which penalize states which hold their primary elections before April and do not apportion their delegates in direct proportion to the popular vote. Texas is such a state. Thus, should Texas keep its primary date on the first Tuesday in March, those rules would potentially take away half of the Texas delegation strength to the Republican National Convention in 2012.

As FHQ has previously noted, the RPT is very wary of the penalties associated with the mandates in both the MOVE act and the RNC delegate selection rules. The party cannot change its winner-take-all method of delegate allocation outside of a state convention and the party values following the rules over taking the sanctions in order to preserve an earlier and more influential primary date.

Texas is the rare exception in this Republican-only nomination cycle of a Republican-controlled state moving back beyond March 6. A real dichotomy has emerged between Republican and Democratic-controlled states in terms of their primary movement. Forced to change primary dates in order to comply with the timing aspect of the national parties' delegate selection rules, Democratic-controlled states -- with nothing on the line -- have opted to shift back to April or later dates in order to maximize their presence at the Democratic Convention in Charlotte (see Maryland, DC, and the Democratic caucus states). Republican-controlled states, on the other hand, have chosen to move back, but to move back only as far as the earliest date that the parties will allow (see Oklahoma, Tennessee). States where the Republicans control some part of the state government, and thus have some form of veto power have also prevented moves back beyond March 6 (see Virginia and most likely Missouri and Alabama). New Jersey and Texas are the exceptions thus far. Texas, owing to the rules, has to move back or change other, more complicated matters like the resign-to-run rule as well as the filing deadlines attendant to that (Georgia may fit that category as well.). New Jersey, meanwhile, looks destined to move simply because Governor Christie (R) is seemingly in agreement with the Democratic-controlled legislature on consolidating the presidential primary with the primaries for state and local offices in June.

As state legislatures finish up their business for 2011 over the next few months, that will be the pattern to watch. There is an additional group to add to the mix as well: rogue states. Florida, Michigan and Arizona are increasingly likely to defy the RNC rules in timing their delegate selection events. And no, this group does not include states like New York, Delaware and Wisconsin, which have done nothing as of yet to change the dates of their respective delegate selection events.

A hat tip to Tony Roza at The Green Papers for passing the news of the RPT's press release on to FHQ.

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Texas Inches Closer to an April Presidential Primary. ...or does it?

As we have mentioned here at FHQ in the recent past, changing the scheduling of the various elections in Texas in order for the Lone Star state to comply with the federal MOVE act is and has proven to be an extremely complex task. One piece of that puzzle that has been discussed is shifting the state's presidential primary back from the first Tuesday in March to the first Tuesday in April. That effort -- one supported by both the major parties in Texas -- got a boost late last week when a Texas House committee substitute to SB 100 was unanimously passed by the House Defense and Veterans' Affairs Committee on May 6.¹

That said, this -- the move of the presidential primary -- is anything but a done deal. That reality was made clear during the committee testimony on the the state Senate bill in the House committee. The first conflict concerns differences between the Senate-passed version and the House committee substitute. The version that passed the Senate did not include the April presidential primary provision, for starters. But that's really a minor issue in the grand scheme of the wider bill. Republicans on the floor are likely to balk at moving back, but if it means the state both doesn't comply with the MOVE act as a result and is penalized for having a winner-take-all primary in the proportional window, ² Republican members may be persuaded.

The most striking thing about the Defense and Veterans' Affairs committee meeting on May 5 was the urgency of committee chair, Rep. Joseph Pickett (R-79th, El Paso), to get something done. He stressed the fact that there would very likely be portions of the bill that committee members and the members on the House floor would disagree with, but that due to time constraints and the need to avoid the fallout for not being compliant with the MOVE act, the committee needed to pass something for the full House to consider and get into conference.

The bottom line is two fold. First, there is now an active bill before the Texas legislature to move the presidential primary back to April. As such, FHQ will reshade Texas on the 2012 presidential primary calendar map. That April move is now the more likely move.³ Second, some caution needs to be exercised here. The legislation is very likely to change on the House floor and/or in conference committee and those changes may well include a change to the April proposal for the presidential primary. That seems unlikely because of the pressure that would place on the state in terms of MOVE compliance. However, there are two apparent versions here -- both unpublished. The House committee has on several occasions referred to the Senate bill moving the primary back one week to the second Tuesday in March. There is a range then from the second Tuesday in March to the first Tuesday in April that will be discussed/debated on the House floor and in conference when the bill inevitably heads there. The House will pass a different version from the Senate. Some changes will be made to the laws governing the scheduling of elections in Texas. That much is clear. The House Defense and Veterans' Affairs committee was especially wary of the penalties associated with violating the federal MOVE act and was very open to making the necessary alterations to avoid them.

Hat tip to Richard Winger at Ballot Access News for passing along this news.

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¹ A link to the text of the bill will be made available once it is posted on the Texas legislature's website.

² The Republican Party of Texas will not be able to change the rules regarding delegate allocation from its primary before the primary is held next year. Rules changes of that kind can only be made at the state convention and the 2011 convention already occurred. The 2012 convention falls after the point at which the primary will have occurred.

³ The bill to move the Texas primary to February (HB 318) is logistically impossible given the constraints of the MOVE act.

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A Follow Up on the Later Texas Primary

Early last week FHQ discussed the several bills before both the Texas state Senate and House concerning the Lone Star state's compliance with the federal mandates in the MOVE act that passed Congress in 2009. Unlike many states, Texas does not have the problem of having to complete a late nomination process within 45 days prior to the general election. Instead, Texas has compliance issues on the front end of the calendar; having to balance a late, constitutionally mandated filing deadline (January 2 of the election year) with the need to have an advantageously scheduled presidential primary election. The 45 day buffer applies there and not to the general election. And I should say that after having just sat through the audio of the House Defense and Veterans Affairs committee meeting from April 7, that that is probably the simplest way of describing a set of issues that is complicated by a great many factors.

I won't get into it all here, but will instead keep my comments confined to the point the bills are in in the legislative process and the portions that will affect the timing of the 2012 presidential primary in the state. First of all, amending the constitution to change the filing deadline and the Texas resign-to-run provisions is a consideration, but is viewed as a last resort according to HB 111 sponsor, Van Taylor. Secondly, there is a broad, bipartisan consensus that the Texas legislature should do something to address the need to ensure that military personnel have the ability to vote and have their votes counted.

Getting to a point that that is accomplished and the various complicating factors are accounted for is the hard part though. The committee substitute to HB 111 discussed in the hearing would move the presidential primary back to first Tuesday in April. That move was supported by both Republican National Committeeman from Texas, Bill Crocker, and Texas Republican Party Chairman, Steve Munisteri. Both cited the need to comply with national party rules concerning timing and stressed the potential penalties associated with violations (half or more of the delegation). That is not a concern on timing but is based on the rules regarding Republican delegate allocation in the state. As was the case for the Republican National Committee in every post-reform cycle but 2012, the Republican Party of Texas cannot change its rules except at its convention and the party would need to change its winner-take-all allocation method to comply with the RNC rules if the state maintained a March primary. In other words, the state party could not make the necessary change to its method of delegate allocation until its convention following the primary in 2012. This concerned both Republicans for the potential penalties associated with an inability to make that change. Interestingly neither Crocker nor Munisteri mentioned the potential for Texas losing significance for moving to a later date and both touted the possible advantages of not only maintaining the winner-take-all rules with an April primary, but also the additional significance that would carry if the nomination race was still being contested at that point.

Overall, in this particular instance, the ability to maintain winner-take-all rules was valued over the potential loss of influence by having to move the primary back. At least that was the perspective from the national party and the state party. Other Republican legislators on the floor of the House or Senate may object to moving the primary back. That said, the only people that offered testimony at the hearing that were against any provisions in the bill or the committee substitute were county-level elections officials -- and they had no issues with an April primary.

In the end, the committee substitute that includes the April primary amendment was withdrawn and the bill left pending in the committee while the sponsor considers tweaks to potentially appease the bill's detractors. So, though the April primary provision is not officially part of an amended version of the House bill, there seems to be some consensus behind the idea. The Senate side committee consideration of the companion bill (SB 100) produced a substitute that left the presidential primary alone for the time being, but as was alluded to in the House committee hearing, the Senate consensus revolved around a mid- to late March primary date instead of an April date. If the state Republican Party has its way, though, that will not remain the prevailing sentiment in the Senate.

There are a lot of issues to iron out on this one and only a month and a half to make the necessary changes and shepherd the bill(s) through the legislature before adjournment at the end of May. The bottom line is that the April date for the presidential primary seems likely at this point.

Hat tip to Richard Winger at Ballot Access News for bringing this news to my attention.

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Will Texas Move Its Presidential Primary Back?

That is the question before the Texas state legislature at the moment (via the Fort Worth Star Telegram); not because of budgets or strategy, but because of the federal mandate handed down from the MOVE act. Now, the MOVE act has wreaked havoc with some state's carefully balanced late summer/early fall primaries for state and local offices and the resulting temptation that has given some states to combine their presidential primaries with those state and local primaries. That would help not only with compliance with the MOVE act but also with state legislatures looking to trim budgets (see DC, Massachusetts and Missouri).

That isn't the case in Texas. State law requires that primaries for federal and state offices are held on the same date. Since 1988 that has meant a March primary in the Lone Star state (the second Tuesday in March from 1988-2004 and the first Tuesday in March in 2008). The budget, then, is not the concern. The 45 day window that the MOVE act requires for military service personnel abroad to have in order to fill out ballots is the complicating factor. Why? Well, the filing deadline to get on the primary ballot is set for January 2, and while that leaves over two months between that point and the March 6 primary in 2012, it won't give all local elections officials enough time to get their ballots printed up and sent out.

The filing deadline could always be changed, but that is not the quick fix in Texas that it is or has been in other states facing similar issues. The Texas filing deadline is set when it is because of the "resign to run" requirement in the state's constitution. Candidates have to resign one office in order to run for another, presumably higher, office. The deadline is set so that officeholders can do as much in the capacity to which they were elected prior to resigning that office to run for another. The functional dynamic of importance here is that changing that deadline would require a constitutional amendment. That's unlikely to be the course of action taken.

Instead, state legislators are looking at shifting the March primary back a few weeks to late March or early April. There are three bills before the state legislature currently dealing with the MOVE act, but none of them contain any provisions to move the date on which the Lone Star state's primary is held.

...yet. To keep track of this, keep an eye on HB 111, HB 3585 and SB 100. The two House bills are sponsored by Rep. Van Taylor (R-66th, Plano) and the Senate bill was brought forth by Sen. Leticia Van de Puette (D-26th, San Antonio). That the bills are sponsored in both chambers by one member from each of the two major parties points to at least some modicum of bipartisanship behind the idea. That said, FHQ should probably be careful not to overstate that in this instance. HB 111 is due for a public hearing later this week and that will be the first indication of what kind of consensus exists behind the primary date change or if it will be added to any of these bills in the form of an amendment in the future.

This move -- to later in March or in April -- would move Texas off the spot on the calendar the two national parties have reserved as the earliest point on which states can hold delegate selection events. If Texas were to move back and California to June, it would fundamentally reshape the delegate calculus in the Republican nomination race. The point at which one candidate could surpass the 50% plus one delegate level would shift back significantly as a result and potentially shift back the point at which the nomination is settled in the process. It would also make Florida a much more attractive early calendar prize. As an aside, if the Texas primary is moved back to April the Republican Party in the state to keep the winner-take-all elements they have maintained in terms of delegate allocation in the post-reform era.

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Needless to say, this jeopardizes Rep. Alonzo's bill (HB 318) to move the Texas primary up to the first Tuesday in February. There had not been any serious movement on that bill any way, but now there is some reason as to why.

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On Gingrich's Presidential Nomination System Comments

FHQ would be remiss if we did not at least make some effort to counter several points that Newt Gingrich raised in praising the current presidential nomination system on On the Record with Greta Van Susteren Thursday night. Gingrich is typically very sharp, but several of his comments suggest a fundamental misreading of the nomination system.

First of all, I agree with Gingrich's assessment that the system is not broken.

"I'm a fan of [the saying] 'if things aren't broke, don't fix em', and I believe the system that we have right now.... I think the system works reasonably well."

Despite all the issues that people have with certain states perpetually going first or with the perceived problems with frontloading (...etc.), the system does work. It still produces nominees for the parties who in turn give said parties a good, if not the best, shot at winning the White House given certain other structural factors (nature of the times, fatigue with the incumbent party, etc.). One may be tempted to argue that the Democrats, for instance, nominated Walter Mondale in 1984 and he was subsequently crushed in a Reagan landslide in November of that year. Democrats must have done something wrong, right? Not really. Aside from Ronald Reagan switching parties, the Democrats had no chance in that election no matter who the candidate was.

The system, then, isn't perfect, but it does the job the parties want it to do (see Cohen et al., 2008). Gingrich and FHQ are on the same page there, but that's where the agreements cease. The remaining points the former Speaker makes are either rooted in myth, outdated/obsolete or just aren't all that factual.

Gingrich on equal opportunity (quotations from GOP12):

".... In the opening weeks, you've been in the Midwest, you've been in the Northeast, and you've been in the South, and now -- with adding Nevada -- you've been in the West in the very first weeks, at an affordable pace for unknown candidates.

For somebody like Governor Pawlenty or Senator Thune, who are just starting out, or Senator Santorum.

If you don't have the scale of money that some candidates have, this is an enormously open and equal opportunity model to allow talent to emerge."

This is where my qualms are largest. To the extent that Pawlenty or Thune or Santorum has a shot at the 2012 Republican presidential nomination, it has less to do with gradually building momentum and fund-raising through wins in Iowa, New Hampshire, South Carolina and Nevada than it does with what's happening right now in the invisible primary. The only reason the line is at all blurred at this point in the process is that there is no clear frontrunner in this particular nomination race. That opens the door ever so slightly to saying that there is more opportunity for longer shot candidates, but not that there is equal opportunity.

And to go on and use the examples of Reagan's nomination in 1980 and Carter's in 1976 to highlight this conclusion is misguided at best. It assumes that virtually nothing has changed in nomination politics in the post-reform era. I can think of several political scientists who have made careers (or part of their careers) out of demonstrating how rules matter and how changes over the last four decades have changed the process in their research.

Do Iowa, New Hampshire, South Carolina and Nevada matter? Yes, but first one should look toward whether the invisible primary produces a frontrunner first. What would determine a frontrunner? Above I mentioned fundraising, but along with that poll position and endorsements are also good indicators of where the nomination race may go (again, see Cohen et al., 2008). The premise there is that the party plays a large role in determining who its nominee will be. Of course, in the case of the 2012 Republican nomination race there is one mitigating circumstance that should also be considered. The party may always have its hand in the decision, but in this case the grassroots/Tea Party movement may wield more power relative to the establishment/party elites than in past Republican nomination contests.

With that said, there's a reason Gingrich is heading off to those early primary/caucus states. Yes the former Speaker knows wins there are important, but he and all the other candidates heading to those areas also know money, poll position and endorsements will matter first.

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