Sunday, August 30, 2015

Colorado Republicans' Preference-less Caucuses and the Delegate Binding Conundrum

Late last week, the Colorado Republican Party executive committee unanimously voted to hold caucuses next year but to do so without a presidential preference vote. The opening precinct caucuses across the Centennial state would initiate the delegate selection process, but not include a vote on which to base the binding of those delegates to the national convention. In part, that was intended to allow Colorado Republicans the latitude to conduct those caucuses as early as February 2, but also to keep the overall process as consistent with the past standard operating procedure the state party has traditionally utilized.

That party protocol has been to keep the delegation to the national convention unbound (though not necessarily unpledged/unaligned to particular candidates). A change in the Republican National Committee delegate selection rules for the 2016 cycle, however, necessitated some change in the state party rules in Colorado. Either the party could hold caucuses with a presidential preference vote that would bind the delegates to particular candidates, or it could seemingly reduce its role in the nomination process by removing the preference vote altogether as a means of skirting the binding provisions (in order to maintain an unbound delegation at the Cleveland convention).

Colorado Republicans have chosen the latter.

Yet, one of FHQ's reactions to this change was that this was possibly only part of the process of changing the rules. Executive committees tend to make/recommend changes but state central committees ultimately ratify them. The Colorado Republican rules change has cleared the first barrier but not the second. This has been underreported to this point, but was made quite clear in former Colorado Republican Party chair, Dick Wadhams', op-ed response to the decision to eliminate the caucus's preference vote.1 Wadhams was asking for reconsideration of the unanimous executive committee vote at the state central committee meeting next month.

And the party may be headed in that direction if Colorado's Republican National Committeeman, Mike Kopp, is to be believed. Kopp, who was not present for the executive committee vote last week told the Denver Post's John Frank that the decision to eliminate the preference vote at the caucuses was based on a misinterpretation of the RNC delegate selection rules.

There is a lot that does not add up about that conclusion and/or the process from which it was derived. First, FHQ spoke with Frank about his initial story concerning the preference vote decision. In our discussion, Frank mentioned that he had spoken with someone at the RNC and that the party had said that the decision out of Colorado was "rules compliant". Second, Kopp may not have been at the executive committee meeting, but FHQ is hard-pressed to imagine that there was no forewarning -- no agenda -- about what would transpire. The Colorado Republican Party informed FHQ in late July that the rules for 2016 would be considered at a late August executive committee meeting and finalized at a late September state central committee meeting. This could not or should not have come to a surprise to either the RNC or one of the Colorado representatives in the body.

That is perhaps a long way of saying that FHQ does not buy the "misinterpretation" angle in this instance. It feels more like there is some back channel pressure from the RNC for Colorado to bind the delegates, and that, in the near term, it is ex post facto being called a state-level misinterpretation.

This really is neither here nor there in the grand scheme of things (of the Republican nomination, for instance). FHQ is not here to piece together some wild conspiracy theory or cover up story. Rather, this Colorado example is indicative of a broader question that has popped up periodically, but persistently throughout 2015.

Not a Uniquely Colorado Issue
Colorado Republicans are not alone. The addition of a Republican binding requirement for the 2016 cycle has been a problem almost since it was added in 2012 at Tampa and amended in April 2013. The binding requirement itself has been problematic because some Republicans both rank-and-file and within state parties have balked at being forced to bind delegates to candidates based on primary or caucus votes. The position of the RNC has traditionally been to leave that discretion up to the states. Asking the states to give up that latitude, then, is by its nature a problem to some. Giving up power in politics is never easy.

But that is only part of the picture in Colorado and elsewhere. The binding requirement is described in Rule 16(a)(1), but it is that rule in combination with Rule 16(a)(2) that has served as a real chokepoint in the state-level decision-making in response to the national party rules change as well as the interpretation of how it will be implemented. 16(a)(1) lays out the binding requirement, but 16(a)(2) describes how that will translate to an actual delegate count at the convention.

Let's look at the language of the latter component -- Rule 16(a)(2) -- before proceeding:
The Secretary of the Convention shall faithfully announce and record each delegate’s vote in accordance with the delegate’s obligation under these rules, state law or state party rule. If any delegate bound by these rules, state party rule or state law to vote for a presidential candidate at the national convention demonstrates support under Rule 40 for any person other than the candidate to whom he or she is bound, such support shall not be recognized. Except as provided for by state law or state party rule, no presidential candidate shall have the power to remove a delegate.
The intent behind the addition of this rule and its amended version was to tamp down on some of the perceived mischief at the Tampa convention during the roll call vote. The quickest, easiest way to do that is to set up some form of binding mechanism with some modicum of enforcement. Rule 16(a) seems to accomplish both.

Still, questions linger. The main one is just how strict the RNC is going to be in its own interpretation of these rules at the convention. There, we have a few clues, but also quite a bit of ambiguity. Will, for instance, the RNC strictly adhere to that passage in the rules and count up the delegates as a direct reflection of the primary and caucus results? If so, that makes the doomsday, Rule 40 fueled convention scenarios Dave Catanese and Reid Wilson recently described.2 Instead, though, will the RNC take a more relaxed approach to following that binding mechanism at the convention? That relaxed approach might look as it traditionally has. In other words, as candidates withdraw from the race, they release any acquired delegates, thus making them unbound free agents at the convention. Those free agent delegates would be difficult to fit into the Rule 16(a)(2) strictures. The delegate in that scenario has no "obligation".

The thing is, there is no real guidance in the rules about the release of delegates as traditionally practiced or otherwise. Absent that, there is confusion once a new rule like the binding requirement is introduced. How do states react? How do they respond with rules changes to delegate selection rules at the state level?

Again, there are some clues as to the position of the RNC on this. Colorado Republican National Committeeman Kopp mentioned this in his comments to John Frank at the Denver Post that part of the misinterpretation within the Colorado GOP was that, "You can unbind your delegates if the candidate is no longer in the race."

That may be true, but that is not a message that is clearly conveyed in the national party rules or universally known by state parties in the wake of the binding rule's addition for 2016. That has led to some guessing and second guessing at the state level and among those following along with the process in terms of interpreting the rules and crafting compliant rules for state level processes. It is that kind of ambiguity that introduces potentially significant variation in how states respond.

Now, throw on top of that the October 1 RNC deadline to complete delegate selection rules and the uncertainty of the moment and one ends up with a messy context in which to craft rules.3 That late deadline means that state parties are finalizing their rules when attention to the campaign is ramping up. And during this 2016 cycle that translates to an extra dose of uncertainty -- whether just perceived or real -- given how large the field is, how wide open the nomination appears.

If you are at the state level attempting to craft rules in a time of uncertainty for an uncertain future, how do you gameplan? It is not easy and states certainly do not want to box themselves in on any of the nomination proceedings (delegate count, voice at the convention, etc.) through rules they themselves have made.

From an institutional standpoint, there really is some value in having rules in place early. The Democratic National Committee, by contrast, requires the submission of delegate selection plans for review in May the year before a presidential election year. Those states are then locked into their plans after approval in the summer (unless matters outside of the state party's control change. i.e.: a state legislature changing the date of a primary election). There are drawbacks to that too -- limitations on what can actually be changed late -- but there is something to having in place and sticking with a set a rules.

It creates some certainty in a process where that can often be lacking.

Come 2016, all of this may not matter in the slightest. However, it is something to bear in mind as the remaining state parties are finalizing the rules that will govern their delegate selection processes over the next month (before that October 1 deadline). Their collective perceptions of where this race is going or might go, in Colorado and elsewhere, will have an impact on the resulting rules.

1 Of note is that Wadhams oversaw the addition of the preference vote to the delegate selection process as chair during the lead up to the 2008 presidential nomination process. It is noteworthy both because Wadhams seemingly has a dog in this fight, but also because the caucuses to that point in time did not include a preference vote. To be quite clear here, Colorado returned to the caucus format for 2004 after three consecutive cycles of having a state-funded presidential primary election. Of course, preference only counts when there is a competitive nomination race. Before 1992 -- when the primary system began -- there were only three instances in which there was true competition for the Republican nomination: 1976, 1980 and 1988. In the post-reform era, then, Colorado Republicans have held some form of a caucus/convention system without a preference vote four times (out of 11 total post-reform cycles, seven competitive Republican nomination cycles).

2 The short version of this that has gained some steam in some Republican circles is that because Rule 40 requires a candidate to have a majority of delegates from at least eight states to have his or her name placed in nomination, a large field of candidates and few truly winner-take-all contests makes a messy convention an almost certainty. That is one interpretation. FHQ has held off on commenting about this, but will get to it at some point. In the context of an already long post is not that point.

3 Some states have already completed this rules-making process (see Nevada), but quite a few others, including Colorado, have not.

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