Friday, January 19, 2018

Rules and Bylaws Committee and the Unity Reform Commission Recommendations

The following is part four in a series of posts on the recommendations passed by the DNC Unity Reform Commission during the group's final public meeting on December 8-9. Unlike the previous posts in the series, this one will focus less on the substance of the recommendations and more on the next steps in the Democratic Party process of amending its nomination rules for the 2020 cycle.

Part three: Superdelegates recommendations

On to the Rules and Bylaws Committee

Under what one might consider the normal protocol of nomination rules reform within the Democratic Party, post-reform, the process tends to work through the following sequence.
  1. Initially, the preceding national convention creates the terms for a commission to examine the successes and failures of the immediately prior nomination process and reexamine and recommend rules changes for the next cycle to further buttress successful practices and correct any real or perceived shortcomings. 
  2. Those recommendations are then passed on to the DNC Rules and Bylaws Committee (RBC) for their consideration. This step can entail a simple up or down vote on the package of recommended reforms, but more often, the RBC deliberations are more in-depth. Usually, the depth of consideration is conditioned by a number of parallel factors operating concurrently alongside the substance of the recommendations. Was there consensus behind some or all of the recommended changes on the commission feeding into the RBC? Are individual components in package of proposed tweaks doable, advisable and/or a priority? Are they specific or has the commission passed on an ambiguous task that creates more work for the RBC? Recommendations that meet those criteria -- near unanimous support, specific, doable, advisable, a priority -- are the ones that tend to pass muster with the RBC. In most cycles, by extension, some recommendations get the green light from the committee while others do not.
  3. Finally, full DNC votes on -- in whole or in part -- the original or amended package of recommended changes out of the RBC. The first step runs through the year following a presidential election year, while step two tends to occur during the first half of the midterm election year before the DNC finalizes the rules for the next cycle by the end of summer of the midterm year. 
Now, the above sequence is, in part, an oversimplification of the sequence, but it is a decent shorthand for the process through which the nominations rules change within cycles. Sometimes there are deviations. The 2016 rules, for example, were developed through a process that skipped the first step. But on the whole, the Democrats have worked through these three steps in settling on the overarching rules that govern the presidential nomination process.

Currently, the 2020 rules-making process finds itself on the cusp of step two on the Democratic side. The Unity Reform Commission has issued its report and the Rules and Bylaws Committee convenes in Washington on January 19-20 to begin its deliberations on the recommendations contained therein. On the surface, then, 2020 looks like a normal cycle in terms of the above sequence. However, drilling down a bit, there are some important differences between the process now and the more routine processes that have been the norm for Democrats in the post-reform era. 

The clearest distinction between the the RBC now in its consideration of the Unity Reform Commission package and the committee stage of this process in the past is the treatment of the RBC itself. Unlike other cycles, the RBC potentially finds its role constrained for 2020. It is not that the committee will have no impact on the rules that will govern the nomination process. They undoubtedly will. Yet, that authority is colored by the convention resolution that created the Unity Reform Commission and by extension the URC itself. Far from a toothless middleman in all of this, the RBC is nonetheless compelled by the convention resolution to consider and implement the recommendations of the URC report. That much is consistent with past relationships between the RBC and the various rules commissions over time. 

However, part of the agreement between Clinton and Sanders proxies that led to the creation of the URC was that should the RBC fail to enact in a timely manner the recommended reforms -- within six months after the transmission of the URC report -- then the URC would retain the ability to place the package before the full DNC for consideration. In essence, that would skip the Rules and Bylaws Committee. 

But the process heading down that particular path assumes a level of hostility between the URC and RBC that has yet to manifest itself to this point in the cycle. And it may not develop at all between those two entities before the rules are finalized for 2020 later in 2018. That tension is currently more fully animated between and among certain vocal quarters of the broader party coalition loosely encamped along the lingering border established during the 2016 Democratic presidential primary race. But again, those cross pressures have not yet seeped into the 2020 rules-making process in any injurious fashion.

To get a sense of whether such division may be triggered at any point during or in the immediate aftermath of the RBC consideration of the URC recommendations, a decent place to start is the checklist established in the RBC section (#2) above.

With respect to the 2020 rules-related items the URC was tasked with examining -- primaries, caucuses and superdelegates -- all the component parts therein saw broad, unanimous support with just two of exceptions. The first was the two dissenting votes to the superdelegates section creating a bound segment of the automatic delegates. [More accurately, the dissent over the segment of superdelegates that were left unpledged as before.] But even those votes were more symbolic than anything else given clear mandate the resolution creating the URC handed the group with respect to superdelegates. 

The only other break in unanimity was within the caucuses section. A coalition of Sanders appointees and caucus state Clinton appointees, comprising half of the URC, blocked an amendment dealing with states that opt for caucuses despite the presence of a state-funded primary. That amendment would have included passive language presuming the three states in that category -- Idaho, Nebraska and Washington -- would use the primary option in the future. But blocking that amendment had the effect of tabling not only it but the underlying section it sought to change. 

The original language for a recommendation would have presumed -- not necessarily required -- the use of primaries in states with that option in states with five or more congressional districts. That would have exempted Idaho and Nebraska from the presumed use of state-funded primaries, but not Washington. And five congressional districts is not an arbitrary threshold. It would theoretically confine the use of caucuses to smaller states in which it could be argued they are better/best suited. But perhaps more importantly, that particular threshold would exempt Iowa and Nevada should either -- through no fault of Democratic state legislators -- ever pass laws establishing a state-funded primary option. Both Iowa and Nevada are currently protected as early states on the calendar, and both fall just below that five congressional district threshold (with some leeway to account for population and thus congressional seat changes, post-census). 

Save for those two exceptions, however, there was nothing but unanimous support for the laundry list of other items the URC recommended from easing registration and caucus participation burdens through the system for binding DNC member automatic delegates. Importantly, that is a clear signal to the RBC. The URC report was not a package of reform recommendations narrowly passed along Clinton/establishment-Sanders lines. Instead, despite those underlying differences, the URC report was a product of compromise, compromise that drew widespread support for the majority of its component parts from the various factions represented on the URC. 

The signal, then, is clear and that clarity provides the URC some leverage over the RBC moving forward that it would not have otherwise had if the report passed along factional lines. If the RBC balks at the recommendations in whole or in part, the URC has not only the ability to take the recommendations before the full DNC, but a leg to stand on in arguing for an affirmative vote there. The RBC, in other words, would have to have good reasons for ignoring, in whole or in part, recommendations that garnered consensus URC support.  

Those reasons may or may not exist now or develop during the RBC consideration of the URC recommendations, but that feather in the URC's cap -- unanimity -- will potentially place a check on the RBC, potentially constraining the RBC if not role, then collective desire to stray too far from the recommendations. 

Workability, Advisability and Prioritization  
The remainder of the checklist items are interrelated with the unanimity point above and with each other. Nothing in the URC report is technically unworkable, and that is consistent with past rules commissions. They tend to be given a fairly defined, but not necessarily narrow, mandate in the originating resolution. That, in turn, indicates at least some appetite within the party to examine the rules in some areas; typically those where a flaw in the system has been exposed and/or exploited in the previous cycle. After the 2008 cycle, for instance, there was cause to explore the rules-based conditions that gave incentive to states to encroach on the privileged positions Iowa and New Hampshire enjoy on the primary calendar or to curb superdelegate creep. In other words, rules changes to those items were more doable because they were already advisable and/or prioritized within the party. It was already baked in by the time it got to the RBC. 

And again, that is not atypical for the how the rules-making process progresses within cycles. However, each of those items is certainly in the eye of the beholder -- how workable, advisable or prioritized an action item is. And the RBC is often the beholder. It represents the step in the process where those determinations are made; where recommendations become implementable rules.

That transition -- from recommendation to rule -- hinges on another input from the commission empowered by the preceding convention: the specificity of the recommendation. Some are very detailed like the current URC recommendation for binding a segment of the (potentially former) superdelegates. That specificity can limit the RBC action in response. On one hand, the commission could have handed off a ready-made rule in the form of a recommendation. But on the other, the recommendation may be so complex as to make it irreconcilable with the baseline delegate selection rules being amended. In the latter case, the RBC is almost forced to ignore the recommendation or devise a workable alternative consistent with the intent of the original recommendation. It is that path that can lead to division between the preceding commission and the RBC. 

Lack of specificity can also be an issue and in a few ways. First, rather than having a ready-made rule, an ambiguous recommendation makes the transition to implementable rule a steeper climb. It potentially creates more frontend work for the RBC or knocks it down the list of priorities. Take section 4 of the caucuses recommendations. This is the one that calls for the DNC to work with caucus states to "create consistent standards and guidelines across all caucuses". It goes on to use a term -- best practices -- that was used in the context of the Democratic Change Commission recommendations on caucuses in 2009. It is a desirable recommendation, but has proven tough to turn into a specific rule (or priority). 

Second, ambiguity in commission recommendations can create distance between the intention of said recommendation and what, if anything, the RBC devises in terms of a rule. This, too, can trigger more friction between two groups in the way the URC and RBC are currently aligned. Anything that produces a discrepancy between the recommendations and the rules is potentially problematic as the process moves to the DNC stage.

Finally, a lack of specifics in the recommendations can also make more work for the RBC on the backend, actual implementation.1 This is an important point and something distinctive on the Democratic side of the equation. Ambiguous -- and that is perhaps an imperfect descriptor in this particular case -- recommendations can make it difficult to develop clear rules and to then, in turn, implement them across all 57 states and territories. For example, the URC has a raft of recommendations on primaries. But only one of those recommended changes -- a requirement for states to pursue later party switching deadlines -- suggests specific means for implementing that recommendation: a delegate penalty.

The remaining primaries recommendations/requirements lean more on the RBC. To transition those recommendations to implementable rules on action items like the requirement for same-day or automatic registration, the RBC has a choice. It can add delegate reduction penalties rules to coax states into compliance -- a frontend protection for the national party -- or it can punt enforcement to the backend of the process, making approval of state party delegate selection plans contingent on hitting proposed new requirements for registration just as it does and has for delegation diversity requirements or primary calendar/timing requirements. Each route is workable, but the latter, while effective, adds to the workload of the RBC in the delegate selection plan approval phase of the Democratic process. That is a step unique to the DNC, a codified layer the RNC does not have in its concurrent process. The national party approves of plans ahead of time and uses delegate penalties first as a negative incentive up front, but also potentially as a last resort if compliance is not forthcoming from a given state party.

One could argue that a few more items to check is no big issue for the RBC. That is fair. But a few more items tacked on to the extant list becomes more daunting when one considers the impact those new items might also have on the waiver process the state parties have to undertake to either avoid penalty or gain approval for a plan (especially one affected by a state government not under Democratic control, for example).

None of the above is to be dismissed. And as the Democrats ease into the second step of the rules-making process for 2020, the Rules and Bylaws Committee will have much to consider as it deliberates about the Unity Reform Commission recommendations.

1 The backend is the role the RBC plays in determining whether states comply with the delegate selection rules that are now in the process of being finalized. Alternatively, the frontend is the role the RBC has in helping devise those rules in the first place.