Rule 40 is back.
Remember
all that chatter from last cycle about a potentially crowded field of candidates vying for the 2016 Republican presidential nomination, and the possibility that the ensuing chaos would lead to a scenario where multiple (or no) candidates would control a majority of delegates from eight states and have all/none of their names placed in nomination at the convention, leading to even more chaos?
It is fine if you do not. But FHQ does. Vividly. It was all the rage from 2014 into 2016,
peaking in April of that year and gathering steam again
in the lead up to the July convention.
Now, however, the 2016 chaos narrative is being replaced by a 2020
threat narrative, all with Rule 40 as the predicate.
The short version of the threat narrative is this:
The current RNC rules for the 2020 nomination process set a low bar for a potential challenger to President Trump. At Trump's
own nominating convention in 2016, delegates adopted a revision to Rule 40 for 2020. Rather than requiring the control of the majority of delegates from eight states to have one's name placed in nomination, the 2020 process would require the control of a
plurality of delegates from only
five states. This was a reversion to the threshold from before 2016. By extension, the thinking goes that the lower threshold for 2020 means a greater potential threat to the president and that the threshold should be raised.
Of course, there is a rule for that. Well,
rules anyway.
First, Rule 12, added at the 2012 convention for the 2016 cycle and carried over to 2020, allows for amendments to
Rules 1-11 and
Rules 13-25. Noticeably, that is a list of amendable rules that does not include Rule 40. And even if Rule 40 was among the amendable rules, amendments to the 2020 rules had to be adopted by
September 30, 2018.
Second, there was a vehicle put in place to devise recommended amendments to the group of rules that could be changed. Rule 10(a)(10) created the Temporary Committee on the Presidential Nominating Process (TCPNP) whose charge was to make such recommendations by
May 31, 2018 in order for them to be considered, adopted and/or rejected by the full Republican National Committee prior to the September deadline laid out in Rule 12. Although their
discussions were wide-
ranging, all the TCPNP recommended and the RNC adopted was
the elimination of the debates sanctioning committee the RNC created for the 2016 cycle.
In other words, the window for making changes to the rules has passed
and Rule 40 was not among the rules that could be changed anyway.
None of those realities have
stopped some from suggesting that because the RNC is a private organization, it can change its rules at any time. Nor has it dissuaded (at least one) RNC member from raising the idea of a
suspension of the rules in order to fix "loopholes" in the 2020 process.
Look, FHQ is skeptical of that. It is not that there are doubts because of some rules technicality that guards against changes. Those are outlined above. Rather, there is reason to be skeptical of a change in the rules at this point because of something I often told folks with respect to the rules discussion ahead of the 2016 Republican National Convention: it is fine to talk about potential changes to any rule that any voting member finds unsavory for whatever reason. Yet, it is another thing altogether to devise an alternative that can win the support of the requisite number of voting members to make that change.
In other words, the devil is in the details.
And if the details include the RNC acting unilaterally to change the nomination rules for 2020 in a way unprecedented in the history of the party, then cobbling together winning coalition to make any change would likely be a very steep climb indeed. Morton Blackwell, the national committeeman from Virginia,
spoke against a motion to create this very change during the Convention Rules Committee meeting the week before the party convened in Cleveland in 2016. That motion was withdrawn.
In the end, parties have these rules in place and keep them relatively constant for a reason. They create certainty, or if not that, then prevent chaos. A party that changes rules mid-cycle and outside of the process laid forth for making changes -- typically from the highest authority for both of the major US political parties, the national convention -- is a party
with no rules. To make a change now sets the precedent that similarly-timed changes can be made in the future, potentially pitting the party organization against the convention itself (because the convention could change the rules back or to whatever a majority there could agree on). Recognition of constant, stable rules, like constant and stable law, is necessary.
Take the rule in question, Rule 40. The national committeeman from the Virgin Islands,
Jevon Williams, suggests that the rules, and Rule 40 in particular, were adopted at a time when there was no thought toward how they may affect an incumbent running for renomination/reelection, creating "loopholes".
[NOTE: That is not the case for anyone who watched the proceedings of the Republican National Convention Rules Committee in the lead up to the convention.]
But even if that was true and there were "loopholes", the plan was to return to the way the Rule 40 looked
prior to 2016. George W. Bush was renominated in 2004 under those same rules. Before that in the 1990s, the threshold was even lower, set at a plurality in just three states. And prior to that, there was no threshold in the early equivalent to Rule 40. Past Republican presidents, then, have been renominated and reelected under similar rules.
1
So, it should be noted that the overarching rules of the process are being made the scapegoat here for a problem that is not rules-based. If a given president is popular enough, particularly among his or her primary electorate, then that tends to 1) ward off a primary challenge and by extension, 2) renders the rules-based issues at least nonexistent and at most a minor nuisance.
As a coda to all of this FHQ will say that rules tinkering is nothing new here. What is new in this instance in 2019 is the
timing. The cycle is beyond the point at which national rules can be changed. The process is in the midst of another phase now. Yes, most will be paying the primary amount of attention in the coming days and weeks and months to candidate jumping in to the race and what they are up to.
However, behind all of that is a parallel process where past presidents have wielded some influence: the rules on the state level. Typically incumbent presidents are loathe to change the rules that got them the nomination in the first place and in turn the national parties typically hold pat with those overarching rules. Yet, on the state level, there are opportunities to make small scale changes that may benefit a particular candidate. State governments for years have changed the dates of their primaries and often to help out a favorite son or daughter. Illinois, for example, uprooted its traditional March primary for the 2008 cycle to ideally give Barack Obama a leg up on a crowded Super Tuesday.
But presidents do this too. The Carter reelection effort foresaw a 1980 challenge from Ted Kennedy and as a result sought to alter the playing field. Their prescription was not to change the national delegate rules, but to manage things at the state level, lobbying a cadre of southern states to hold a subregional primary early in the primary calendar. That Alabama-Florida-Georgia primary was seen as a potential positive response for Carter to any gains Kennedy might make in the earlier New Hampshire and Massachusetts primaries.
While that specific sort of maneuvering is not yet evident in the actions of those officials in the Trump reelection campaign, there is evidence that delegate slates are being built on the same level. That is far more fertile ground for advantageous changes than altering the national delegate process at this late stage. Don't look for changes to Rule 40. Look to the states and what Team Trump is doing there.
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1 Actually, the reversion to the pre-2016 threshold was met joyously by the voting members of Convention Rules Committee in 2016. But the change in 2012 -- for the 2016 cycle -- raised the bar to a majority of delegates in eight states with an incumbent President Romney in mind. That is why Ben Ginsberg and Jon Sununu took so much flak coming out of Tampa. But the changes each time were made by the party's highest authority, the national convention.
