Curbs on 2012 Frontloading, Sanctions and the GOP Proportionality Rule

As primary season draws to a close in Utah tomorrow and goes on hiatus until -- January most likely -- 2016, FHQ wanted to revisit some of what was witnessed during the 2012 cycle. I mentioned in my "Thoughts on 2016" post a few weeks ago that I had an email exchange -- at least a portion of it on my end -- that I wanted to share tying things up quite nicely. This builds something of a bridge between 2012 and 2016 on the possible sanctions in the future while also reviewing the impact the new Republican proportionality rule had both in curbing the frontloading trend.

What follows is my response to an annotated minutes of the bipartisan rules meeting I attended at Harvard in May.

On sanctions:

"I [FHQ] was on record ... as being for some form of coordinated sanctions across both parties for [timing] rules violators. Getting there presents a significant hurdle, though. The 100% penalty, while likely potentially effective, seems too draconian to me. The impression I got from the Republicans in the room ... was that the RNC is in a wait-and-see mode on all of this. If this is a sequential game, then, the next move is to see whether the convention in Tampa sticks with the penalties as described in the 2008 Rules of the Republican Party (amended August 2010). If those penalties are enforced, the game moves on to its 2016 iteration where we will have the ability to test the effectiveness of both the rule and its enforcement (50% penalty on all states in violation of the timing rules).  

"The trajectory of this may be a little slow in pace for some, but it is a prudent approach; one that is not overly reactionary. A party (or parties) cannot hope to make states tow the line on delegate selection rules if it does not first demonstrate that it will enforce said rules. 2016 would offer us the first cycle where both parties -- if both have open nomination processes -- would have demonstrated a willingness to stand up to the states and enforce the rules in the immediately prior, competitive cycle (2008 for the Democrats and 2012 for the Republicans). That seemingly is as close to a united front from both parties as we are going to get prior to 2020. Initially, I was somewhat discouraged by that, but after some contemplation on the plane home ... I was satisfied with a wait-and-see course of action. 

"Of course, if the Tampa convention is lax in some way on its enforcement of the rules, then, as I think was mentioned by several ... (perhaps not in these exact words), the process returns to the Wild Wild West; a situation in which one or both parties have essentially signaled to the states that the rules have no teeth. That scenario puts this group back to where it was immediately following the 2004 election." 

The main talking point from which this originated was the idea of a 100% penalty for states with primaries or caucuses timed in violation of the parties' rules. This was a nonstarter for the Republicans and was never something the Democrats viewed as being enforced in a convention setting; only as a means of affecting the within-season delegate count. The bottom line is that we will indeed have to wait and see if the RNC sticks with its 50% penalty in Tampa and whether that effectively prohibits states from moving to early dates outside of the window in which non-exempt states can hold contests in 2016.

--
On proportionality:

"I would urge extreme caution in terms of describing the newly adopted proportionality requirement on the Republican side as a "significant antidote" to frontloading. We don't know that. [Correlation does not mean causation.] In fact, I would argue that the formation of the 2012 presidential primary calendar did not demonstrate that at all. [The Republicans in the May meeting] may be able to more adequately counter this, but I followed the state-level deliberations on primary/caucus scheduling, well, obsessively, and I can only think of a handful of examples where this particular rule was raised in the discussions. 

"1. In Texas in the early 2011 discussions about remedying overseas military voting issues (a matter that included a possible change of the March 6 primary date the Lone Star state then held), the Republican Party of Texas made clear in committee hearings that they were (again, not in these words) fearful of the impact the new proportionality rules would have on their delegation. Texas had a winner-take-all method of delegate allocation at that point. [The "fear" was unwarranted as the party had a conditional trigger embedded in the allocation rules that would have made the allocation proportional if no candidate had over 50% of the primary vote or winner-take-all if a candidate did receive that share of the vote or greater. Under those rules, Texas would have been compliant.]  

"2. In Georgia in the spring of 2011, the Republican Party seemed to signal that the inability to allocate delegates on a winner-take-all basis was an issue. Chairwoman Everhart indicated as much by favoring an April date for the primary right after the legislature granted Brian's office the ability to set the date of the primary. Now, as was mentioned a week ago, the thinking within the [state] party changed over time regarding proportional allocation

"That's it. In no other instances do I recall the new proportionality requirement being raised as a reason for a primary or caucus move on the state level. In fact, if we go back to what the calendar looked like in January 2011, there were seventeen or eighteen states that had to move from January or February dates -- then codified in state election law or party bylaws -- to become compliant with the altered delegate selection rules put in place by both national parties. These are the rules mandating a March or later date for all non-exempt (carve out) states. Of that group of states, all but five moved back. Of those five, two -- Minnesota and Colorado -- were compliant with February dates by virtue of not allocating any delegates (nor binding them) in the precinct caucuses. The remaining three were Arizona, Florida and Michigan. I can, in none of the states that moved back, think of any example where the proportionality requirement was mentioned as a motivating factor for the resultant move. The delegate penalty was seemingly enough of a deterrent. [Although, again, correlation is not causation, but the case is more compelling in this instance.] 

"As I mentioned in our discussion, Republican states tended to move back to March dates while Democratic states tended to move back to April, May or June dates. All of those March states altered their delegate allocation rules where applicable. And counterintuitively, two states -- Connecticut and New York -- actually moved back beyond April 1 and instituted slightly more proportional allocation methods than had been used in the past. Most states (in this case, state Republican parties) maintained the status quo in terms of their underlying method of delegate allocation. This seemed -- in comments on our side of the table -- a rather perplexing outcome: that states further back on the calendar would not adopt winner-take-all rules. [It should be noted that three of those [late] states -- Kentucky, North Carolina and Oregon -- all are required to allocate delegates proportionally according to state law. That is the reason in those instances.] 

"Does any of this mean that the proportionality rule failed or should be scrapped? No, it doesn't and I certainly don't want to rain on the parade of a rules-crafting effort that was well-thought out, not to mention well intentioned. All it means is that we have not had an adequate test of its impact. We need further study; further cycles with that rule in effect. This is especially true in light of the fact that there is no enforcement mechanism on states already in violation of the timing rules. [No secondary penalty for states like Florida that violate the timing rules and the proportionality rule.] But I was satisfied with the fix that [was] described with a convention stage mechanism embedded with the convention's committee on calls. 

"However, it is clear to me that the rule did not deter frontloading. No states were seriously looking to move forward in this cycle. In fact, only in New Mexico, North Carolina and Texas was legislation moving a primary forward ever proposed. None of the bills advanced any further than being referred to committee. Every other state that moved -- or proposed moving -- moved back, and that was for a confluence of reasons that did not overtly include the proportionality rule. I honestly don't think states and state parties understood the nature of the rules change. But I could be wrong in that assessment."  

This is the front end proportionality impact story, that along with the back end -- that the proportionality rule did not slow down the delegate race -- offers some interesting insight into how effective the rule was in 2012. The true impact is that states may not have understood the rule or the penalty associated with it completely. That opens the door to a more effective test of the proportionality rule during the 2016 cycle.

Recent Posts:
Thoughts on 2016

2012 Republican Delegate Allocation: Texas

Excuses, excuses


Are you following FHQ on Twitter, Google+ and Facebook? Click on the links to join in.

Thoughts on 2016

I know, right?

It's too early to be talking about 2016. It is, and FHQ will not bother you with any sort of speculation about the candidates likely to emerge or how the 2016 primary season may or may not play out. That is something we can all revisit in 2015. However, FHQ is willing to entertain discussions about what the rules governing primary season during the next cycle will look like.

The parties are doing this to varying degrees and it is relevant no matter what the appetite to discuss this among those who may be weary from 2012 with five months still to go before election day.

The RNC has already met in full and passed resolutions/recommendations concerning the 2016 rules for the full convention to consider in August. The Democratic Rules and Bylaws Committee will probably not meet until next year to begin the discussions on 2016, but there will likely be some discussion of the next cycle at the September convention in Charlotte. Also, some members on the rules making bodies from both parties assembled at the Harvard Institute of Politics to further discuss the ways in which the Democrats and Republicans can work together to bring a but more order to the process from the formation of the primary calendar all the way through to an ideal point(s) at which a nominee should be determined.

FHQ was privileged to have been invited to participate in what was more of a workshop than anything else. I've been sitting on this for a while but I wanted to share with everyone not only what I discussed in my presentation, but my impressions of what is likely on the horizon for the 2016 rules and some preliminary implications.

2012 Primary Calendar in Review
Much of what I talked about in Cambridge is not anything that should be unfamiliar to regular readers so I won't dwell on it too much.

• The presidential nomination process from the states' perspective has increasingly become one of learned behavior. As it is now, there are three types of states: 1) the carve-out states; 2) states that are willing to break the rules in order to go early; and 3) states that follow the rules.

• What separates the second tier of states from the other two certainly involves breaking the rules, but is also greatly dependent upon the flexibility those states have in terms of being able -- much less willing -- to break the rules on timing. Florida's Presidential Preference Primary Date Selection Committee can continue to in the future hold the calendar hostage until October 1. That was the value the shifting the decision-making authority from a state legislature that adjourns in May to a different entity that can wait until October 1. 

• The situation is similar in Arizona and Georgia (...even though the Peach state did not pull the trigger on a non-compliant primary date in 2012). In both cases, either the governor (Arizona) or secretary of state (Georgia) has the ability to set the primary date instead of a potentially divided and early-adjourning legislature. That flexibility provides these states with an advantage similar to what has allowed New Hampshire Secretary of State Bill Gardner protect the Granite state's first in the nation primary. 

• In Michigan, the legislature meets year round, and the primary is scheduled on a date -- the fourth Tuesday in February -- on which other primary contests are held. Institutionally then, the Michigan legislature does not face the same sort of constraints as other states' legislatures, and the state has a built-in excuse/reason for maintaining a non-compliant position.

• In keeping with the learned behavior theme, states have not only learned to build in flexibility, but are beginning to demand more space. New Hampshire and Iowa have state laws protecting their positions at the front of the line, but each also requires a certain amount of space between their contests and others. Iowa has allowed less than eight days between its caucuses and the New Hampshire primary for two straight cycles, but the history of New Hampshire maintaining the seven days after its primary and another "similar contest" is a long yarn indeed. It popped up in the showdown between New Hampshire and Nevada in 2011 and other similar instances are littered throughout the post-reform era. This is all well and good, but there are signs that this behavior is spreading to other states. South Carolina has now for two consecutive cycles set its primary ten days before of the rogue Florida primary -- the next earliest southern state. There has now been proposed legislation in South Carolina to codify at least a seven day window between the Palmetto state primary and any other southern contest. Given the state's penchant for Saturday primaries, if that bill is ever passed, South Carolina will likely continue to be ten days before (probably) Florida. FHQ won't go so far as to suggest that this will have any huge implications in 2016 or even further down the road, but it is a trend that is worth monitoring as 2016 approaches. 

• Of course, the space issue manifested itself in another notable way in 2012. States -- for various reasons -- took a step back from the "pile up on the earliest allowed date" approach that characterized the 2008 calendar. Those states that had to shift back the dates of their primaries and caucuses to comply with the 2012 delegate selection rules moved back in a fairly predictable pattern. Republican-controlled states moved back to occupy March dates while Democratic-controlled states tended to move into April or later slots. Those moves to April and later had partisan elements to them, but it was also a function of space. Those dates were typically less crowded than the first Tuesday in March ended up being. 

• That last group of states (#3 above) still represents the overwhelming majority of states. But as Florida -- and to a lesser extent, Arizona and Michigan -- once again demonstrated, it only takes one state to overturn the apple cart, thus messing up the two parties' carefully planned February starting point.  

• Florida going rogue again highlighted the fact that even with bipartisan coordination on the rules, that is not a sufficient barrier to states breaking the rules. As FHQ has said many times in this space, the next logical step is for the parties to devise a set of coordinate sanctions and stick to them. That allows the parties to present a united front against the states. The only problem is that there is no consensus as to what those sanctions -- coordinated or otherwise -- should be. This proved to be true of the meeting in Cambridge.

Impressions on the Harvard Meeting about the 2016 Rules

• There is nothing that makes this 2016 discussion more relevant now than the fact that the Republican rules will be set at the Tampa convention. When I asked one RNC member what the odds were of there being anything like the Temporary Delegate Selection Committee to examine the rules in between conventions, the odds of it were placed a 0%. Tampa is it, folks.

• Don't expect big changes to the Republican rules (...and by extension the Democratic Party rules). 

• Interestingly, it came up that it was possible for a state under the Republican rules to schedule a primary or (binding) caucus for the March 1-5 window and not be penalized. The rules (Rule 15.b.1) prohibited states from holding a contest prior to the first Tuesday in March, but the penalties (Rule 16.a) only kicked in if a state held a contest "...before the first day of the month in which that state is authorized by Rule No. 15(b) to vote for a presidential candidate...". The RNC dodged a bullet on that one. [But I think this underlines just how much states and state actors actually look at the rules when setting dates; particularly state legislatures.]

• There is a fix in the works for the Florida problem. No, I don't mean cracking down on the Sunshine state propensity for jumping in line. Instead the RNC is moving to put in place a procedural fix for states that attempt in the future to repeat what Florida and Arizona did in 2012: not only jumping into non-compliance on timing, but also maintaining a winner-take-all method of delegate allocation in the proportionality window. Again, let me emphasize that the proposed fix is a procedural one as opposed to an additional penalty. The RNC obviously gives the states the ability to set their own rules, but if the states do not comply, the newly proposed rule would give the RNC the ability to seat a delegation from the state in violation that is proportional in a method the RNC chooses, not the state. This is something that the convention will have to pass in August though. It is not a reality yet.

•  This obviously raises another related issue that came up in the Harvard meeting (...though not in this context). The Democratic rules members in attendance made the case for why "caving" and allowing full delegations from penalized states to ultimately be seated at the convention. In their interpretation there is a difference states losing clout in the delegate count in the midst of a primary race and states losing delegates at the convention. That is potentially a slippery slope that invites states that don't mind the delegate hit to schedule primaries against the rules. But, as the rationale goes, if states are willing to take the reduced impact, then more power to them. 

• Part of what helped the Democrats bring that home in 2008 -- when it last mattered -- was the additional rule that sanctioned candidates for campaigning in rogue states. FHQ has harped on this rule in the past (and that's putting it mildly). That penalty was effective in greatly reducing the direct, during-primary-season impact on the 2008 Democratic nomination race. I have pointed to that rule as a pillar of any potential coordinated sanction regime that the parties may employ. I left the meeting at Harvard feeling less sure about the future of that rule. It was a candidate agreement more than anything else; one that will not necessarily translate to the next competitive Democratic nomination contest. The "enforcement" in 2008 was still almost entirely up to the candidates. And often these pledges are spearheaded by the earliest states -- Iowa and New Hampshire -- to protect their positions. Of course, the 2012 Democratic Party delegate selection rules (Rule 20.C.1.b) do not specify what the penalty for violating the campaigning prohibition, only that the Rules and Bylaws Committee has the ability to determine whether certain actions -- presumably beyond the laundry list of activities already specified -- constitute campaigning. It is up the the states and candidates.

• The RNC members in attendance thought that the new proportionality rule played a role in reducing frontloading and slowing the Republican process down. I disagreed (...and will post an edited email response to that claim in a subsequent post). 

• Much of how states react to the Republican rules in 2016 will depend on what happens at the Tampa convention. There was a palpable fear in the room among the Republicans as to what would happen in 2016 if the delegate penalties are not enforced at the convention this summer. In a phrase it would mean a calendar formation out of the wild wild west. [Yes, even more so than now, though that could be mitigated to some extent by the flexibility disparity between states described above.]

• What you see in 2012, then, is what you are likely to get in 2016 in terms of delegate selection rules. 

Implications

If the rules stay the same, what does that mean? Well, the most concrete response is that there will be calendar chaos again. Assuming Missouri moves its primary back into compliance and some of the non-binding caucus states don't get in the way, the best the calendar is likely to look in 2016 given the likelihood of significant rules changes or increased penalties is this:

• January 11 or 18: Iowa
• January 19 or 26: New Hampshire
• January 30 or February 2: Nevada
• February 6: South Carolina
• February 16: Florida
• February 23: Arizona, Michigan

This assumes that there are no other conflicts like the Arizona governor moving the date of the primary in the Grand Canyon state up or Utah funding its presidential primary scheduled for the first Tuesday in February or Colorado or Minnesota opting for caucus options on the first Tuesday in February or...

...pretty much anything else.

There is a lot of potential drama that could mess even this calendar up. And mind you, this calendar is not rules-compliant. But with Arizona and Michigan already penciled in for the date those contests are scheduled (according to state law), the above is the likely outcome.

The reason Iowa, New Hampshire and Nevada have contingency dates is based on where Nevada ends up. If the Nevada parties adopt a Tuesday caucus date, they could go just four days ahead of South Carolina -- instead of a week earlier on the preceding and customary Saturday -- and allowing a week cushion for New Hampshire. But again, this is the best case scenario for the 2016 calendar. It is two weeks better than either 2008 or 2012, but does not account for what other states might do to crash the party at the front of the line.

I have feeling I'm going to be linking back to this a lot in the future. Say, 2015 or so.

Recent Posts:
2012 Republican Delegate Allocation: Texas

Excuses, excuses

2012 Republican Delegate Allocation: Kentucky


Are you following FHQ on Twitter, Google+ and Facebook? Click on the links to join in.