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.
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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.
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