The Real Import of Rule 40 in 2016

One of the more controversial rules changes that came out of the 2012 Republican National Convention in Tampa was the change to Rule 40. This is basically the guide to getting a candidate's name placed in nomination; to be able to take part in the roll call vote. Over the years the thresholds have gradually increased. In 2012, a candidate had to control a plurality of a delegation from at least five states in order to be nominated. But that is not a bar that had been in place forever. And again, it was certainly a barrier that increased to that level over time.

In Tampa in 2012, however, the thought process was a bit different than it is today. There and then, the rules changes were designed with one thing in mind: protecting President Romney in a 2016 bid at re-nomination. As I told Matt Viser a couple of weeks ago, few were sitting around in the Rules Committee meeting the week before the convention or later in the convention room itself thinking about the possibility of 15 candidates vying for the 2016 nomination. The rules that Republican lawyer, Ben Ginsberg pushed through the Rules Committee and were ultimately adopted at the convention protected hypothetical future President Romney in several ways, but one of them was increasing the thresholds a candidate had to meet to have their name placed in nomination at the convention.

The changes?

Instead of the five states a candidate had to win in 2012, a candidate had to win at least eight in 2016. And adding to that, a candidate could no longer skirt by with just plurality control of the the delegation. The rules adopted in Tampa for 2016 upped that to a majority. The raising of the number of states is not really of much consequence. But bumping that control threshold up from just one more delegate than your next nearest competitor to having to control half of the delegates in a state's delegation plus one is a potentially significant change. The impact of the change is minimized when one considers a scenario in which a President Romney is facing off against just one likely fringe foe. Yet, when one removes a hypothetical sitting president and inserts more than 10 candidates with no frontrunner/a nominal frontrunner/an unproven outsider frontrunner, then that change to Rule 40 really seems to start to matter.

This is exactly the type of unintended consequences a party gets when it makes plans for a nomination and convention four years ahead of time. Things change and in ways that are difficult to plan for so far out.

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Well, what do these changes portend for 2016? It is pretty ominous, right? And that is seemingly even more true given a wild and unpredictable field of candidates.

Not really.

As David Byler explains at Real Clear Politics, Rule 40 is basically a placeholder. It was among the series of convention rules that the Republican National Convention (via the adopted Rules Committee package) extended to the next cycle with some tweaks as it routinely does without much notice every four years. And by "convention rules", FHQ means the rules that are intended to govern the next convention (Rules 26-42). Those are distinct from what one might call "primary rules" -- Rules 13-25 -- in one important respect: The convention rules cannot be altered between conventions (see Rule 12), but the primary rules can.

That is why we have seen the cleaning up of Rule 16(a)(2) and the reinsertion of shall for may resurrecting the proportionality requirement in Rule 16(c)(2) among other changes.

But Rule 40 and the other convention rules have been off limits, static since Tampa. The routine is that these convention rules stay the same. One convention passes them on to another and that next convention adopts them as the procedures for governing itself with no problems. Ultimately though, the convention of delegates has the final say so in that instance. While it is customary for one convention to adopt the rules passed on to it by a previous convention it does not have to. Basically, a convention is charged with adopting the rules that will govern itself. The RNC has streamlined this process, as described above, but the convention can take it off that track if necessary.

That is where the discussion of Rule 40 stands now for the 2016 cycle. Again, with a wide open race and a robust field of candidates, the requirements to place a candidates name in nomination at the Cleveland convention appear rather steep. Can a candidate reach majority control of delegations from multiple states? Can multiple candidates get there? Will none get there?

We do not have answers to those questions at this point and may not until well after voting has begun in February. But all the while, the RNC -- and ultimately the convention itself -- could have some say in this matter.

...if it has to.

One of the shortcomings of Byler's otherwise excellent piece at RCP is that it does not consider the possibility that Rule 40 works as intended; that only one candidate gets majority control of delegations from at least eight states and receives a majority of the 2470+ delegates available in the Republican presidential nomination race.

And there is no defined point in time in which it will be clear that Rule 40 is working (or not). Until then, Rule 40 and the thresholds for nomination contained therein matter. It is a goal for which all the viable campaigns are shooting. There a reason Ted Cruz's campaign (among others) has been involved in Guam. It counts as one of those eight states. The campaigns, then, are operating as if the provisions of Rule 40 are a thing; that it matters. And indeed it does. Getting to majority control of eight states is still a goal for the campaigns until it is not.

So, if Rule 40 operates as envisioned, then there is no reason for the convention to change it. In the meantime, though, between now and the convention, the rule puts in place a marker that the campaigns must hit and are in fact striving for. That is different than saying Rule 40 "won't affect the primary outcome".

It won't affect the outcome if it ends up standing in the way of the Cleveland convention completing part of its task: nominating a presidential candidate. If Rule 40 does serve as an impediment to that task, then it will be altered. But until it is clear that Rule 40 is a problem -- that the primary process has produced an inconclusive result in part because of the requirements in the rule -- it matters.

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That does leave us with a couple of important secondary questions.

First, does the RNC signaling that Rule 40 is a placeholder now -- in December 2015 -- change how the campaigns approach the process? We will not begin getting an answer to this question until votes start coming in and delegates are allocated. It is at that point that the campaigns will start attempting to frame what they have won and what that means. In other words, do the campaigns keep us updated on the progress they are making toward meeting the thresholds laid out in Rule 40 -- the process of being placed in nomination?

Second, if -- and it is still an IF, folks -- Rule 40 is determined to be problematic during the course of primary season (if an inconclusive result is seemingly almost assured), then how does the Convention Rules Committee alter it? Byler addresses at the end of his piece and FHQ disagrees with him. As I said above and as I told Ben Jacobs and Walter Shapiro via Twitter last Thursday when this whole brokered contested convention discussion broke open anew, the number of states required under Rule 40 is not the issue. The biggest, most problematic change was the raising of the control threshold from a simple plurality to a majority. The convention may attempt to game things some with the number of states, but reverting to the former plurality requirement is more likely to solve a whole lot of the potential problems with the Rule 40 requirements.

But first thing's first: Let's see if, in fact, Rule 40 is going to be a problem once votes are being cast.

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