The Myth of Republican Proportionality Change

Before FHQ digs into this, go read James Hohmann's piece at Politico on the 2016 delegate selection rules changes the RNC enacted this week at its winter meeting in Washington.¹ Then check out Marc Ambinder's reaction to the new rules at The Week.

...then come back and allow me to be nitpicky for a while.

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Regular FHQ readers will recall that I spent a great deal of time and space pushing back against the nature of change that the introduction of the proportionality rules caused before and during the race for the 2012 Republican presidential nomination. John Sides and I even showed that it was the calendar changes and not the proportionality requirement that was the culprit -- if a rules-based change was to be blamed -- that drew the process out. And while many continue to harp on the "rebrand" the Republican Party has undertaken with regard to issues, most forget that one of the findings of the Growth and Opportunity Project was that impact of delegate allocation rules (ie: proportionality) is dynamics-dependent. In other words, every nomination race is different and the ways in which those delegate allocation rules affect the process are different because of it.

That said, I think a number of analyses are overstating the changes the Republicans put in place this week. And much of it has to do with the supposedly new proportionality requirements. Hohmann mentions this "new" rule that allows a (proportional) state (before March 15) to award all of its delegates to any candidate that clears the 50% threshold statewide. Additionally, Ambinder hints at the 20% of the vote that states can now require candidates to hit in order to receive any delegates.

Both changes sound like they could have some impact on any race; 2016 or otherwise. But they aren't new. In fact, both thresholds are the exact same as they were in 2012. The only real change is that both have been officially added to the broader list of rules. That wasn't the case in 2012 when the office of the RNC legal counsel provided a memo to states and other ne'er do wells about compliance with the new requirement. That memo was the guide for compliance.

Section III deals with the proportionality requirement and parts iv and v set the thresholds:

iv. A state may establish a minimum threshold of the percentage of votes received by a candidate that must be reached below which a candidate may receive no delegates, provided such threshold is no higher than 20%. 

v. A state may establish a minimum threshold of the percentage of votes received by a candidate that must be reached above which the candidate may receive all the delegates, provided such threshold is no lower than 50%.

Again, this is the 2012 set up and it is no different than what the RNC officially added to the rules this time around. There was no widespread rush on the state level to up the threshold described in part iv above in 2012 (see Alabama as an example) and states like Idaho and Mississippi were among the handful of states that experimented or retained rules that allowed for a winner-take-all allocation of delegates if one candidate received a majority of the statewide vote. In fact, as I pointed out in 2011 and 2012, most states took the road of least resistance in reaction to the rules changes put in place for 2012. That is, states only changed what they had to. Where they complied with the RNC rules, they left well enough alone. This was especially true in states where the minimum threshold for gaining any delegates is set lower than 20% by state law (see New Hampshire and North Carolina for examples)

Now, another cycle of this proportionality requirement being in place may mean that states (state parties and/or state governments) have had additional time to see the true nature of the possibilities. States may have learned some in other words. But that has not really been what has been witnessed over time. Are there changes that take place that seek to exploit -- for the state's gain -- the new rules? Sure, but more often than not, they end up being exception rather than rule.

Will these "new changes" have a pronounced effect? Well, we'll see. FHQ is guessing no, since they aren't really changes for 2016 anyway. In the meantime, let's all be careful about what has changed with these rules and what it may or may not mean for the 2016 Republican presidential nomination race.

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One last thing:
Hohmann's conversation with North Dakota national committeeman, Curly Haugland is somewhat misleading. Haugland bemoaned the fact that the RNC did not take up proposed changes to correct the increased Rule 40 requirement on the number of state delegations a candidate has to control in order to have his or her name placed in nomination at the convention. This was a contentious part of the rules discussion in Tampa. Paul-aligned delegates were upset that that number of states was raised from five to eight.

The little secret here is that that rule is untouchable as are all the other rules that deal specifically with the next national convention (Rules 26-42). Rule 12, which was added in Tampa, allows for amendments to be made between conventions to Rules 1-11 and 13-25, but all the other rules -- Rule 40 included -- are off limits (to amendments) until the 2016 convention. That eight state requirement, then, could not be changed at the winter meeting of the RNC and cannot be changed until the 2016 convention.

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¹ This one is probably the best summary of the changes I've read.

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RNC Passes 2016 Delegate Selection Rules Proposals

The full RNC voted early this afternoon to pass a series of changes to the national party's delegate selection rules; the rules that will govern the process by which the party selects its next presidential nominee. Neither the Rules Committee process nor the full RNC consideration today were all that contentious. In both meetings where the changes were considered -- and ultimately passed -- there were just a handful of dissenting votes.

In other words, there was some consensus within the RNC membership behind the changes that the Rules subcommittee devised and submitted for consideration at this winter meeting.

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FHQ will certainly have a more robust analysis about the exact changes made in the coming week(s), but for now some reactions to, well, the reactions to these alterations.

A few of the talking points emerging in reaction to the changes are nothing new. They tend to fall in at least a couple of categories. On the one hand, there is skepticism that it will ever work in their intended fashion; in this case, to rein in not only a chaotic calendar formation process, but to tweak the overall nomination process. On the other, there are comments about the national parties fighting the last war; mistakenly making changes to account for problems from the last cycle.

I don't know. Those observations certainly aren't wrong, but in both cases, miss the all-too-important nuance. The "last war" line strikes me as off base in the narrow context of the relationship between the national parties and the states (whether state parties and/or state governments).¹ Of course the national parties are fighting the last war when they assemble to devise a delegate selection plan for an upcoming presidential nomination cycle. They move forward with the uncertainty-addled information they have. This is, and has been since the 1972 cycle, an iterative and sequential process. The national parties make rules and the states (and candidates) react to those rules -- some in compliance, but some, and usually only a handful, not. Wash, rinse repeat.

Only, it really is not that simple. There is no way of testing these rules changes ahead of their implementation. The only laboratory is either the experience from previous cycles or the combination of the invisible primary and primary season for the next cycle in real time. A national party does not know and often cannot (adequately) rectify midstream (see Florida and Michigan in 2008) problems that may come up along the way. That is the sequential part of the process. The national parties have to have their rules in place so that the states can react to them, to plan for the upcoming election. Only, some states don't play by the rules, or haven't in a select set of cases over the 2008 and 2012 cycles.

And that is where the probably-warranted skepticism comes in to play. State actors may behave seemingly rationally; moving a primary up and out of compliance with national party rules under the assumption that delegate sanctions will not be enforced. That line of reasoning was used numerous times in 2012 during the formation of the Republican presidential primary calendar. But for the second consecutive cycle, the RNC actually did enforce its penalties. And this is where the national parties have become more sophisticated in their responses to rogue activity. The combination of enforcement and an incremental closing of loopholes that states have exploited in the past have made it harder to states to misbehave.

FHQ spent a lot of time in 2011 and 2012 talking about the work both parties had done to coordinate the basic structure of a presidential primary calendar. We spent still more time talking about the fact that a lack of meaningful and coordinated penalties. One of the missed opportunities in 2012 was the fact that both parties had seen the ineffectiveness of the 50% delegate reduction penalty on states. It worked for most, but some were willing to take that type of hit to their delegation in order to impact the nomination process.

States may not be similarly willing to take a much deeper cut at their delegations in 2016. Nine (in the case of small states) or twelve (for big states) total delegates is a significant reduction. But you know what is missing from a lot of the reaction pieces penned in the wake of the RNC rules changes? The Democratic Party.

Oh, sure, there are certainly some light comparative mentions -- usually having to do with the respective fields of candidates and she who must not be named -- but nothing that comes close to identifying the impact the DNC's eventual delegate selection rules will have on whether the RNC will be successful in its endeavor. On the surface, that's a strange concept. It almost sounds like the DNC would be helping the RNC. [That would never happen!] But that isn't the case. This is more a matter of shared interests -- common nuisances -- among the two national parties. If the DNC ups its penalties, for example, it would go a long way toward determining whether the RNC will get the type of primary calendar it is angling for.

But if you want potential unintended consequences, look to the potential for cross-party differences over some of the Rule 20-based changes the RNC just made. These are the rules pushing up the end of the primary process. Now sure, the RNC made allowances for waivers for Democratically-controlled states that may not be able to comply with those rules (depending on what the DNC does).

That's not all of the unintended consequences either, but FHQ will save that for another time.

The bottom line for now is that the national parties are doing exactly what one would expect them to do. While they are still susceptible to rogue states, the national parties have gotten more sophisticated in their responses to them. The traditionally-exploited loopholes have largely been closed. Want rogue states in 2016? Look at the usual suspects FHQ has been mentioning for months. It won't be Florida. It'll be Arizona, Michigan, Missouri and North Carolina.

And start looking to the end of the calendar too. We may see some creative rogue states in 2016. The reactions the curbs on late May and early June contests may provide for some unconventional "rogue" activity.

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¹ In the broader context of the overarching delegate selection process, there may be something to this. Again FHQ is reminded of John Sununu's comments on this at the National Association of Secretaries of State meeting in January 2013. I'm paraphrasing here, but he mentioned that national parties often tread this line of managing or controlling the delegate selection process. He said that when parties attempt to control the process rather than manage it, they often get themselves into some form of trouble. Whether what the RNC has done this week falls into the control or manage category likely is in the eye of the beholder.

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Round Up on RNC Rules Committee Meeting

There weren't any surprises at the RNC Rules Committee meeting in DC this afternoon. Here are a few takes on the proposed 2016 delegate selection rules changes, post-meeting:

Zeke Miller at Time says the rules moves are all about the money.

WaPo's Reid Wilson and USA Today's Susan Page talk calendar compression.

Benjy Sarlin over at MSNBC frames the changes as an attempt to reduce the odds of a divisive primary.

FHQ will weigh in when we have had a chance to see the actual language of the changes. In the meantime, the package of revisions that passed the Rules Committee on a near-unanimous voice vote today heads off for consideration in the full RNC tomorrow. To pass, the series of changes will require a three-quarters vote. That is a pretty high bar, but the Rules Committee vote signals pretty close to a consensus on the changes. The committee reports will be made to the full RNC a little after 11am tomorrow morning.

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The RNC Already Increased Penalties on Potential Rogue Primary States

There is a lot of chatter this morning about what the RNC will be up to these next couple of days in Washington, DC. One thing neither the Rules Committee nor the full RNC will do -- despite the bulk of reports today -- is to increase the penalties on states that move their delegate selection contests ahead of the March 1 threshold or state parties that do not allocate delegates in accordance with the rules laid out by the national party.

Why?

Mainly, the RNC will not be upping the penalties because it has already done so. Some seem to have conveniently forgotten the struggle over the rules in the Rules Committee meetings in the week leading up to the 2012 Republican National Convention in Tampa. Perhaps the increased penalties got lost in the shuffle of Rule 40 changes that had Ron Paul delegates up in arms during the actual convention.

But the point is, the Bennett rule -- named for former Ohio GOP chair, Bob Bennett who devised the penalty -- had already been added, stripping rogue state delegations down to nine delegates (12 including the automatic delegates) for holding primaries or caucuses too early. The rules coming out of Tampa also included a 50% penalty on states that did not follow proportionality requirement. None of that is new. None of that will be new after the RNC winter meeting concludes.

What will potentially be new is:
1) The proportionality requirement will see some changes. The rules package will reduce the window of the proportionality requirement from all of March to just the first two weeks of March. Additionally, the language of the rule (described in Rule 16(c)2) will be ever so slightly altered. As it is now the word "may" appears, suggesting that states allocated delegates in a proportional manner before March 15. The new rule will, as was the case in 2012, mandate this with the word "shall". All that is doing is insuring that there is an actual proportionality requirement for the 50% penalty already described in Rule 17 to apply to.
2) The super penalty described in the Bennett rule will be tightened up to close a loophole that a very small number of small states could have exploited. FHQ has covered those discrepancies for nearly a year.

There are some other matters -- particularly Rule 20 -- that may be noteworthy during the Rules Committee meeting today. But that rule has nothing to do with penalties. It is something that will from the RNC perspective help lay the groundwork for an earlier convention. Everything else will be about tightening up the language for the penalties that are already there.

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Morton Blackwell on RNC Rules Subcommittee Proposals for 2016

Virginia Republican National Committeeman, Morton Blackwell, has posted over at RedState an open letter to RNC Chair, Reince Priebus, concerning the forthcoming Rules subcommittee proposals tweaking the 2016 delegate selection rules. The prevailing sentiment is opposition to the changes. Yet, even that is nuanced.

Some of it takes the form of a suggestion box entry. There is a call for clearer language in Rule 16(a)(1) where there appears to be an allowance on the part of the RNC for either proportional or winner-take-all allocation rules (regardless of timing). That is perhaps not completely consistent with the restrictions on winner-take-all allocation laid out later in Rule 16 and penalized in Rule 17.¹

Other points -- like the one on the width of the proportionality window -- show some resistance, but not outright defiance. The impact of an all-proportional March versus a half-proportional March (March 15 cutoff) is indeterminate. It may or may not slow down or speed up the pace with which the ultimate nominee accrues delegates. Much of that depends on the dynamics of the race -- who is still in the race, what the terrain is (what the sequence of events is).

The fact the tone is this way on these proposed rules changes may be a function of either the scale of the change or the fact that the issues in the proposed changes have been discussed and find some consensus within the Rules Committee and/or the RNC.

The new wrinkle, and where the discussion in the Rules Committee gathering at the RNC winter meeting this week in DC is likely to be interesting,² is the change proposed to Rule 20. Peter Hamby brought this up in his rundown of the proposed changes a few weeks back. This is the rule that accounts for the certification of the election/selection of delegates.

The reason that this is somewhat contentious is that this is the potential provision that would allow state Republican central committees to select delegates in states with late primaries that may conflict with the logistical requirement of having delegates in place 35 days before the convention. In other words, this is something that is necessary in order to lay the groundwork for a late June or early July convention. [FHQ has more on this here (in the discussion of providing incentive to late primary states to move up).]

Blackwell views this as an overreach of the RNC, infringing on a state's ability to select delegates to the convention as it sees fit. Whether this is eventually a contentious discussion at the meeting remains to be seen. Much will depend on the calculus of RNC members present and voting on the change. Will they see Blackwell's way or will they value the earlier convention that Chairman Priebus and others with the party want?

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¹ Mr. Blackwell also points out the inconsistency regarding automatic delegates in Rule 17 that FHQ described here.

² FHQ does not necessarily mean heated or controversial here. Rather, it may take some time to unpack and explain everything on the proposed rules change in the context of the meeting.

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For RNC Members, A Rules Contradiction That Would Affect Them in 2016

The Republican National Committee is on the eve today of another annual winter confab. This meeting will likely see the Rules Committee take up and consider -- if not vote on and send to the full RNC -- a series of tweaks to the 2016 delegate selection rules that came out of the party's Tampa convention in August 2012. This will not be the first time the Rules Committee and then the full RNC has revised those rules.¹ However, this time around, the changes are likely to be more substantial both in terms of quality and quantity. That is a function of the alterations coming out of a special rules subcommittee that was tasked last August -- at the summer meeting -- with reexamining the process by which the Republican Party nominates its presidential candidates; the delegate selection portion anyway.

One seemingly minor change that is likely to be included in the full series of proposed rules changes concerns the convention voting rights of the automatic delegates. Recall that the automatic delegates are the three members of the RNC from each state: the state party chair, the national committeeman and national committeewoman. In most but not all cases, these delegates are free to select any candidate of their choosing. They are an unbound part of the state delegation to the national convention.

That said, there has been some discussion as to how these automatic delegates should be treated at the convention should the state they represent violate the delegate selection rules on timing. In 2012, the rules the Republican Party utilized removed the voting privileges of the RNC members/automatic delegates from states in violation of those rules (Rule 16.e.1). On its surface, then, the penalty was supposed to strike at a group of people -- those RNC members involved in state party politics -- in a position within the national party to presumably deter state-level moves that would bring a state into violation of the rules. This obviously is something that is easier said in rule-making than done in practice. Regardless, the stick was put in place.

The effectiveness of such a penalty is not entirely clear, but it can be quite difficult for a state party chair or national committeeman/committeewoman to prevent a state legislature and governor -- potentially of a different party -- from acting in a manner consistent with the Republican National Committee delegate selection rules. Still, that language persists in the rules that will govern the 2016 Republican presidential nomination process.

Rule 17.f.1 (the same exact language as Rule 16.e.1 in 2012):
(f) If a state or state Republican Party is determined to be in violation:
(1) No member of the Republican National Committee from the offending state shall be permitted to serve as a delegate or alternate delegate to the national convention.

Yet, that seems to be undermined by the language describing the new super penalty earlier in Rule 17. Here's the relevant portion of Rule 17.

Rule 17.a (emphasis FHQ's):
If any state or state Republican Party violates Rule No. 16(c)(1) of The Rules of the Republican Party with regard to a primary, caucus, convention or other process to elect, select, allocate, or bind delegates and alternate delegates to the national convention by conducting its process prior to the last Tuesday in February, the number of delegates to the national convention shall be reduced to nine (9) plus the members of the Republican National Committee from that state...

Now, regular readers will be acquainted with what may be perceived as an annoying practice: FHQ's insistence on saying that the super penalty reduces a state delegation to nine delegates plus the three automatic delegates should a state violate the nomination rules. That is a function of the above language. Yet, that language in Rule 17.a is contradicted by the two-part rule fully described in Rule 17.f.1-2.

The RNC members -- the three automatic delegates from each state -- have convention voting rights in one section of the rule but not the other. The RNC is aware of this issue, but it remains to be seen what the ultimate remedy will be. The penalty stripping RNC members from violating states of their convention votes is one that has passed muster with the group in the past, but given the out -- and given the reality that RNC members may have very little sway in how the timing of their state's primary, for instance, is decided -- the RNC may also opt to retain the voting privileges of their membership at the expense of other delegates from the a violating state's delegation.

Again, it is not clear what proposed changes the RNC rules subcommittee will bring to the Rules Committee on this issue and a number of others, but details will emerge as the RNC convenes tomorrow.

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¹ There was a cosmetic change to Rule 16.a.2 at the 2013 spring meeting that clarified the procedure for dealing with potential rogue delegates and their votes at the national convention.

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