Rogue States Will Be the Norm as Long as the Parties Diverge on the Calendar

2024 is going to be different.

A look back to 2008

For the first time since the 2008 cycle, there will be a shake up to the beginning of the presidential primary calendar in 2024. And just as was the case fifteen years ago, it was the Democratic Party that instituted the changes. 

Then as now, the DNC sought to diversify the pre-window period on its calendar, augmenting the traditional Iowa/New Hampshire start with the addition of contests in two more states. Just as was the case during 2022, the DNC Rules and Bylaws Committee (DNCRBC) invited state parties to pitch the panel in 2006 on why their state contest should be added to the early calendar in the upcoming primary season. Much of the focus centered on adding smaller states but also providing some balance in terms of region and demographics. And finally, part of the calculus also honed in on the idea of adding another caucus state in between Iowa and New Hampshire and another primary thereafter but before Super Tuesday. 

There are more than a few parallels between those criteria and the set used in 2022 by the current-day DNCRBC. But there are some differences as well. Democrats were the out-party in 2006, and parties in the White House tend to do less tinkering. Also, Democrats may have been a bit shrewder in their choices of additions for 2008. South Carolina was already a state that had carved out a spot in the early Republican calendar over the preceding quarter of a century. And Nevada was a caucus state at the time. Both featured state parties that made the primary/caucus scheduling decisions rather than state governments. Unlike in a situation where the state government sets a primary date, a move by national Democrats to add South Carolina and/or Nevada to their early calendar for 2008 did not necessarily drag Republicans in those states into the mix. 

Of course, Palmetto state Republicans already had a presidential primary that was an established part of the early Republican calendar. And Nevada Republicans joined the fun with January 2008 caucuses that skirted Republican National Committee (RNC) penalties. There was no RNC rule that required states in 2008 to bind national convention delegates based on a statewide presidential preference vote. Silver state Republicans and those in Iowa, for that matter, conducted a preference vote during precinct caucuses, but that had no direct bearing on the delegates chosen to attend the next stages of the caucus/convention process, nor ultimately those delegates who represented either state at the national convention. 

But it worked. Perhaps it was dumb luck, but it worked. Nevada and South Carolina, with minimal (although not nonexistent) implementation headaches, became not just established but institutionalized parts of the early calendar in both parties' processes. And that was despite the fact that both were flip-flopped in the other party's order; South Carolina third and Nevada fourth in the Republican process and the inverse on the Democratic side.

How 2024 is different and how that increases the odds of rogue states

That is a different story than the one that has played out in the lead up to when the latest primary calendar decisions were made in 2022-23. And it is different for a number of reasons. 

First, Democrats entered the review process for the 2024 rules and the primary calendar saying that no early calendar slots were guaranteed. All four (or five) were up for grabs. That meant that Iowa, New Hampshire, Nevada and South Carolina had to make their cases before the DNCRBC just like every other interested state party. And for the first time since specific carve outs were added to the DNC rules for Iowa and New Hampshire for the 1984 cycle, Iowa, and likely New Hampshire, will have no waiver from the national party to be a part of the pre-window lineup. That necessarily creates two potential rogues states in one fell swoop.

Second, recall the background on the selection of South Carolina and Nevada in 2008. In both situations, it was state parties making the decisions on where primaries or caucuses in the Palmetto and Silver states ended up on the calendar. South Carolina obviously remains the same as it was in 2008 (with respect to the decision makers). That is part of the reason South Carolina Democrats got the nod to go first for 2024 in the Democratic process. Meanwhile, Nevada, under Democratic control in 2021, shifted from party-run caucuses to a state-run presidential primary. That move mirrors a push by the national party away from caucuses and toward state-run primaries. 

But while the national party has advocated for more state-run processes in order to maximize participation, that has limited the DNC's options in terms changing its calendar without potentially creating problems for Republicans in their process. Those problems are best highlighted by the Democrats' insertion of Michigan into the pre-window, an act that puts Michigan Republicans in the crosshairs of the RNC rules. Granted, this is a two-way street. The RNC decision to stick with the traditional Iowa-New Hampshire-South Carolina-Nevada lead off has impacted Democrats. It has created potential problems in Iowa and New Hampshire with both state parties, leaning on existing state, signaling they are likely to go rogue and hold contests concurrent with the Republican in their respective states. And unless the DNC tweaks its approach to Georgia, the Peach state primary will not be a part of the pre-window at all. Georgia definitely will not go on February 13 as planned.  

Another part of the 2024 picture that differs from 2008 comes from who is doing the rules tinkering. It is unusual for an in-party to so fundamentally reshape a seemingly ingrained part of the process. But what that points to is how much sway the incumbent president tends to hold over the system that will renominate him or her. Typically an incumbent is content to move forward with a nomination system that largely mimics the one that got him or her to the White House in the first place. That may produce changes from a nomination cycle to the renomination cycle, but they usually are not big changes. 

But what if they were? The 2024 cycle is testing that. It is the incumbent president who is testing that. Indeed, without the input of the president on the 2024 primary calendar, the DNCRBC seemed to be heading in the direction of something that would have knocked Iowa out altogether, bumped the other three early states up a notch (maybe with some additional shuffling) and added Michigan to the end of the pre-window as a midwestern replacement for the caucuses in the Hawkeye state. President Biden had something else in mind and the DNCRCB and ultimately the full DNC fell in line. 

And that has implications for both parties' calendars. More importantly, that has implications for how orderly those calendars are in coming together. Questions remain on both sides. 

Finally, while all of the above seemingly points the finger squarely at the Democrats as instigators in all of this, Republicans have played a role as well. Necessity is the mother of invention and, in fact, brought the national parties together in the time after the chaos of the 2008 calendar. Both saw value in not starting the process in January (or for not allowing states other than the first four to conduct contests in February). And they informally brokered a deal. FHQ often cites that and uses the "informally brokered" language, but here is what that meant in the rules. 

In the amended rules for the 2012 cycle, the RNC added language that created a specific carve out in Rule 15(b)(1) for Iowa, New Hampshire, Nevada and South Carolina. In the previous cycle (2008), only New Hampshire and South Carolina had those exemptions. [Iowa and Nevada did not need them. Neither allocated any national convention delegates to the national convention in their precinct caucuses.] That aligned the Republicans with the Democratic pre-window calendar for the most part. Again, recall the South Carolina/Nevada flip-flop between the parties.

Moreover, the RNC added one other rule, Rule 15(b)(3):

If the Democratic National Committee fails to adhere to a presidential primary schedule with the dates set forth in Rule 15(b)(1) of these Rules (February 1 and first Tuesday in March), then Rule 15(b) shall revert to the Rules as adopted by the 2008 Republican National Convention.

It is not common for one party's nomination rules to cite the other party. But for 2012, the basic outline of the Republican calendar hinged on what national Democrats did. Basically, if the DNC did not adopt rules that called for a February 1 start to the calendar for the early states and a first Tuesday in March start for every other state, then the RNC would revert to the rules it used in 2008. That would have snapped back to the RNC using a calendar that allowed all but the exempt states to start in February pushing Iowa, New Hampshire, South Carolina and Nevada into January. Yes, that happened anyway because Florida broke the rules again in 2012. But that was not a function of this brokered deal between the parties. It was because the RNC penalties were not severe enough.

However, once the RNC got their penalties right in 2016 with the addition of the super penalty, that was it. That was the high-water mark for cooperation between the parties. And the agreement held through the 2020 cycle or until the Democrats walked away for 2024. 

The break was about more than just the Democrats going their own way with a fundamentally different early calendar lineup for 2024. The truth is there was not much for them to walk away from. The dialog that had developed out of that deal brokered fifteen years ago gradually declined over time. It happens. And it happened because the players involved changed. Leadership on the RNC Rules Committee changed again in 2017 and interest on the Republican side mostly died with it. There was still Republican interest in the dialog but it was no longer coming from players who were directly involved on the RNC Rules Committee. 

And that lack of communication was something DNCRBC co-Chair Jim Roosevelt noted in the December meeting when the 2024 calendar plan was initially adopted by the panel. In responding to concerns from Scott Brennan, Iowa DNC and DNCRBC member, about the potential for a split between the two national parties on Iowa's calendar position leading to chaos, Roosevelt said that the Republicans were not open to coordinating this time. And that has been true for the last two cycles.

That matters. It is a part of the fuller picture. And as long as there is no (even informal) coordination on the matter between the two national parties, the more there are going to be rogue state situations like the ones that are likely to mark the 2024 cycle in Iowa, Michigan and New Hampshire (if not Georgia).

But what even is a rogue state?

If Iowa or Michigan or New Hampshire are rogue in 2024 in one party's process or another, then that is different from the calendar rogues of the recent past. Those three states are unlike Florida and Michigan in 2008 and unlike Arizona, Florida and Michigan in 2012. State actors in Arizona, Florida and Michigan made decisions to break the rules. State laws were changed ahead of 2008 to push Florida and Michigan into noncompliance, and they were not changed before 2012 to comply with the new (and later) calendar start codified in both parties' rules for that cycle. 

Contrast that with the situations in Iowa, Michigan and New Hampshire for 2024. Republicans in Iowa and New Hampshire and Democrats in Michigan all have the blessings of their national parties to conduct early contests next year. Their counterparts across the aisle do not. And in the case of Michigan Republicans and New Hampshire Democrats, they have no real recourse if they want to use the state-run primary. If partisans on the other side move or keep the primaries where they are under state law, they are stuck to a large degree. 

That is a different kind of rogue. That is a rogue that is created by the discrepancy between the two national parties' presidential primary calendars. It forces the state parties in that situation to either take the penalties or to pay for their own party-run process (which is a penalty in its own right). But as long as the calendar divide exists -- and especially if Democrats continue to reexamine and reshuffle their early calendar lineup -- then this type of rogue state is likely to continue to cause problems on one side or the other. And that says nothing of the possibility of Republicans following suit and shuffling their early calendar in cycles to come. 

As of now, there is little evidence that there is any movement from other states to go rogue in the old fashion. In West Virginia, there are bills to create a separate presidential primary and schedule it for February, out of compliance with both parties' rules. But that is it. There is no concerted effort to rush the gates and go early against the rules. However, just because there is no conventional rogue activity now, or even in this cycle, it does not mean that states will not try to exploit the calendar differences between the two national parties in the futures should they persist. 

It is that sort of unraveling of the steady state informally coordinated between the national parties a decade and a half ago that should trouble decision makers on the national level.

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2020 Republican Rules Changes, Part Four: A Caucus-to-Primary Incentive?

Part One: Setting Expectations for the Next Round
Part Two: Early Proposals
Part Three: A Reflection on Delegate Incentives
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What lessons do past encouragement structures hold for the potential Republican caucus-to-primary incentives?

There are a few main principles arising from the previous exploration of past national party experimentation in motivating state decisions on contest scheduling that may have implications for an incentive program to entice current caucus states, in whole or in part, to adopt primaries.

    1) Conditions matter
In sum, the deep dive on past incentives hammers home a point that is often echoed in the context of electoral politics: timing is everything. Republicans in 2000 and Democrats in 2008 had ineffective incentives programs to curb frontloading mainly because of poor timing. Those regimes were instituted ahead of cycles where the motivation for states/state parties to frontload primaries and caucuses was at its peak: when there were competitive nomination races in both parties.

But those were also cycles that saw the parties act alone on incentives, sending a mix of signals to the decision makers on the state level. That did not change for Democrats in either 2012 or 2016 -- they acted without Republicans on incentives -- but what did was the level of perceived competition for the nomination at the time primary and caucus scheduling decisions were being made. In both cases, the perception was that the level of competition was low and the need to be early was as well. There were no challengers to an internally popular incumbent Democrat (Obama) in 2011, and the most viable alternatives to Clinton sat on the sideline throughout 2015.

Couple that with the fact the DNC benefited from the united front both national parties offered on penalties for would-be violating states and there existed a perfect storm for some measure of success. The penalties forced would-be violators stuck in February after 2008 to move for 2012 when the window was contracted to prohibit February contests. Penalties laid the groundwork, then, and some combination of incentives, state-level partisan control, and nomination competition helped determine the stakes and where states ended up on the calendars of the two most recent cycles. And it is FHQ's hypothesis that it is more the partisan control and competition effects driving the movement than the incentives. 2020 may provide a real or at least better test of that hypothesis.

    2) Primary or caucus decisions are not necessarily the same as frontloading decisions
Importantly, the motivation that compels state actors to schedule primaries and caucuses earlier in the calendar is different than that which animates the decision on whether to conduct a primary or caucus.

Often those two decisions -- frontloading or primary/caucus -- hinge on willingness and ability. It is one thing to ask if a state is willing to, for example, move forward on the calendar, but quite another to ask if that state is able. Compared to ability, there is more often than not a wellspring of willingness. In other words, there is often in at least some quarters of a state some desire to move the state-funded primary to an earlier date on the calendar. Bills frequently get proposed in state legislatures in the year before a presidential election to shift a presidential primary around on the calendar. But not all of those bills ultimately lead to date changes.

And the variation across states stems from a number of factors that can be broadly filed under ability. There can be partisan complications should a state be dominated one party while the other has a competitive presidential nomination. There can be structural obstructions as well. The biggest of these obstacles -- the one that has most often separated states that moved to earlier dates and those that did not during the era of frontloading -- was whether presidential primaries were consolidated with those for nominations to other offices. States with separate presidential and other primaries have been much likely to move around the calendar than those with consolidated primaries.

Moreover, this points toward another difference between states that do frontload and those that do not: budgetary impact. The financial hit to state budgets can be quite large, preventative even. States, in other words, that have incurred the costs of separating those sets of primaries are willing and much more able to shift primary dates than those with consolidated primaries.

This same willingness/ability concept can be extended to the primary/caucus decision as well, but with some subtle and not so subtle differences. In some cases, the ability may be there, but not the willingness. A state-funded primary option may be in place, but a state party may opt for caucuses instead. After 2016, this has been a point of contention on the Democratic side in the national party considerations of 2020 rules. Idaho, Nebraska, and Washington all had primaries at their disposal, but the state Democratic parties in all three states stuck with the caucus/convention system.

That group of caucus states differs from the majority of caucus states where state parties may have the willingness to hold a primary, but lack the ability. In the latter group, there is no state-funded option and little to no state party funding exists for what is a less effective party-run primary. A national party stands a better chance of nudging the caucus states with a state-funded primary toward adopting the primary. That is, a stick and/or carrot to the state party may be effective at triggering such a transition. But with that other group of caucus states -- those where state funding is not forthcoming -- national parties often have their hands tied. While they may be able to compel a state party to make a change, forcing state legislatures to appropriate the resources necessary for a primary is a different matter.

And that appropriation serves as an important aspect to flag in all of this. That is what separates attempts to curb frontloading from similar efforts to scale back the reach of the caucus/convention system. The national parties face less resistance from state governments -- whether motivated by penalties or incentives (and/or directly or indirectly through state parties) -- on reversing frontloading than on compelling a caucus to primary transition.

Why?

Much of the answer lies in the financing. The ask is not costless in the case of states with contests too early in the calendar from the perspective of the national parties, but it costs considerably less in terms of the budget hit to those state governments. Those states have already incurred the opportunity costs of creating separate presidential primaries or moving a consolidated primary up in the calendar. Instead, the price to be paid is one measured in influence over the presidential nomination process. As  a primary or caucus slips further into the calendar, the less likely it will be to have a marked influence over the shape of the nomination race.

But for the majority of caucus states, the contours of the caucus/primary or caucus to primary decision remains different. In that case, the national party is attempting to motivate a change in mode of nomination from the state party, and the acceptance of a financial cost -- funding a primary -- by a state legislature. State governments that balk at that push shift the costs to the state parties, and state parties have tended to opt for cheaper caucuses over costly party-run primaries.


    3) A united front
The national party push to curb frontloading succeeded when both national parties informally agreed a uniform shift in the start of the calendar after the 2008 cycle. Penalties in place on both sides thereafter were sufficient enough to draw most states into compliance for 2012, and the increased severity of Republican penalties for 2016 completed the task. It is under those conditions -- a united front -- that a similar effort to move states from caucuses to primaries would be stand a better chance of success.

Republican incentives may work on some states, but would likely see more widespread effects if the DNC was pushing in a similar direction. And that does not have to be in the same way. Again, Republicans have fought back frontloading with a series of penalties while the Democrats have used a combination of penalties and incentives over the last two cycles. In other words, Republicans could utilize an incentives system to draw caucus states toward primaries while the Democrats rely on some other method. There have been discussions on the periphery of the 2020 Democratic rules-making process of penalties for states with caucuses where a state-funded  primary is available. But that process, at this point in time, looks to produce a more passive national party declaration of preference (for primaries over caucuses) than a more forceful penalties regime.

Still, across both parties those signals may be enough to affect some change at the state level. Even without that national party prompt, the number of caucus states has already waned since 2016. Colorado, Maine, and Minnesota will all have presidential primary options in 2020. And Nebraska, Washington, and Wyoming have all explored either establishing primaries or strengthening the ones they have. Much of the impetus for that change or that exploration emerged not from the national parties but organically based on the strain placed on state parties to effectively accommodate those who wanted to participate in 2016.

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Given those lessons from other incentives programs, is this Republican proposal likely to work?
The answer to this question is not as clear because the actual parameters of the the proposed incentives remain unknown. It is, after all, still a proposal.

    Are the conditions right?
FHQ remains skeptical that they are. Parties in the White House tend to stick with the rules they have; the rules that helped get the president where he is. In looking at renomination, the Trump campaign and the RNC may be eyeing the curbing of a structure that did not benefit the president in the 2016 process. But if the president runs unopposed or faces only a token challenge, then the state response has often been to cancel primaries and select delegates through a caucus/convention process or even via state committee selection. Rather than reducing the number of caucuses, then, there tends to be an expansion of caucuses on the incumbent party side.

    Details, details, details
Obviously, the success of such an incentive regime would depend on the size of the carrot and to which states it applies. On some level, the bigger the incentive is, the more likely it is that states would be to opt for them. But that can open the door to a logistical problem for the national parties based on which states qualify. A broad application to current primary states and those caucus states that opt in could dramatically increase the total number of delegates to the convention. This does not come without a cost to the national party in planning the convention. However, a more narrow application, targeted at current caucus states, would allow a potentially larger incentive that would have a more minimal impact on the total number of convention delegates. This is an issue the DNC has had with its bonuses and other rules tweaks over the decades. Adding more delegates reduces the number of sites that can actually accommodate a national convention. Regardless, this is a consideration the RNC will have to wrestle with if it is serious about an incentive program like the bare bones of the one proposed.

    Conclusion
FHQ remains skeptical of just how effective this potential caucus-to-primary incentive the RNC Temporary Committee on the Presidential Nominating Process (TCPNP) is discussing. As the above discussion should indicate, there are a number of moving parts. Ultimately, however, this is something that is most likely narrowly directed at those caucus states that opted out of preference votes in caucuses in 2016. Call that the unfinished business path. Those states -- mostly North Dakota, but in part Colorado and Wyoming -- had delegate selection plans that, while compliant, were not in keeping with the delegate binding changes made after 2012. An incentive may be just enough to get them to reconsider. Time, however, will tell that tale.

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Part One: Setting Expectations for the Next Round
Part Two: Early Proposals
Part Three: A Reflection on Delegate Incentives

2020 Republican Rules Changes, Part Three: A Reflection on Delegate Incentives

Part One: Setting Expectations for the Next Round
Part Two: Early Proposals
Part Four: A Caucus-to-Primary Incentive?
--

The history of incentives programs
Whether the intention of a caucus-to-primary incentive is applied to a narrow list of targets or anything broader, they all belie the fact that such bonus delegate incentive programs have not historically been effective (or effective in the absence of certain conditions).

    Early experimentation
The RNC first used a bonus delegate system to entice states to later dates on the primary calendar for the 2000 cycle. To curb frontloading, the goal was to provide a bonus of five percent to states in the March 15-April 14 window, a 7.5 percent addition for contests in April 15-May 14 window, and a ten precent bonus for states with primaries or caucuses scheduled from May 15 through the third Tuesday in June. However, the experiment was met by a collective cold shoulder from the states. Only three states moved back beyond the March 15 point on the calendar from 1996-2000.

• South Dakota shifted from a late February primary in 1996 to its traditional early June position for 2000 after three consecutive cycles in February. 
• Oregon, too, moved back for 2000, from a mid-March 1996 primary back to its traditional position back in mid-May 2000. 
• Finally, Wisconsin pushed back from a mid-March position alongside neighbors Illinois, Michigan, and Ohio -- a Great Lakes subregional primary -- in 1996 to its traditional spot at the beginning of April in 2000. 

All three moved to "old" positions where the contests in those states have been more often than not in the post-reform era. And Oregon and Wisconsin reverted to those positions after a one cycle break in 1996 from those traditional scheduling patterns.

But by far the biggest beneficiaries of the 2000 cycle bonus delegates program were states that were already scheduled on or after March 15 in both cycles. In other words, states that did nothing from 1996-2000 got the most out of the rules change. Given the overall response -- or lack thereof -- the RNC scrapped the program for 2004 and has increasingly focused on penalizing non-compliance in the time since. Sticks rather than carrots, then.

Despite the failed Republican experimentation in 2000, Democrats devised their own bonus delegates regime to counter the frontloading impulse among the states beginning with the 2008 cycle. The differences across the two plans were twofold. First, the Democratic system created two groups of beneficiaries: 1) states that held their later positions on the calendar and 2) states that moved back from their earlier 2004 positions to later 2008 positions. Additionally, the 2008 system the Democrats utilized amplified the delegates added. Depending on how late the contests were scheduled, states in the first category -- holding steady -- got five or ten percent bonuses tacked on to their base delegations (not including superdelegates). That was pretty consistent with the Republican system from 2000. But it was the second category that saw the true increase in incentives. Early states from 2004 that moved their primaries or caucuses back for 2008 saw either a 15 or 30 percent addition to their base delegations, again, depending on how far back the contest was shifted in 2008.

However, even with a more aggressive bonus system, the results remained about the same for Democrats in 2008 as they had been for Republicans in 2000. Ten states gained Democratic bonuses in 2008, but only two of those ten -- Guam and North Carolina -- moved back. The remaining 80 percent of states that received a delegate bump were awarded the smaller bonuses for not moving at all, but remaining late.

The scorecard for early experimentation in bonus delegate incentives, then, just did not show much success. Although, much of that can be attributed to timing rather than any specific failure of the two programs. The primary calendars in 2000 and 2008 were arguably the two most frontloaded of the post-reform era. On one hand that makes the incentive systems look even more ineffective. The system was intended to combat the frontloading of presidential primaries and caucuses, but saw the trend accelerate instead.

But on the other hand, additional factors may have been driving actors on the state level to ignore the potential bonuses. For starters, California's 1996 shift from June to late March and subsequent 2000 move to the front end of March changed the decision-making calculus in state houses across the country. With Florida, New York, and Texas among others already in early March, California's moves pushed the total number of delegates available early in the calendar to a level not seen in the post-reform era.

Such severe frontloading had the potential to resolve nomination races earlier. And that was the fear in some states: that the race(s) would be over by the time the process got too deep into the calendar. Influence over the nomination process is not possible if the the race is resolved, whether by the viable candidates other than the presumptive nominee withdrawing and/or one candidate winning a majority of the total delegates. It was on that latter route that delegate-rich California joining a growing number of states in early March had the greatest impact.

Moreover, the relatively quick pace with which both the Democratic and Republican nominations were settled in 2000 confirmed that state-level anxiety -- fear of missing out -- for subsequent cycles. It increased the likelihood that states would consider a jump to the early part of the calendar. And in fact, the DNC widened its window in which states could hold primaries and caucuses to include February for the 2004 cycle in the hopes of deciding on a nominee faster. In other words, the DNC traded for 2004 the desire to combat frontloading for the potential to resolve more quickly the party's nomination and set their sights on defeating a Republican incumbent.

While some states shifted into February for 2004, it was not until the 2008 cycle that a mass of states sought to move even closer to the beginning of the calendar year. Why? As was the case in 2000, the 2008 cycle had competitive nomination races in both parties. That can and did open up the floodgates to increase frontloading decisions on the state level.

Very simply, then, the motivation for going early in most cases far outweighed the incentives offered by the parties in either 2000 or 2008 to not do so. And bear in mind also that the parties did not offer a united front on incentives to go later in the calendar. At the national level the Republicans walked that road alone in 2000 and the Democrats did likewise in 2008.


    Successes in and after 2012?
Elements of these relationships began to change following the 2008 cycle, giving at least the impression that the tide had turned on incentives to beat back the frontloading trend. In both 2012 and 2016, there was an expansion of incentives-based success stories. However, the overarching picture is more complex. There were more states that took advantage of the revised incentives the Democratic Party offered in 2012. But again, conditions unique to the cycle may have contributed more to state-level decisions than the incentives themselves.

First, the DNC altered its incentive structure for 2012, dropping the distinction between states that were merely holding a pre-existing position late in the calendar and those that actually moved back to later dates. In lieu of that system, the Democrats created two separate bonuses. The first of these was a 10 or 20 percent boost granted to states that held primaries after late March. Those in May or later received the largest bump.

Additionally, however, the DNC attempted to further encourage the adoption of later calendar positions by offering a bonus for three or more contiguous states clustering their contests at points on the latter half of the primary calendar. And this latter bonus could be combined with the timing bonus. In other words, a state like Montana in early June could get as much as a 35 percent increase to its base delegation for 1) holding a June primary and 2) doing so alongside neighboring North and South Dakota.

On the surface, this new structure appears to have worked in 2012. 33 states and territories took advantage of some combination of the two incentives, and only one-third of them -- 11 states and territories -- benefited by doing nothing more than retaining their positions later on the calendar from previous cycles. That left 22 additional states and territories that made decisions to shift back their primaries or caucuses from 2008 to 2012.

But while that looks like a win for the incentives Democrats employed for 2012, those bonuses were only part of a broader array of factors driving state-level decision making that cycle. At the national party level, the early February collection of contests coupled with the even earlier start to primary season that those February contests had at least partially triggered, brought on some further reflection on the factors motivating frontloading. Obviously, the DNC saw enough success in or some cause to maintain some form of incentive system after 2008. Yet, both parties were forced to enforce their respective penalties for calendar timing violations in 2008.¹ And when the national parties informally, yet collectively, closed February off to states other than the four carve-out states (Iowa, New Hampshire, Nevada and South Carolina), the parallel rules changes across parties left a significant number of states in need of a change to state law to comply with the new national party rules.

That unified front from the national parties -- on 2008 enforcement and a contracting of the window for non-carve-out state primaries and caucuses for 2012 -- created a negative inducement on the states with February or earlier primaries on the books as the transition into the 2012 cycle continued. Those 18 primary states had to make changes or otherwise risked sanction from the party/parties. Despite a handful of states again flaunting those rules in 2012, most states complied with the calendar rules changes.²

And there was a pattern to the movement or non-movement. States that were non-compliant with January and February contests or those that shifted into March tended to be Republican-controlled while states that moved to April and later spots on the 2012 calendar were more likely to be Democratic-controlled. That outcome was driven in large measure due to the differing stakes across parties. The competition and stakes were higher for Republicans. They had an active nomination race. Democrats, on the other hand, with an internally popular and ultimately unchallenged incumbent in the White House had less at stake during the nomination phase of the process. While Republican states had an incentive to have an earlier voice in the Republican nomination process, Democratic-controlled states could afford to slip deeper into the calendar, enticed by delegate incentives, an ulterior motive of affecting the Republican nomination process, or some combination of the two.³ The need to be early, as established during the frontloading era, was not there for Democrats in the way that it was for Republicans in 2012.

There were breaks in that partisan/competition pattern for 2012. Often that deviation was driven by budgetary constraints that forced a number of states to reconsolidate their formerly early presidential primaries with later state and local primaries (see Arkansas, California, and New Jersey) or moving an already-consolidated primary back to a traditional spot on the calendar (see Illinois). Other states had lingering state-level disputes over redistricting that forced a reconsideration of positions (Ohio) or an outright delay to when the primary could be held (Texas).

In general, though, that partisan pattern held in 2012. States that moved back the most tended to be Democratic states. Delegate incentives may have played a role in motivating how far states shifted from 2008 to 2012, but that operated alongside the unified threat of penalties in both parties and the competition-based stakes across them. And there is a strong argument to be made that the penalties motivated the move while the combination of delegate incentives, state-level partisan control, and competitive stakes influenced how large the shift was.

And the tale was similar in 2016.

Most of the motivation to move to earlier spots was on the Republican side of the equation for 2016. The RNC mostly eliminated the caucus loophole (see footnote #2) and increased its penalties for timing violations. That made the price for holding a primary or caucus before March much higher in 2016, pushing the holdout states in violation of the (intention of the) rules in 2012 to resettle into compliant March slots for the 2016 cycle. And that was a group of mostly Republican-controlled states -- Florida, Michigan, and Missouri -- in which decision-makers were not factoring in the DNC delegate incentive structure. Other late 2012 states also pushed forward for 2016 as well. They too were newly Republican-controlled (Arkansas and North Carolina) or Republican-controlled and reverting to traditional positions following the resolution of redistricting disputes (Texas).

That Republican-driven calendar movement had implications for the lure if not use of incentives to states in the Democratic process. In total, eight states lost Democratic delegate bonuses from 2012 to 2016. Of those eight, five -- Arkansas, Florida, Michigan, North Carolina, and Texas -- were Republican-controlled states with primaries. The remaining three -- Democrats Abroad, Kansas, and Nebraska -- were caucus states where state parties were making strategic scheduling decisions. In addition to those eight states losing incentives-based bonuses, Hawaii and Utah -- both caucus states as well -- moved to calendar positions and into clusters, gaining them Democratic bonuses.

But that net of six states losing bonuses from 2012 to 2016 indicates more a maintenance of the status quo for the incentive structure Democrats carried over virtually unchanged into an open nomination cycle.⁴ If the lack of competition mattered to Democratic adoptions of bonus-producing strategies on the state level for 2012, then the increased competition of 2016 should have raised the number of states forgoing incentives in 2016. It did, but only marginally. But again, most of the change was Republican-driven. Democrats were not in a position of power in state capitols across the country, and thus, not in a position to make changes into incentives or into earlier calendar positions. Moreover, the competition that developed between Clinton and Sanders during primary season 2016, was not fully formed (or recognized) in 2015 when decisions were being made on primary and caucus scheduling. Sanders was emerging but had not yet emerged as the not-Clinton in the Democratic nomination race by mid-2015.

Democrats, then, may tout the overall pictures of incentives adoption in 2012 and 2016 as successes, but the above is an overly lengthy way of saying that the supposed effectiveness of the incentives structure can potentially be explained away by other factors. It should also not be lost that the incentives have not faced a test under truly competitive circumstances. 2020 may offer such a test. And under heightened stakes, the trade-off between incentives for later calendar positions may be outweighed by the state-level desire to weigh in before it is too late.

--
But what that means for Republicans and any effort to encourage caucus states to shift to primaries presents a different set of questions. The final installment in this series will tease out the lessons from the above and apply them to a potential Republican incentive for 2020.


--
Part One: Setting Expectations for the Next Round
Part Two: Early Proposals
Part Four: A Caucus-to-Primary Incentive?

--

¹ The DNC Rules and Bylaws Committee penalties on violating states like Florida and Michigan in the immediate lead up to and during primary season in 2008 was a roller coaster. The RBC first stripped both states of their full delegations in fall 2007 when neither state/state parties could either force a move of their respective primaries or accept remedial caucuses. That the Democratic race between Obama and Clinton was as close as it was kept the results of the two under the microscope throughout primary season. Just before the end the 2008 calendar, the Rules and Bylaws Committee returned to the original 50 percent delegate penalty called for in the delegate selection rules, before opting to seat the full delegations from both states at the convention. That move has often been cast as the party ultimately bowing to the states, but the DNC ex post facto reasoning on that progression and how penalties could be assessed in the future is the the penalty was in place when it counted, during primary season. The RNC took a different path, penalizing violating states during primary season and through to the convention. The true intent of the party's 50 percent penalty has always been kept, but the implementation has occasionally meant the seating of a full delegation from a violating state, but reducing those delegate votes to/by half.

² States like Arizona, Florida and Michigan demonstrated a willingness to take the 50 percent reduction in exchange for the potential for early influence over the contested 2012 Republican nomination race. But a number of caucus states also stuck with February dates but skirted penalty because the first step in their processes elected delegates to the next tier but without a concurrent presidential preference vote.

³ This ulterior motive could be described in a number of ways: helping a more conservative candidate emerge by backloading contests in bluer states and/or hurting frontrunner Mitt Romney by depriving him of wins in perceived hospitable territory, but also as lengthening the Republican process and/or stoking internal divisions in the Republican Party. The simplest explanation is that the Democrats, with no active nomination of their own, were informally playing on the periphery of the Republican process.

⁴ The 2016 bonus delegate regime remained the same as in 2012 with one exception. An adjustment was made to when the bonus window opened to account for there being five Tuesdays in March 2016 as opposed to the four in March 2012. The correction meant the window opened at approximately the same point on the calendar; March 20, 2012 and March 22, 2016.

2020 Republican Rules Changes, Part Two: Early Proposals

Part One: Setting Expectations for the Next Round
Part Three: A Reflection on Delegate Incentives
Part Four: A Caucus-to-Primary Incentive?
--

And what is the Republican Temporary Committee on the Presidential Nominating Process looking at potentially changing for 2020?

At the most recent RNC meeting -- the 2018 Winter meeting in Washington -- the Temporary Committee on the Presidential Nominating Process (TCPNP) reconvened, and the chatter coming out of that meeting was muted compared to the often Clinton-Sanders-themed talk that emerged from the periodic Democratic Unity Reform Commission meetings. But the points of emphasis in the Republican discussion fit expectations. The discussed changes were minimal, incremental, and tailored to the president's experiences/problems with the 2016 process.

The headliner change proposal coming out of the Winter meeting was an incentive structure intended to promote primaries over caucuses as the mode of delegate allocation. Under the proposal, states using a primary election would stand to gain additional delegates to the national convention while caucus states would not.

Now, the change was framed in the article as a move to prevent future candidates, whether they face off against Trump in 2020 or run in subsequent cycles, from replicating the caucus strategy the Ted Cruz campaign utilized in 2016. But that is just one interpretation of the impetus behind this particular proposal. Again, it stands to reason that overall changes would be minimal and intended to fix any (perceived) problems from the vantage point of the president/his team/the RNC. And attempting to minimize the role of caucuses reads like something out of the score-settling handbook. In other words, Cruz did well in caucuses, then "let's do something about caucuses" is the response.

But there are flaws in framing this proposal in that manner. The first problem is the RNC is not in the same position the DNC is in. Trump versus Cruz is not the dominant feature of these discussions, not in the way that the Clinton-Sanders divide animated the Unity Reform Commission process on the Democratic side anyway.

Additionally, it should be noted that the caucus issue runs deeper than Trump-Cruz for Republican rules makers. For starters, the Cruz campaign really only replicated a strategy that Ron Paul beta tested in 2012 in those caucus states with a cache of unbound delegates.¹ That was less a Trump-Cruz issue than an RNC-state parties phenomenon that Cruz later exploited in Colorado, North Dakota and Wyoming in particular in 2016.

Dating to the post-2012 environment, the RNC sought to deal with the Paul loophole by adding to Rule 16 a binding mechanism that locked delegates in based the results of preference votes in either primaries or caucuses. The problem was that some states -- the three above and a number of territories -- wanted to maintain their traditions of keeping delegates unbound heading into the national convention. Those states accomplished that by not holding a preference vote at all in precinct caucuses. Instead, those caucuses progressed -- electing delegates to the next step(s) in the process -- without regard to any presidential preference. Put simply, no preference vote, no bound delegates.

Of course, it went beyond unbound delegates for the Cruz camp to be sure. They also sought to elect delegates in the selection process who, while bound through the allocation process to another candidate (often Trump), were Cruz supporters at heart. That bond only lasted through, in most cases, the first ballot vote on the nomination at the convention. But the hope from the Cruz campaign perspective was that 1) if enough Cruz-sympathetic delegates were selected they could vote to unbind the themselves or 2) as a last resort, those delegates would be free on subsequent votes should no candidate achieve a majority of support among the convention delegates during the first round.

Those hopes were dashed when the Convention Rules Committee removed all questions about the enforcement of the binding mechanism called for in the rules and later when the full convention adopted those rules for the 2016 convention. But the RNC dealt with that particular Cruz activity at the convention.

The proposal to dangle a carrot in front of a small number of caucus states is aimed, FHQ would argue, at bringing the remaining few holdouts -- those that avoided a preference vote in order to maintain unbound delegations -- into the fold. To repeat, that is not exactly a Trump-Cruz story or even a Cruz story. It is an RNC finishing up the work it started in and after 2012 story. As evidence look at the number of unbound caucus states from 2012. There were nine then, but just three in 2016.² Two-thirds of the unbound states, then, complied with the rules change.

Under a narrow interpretation, this proposed incentive regime -- bonus delegates for a primary (and a preference vote) -- is aimed squarely at those three states, Colorado, North Dakota and Wyoming. It is designed to give them just a bit more incentive to opt into a primary. And it may not take too much in a couple of those cases. Colorado adopted a presidential primary through ballot measure in 2016 general election and the resulting law uses national party rules to box the state parties into the primary to some extent. Just north in Wyoming, the subject of an establishment of a presidential primary was broached in the legislature there in 2017, but the state parties and county clerks (election administrators) balked at the plan over funding and procedural issues, respectively.

A small incentive may be enough to bring those states/state parties on board. And if such a proposal brought along other caucus states beyond those targeted, all the better, perhaps, from the perspective of the RNC. Utah, for example, passed legislation in 2017 to fund a presidential primary for 2020. That state-level funding plus the potential promise of additional delegates may be enough to entice Beehive state Republicans into using the primary option as they did in 2000, 2008, and 2012. Granted, the exception -- the last time before 2016 that Utah Republicans used a caucus -- in that window of contests was 2004, the last time the Republican presidential nomination was uncontested.

But delegate incentive plans in the past have not necessarily proven effective at reining in state level activity. The record is mixed and the plans often untested. Part three will examine the history or national party incentives.


--
Part One: Setting Expectations for the Next Round
Part Three: A Reflection on Delegate Incentives
Part Four: A Caucus-to-Primary Incentive?

--
¹ And truth be told, the 2012 Paul campaign beta testing mimicked a strategy employed a generation before it in 1988 by Christian conservatives who sought to fill unbound delegate spots with their supporters during the delegate selection process.

² And even then, the way the RNC legal counsel interpreted the rules, delegates candidates who filed to run as affiliated with a particular candidate were treated as bound in states with no preference vote. Most delegates candidates who were selected to fill slots in Colorado and Wyoming were affiliated with a particular candidate and thus bound. Only a small subset of Colorado and Wyoming filed as unaffiliated and thus remained unbound. That left only North Dakota as a state with a completely unbound delegation. There was no affiliation requirement there in filing to run as a delegate candidate.

2020 Republican Rules Changes, Part One: Setting Expectations for the Next Round

Part Two: Early Proposals
Part Three: A Reflection on Delegate Incentives
Part Four: A Caucus-to-Primary Incentive?
--

On the occasion last month of the 2018 Republican National Committee winter meeting in Washington, DC, the Temporary Committee on the Presidential Nominating Process (TCPNP) reconvened to discuss potential rules changes for the 2020 cycle. From a comparative standpoint, the chatter on rules tweaking for 2020 on the Republican side has been far quieter than the open discussions the Democratic Unity Reform Commission had throughout 2017.

However, that near silence should not necessarily be read as inactivity. Rather, it is a function of a party that 1) remains new to tinkering on its presidential nominating rules outside of a convention setting, 2) tends to conduct its temporary committee functions largely outside of the public eye, and 3) currently holds the White House. The first two factors are unique to the RNC while the third is not.

It was not, for instance, until the 2008 Republican National Convention empowered the Temporary Delegate Selection Committee that the party allowed for rules-making outside of the convention.¹ The rules change recommendations the committee made were passed onto the RNC Rules Committee, then the full RNC before being added to and enacted in the rules that governed the 2012 process. This was streamlined further with the codification of external rules-making powers through Rule 12, adopted at the 2012 convention for the 2016 cycle. It was Rule 12 that allowed the RNC through the Rules Committee to make rules changes on the nomination subset of the Rules of the Republican Party as long as those changes were made well enough in advance -- end of summer of the midterm election year -- of the contestation of the next presidential nomination process.

Rule 12 has carried over to the 2020 cycle, but so, too, has a temporary committee structure with a specific mission. But in the three cycles now since 2008, the RNC has had a slightly different method for dealing with alterations to the rules outside of the convention.

Of note also is that, regardless of which party, the party in the White House tends to leave well enough alone with its rules. The rationale has been simple enough: At least something went right with the preceding nominating process if the person nominated went on to win the White House. Through a different lens the same rationale could be framed as a president -- as the head of a party -- has a preference for the rules that got him or her nominated and elected in the first place. In other words, there is at least something of a structural explanation for a why parties currently occupying the White House tend to mostly sit on their laurels with respect to nomination rules.

But while the RNC and the Temporary Committee for the Presidential Nominating Process have been mostly quiet, neither is exactly poised to stand pat with the 2016 rules that led to Trump's nomination, even if the historical combination of motivations/tendencies to maintain the status quo exists.


--
So where are the Republicans in the 2020 rules-making process? 

As is the case on the Democratic side the clock is ticking down to the time when both national parties have tended to finalize their rules for an upcoming presidential nomination process. Typically, the national party input in the process is complete by around the end of the summer of the midterm election year. That allows both the nascent campaigns and the states -- state governments and state parties -- enough lead time to ensure their ability to respond to any changes made at the national level before the process begins toward the beginning of the presidential election year.

Although the RNC structure for dealing with rules changes outside the convention has evolved as described above, the timing of the structure in place for 2020 rules changes mimics how the DNC has more often than not handled its rules-making process. That is to say, an external committee/commission examines the rules and their collective effectiveness in the previous cycle(s) during the year after a presidential election, and makes recommendations for rules changes to the respective Rules committees to consider during the midterm election year. That leads to a vote by the full national party on whatever recommendations have filtered through the Rules committees.

In the end, there are a couple of main structural differences between the parties with respect to the formation of rules for 2020. First, the Republicans are operating on a lag compared to the Democrats. Under the conditions of the amendment passed at the 2016 Democratic National Convention, the Unity Reform Commission was to be named and in place within 60 days of the early 2017 election of the new national party chair. And the URC was additionally to have made its recommendations to the DNC Rules and Bylaws Committee by January 1, 2018.

By comparison, the Temporary Committee on the Presidential Nominating Process  -- via Rule 10(a)(11) -- was not to have been solidified until the end of June 2017 with recommendations due no later than the end of May 2018.

Motivated by the tendencies described above, the Republicans are also operating with less urgency than their Democratic counterparts. No, urgency is not structural, per se, but it could be argued the presence or lack of urgency in rules-making has had an impact on the structural parameters of the process for 2020. There may yet be a challenge to Trump for the Republican presidential nomination, but the party -- at the organizational and mass levels -- remains behind the president and is behaving as if he will be, even if facing some opposition, the 2020 nominee. The process and its direction (more on this in subsequent posts) reflect that. The TCPNP has met twice and in both instances it has been in conjunction with national party meetings; the summer 2017 meeting and the winter 2018 meeting.

By contrast, the DNC Unity Reform Commission planned to convene four times, but tacked a fifth meeting onto the agenda to finalize recommendations. Of those five meetings between May and December 2017, only one coincided with a seasonal DNC meeting; the October fall meeting in Las Vegas.

A portion of that is just differences across the parties, but part is also the conditions facing the parties and the differing motivations they create.

Part two of this series will look at what proposals the TCPNP has discussed and how they stem as incremental progress from the rules tinkering the RNC has undertaken in recent cycles. In part three, FHQ will look at the history of incentives programs intended motivate state action in some area of the delegate selection process. And finally, the fourth part in the series will examine the lessons to be gleaned from that history of national party experimentation with incentives-based regimes and how effective they may be in 2020.

--
Part Two: Early Proposals
Part Three: A Reflection on Delegate Incentives
Part Four: A Caucus-to-Primary Incentive?

--
¹ As a point of clarification, rules had been discussed and tinkered with outside of the Republican convention before 2008, but as part of a process leading up to a convention that would adopt changes for the next cycle. An inter-cycle discussion between 1992 and 1996, for example, would have been precursor to changes adopted at the 1996 convention for the 2000 process. A post-1992 version of the Temporary Delegate Selection Committee, on the other hand, would have made recommendations on the rules for the 1996 process. But the process was more drawn out during that era and the convention was the only forum in which rules could officially be changed. That changed after 2008.

The Mechanics of the Rules Committee and Minority Reports

There is some dispute over whether the Free the Delegates push has enough support on the Convention Committee on Rules to force a minority report to unbind the delegates onto the floor before the full Republican National Convention next week in Cleveland. At this point, on the cusp of the preliminary meetings of the Rules Committee, it looks close.

But what is a minority report and how would it operate as the convention gavels in next week?

At its most simple, a minority report is exactly what it sounds like. It is an outlet for a minority faction on a convention committee -- whether rules or platform, etc. -- to provide an alternative to the (majority) report passed by the committee. Both reports are then considered by the full membership of the convention.

Rule 34 of the Rules of the Republican Party lays out the mechanics. Those opposed to the rules package passed by the committee must have the support of at least a quarter of the committee. On the 112 member Rules Committee, that is 28 delegates. Now that a committee majority seems out of the question for the forces attempting unseat Donald Trump, that 28 delegate threshold has become the goal. And the Free the Delegates faction is approaching if not at or over that mark depending on who one asks.

However, the rather short rule in combination with the sequence of the convention proceedings obscures the fluidity of the rules package between now (the Rules Committee meetings) and Monday when the convention commences. And that affects the likelihood of a minority report making it out of committee and onto the floor.

While the rules of the convention (and of the party) will be considered in the Rules Committee for the next two days and will vote on a package, that package of rules recommendations will not be finalized until one last committee meeting Monday before the convention kicks off. That means that there is time for further tweaking of the rules and/or continued lobbying of delegates in the interim period. This was the same period four years ago in Tampa in which the proposal to give candidates the ability to accept or reject delegates bound to them was stripped out of the package.

That the rules can change or proposed changes can be made to draw additional support for the committee (majority) report means that the rules -- that majority report -- is something of a moving target. As a result, those behind a minority report push may not always have a handle on what they are providing an alternative to or even what their alternative should be.

Moreover, time works against a minority report in several additional ways. Those initial votes in committee on particular amendments give both sides -- majority and minority or Trump/RNC and Free the Delegates -- an idea of who is with them and who is against them. These two days of preliminary meetings, then, serve as a forum to identify those folks; to identify who needs to be whipped to support one side or the other.

This is similar to what happened earlier this week coming out of the Platform Committee. There was a push there to offer a minority report/resolution to the platform. An actual report was circulated and signed. In some cases it was unsigned. But all that did was identify who the majority need to lobby to solidify the majority and deny the minority report.

If a Rules minority report emerges early -- and really, even if it does not -- then all that does is provide the Trump/RNC contingent with time and the knowledge of who they need to convince. And because the rules package will not have seen its final committee vote, there is time to offer proposed changes to bring more folks onboard. Again, stripping out the approval/rejection provision in that interim period solidified the majority and firmed up it support heading into (what was still a somewhat contentious) floor vote in 2012.

Finally, timing is important in one other respect. If keeping a minority together in the face of the above was not difficult enough, those attempting to submit a minority report have to turn it in to either the Rules Committee chair, vice chair, secretary or the secretary of the convention within an hour following the final Monday vote. That seems easy enough. But that is four individuals in a crowded convention hall and a minority faction has to locate one of them with the clock ticking. And depending on how long that last Rules meeting lasts, that may run into the beginning session of the convention proper when the floor vote will happen. The consideration of the committee reports is the first order of business for the convention.

None of this is to suggest that the Free the Delegates faction in the committee or within the entire convention cannot succeed. However, they will have more obstacles facing them than will their opposition.


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Yue's Proposal to Freeze the 2012 Republican Rules

Some of the rules proposals for Cleveland are starting to leak, and Ari Melber has what one might call a status quo proposal from Oregon national committeeman, Solomon Yue. Here is the language of the simple change to Rule 42:

The Rules adopted by the 2012 Convention, as amended under Rule 12, shall constitute the Rules of the Republican National Committee and the 2016 Republican National Convention. Any amendments herein to these rules, as adopted by the 2016 Republican National Convention, shall take effect at the adjournment of the 2016 National Convention and constitute the Rules for the Republican National Committee and the temporary Rules of the 2020 National Convention. 

This rule replaces what has been the rule establishing the temporary rules for the next convention. Standard protocol within the Republican Party has always held that a convention of delegates crafts the rules that will govern their conduct. Furthermore, those rules serve as a temporary baseline from which the next succeeding convention can work. This saves the party from having to start from scratch for each convention. However, that process also tends to create something of a negative inertia that can make change more difficult (especially in a potentially highly charged setting like a national convention).

Yue's proposal breaks from that sequence. Rather than having the Convention Committee on Rules wrangle over new rules or rules changes for the 2016 convention, this change would have them haggling over the temporary rules for the 2020 convention. Any changes in Cleveland would take effect when the 2016 convention adjourns.

One way of looking at this is that freezes the current rules and punts any changes to after the convention. Setting that baseline is a powerful action as described above. And FHQ has often argued that that baselining is a powerful institutional function. Those are the rules unless there is agreement if not consensus about changing them at the convention or later by the RNC itself. That can be a high bar.

Another way of looking at this, though, is that it locks in the 2012 rules for 2016 but also sets any changes to Rules 26-42 in stone for another four years -- from Cleveland to the 2020 convention. The most controversial of those rules is the oft-maligned, too often over-discussed Rule 40. That eight state majority threshold could be changed and locked in -- again, as a placeholder -- in Cleveland for 2020. Given how often that rule came up in 2016, this would seem significant. On some level it is.

Yet, the overall scope of this change is pretty minimal, long term. In the short term, it absolutely would solidify Trump's nomination in Cleveland if passed through the Convention Rules Committee and by the convention. But unless that rules package calls for the post-convention elimination of Rule 12, then the Republican National Committee would retain the ability to amend the rules that would govern 2020 nomination process.

That makes this proposal a potentially weak bargaining chip in the broader discussion of the rules. If, to get it passed, concessions were made on changes to the future nomination process rules to lock, under this proposal, the 2012 rules in place for Cleveland, then those on the opposition side -- against Yue's proposal -- would almost have to call for the elimination of Rule 12 to remove any possibility that the RNC would revisit and alter those changes.

In the end, that is a hypothetical situation. And given the make up of the Convention Committee on Rules -- stacked with members of the RNC -- it is unlikely that any such sort of bargaining over the rules will occur. However, it is helpful to unpack all of this to see where the discussion might go and what the logical aims and ends of Yue's proposal are.


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Changing the Rules [at the Convention] Changes the Game

For a placeholder rule, Rule 40 in the Rules of the Republican Party has gotten entirely too much attention during the 2016 presidential election cycle.

One of the least understood parts of the Republican presidential nomination process is that the delegates -- two from each of the 56 states and territories on the Convention Rules Committee -- write the rules that will govern them at the national convention. Under normal circumstances in a more typical cycle, this process is little more than a formality. Of the three basic types of rules in the Republican Party rulebook -- party organization rules (Rules 1-12), nomination process rules (Rules 13-25) and convention rules (Rules 26-42) -- the first and third types tend to be carried over from cycle to cycle with little more than some tweaking here and there. The changes to the second type, the nomination process rules, set the baseline of rules that will govern the nomination process in the next cycle, but only a baseline.¹

Rule 40 obviously sits among the rules in the convention rules section. The delegates to the 2012 convention changed the provisions in that rule, upping the requirement for a candidate to have his or her name placed in nomination at the convention to a majority of delegates from at least 8 states. It is a small change but with a large potential impact. But that rule applied in 2012 and was designed to keep Ron Paul off of the presidential nomination roll call ballot. At the 2008 convention, Rule 40 called for a candidate to have only a plurality of delegates from just five states; a far lower bar (but one that Paul was flirting with heading into the national convention).

That flirting was enough to trigger the action that raised the threshold for having a candidate's name placed in nomination. And to be clear, that rules change was a one written by and for the delegates at the 2012 convention; a normal part of the sequence of events under the Republican rules. Just as the 2012 delegates on the 2012 Convention Rules Committee looked over the landscape of the 2012 process and opted to up the requirements to qualify for nomination, the 2016 delegates on the 2016 version of that committee may choose to lower or alter those thresholds and consider other rules changes.

It is that context that made Georgia Republican National Committeeman Randy Evans' comments at a local county caucus -- a part of the delegate selection process in the Peach state -- over the weekend so interesting. Rather than some of the more chaotic scenarios that have risen to the top in some recent media accounts of the possibility of convention rules changes, Evans provided a calmer look forward to rules and rules changes to be considered before (but not adopted until at) the national convention.²

Evans basically pointed toward three rules changes likely to be considered (at the RNC spring meeting and later in the lead up to the convention):

1. Unbinding the delegates. This change would diminish the importance of winning primaries and caucuses during primary season and render the delegate allocation process going on now largely moot. While doing that, unbinding the delegates would simultaneously raise the importance of the delegate selection process; the parallel fight to fill allocated slots with party and/or campaign loyalists. Needless to say, this one would be rather contentious. Unbinding the delegates so that they may vote sincerely carries the potential of overturning the outcome of primary season in a way similar to the way superdelegates are viewed in the context of the Democratic Party process.³ Since this one is laced with toxic outcomes no matter the choice, the status quo is likely to be maintained. 
2. Some change to Rule 40. Georgia's Evans mentioned that perhaps the eight state threshold could revert to the five state required before 2012. That is consistent with conversations FHQ has had with others in the RNC. That level has not always been at five. At one time, there was no such threshold and then it became a three state threshold before being upped again. Thresholds of both three and five have been mentioned, but there was also a discussion at the RNC winter meeting in Charleston about lowering the qualifying threshold to have a candidate's name placed in nomination at just one delegate. That's one delegate, not one state. The majority/plurality control threshold is another area that could potentially see some change in Rule 40. It seems like something may have to give with the way Rule 40 is currently constructed. The 2012 working rule does not seem to fit well into the 2016 process. It seems likely that Rule 40 will change, but there is a lack of consensus at this time about what may replace it. 
3. Pledging delegates. This one is pretty fascinating. The idea is that a rule would be written -- again by and for the 2016 delegates at the 2016 convention to fit 2016 conditions -- that would allow candidates to pledge bound delegates to other candidates. On the one hand, the intent is to facilitate an easier and perhaps more orderly resolution to a contested convention. However, on the other hand, as Evans points out, individual delegates would lose discretion under such provisions. That may bear some support in the party, but in other areas would be strongly opposed. 

To be sure, this is not a laundry list of proposed rules changes. And there will be others that will likely come along at the national convention. Most of those proposed changes are likely to occur in an effort toward setting the rules baseline for the 2020 cycle, however. While that is and will be important, more eyes will be on the shorter list of changes made to the convention rules that will govern the 2016 convention.


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¹ If Rule 12 survives the 2016 convention, then the party will once again be able to alter the nomination process rules outside of the convention (as it did following 2012 when Rule 12 was created). Even given that power, the party only slightly changed the process rules between 2012 and 2014.

² It should be noted that it is consistent with expectations that members of the Republican National Committee would in the vast majority of cases urge caution and to let the rules play out rather than give into the chaos angle.

³ There are risks involved whether there is a clear presumptive nominee with more than 1237 delegates bound to him heading into the convention or if there is a candidate with a plurality of delegates.

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Republican Proportionality Rules Changes for 2016, Part Three

The Myth of Winner-Take-All
FHQ spent considerable time during the back half of 2011 and into primary season in 2012 arguing/demonstrating that the then-new proportionality requirement the Republican National Committee had added to its delegate selection rules just would not and did not have the type of effect many anticipated. Most state Republican parties did not fundamentally alter the way in which they were allocating delegates to the national convention. Instead those state parties in most cases tweaked their earlier/traditional plans just enough to fit the new rules. The effects were minimal.

The 2016 presidential nomination cycle offers another national party change to the parameters of the proportionality requirement. FHQ detailed those changes in part one of this series and then examined the possible implications of those changes in part two.

Yet, FHQ fears that focusing on the proportionality window primes readers to think only about the implications of the rules changes on contests within that period on the calendar. There will be primaries and caucuses after March 14, 2016, and there is already much discussion/speculation about how state Republican parties in states with contests after that date are adapting their rules. Too often, the assumption is that states after that point are or will be winner-take-all.

There is a reason FHQ referred to the phase starting on March 15 as the post-proportionality window part of the calendar in part two. While there is a requirement that states' delegate selection/allocation plans fit the RNC definition of proportionality, there is no similar requirement for winner-take-all allocation after that point. States, as FHQ argued in 2011-12, are free to choose whichever delegate selection method they wish to institute if they conduct a primary or caucuses after that March 14. Again, this is the way the relationship worked between the national and state parties for the whole calendar before 2012. States were able to choose from an array of options, and the RNC was more than willing to let them. As one RNC official told FHQ in 2012, "Let them [the states] figure it out."

That did not produce a calendar full of winner-take-all primaries and caucuses, though. In fact, in 2008, the last cycle in which states had total freedom to set delegate selection rules of their choosing (without oversight and regulation from the RNC), there were only 11 truly winner-take-all contests (where even if a candidate won a plurality of the vote by just one vote, that candidate would receive all of that state's delegates).

Given the change for 2012 -- adding the proportionality requirement -- the assumption seems to have been, "Well, if you have the option to be winner-take-all, why not be winner-take-all?" Only states with contests after March 31 (in 2012) were not lining up to actually switch to or maintain a winner-take-all method of allocation. Outside of rules breakers Florida and Arizona -- both were winner-take-all prior to April 1 during the 2012 cycle -- there were only four truly winner-take-all primaries: Washington (DC), Delaware, New Jersey and Utah. That is four out of 22 states with contests after April 1. Three of those 22 states -- Connecticut, New York and Texas¹ -- actually transitioned from winner-take-all or winner-take most plans in 2008 to more proportional methods in 2012.

...after the point on the calendar when the proportionality window had closed.

The question that emerges from those example is why. Why would a state, given the winner-take-all option, not take advantage of it or actually transition away from it? There are a lot of reasons. FHQ will focus on the two main factors though. One is state law. A number of states added proportionality requirements to state law after the Democratic National Committee began its blanket proportionality mandate in the 1980s. Many Democratic-controlled state legislatures (of which there were many more than today) simply added that to the state statutes regarding presidential primaries. Many of those laws continue to be in place now. And they affect the Republican nomination process too. State Republican parties have to follow those laws also, in other words. North Carolina is a good example of this.

The second main factor that contributes to Republicans maintaining some allocation method other than a winner-take-all one (even after the proportionality window closes) is that not all Republican state parties are homogenous. Often there are factions in state parties. And those factions do not necessarily want to see a presidential candidate more representative of another faction make off with all the delegates from that state. To their way of thinking, that does not represent the diversity of voices within the state's Republican Party or primary electorate. It isn't fair.

Another way of saying this is that politics, internal party politics, often plays a role in determining the  method of delegate allocation that a state party chooses. Back in the fall of 2014 when Michigan Republicans were eyeing a March 15 primary date, this very sort of discussion occurred. Some within the party argued that a winner-take-all primary would maximize the influence of the Michigan Republican primary. Others argued that it was more important for the primary to more accurately reflect the choices of the voters. They opted for a compromise winner-take-most plan that was a middle ground between the two camps.²

The bottom line here is that despite the fact that the winner-take-all option is available, most Republican state parties do not actually adopt such allocation plans. Well, they have not in the past. That may change in 2016. There may be a rush to winner-take-all methods by states with primaries or caucuses after March 14 on the 2016 presidential primary calendar. The reality, though, is that state laws will preclude that in some cases. In some others, a heterogeneous state party apparatus will prevent such a change. That negative inertia within the state party tends to maintain the traditional method of allocation. No consensus means no change. This is something FHQ often chalks up to "tradition" in this space. It is more nuanced than that.

If one wants to project which Republican state parties will have a winner-take-all method of allocation after March 15, then look to the states that have some history of winner-take-all allocation. Arizona and Florida have that tradition and have moved their primaries to points on the calendar after March 14 to avoid the super penalty and protect that winner-take-all tradition.³ Missouri Republicans are also positioned at a point on the calendar that will allow them to return to the winner-take-all method the party used prior to 2012.

There is talk that Ohio Republicans are considering a winner-take-all plan. That explains some of the reasoning behind a new bill to push the presidential primary in the Buckeye state back a week to March 15. However, the tradition in Ohio is winner-take-most and not winner-take-all. That traditional winner-take-most (or winner-take-all by congressional district) plan would not be compliant under the RNC rules on March 8.

For now, however, there is no group of winner-take-all states massing on the border between the proportionality phase of the calendar and the post-proportionality part of the calendar. That all states or most of them will be winner-take-all when the clock strikes midnight on March 15 is a myth. Some of them will be. Others, most perhaps, will not be if history is our guide. Some will be winner-take-all, others will be proportional, and yet others will be winner-take-most. There is a subtle difference between proportional allocation and winner-take-most plans that typically yields very little difference in terms of the actual allocation (if one was traded out for the other). Multiple candidates tend to emerge with delegates in each. However -- and this is the take home point -- there is a big difference between truly winner-take-all plans and everything else.⁴ That is where the disconnect is in the discussion. The line of demarcation tends to be between proportional and every other method. That lumps winner-take-most plans in with winner-take-all plans.

That practice is not helpful. Winner-take-most plans are not winner-take-all plans. There needs to be a stronger effort to parse out this distinction rather than assuming there is not one. A winner-take-most state like California, where more than one candidate can earn delegates, should not be confused with or lumped into a group of winner-take-all states like Arizona, where only one candidate -- the statewide winner -- is eligible to receive delegates. That that distinction is often ignored is hurting our ability to talk accurately about the Republican presidential nomination process and how it is likely to progress in 2016.


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¹ Texas Republicans adopted a proportional delegate allocation plan in 2011 when it was assumed the party would have a first Tuesday in March primary. Disputes over redistricting pushed the Texas primary back to May 29, but the allocation method stayed proportional.

² Now that Michigan will hold a March 8 primary, the delegate allocation plan Wolverine state Republicans will have to use will have to be more proportional in nature to meet the RNC requirements.

³ Florida Republicans' tradition with a truly winner-take-all method of delegate allocation is a recent one. As FHQ has explained, Florida traditionally had a winner-take-all by congressional district method of delegate allocation. That carried over into the party's rules for both 2008 and 2012. However, since Florida Republicans were penalized by the RNC for holding a primary before the period allowed, that triggered a truly winner-take-all allocation method. It remains to be seen whether the Republican Party of Florida will change its rules to accommodate a truly winner-take-all allocation or stick with its traditional winner-take-most plan. But the party will have to change its rules in order to implement the former.

⁴ This is why Democrats tend to freak out when Republican-controlled blue (presidential) states consider changing from a winner-take-all distribution of electoral college votes to something else. It represents a big change (on the state level).

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Republican Proportionality Rules Changes for 2016, Part Two

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