Thursday, December 14, 2017

Unity Reform Commission: Primaries Recommendations

The following is part one in a series of posts on the recommendations passed by the DNC Unity Reform Commission during the group's final public meeting on December 8-9. While the text below matches the language presented at that meeting, there may be some subtle differences between the language here and the final report the URC will deliver to the Rules and Bylaws Committee by January 1, 2018. Those changes, if any, are unlikely to affect the intent of the substance below. Instead, the aim would be to tighten the language.

Below are the nine URC recommendations for primaries. Any emphasis added -- bold and/or italicized language -- is FHQ's and is mainly focused in this section on any action verbs; an attempt to capture the commission's emphasis on particular goals. The vote of the commission on a given measure follows bolded in brackets. Further notes are added below each recommendation, indicating any amendments and whether/to what extent those amendments were adopted.

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Primaries
The stated principles the Unity Reform Commission sought to establish in this section were to 1) emphasize inclusivity in the process and 2) party building through primaries. As URC vice chair, Larry Cohen said, the group wanted to "push to the limit" on those principles. That effort is reflected more clearly in the language of recommendations 1-5. Each includes the use of "all means" the party has at its disposal and all but one establishes a requirement for state parties to account for in their delegate selection plans for 2020. 


Recommendations:
1. The DNC and the party at all levels shall use all means including encouraging legislation and changing party rules to expand the use of primaries wherever possible.1
[unanimous but with one abstention]

2. The DNC and the party at all levels shall use all means including encouraging legislation and undertaking litigation to require states to use same day or automatic registration for the Democratic presidential nominating process.
[unanimous]

3. The DNC and the party at all levels shall use all means including encouraging legislation, changing party rules and undertaking litigation to require states to use same day party switching for the Democratic presidential nominating process. As part of those efforts, it shall be the position of the Democratic party as an example that an otherwise eligible voter should be able to participate in a Democratic presidential primary if she or he presents officials at the polling location with written notice that she or he wishes to be enrolled in the Democratic party.
[unanimous]

4. The DNC and the party at all levels shall use all means including encouraging and opposing legislation, changing party rules and undertaking litigation to resist any attempts at voter suppression and disenfranchisement. Voter suppression and disenfranchisement includes but is not limited to laws or regulations that make it more onerous for people to vote as well as administrative actions or inactions related to issues such as the number and placement of voting locations and the adequacy and accuracy of state voting rolls including party identification where required. In advance of the 2020 Democratic nominating process, the DNC should identify such issues on a state by state basis and seek to remedy them prior to voting in 2020. This would include the timely pursuit of prospective judicial relief where appropriate.
[unanimous]

5. The DNC and the party at all levels shall use all means including encouraging legislation, changing party rules and undertaking litigation to require states to allow voters to switch parties at least as late as the deadline for registering to vote. With respect to any state that has a deadline for party switching which is earlier than the deadline for voter registration, the rules of the party shall be amended to impose an appropriate penalty which could include a reduction in the number of pledged delegates to the Democratic national convention to which the state would otherwise be entitled or potential adjustments to state party support. State parties that are able to demonstrate that all provable steps including litigation as determined by the Rules and Bylaws Committee have been taken to change the party affiliation deadline but were not successful in the efforts should not be penalized.
[unanimous]
NOTE: Weaver amendment on open primaries/independent participation {Proposed 5.A.}:
The DNC and the party at all levels shall use all means including encouraging legislation, changing party rules and undertaking litigation to require that states permit non-aligned voters, also known as indpendent or no party preference voters, to participate in the Democratic presidential nominating primary. With respect to any state that does not permit non-aligned voters to participate in its Democratic presidential nominating primary, the rules of the party shall be amended to impose and appropriate penalty which could include a reduction in the number of pledged delegates to the Democratic national convention to which the state would otherwise be entitled or potential adjustments to state party support. State parties that are able to demonstrate that all provable steps including litigation as determined by the Rules and Bylaws Committee have been undertaken to require the participation of non-aligned voters but were not successful in the efforts shall not be penalized.
[11-6 against. Vote broke along Clinton/Sanders lines among the membership of the Unity Reform Commission (with the three chair-appointed members on the Clinton side).]

6. The party must develop a strategy to prioritize and resource education programs directly to voters in those states due to no fault of the party that continue to have confusing timelines for registration and party affiliation [and the process for running for delegate] in order to ensure everyone knows the rules and timelines in place and the impact they have on voter participation.
[unanimous] 
NOTE: Bracketed portion in section 6 above added "for emphasis" by Zogby amendment. [unanimous] That phrase was signified "for emphasis" because it is at least somewhat duplicative of current delegate selection rules/remedies requiring the public reporting of the process for running for delegate.

7. The DNC shall publicly report on an annual basis its efforts and the result of those efforts to secure the changes in paragraphs 1-6 above.
[unanimous]

8. The Rules and Bylaws Committee and the Democratic National Committee shall review the allocation of national delegates to ensure it reflects the principle of proportionality among the several jurisdictions as well as any bonus delegates allocations currently being used.
[unanimous]

9. The Rules and Bylaws Committee shall modify the requirements for provable positive steps as provided in Rule 21(B) to include legal remedies as a corrective measure to bring a state law into compliance with our rules.
[unanimous]


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Thoughts:
  • Open primaries: Much has been and will be made of the fact that the open primaries amendment -- a requirement for having and (an unspecified) penalty for not having -- offered by former Sanders campaign manager, Jeff Weaver, was rejected. It was included as most big ticket amendments more for symbolic purposes.2 That was clear from the procedure for consideration and voting put in place by the URC. The group was working from a baseline draft of recommendations and had a packet with not only those draft recommendations but some pre-drafted amendments as well. The nine baseline recommendations were non-controversial as evidenced by the unanimous votes on each while the open primaries amendment was more controversial in nature. Unlike the nine baseline recommendations, the open primaries amendment broke along Clinton/Sanders lines on the commission, and was inconsistent with the thread binding the nine recommendations together: those goals of inclusivity and party building. Together, all nine are about getting the national party on record as prioritizing both symbolically (in words) and structurally (in rules) an easing of the burdens on registration in the presidential nomination process. That is paired with a desire on the commission to have voters go into the voting booth enrolled as Democrats whether via same day or automatic registration, a party registration switch or other means. In other words, make it as easy as possible to register, but go vote as Democrats. The former hits the inclusivity goal while the latter gets at the party building aspect. But there is no new requirement nor penalty for open primaries.
  • ImplementationAs FHQ has noted elsewhere, these changes -- to participation and/or registration requirements -- are easier said than done. There is a potentially partisan/adversarial state legislative/state government component to be accounted for in this equation. Democrats, as Scott Meinke noted to me via Twitter during the URC meeting, face a much different environment now than they did when the party was first implementing and tweaking the McGovern-Fraser reforms during the 1970s. Unlike then, Democrats will find far less sway with Republican-controlled state governments across the country than the Democratic majorities that were far more typical then. Yes, that can and maybe even likely will change in 2018, but the tide is not likely to extend to the beach head the party found greeting the sweeping rules changes after 1968. 
  • Penalties: There are a lot of new usages of "require" peppered throughout these recommendations. However, there are not many penalties in place here to help enforce those new requirements. The only suggested penalties are for any states with deadlines for switching party affiliation that are sequenced well ahead of party registration deadlines. In every other instance -- on same day or automatic registration, on the expansion of primaries, on same day party switching -- there is no suggestion of penalty. This does not mean that penalties will or will not be put in place on those matters. Rather, it indicates 1) a prioritization of the mismatched registrations deadlines issue (more on that one below) and 2) that the URC has deferred to the Rules and Bylaws Committee the task of tailoring the best implementation of these recommendations. If penalties are a part of that implementation, it will be the RBC that devises and specifies them. 
  • Expansion of the use of primaries: Again, this recommendation is more about getting the party -- the DNC -- on record in terms of what its priorities will be in the presidential nomination process moving forward. And this recommendation, in combination with those on caucuses, demonstrates 1) the recognition that caucuses are nearly inevitable in  a small handful of states and territories, but 2) primaries are the preferred option where available. The latter is covered by the first recommendation above while the former will be discussed at length in the caucuses section.
  • Proportionality: The DNC has mandated a proportional allocation of pledged delegates in its delegate selection process since the 1980s. However, due to the way in which those pledged delegate slots are classified and allocated, the proportionality mandate has never made mathematical proportionality statewide the goal. Some delegates are allocated statewide, and others by congressional district. That split -- the different classifications -- can disrupt what FHQ will refer to as true proportionality. Additional factors disrupt a true proportional allocation as well. First, the other component to the proportionality mandate is the qualifying threshold. Candidates must receive 15 percent of the vote statewide and/or congressional districts to be allocated any delegate slots. Any delegates not allocated to those not meeting the threshold are allocated to those who have. Second, the size of the state matters. Proximity to true proportionality is more likely in larger states. But in smaller states with a smaller number of total delegates, true proportionality as a goal can be more difficult. Differently stated, it is more difficult to proportionally allocate a small number of delegates in a congressional district (or other subunit as in one congressional district states) than a larger number of delegates at-large/statewide in larger states. These types of issues were particularly acute in a state like Wyoming in 2016 where the pledged delegates were evenly split between Clinton and Sanders despite Sanders having won more delegates to the state convention.3 Regardless, it is the recommendation of the URC that the Rules and Bylaws Committee review that proportionality process.
  • Rule 21(B): This is a fairly important modification that FHQ will dwell on in a subsequent post. However, the short version is that Rule 21(B) lays out the procedure for state parties to pursue in the event that the state government in that state has laws -- on primary timing, on registration, etc. -- that conflict with the national party rules on delegate selection. To avoid sanction, states parties in conflict would have to demonstrate that they have taken provable positive steps toward bringing about a resolution to the conflict (changing state law). Those provable positive steps now include a state party pursuing non-frivolous litigation to bring about the change. And that is a higher bar for state parties to achieve and a potentially much more costly one; one that will likely require an assist from the DNC. When URC vice chair, Larry Cohen, said in leading the primaries section discussion that the recommendations would push the limit, this litigation addition was the meat of the push. But it does give the Rules and Bylaws Committee something significant to consider during its deliberations. 
  • New York and party switching: The primaries section, again, is geared in part toward reducing the burdens on registration; focusing on the pursuit of automatic/same-day registration and the ability to switch party registration as easily. But there is also some singling out of what the URC sees/saw as bad practices. One of those -- and it is the one area where the URC actually suggested the need for penalties of some variety -- was the lengthy gap between the registration deadline and the change in party affiliation deadline in New York. Constantly held up as a problem child through many of the URC meetings, New York has in place a deadline more than six months in advance of the presidential primary for switching parties but a much later deadline for registering. There are a handful of other states that also have similar, though not as large, gaps between the two deadlines. Recommendation #5 above is about singling out that small group of states and cleaning up those issues. And to be clear, this is not the only instance of singling out what has been deemed bad behavior. There is more of that in the caucuses section as well.

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1 The conversations around this recommendation among the URC members revealed that "primaries" referred to a state-run option.

2 Contrast the Weaver amendment to section 5 with the more extemporaneous Zogby amendment to section 6. The former was in the packet from which the commission was working while the latter was not. The former was also more sweeping in nature, and thus what FHQ will call here a "big ticket item" for consideration by the commission.

3 A part of the issues in Wyoming is a caucuses story overlapping with the proportional allocation. The results in Wyoming were counted in terms of delegates to the state convention won and not the raw votes in the initial local caucuses. This is an issue the URC tackled in its recommendations on caucuses.

Tuesday, December 5, 2017

Unity Reform Commission: If both sides are complaining, then you must be doing something right.

Recently, FHQ spent some time discussing Sanders-appointed Unity Reform Commission member, Nomiki Konst's charge that the URC has been or could end up being a "dog and pony show" in part because it is "stacked" with members who will vote against the reforms Sanders himself is promoting.

These sorts of accusations are not and have not been exclusive to the Sanders wing of the URC. Whichever name one settles on, the Clinton/establishment/anti-Sanders faction on the commission and its supporters have also made similar statements, whether calling the URC [potentially] "rigged" in Sanders' favor or that the URC will have been a "sham" if it does not accomplish this reform or shoot down that proposal. Both of those quoted charges above come from Armando over at Daily Kos. And, look, both pieces (see links) and any subsequent ones in the series are worth a read. But each suffers from a level of Sanders conspiracy theorizing that just does not jibe with reality of discussions on the commission.

Everything there centers on the same hypothetical proposal that FHQ discussed at length back in September (excerpted below) and has been a drum Armando has continued to beat in the time since:
While the spotlight is on caucuses, I want to take an opportunity to address a rather strange narrative on caucuses that has blossomed during the summer months. The idea, as proffered by Armando at Daily Kos and picked up by some in the national media, amounts to this: Sanders-affiliated members of the URC are aiming to propose "a rule that will call for the the Democratic Party Presidential nominating rules to require a state either hold open primaries or if the state refuses, and instead holds a closed primary, that a state party hold a caucus instead to select presidential nomination delegates." 
Now, on the one hand, this would create an expansion of the types of contests in which Sanders was most successful during the 2016 presidential primary calendar. That would be an understandable push for Sanders-appointed members on the Commission, and the behavior would not necessarily be that atypical. Proxies advancing the interests of their candidates in these settings is nothing new. What would be different is the Sanders folks attempting to include such a proposal among the recommendations the URC will make as 2017 comes to a close. 
I say that for a number of reasons. 
1) Nothing along these lines has come up at any of the three Unity Reform Commission meetings. 
NOTE: That was true again following the fourth meeting of the URC in Las Vegas. Nothing in the context of the caucuses discussion indicated that this open-primaries-or-else-caucuses proposal was among the Sanders faction's demands. Instead, the focus from the Sanders-affiliated "convener" of the caucuses subgroup was on training of those conducting caucuses, making that training uniform across precincts within state and across states, and on reporting first-tier results in a standardized system housed at the DNC (with an eye toward streamlining the challenges process).
2) It is not that the Sanders appointees cannot push a measure like this, but rather, that they would likely have a difficult time garnering the votes necessary -- a majority -- to make such a recommendation. Clinton-affiliated members outnumber those appointed by Sanders, and new party chair, Tom Perez, filled the remaining three slots on the URC. And even if the votes were there, the measure would still have to make it through the Rules and Bylaws Committee and the full Democratic National Committee to be enacted. 
3) That is even less likely given that the supposed proposal would face some of the same roadblocks as a rule eliminating caucuses, namely, funding. The Democratic National Committee would find it difficult to force a state/state party to have caucuses in lieu of a closed primary. First, the political landscape currently is not amenable to opening primaries as has been dealt with already. Republicans, at the moment, control too many of the state-level levers of power. That may change in 2018, but is unlikely to be reversed to an extent that newly-empowered Democrats could -- or even would -- open up primaries. And to force states in that category to hold caucuses would be unnecessarily and historically (in this context) punitive. State parties would have to give up a funded election and foot the bill for caucuses. Some states do that, but they are, as was pointed out above, very few in number. 
4) It would be odd to allow states constrained by state-level partisan factors to apply for a waiver from penalties on something like what Minnesota Democrats faced in 2012 because of their statutorily mandated caucuses scheduling and not on something like how opened a primary is to unaffiliated voters. There would be an inconsistency there. There are inconsistencies in the delegate selection rules to be sure, but they tend to be on matters much less consequential than penalties on violating states. 
5) The history of carrots and sticks offered by the DNC does not match this hypothetical proposal. Those have been used to combat issues where there was a widespread view that the matter was problematic. Frontloading is a great example. That increasingly more states were moving up their delegate selection events and clustering on earlier dates was seen -- regardless of which candidate one was rooting for on past rules commissions -- as a problem for the nominating system, not just a particular candidate. This proposal would mark a significant departure from that pattern of rule making. 
Until the evidence changes and such a proposal is put forth, this is not something that should be taken seriously. The reality is that this proposal and the weird narrative around it are an engineered vehicle for some within the broader Democratic Party coalition to vent about some of the more vocal Sanders appointees on the URC if not Sanders supporters more broadly. It just would not be a serious proposal even if all of the Sanders appointees on the URC were publicly in favor of it. Those folks are still in the minority on the Commission.  
In the end, it would still be more likely to see Sanders acolytes do what Ron Paul/Tea Party folks did after 2008. That is, attempt to fairly take over state parties and opt for closed caucuses over wider turnout primaries. The Tea Party era attempts failed in that bottom line, and it is still a likelier end point for Sanders folks than this unserious "proposal".
Continuing to fear monger about something that there is little, if any, evidence is actually on the table and just simply is unlikely to pass muster with the URC (even if it was on the table) is misguided. And it is not as if Sanders' points do not have their flaws. They do. The bulk of them face structural issues (pardon the "storifying" of these):



And Armando, to his credit, fits some discussion of those limitations into his pieces. However, there are a few additional spots in the first piece where he overstates just how clear the mandate is on the URC and how we should handicap what is likely to emerge in terms of recommendations.

First, on the caucuses and primaries, he states:
"The bare minimum the DNC can do to “encourage the expanded use of primary elections” is to prohibit state parties from using caucus results when their state governments hold primaries. If the URC fails to propose this reform, you will know this process was a sham. The DNC can also encourage the use of primaries by favoring states using  them with an award of more delegates than states that use caucuses."
This "bare minimum", it could be argued, aims quite a bit higher than what is in reality the true bare minimum the URC could offer in this area. The eighth tweet in the thread above on open primaries presents a clear example of this. Want to encourage the use of primaries over caucuses? Encourage primaries over caucuses. Just insert that language with the necessary caveats that acknowledge the structural roadblocks that stand in the way. That is what the DNC has done on the inclusivity of unaffiliated voters for cycles now. 

The same type of caveats apply to caucuses in states where there is a primary on the books. Yes, those states tend to have open primaries as Armando notes. But they also have tended to be primaries that occur later in the calendar. That was true for both Nebraska and Washington. In fact, the primary-to-caucus switch in Nebraska in 2007 was calendar-based. Washington has always been a bit complicated. But, then again, stories in caucus states typically are. There are idiosyncrasies under the surface that lead to states falling in the caucus category, and more often than not, they are some combination of political/partisan and financial, not suppression.

But that is a charge -- suppression -- that has been leveled more vocally this time around that may push the URC or the DNC to go beyond a passive encouragement and to instead do something with some more teeth. That passive encouragement, however, is the bare minimum here. 

Caucuses, then, will survive into 2020, but with a reduced footprint even before new delegate selection rules are crafted. Already ColoradoMaine and Minnesota have made moves to add state-funded primary options for the next presidential nomination cycle. But what of the remainder? Here Armando mentions the requirement that the URC consider so-called "firehouse caucuses".
"The DNC of course cannot require states to hold primaries, so some state parties will have no choice but to hold caucuses. But here the URC enabling resolution is also quite clear—it calls for making caucuses as much like primaries as possible. The express mention of “firehouse caucuses”—which entail providing as many voting locations as possible for the longest possible voting hours, with no requirement for spending long hours at a caucus standing in corners, is also indicative of the desire to diminish the use of traditional caucuses."
That "consider" is important. The URC's predecessor, the Democratic Change Commission, was charged with considering absentee voting in caucuses after 2008. And while there was experimentation with the practice it was not widespread in either 2012 or 2016. 

Firehouse caucuses are an extension of the firehouse primary concept. In fact, they are the same thing: a party-funded primary. As one looks at the state-level landscape, there are no longer any party-run primaries. South Carolina and Utah Democrats had the remaining party-run primaries, but found state funding or switched to caucuses during the first decade of the 21st century. And there is a reason there are not many party-run primaries. They are expensive. It is one thing for a state/local party to rent out locations across a state for precinct caucuses for a few hours at night. But to staff and rent out locations all day or during voting hours is something that most states faced with the option have rightly or wrongly avoided. That is the trade-off: lower turnout or less money in the coffers for other party business (and/or general elections). This is the tough part and why the national party has mostly deferred to the state parties to settle on a solution that fits them best. 

Finally, Armando raises the bonus delegates as incentive to draw states/state parties into doing what the national party wants. 
"The only proposal I can think of here that is consistent with encouraging the use of primary elections is to provide bonus delegates to states that use same-day registration. Note the mandate here is not for open primaries that permit Republican voters to cross over and vote in Democratic primaries. Rather it is to permit unaffiliated voters to vote in Democratic primaries. Since the DNC can’t dictate to states, its only option appears to be to provide extra delegates to states that permit same-day registration."
This is an idea that has come up a number of times surrounding and within the context of the Unity Reform Commission. Yes, the DNC has used a bonus delegate regime to help keep states in line on the primary calendar -- go later, get more delegates -- and to encourage states to cluster their contests -- hold a contest alongside other regional partners, get some additional delegates. But the record on these incentives is spotty at best. 

Actually, they have not really worked. The Republican Party had a similar system and dropped it due to its ineffectiveness and curbing frontloading. And the successes the DNC has had have been due to already late states staying late (see Arkansas, North Carolina and Pennsylvania for much of the post-reform era) or Democratic-controlled states moving back in non-competitive cycles (see the bloc of mid-Atlantic/northeastern states that shifted out of non-compliant February positions to April 2012 and stayed in 2016). California similarly shifted back after 2008, but did so not for extra delegates, but for budgetary reasons. That often proves more instrumental in the decision-making among state legislators than some extra delegates here or there. 

It is not clear, then, that delegate bonuses would have the desired effect of eliminating caucuses in primary states or opening primaries, as has been mention by occasional Armando foil and Sanders URC member, Nomiki Konst at the Vegas meeting. 

Carrots have not generally worked. Sticks have. Delegate penalties have been more effective -- offered across party lines -- at keeping states in line. But it is not at all clear that that is an option for Democrats and they will not necessarily have buy-in from Republicans on similar penalties. Caucus states do not match up across the parties, nor does a desire to have more open, inclusive processes. No, having Republicans onboard is not a goal in and of itself. Most Democrats would balk at the idea. But presenting a united front on penalties often helps make them more effective, albeit on common problems. 
Look, FHQ does not mean to nitpick here, but if one is setting a bar on what to expect from the URC, then aim for something more modest. A divided commission (in terms of how it came into being) such as this one is more likely to agree on smaller, incremental changes than larger ones that are more likely to drive a wedge or wedges between the two camps. And keep in mind, the DNC will have the final say, influenced not only by the URC but by the deliberations of the Rules and Bylaws Committee as well. Again, this fifth URC meeting and the recommendations/report is but the end of the beginning. 

Friday, December 1, 2017

At the End, a Beginning: The Unity Reform Commission Winds Down

With the final meeting of the DNC Unity Reform Commission on the horizon, some focus has again been given to the group tasked with reexamining both the presidential nomination process and the party organization itself.

FHQ must confess that it missed Laura Barrón-López's Washington Examiner piece on the URC over the holiday week last week, but it is a good example of attention that is shifting back to the group as it finishes up its work. But the story also overplays the Dems in disarray angle and misses the mark in a few other places.

On the former, it is prudent to provide some context. It is easy to say that there are tensions in a party and provide a couple of quotations from folks on opposite sides of the spectrum from within the Democratic Party (or any party for that matter). The truth is that parties are often internally at odds and in both the best and worst of times. However, those schisms are amplified when a party is out of power in Washington, when it has fewer (or no) legislative and/or executive branch victories to ease (although not solve) the problems at the heart of those divisions. It would be a bigger story if Democrats were not divided about the future of their party after losing the White House and were thus facing a unified opposition in control of the federal government than if they were/are at odds. That -- being at odds -- is basically the expectation one should have in this context, and is often something that most quickly appears in nomination rules fights for the next cycle.

In that way, the Democrats now are in a position not unlike the Republicans in either 2009 or 2013, coming off a presidential loss and trying to find a way out of the wilderness. Indeed, it is still rather underappreciated just how harmonious -- or if not that, then non-controversial -- the rules-making process was in 2013-14 on the Democratic side. The difference, of course, was that the Democrats of 2013 were crafting rules after two consecutive presidential wins. Something had gone right enough in  the nomination processes of the 2008 and 2012 cycles that the party -- in this case, the party organization (DNC) -- had incentive to retain the same basic delegate selection rules structure.

So, are the Democrats divided on the 2020 rules and the future of the party? Sure, but that is what one should expect under the circumstances. That out-party tension is at least a part of the advantage incumbent presidents have in defending the White House (assuming said incumbent is not embattled at the top a divided party him- or herself).

With that contextual note inserted, how are the Democrats' tensions overstated in this Barrón-López piece with the Unity Reform Commission as the backdrop? The following are a few nits that FHQ would pick.

The lede is misleading enough.
"The ideological fight for the soul and future direction of the Democratic Party is about to boil over. A commission created in the aftermath of Democrats’ 2016 presidential primary is meeting in December for the last time to make reform recommendations. This meeting is going to be a doozy."
  • See, right from the top, there is a fight for the soul of the party. But again, one should expect as much. There was vigorous, rules-based soul-searching within the DNC in the early years post-reform after 1972, 1980, 1984 and to a lesser degree -- at least in scope of resulting rules changes -- in 1988, 2000 and 2004.
  • Just to be clear on the process of the Unity Reform Commission, the group originally planned to meet four times, but added the fifth (voting) meeting for December at its second meeting in San Antonio. That fifth meeting will be the final opportunity for the group to meet and vote on specific recommendations. However, it may not be the final time the group meets. As part of its charge, the Unity Reform Commission does not officially disband until it is the judgment of the group that the full DNC has fully considered the package of reform recommendations. Yes, the recommendations will first go to the Rules and Bylaws Committee, but if the RBC does not adopt the recommended rules changes within the first half of 2018, the URC recommendations will be placed before the full DNC at its next meeting. This may be the final public meeting, but the work of the commission may or may not be done in December. 

Another process point...
"Among the reforms being floated by members of the commission, four big ones stand out and are at the center of debate."
These four reforms are not being floated, nor do they stand out. They are the four areas the resolution creating the Unity Reform Commission laid out from day one. The mandate with regard to the superdelegates is the most specific, though some questions remain about implementation. Further, the DNC will be limited in what it can do in the areas of caucuses and opening primaries to independents. The area where the URC has the most latitude and the least guidance from the resolution is party reform.


And another process point...
“'I’m afraid this is a dog and pony show and they’re just playing this game,' said DNC member Nomiki Konst, who sits on the Unity Reform Commission."
'Tom Perez says I’m going to follow the unity commission — of course you’re going to follow the unity commission, because it’s stacked with all of your people, so you’re going to get the votes you want,' she [Nomiki Konst] said."
Look, Konst was a bomb thrower before the URC, is a bomb thrower now and will likely be one after the group has wrapped. And that is fine. There is absolutely a place for that -- a push for reform -- in the process. Yet, the charge that the commission is "stacked" glosses over enough of the process to make it unfair.

Again, turn to the resolution that created the Unity Reform Commission. That granted the Clinton team the ability to name ten members to the commission and the Sanders team an additional eight. Part of what got the Sanders folks to go along with the membership part of the resolution was that the new chair of the Democratic National Committee got to name an additional three members. If a Sanders-aligned or Sanders-sympathetic chair was elected post-election (2016), those three additional members could tip the balance in Sanders' direction.

But a Sanders-aligned candidate fell short of that goal and Tom Perez was elected DNC chair. That seems to have further swung the commission in a Clinton/establishment/current DNC direction. This has been the case since Perez was elected and filled out the remainder of the URC last spring. It is not new.

That Konst is voicing the "stacked" charge now is potentially telling. It says less about the URC being a "dog and pony show" and more about where the recommendations negotiations are heading/have headed since the Las Vegas meeting in October. That is to say, not far enough in the Sanders direction at crunch time.

This December URC meeting may, in fact, be a "doozy" but that is because the other four have been more about hearing presentations from a number of principals from each of the four areas the group was charged with reexamining. Those were about listening, learning and discussing whereas this fifth meeting will be more final, more decisive. Recommendations that will appear in the Unity Reform Commission report to the RBC will be settled.

But this will be the end to the beginning, not an end. The structure of the convention resolution allows the URC the ability to continue lobbying the DNC. That pressure would mean more, however, if the group comes to some consensus on some or all of its recommendations. Divisiveness coming out of the commission -- less of a clear mandate -- potentially makes it more likely that the full DNC maintains much of the status quo. Of course, the counterargument to that is that the losing faction retains some electoral leverage. The DNC would have to come some of the way toward the Sanders' positions on reform to keep them in the fold.

Granted, that did not work in after 1984 when remnants of the Hart and Jackson campaigns demanded changes to the rules. Nor did it work four years ago on the Republican side when demands were made by the Ron Paul/liberty/Tea Party faction which was in a similar position.

Again, the close of the working portion of the URC is the end of the beginning. The end on the 2020 rules comes in 2018.

Tuesday, November 7, 2017

The Unity Reform Commission and Superdelegates

Let's talk about the superdelegates.

FHQ has largely steered clear of the topic of the unpledged delegates within the Democratic presidential nomination process for a very simple reason. The convention resolution that created the Unity Reform Commission (URC) in the first place in the summer of 2016 really tied the hands of the commission with a specific recommendation the group had to make to the DNC Rules and Bylaws Committee.1 Given the language of that section of the resolution, the question has always been over whether the commission would stick with that specific recommendation or go beyond it (while still fulfilling the mandate). This is a point FHQ has hammered since the convention and on social media in the time since.

That question -- resolution mandate or mandate and more -- remains the pertinent one to pose, but the report of the unpledged delegate working group of the URC added significant nuance to it in probably the shortest of the four working group reports at the recent commission meeting. And what did we get from that status update from the working group "conveners" David Huynh (Clinton campaign Director of Delegate Operations and Ballot Access) and Lucy Flores (Our Revolution board member)?2

Most significantly, Huynh said that there is agreement within the unpledged delegates working group that the role of superdelegates is due for both revision and reduction within the presidential nomination process, but went on to concede that the mandate for what the commission is to do on the topic is clear. Huynh went on to say that the work ahead was about "working out the kinks" and "logistics".

Now, those terms in quotation marks above merit some further explication. Huynh did not elaborate, but Flores did in her brief comments to the full commission during the meeting. The main kink from her point of view was the language in the resolution on superdelegates creates two classes of unpledged delegates. Furthermore, she added, echoing the Sanders campaign and many others before it arguing against superdelegates presence in the system, that it was unfair to give more weight to some voices/unpledged delegates than others.3

Looking at that, there is not much that wanders very far from the binary choice mentioned above with respect to superdelegates and 2020. Again, that is resolution mandate or mandate and more. However, Flores later augmented her commentary on the progress of the unpledged delegates working group in an interview with The Young Turks. There, Flores points to a possible third -- yet to be determined (thus the "working" group) -- option on superdelegates. No, the pointing Flores did was not emphatic, but what is is that both the unpledged delegates working group and the URC are not all that enamored of the language on the superdelegates section of the resolution that created the commission. Its specificity limits what the group can accomplish in reexamining the role of superdelegates in the process.

And all of this comes full circle right back around to the "logistics" on which the subgroup is working. To be clear, this does not mean that the working group or the URC are nefariously trying to "get out" of that section of the resolution. Rather, the goal would be to devise an option different than that set out in the resolution while staying true to the intent: revising and reducing the role of the superdelegates. It is that point on which there is agreement on the commission after all.

With the time between now and the final URC meeting on December 8-9 -- the one where voting on recommended changes will be done -- ticking away, where does all of this go with respect to unpledged delegates? Does the group stick with the mandated recommendation, go beyond it, or find some alternate path? The answer hinges on a number of factors that I would file into three main categories.

1) Two classes
The main "logistical" issue cited in the comments of the unpledged delegate working group conveners was the two classes of superdelegates that the mandate creates: a group of unpledged, unfettered elected officials and a group of pledged party leaders.

This is nothing new.

FHQ will delve into a part of the history of superdelegates here before circling back to the main point of this section. Bear with us or scroll on down to the paragraph beginning "FHQ will deal...".

The two classes of delegates is almost inevitable so long as the Democratic National Committee places some value on having elected officials -- particularly Democratic members of Congress -- and party leaders involved in the process. Following two trial runs of the newly reformed system, post-McGovern-Fraser, the DNC was still in search of "just right" from its nomination process.4  Roughly, that is a system that manages a balance of a number of factors. And with respect to superdelegates there was a desire for balance in terms of representation among convention delegates. As Priscilla Southwell (1986) notes:
Some argued that the 1972 and 1976 conventions had contained too many “amateur” delegates who had little understanding of the necessary qualities for successful presidential candidates. Others argued that exclusion of mainstream Democrats prevented presidential nominees from building coalitions that were necessary for winning the election or governing effectively.
Now, there no doubt will be those who would contend that the rank-and-file members of a party do not need the party establishment to tell them what the "necessary qualities for successful presidential candidates" are. And that point would be well taken. However, the Democrats of the 1970s were still after not only an overarching set of delegate selection rules that would produce a winning presidential candidate, but one who could govern effectively as well. One concept that has made its way into the Unity Reform Commission discussion of superdelegates that was also often used in similar meetings in the 1970s is that of "peer review". In other words, there would be a faction of delegates that could provide that point of view at the convention.

But the first attempt at adding that point of view for the 1980 cycle fell short. The 1978 Winograd Commission had boosted each state delegation by ten percent with the express purpose of providing pledged delegate slots to party leaders and elected state officials (PLEOs). This had the effect reducing competition for the at-large and district delegate slots. Activists, grassroots organizers and others did not have to run for those positions against those PLEOs with better name recognition. Alternatively, it removed a negative incentive for PLEOs: They did not have to run against their constituents for those spots, something most were loath to do. After all, those rank-and-file most likely to run for delegate positions are the same who are most likely to volunteer for and/or donate to reelection efforts of those officeholders.

Those were the positives of the Winograd Commission addition of PLEO delegates for the 1980 cycle. But those changes missed the mark in terms of peer review. The number of party leaders and elected officials delegates actually decreased in 1980 relative to 1976 and that was most acute among members of Congress, those perhaps best equipped to judge the qualities of a potential partner in the executive branch.

It was there that the Hunt Commission began in 1982; again attempting to provide for robust peer review to complement the voice of rank-and-file party members filtered through primary and caucus voting. To bridge the gap between the perceived shortcomings of the Winograd Commission rules and the need to get more PLEOs involved in the process, the Hunt Commission reversed the 1972 era ban on automatic delegates but also made the 568 new delegate positions for DNC members and some members of Congress unpledged. The former -- the ban reversal -- addressed the participation issues for members of Congress while the latter -- their unpledged status -- returned, in the words of the Hunt Commission report, "decision making and flexibility to the convention."

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FHQ will deal with most of the issues with that decision in section two below, but the important factor here in light of the "two classes" complaint is that the context was much different in 1982. The DNC not only saw the need for peer review, but foresaw that process happening after the voting and at the convention. Those were the considerations that became the the very foundation of this two classes distinction.

A generation later, though, the process functions differently than intended, and there are two groups of delegates treated differently in terms of how they function. But the baseline recommendation the URC is to make to the Rules and Bylaws Committee based on the group's charter does not really remedy that issue. In fact, as unpledged delegate group convener, Lucy Flores, basically argued in Las Vegas, it perpetuates the two classes problem while shrinking one of those classes.

Actually, it creates a third class of delegates when one fully considers the relevant dimensions of this. The pledged at-large, district and PLEO delegates remain as do the unpledged national elected officials and distinguished party leaders (i.e.: former presidents, former speakers of the House, etc.). But the DNC members who would be shifted into the pledged category do not so neatly fit in with the rest.

Why?

The answer is twofold. Part of it lies in the process the URC resolution creates. Those DNC members would be, in the words of the resolution, required to cast their vote at the Convention for candidates in proportion to the vote received for each candidate in their state. They would be bound. Now, the Republican Party does this. The last two Republican conventions have had heated discussion over the issue.

But the secret of the Democratic process is that the delegates are not bound. They are pledged. They are pledged to a candidate but are free within the context of the convention to vote for whichever candidate they please. What kept, for example, delegates in Bernie Sanders' corner at the 2016 Democratic convention despite the fact that he could not win the nomination was loyalty. But that loyalty was borne of the process by which those delegates were selected. Sanders won the delegate slots in primaries and caucuses and filled those slots with loyalists from his slate of delegate candidates. And lacking a full slate or enough candidates to fill those slots, the Sanders team had the right of review over who filled them (if filled by the state or district party). Those delegates are not bound, but are the folks least likely to stray from their candidate in a competitive convention environment.

The treatment of the DNC members would be different than both those pledged delegates and the unpledged superdelegates. They would be bound, not pledged. And they would be bound because, unlike the other pledged delegates, they could not be replaced by the candidates or would ostensibly lose their DNC positions in order to be replaced.5 But that is a treatment different than the two other types of delegates that potentially creates unintended consequences.

No matter how one cuts it, there will almost always be different classes of delegates, super- or otherwise, on some level so long as the national party continues to place value on trying to maintain both instructed delegates and enlightened trustees involvement in the process. But creating a new class of delegates is something with which the URC and later the Rules and Bylaws Committee will have to wrestle.


2) History and Evolution
Having established the context for the addition of superdelegates in the previous section, it is additionally worthwhile to look at the evolution of that group of delegates for some hints about any potential alternate paths the URC may consider, one divergent from the superdelegates resolution.

It is often easy to assume that the group of superdelegates in the Democratic presidential nomination process has been mostly static over time. Add Democratic members of Congress to DNC members and that equals superdelegates. That, of course, is an oversimplification of the equation now and historically. The number of superdelegates has evolved over time as has their share of the overall national convention.

Let's revisit the 1984 cycle. To reiterate, this was the cycle that unpledged superdelegates became a part of the system, added by the 1982 Hunt Commission to provide what was and has in the time since been called peer review at the convention. But fighting the battles of the previous cycles to right the ship for the future often lays the groundwork for unintended consequences. That was the case in this instance.

The original idea was to create a group of unpledged delegates that would equal 30 percent of the total number of delegates to attend the 1984 convention. By the time the delegate selection rules had been finalized for 1984, that number had been cut by more than half to around 14 percent. But the emerging method of determining who was a superdelegate was much more complicated than was the case in 2016.

The 568 superdelegate slots in 1984 were reserved first for state party chairs and vice chairs. The remaining approximately 400 positions were granted to the states and the Democratic conferences in Congress. States received a number of slots equal to the sum of Democratic members of Congress, governors and big city mayors. However, those spots were not necessarily reserved for members of Congress, governors and big city mayors. State parties could fill them how they pleased with, for example, DNC members from the state and/or other party leaders and elected officials not filling the pledged PLEO positions in state delegations. If that was not complex enough, the formula also granted the Democratic conferences in Congress the ability to choose 60 percent of their members to be unpledged as the final piece to the original superdelegate puzzle.

Now, the addition of these unpledged delegates was controversial as it stood. Yet, in practice, the selection itself, particularly of those congressional superdelegates, became separately contentious during and following primary season in 1984. And the reason was not dissimilar to what occurred in 2016. Early in 1984, before Iowa and New Hampshire voted, the Democratic conferences selected 60 percent of their members to be unpledged delegates to the national convention. But while still unpledged, the vast majority of those selected had a public preference for Mondale.

That selection served as an unofficial and unintended first contest in the 1984 Democratic nomination race. Again, the Hunt Commission report had seen the addition of these delegates as adding more deliberation to the convention, not less to the progress of primary season. The parallel is imperfect, but like the Sanders campaign during 2016, the Jesse Jackson and Gary Hart campaigns saw the early activity of superdelegates in 1984 as problematic.

After  primary season in 1984, Jackson surrogates argued for the elimination of superdelegates while Hart proxies pushed for a reduction of their share relative to the total number of delegates to the national convention (Southwell 1986). Of course, there were those who argued for the preservation of unpledged delegates moving forward. The byproduct of the back and forth for 1988 was a streamlining of the superdelegate process. First, the "who" of the superdelegates was simplified. Specific groups were granted unpledged status: DNC members, Democratic governors, distinguished party leaders and 80 percent of the congressional Democrats. Not only was that percentage of Democratic members of Congress raised, but a window was created between late April and early May for selecting them. That addressed a lingering issue from the 1984 cycle, pushing the selection back to a point well after the beginning of primary season voting.

However, rather than reduce the number of superdelegates, those changes for the 1988 cycle slightly increased their number. And that was generally the trajectory of change through the 2008 cycle; what was later referred to as "superdelegate creep" during the proceedings of the post-2008 Democratic Change Commission. That interim period saw the superdelegate share of the total number of delegates rise for a variety of reasons; a trend made clear in the chart below.

Some were more benign than others. Obviously there is some variation in the number of Democrats who hold elective office at the federal level, but the position of Democrats in Congress or in gubernatorial positions ebbed and flowed over the course of the period in question. There was also a broadening of the distinguished party leader category of unpledged delegates. Former presidents and vice presidents were included in that group from the start, and it expanded in fits and starts over time to include not only former Democratic speakers of the House and Senate majority leaders, but former minority leaders as well. Later, this was expanded to former DNC chairs and sitting presidents and vice presidents. Again, though, these were not changes that significantly altered the superdelegate share.


What more greatly increased the share of superdelegates were a couple of factors. In 1992, add-on delegates -- one additional superdelegate for every four DNC members in a state delegation -- pushed the number higher. And during Bill Clinton's reelection campaign in 1996, all Democrats in Congress -- not just 80 percent as was the case in the previous two cycles -- were granted to superdelegate status.6

All of this created an increasing share of superdelegates over time. But that was a period that witnessed neither the type of deliberative conventions the Hunt Commission had hoped for, nor superdelegates playing an outsized role in those nomination contests. That changed in and after 2008, prompted by the intensely close Clinton-Obama nomination battle. Not since 1984 had superdelegates and their role in the process been in the spotlight in the way each was in 2008. That was enough to put the role of unpledged delegates on the agenda of the Democratic Change Commission, the post-2008 group tasked with reexamining the nomination process and rules.

Typically, the modus operandi of any party following a successful capture (or recapture) of the White House is to maintain the status quo in the nomination process. Newly nominated/elected presidents tend to like the process that got them into office. That leads to subtle if any changes. And that was mostly true after 2008. However, one of the largest changes for 2012 was to the superdelegates system; to counteract the slow, but ever increasing share of unpledged delegates in the process.

And that change, too, is clear in the figure above. That substantial drop from a superdelegate era high point of 19.3 percent in 2008 to a low point -- lower than the original share of superdelegates in 1984 -- in 2012 of 13.1 percent is attributable to a couple of factors. One is that the add-on category was eliminated.7 But the decrease in 2012 is greater than the increase due to the add-ons in 1992. The other main factor differs from those above. All of those affected the numerator in the superdelegate share equation. The denominator also can change and did for 2012. From 1988-2008 the baseline number of delegates in the Democratic delegate apportionment formula was 3000. That was increased for 2012 to 3700, an uptick nearly equivalent to the overall number of superdelegates. But when that denominator increases the resulting share of superdelegates decreases. Practically speaking, those add-on spots were shifted from the unpledged to pledged area.

[The subtle uptick for 2016 is directly linked to that denominator change made for 2012. A baseline number of delegates set at 3700 plus unpledged and alternate delegates pushed the total number of delegates close to 5000. This proved to be a logistical nightmare. Delegations were seated not only on the floor but took up the entire lower bowl in the arena in Charlotte. That pushed press in to the mezzanine and upper deck and all other attendees in the upper deck as well. There just are not that many arenas that can handle that, nor a variety of cities that can accommodate that number in terms of lodgings. That, in part, forced the reduction in the baseline number of delegates for 2016 to 3200. That pushed the share of superdelegates to just above but around where it originally was in 1984.]

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This evolution since 1984 does offer some potential courses of action for the Unity Reform Commission if the group is looking for ways to uphold the intent of the superdelegate section of the resolution, but alter in some ways the language and implementation. On its surface that resolution redoubles efforts to curb the influence of superdelegates. It echoes the 2012 change eliminating the add-on delegates (and shifting of them in to the pledged category). However, as was described in the first section above, such a move to shift DNC members into the pledged category does create some issues that would require further discussion if not rule-making to properly implement. However, such a change, if ultimately recommended and passed, makes more sense than reintroducing an unnecessarily complex cap on the percentage of Democratic members of Congress who can be selected as unpledged delegates. That does not appear to be a road the DNC would be willing to tread again.

One could argue that the pledging of members of the Democratic National Committee is not the highest priority of those who were superdelegates detractors in 2016. Indeed, considering how by the end of March 2016 the Sanders campaign was openly discussing a plan to persuade superdelegates to switch allegiances, there does seem to be at least some acceptance of them. Granted, acceptance then does not equate to acceptance now. However, that strategic shift does point toward a hierarchy of  superdelegate grievances. The issue was less that those delegates were unpledged -- only that could allow a switch of preferences -- but the timing of the public announcement of the initial presidential preference.

As in 1984 with the selection of congressional superdelegates, the primary unpledged delegate issue in 2016 was that the public preferences of some gave a decided advantage to one candidate in the delegate count before any votes had been cast. The answer after 1984 was to create a window deep enough into the calendar in which congressional superdelegates could be selected and not give any candidate a pre-vote advantage.

Adapting a similar method for 2020 could accomplish the same goal. The idea is less to reduce the role of superdelegates and more to reduce the pre-primary role of superdelegates by prohibiting DNC member endorsements before a certain point/window on the calendar, until their home states have voted, or until primary season is complete. Many superdelegates have waited until those latter two points in past cycles. Such a move would circumvent the replacement and additional rules-making issues attendant to the current resolution -- as described in the first section -- while eliminating the largest of the superdelegates problems from 2016. And by delaying the endorsements of DNC members, especially if until the convention, maintains some consistency with the original intent of the Hunt Commission, a more deliberative and flexible convention (if the nomination remains unresolved at that point).


3) Process = Outcomes?
Now, if one were to handicap this and attempt to put odds on the likelihood of something other than the current superdelegate resolution being recommended to the Rules and Bylaws Committee, then one need look no further than the formation of the URC itself. This is a group almost engineered to deadlock on the most controversial items before them. And that is especially true for anything that reanimates the Clinton-Sanders fault lines. The superdelegates issue hits that mark, but so too do the items in the other so-called buckets. This is a group almost designed to create narrow and likely small changes -- at least compared to what some on the fringes of both sides seem to want out of this process -- to the 2020 delegate selection rules.

But that is precisely what makes how concrete the requirements of the superdelegates part of the resolution so important. Therein lies a recommendation the Unity Reform Commission has to make. If the narrowly divided group cannot agree on an alternative, then that is the recommendation that will make its way to the Rules and Bylaws Committee.

In the end, it is easy to be against something (like this resolution or the superdelegates system for that matter), but harder to come up with a passable alternative. That is all the more true given some of the complexities involved.


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1 Here is the language of the superdelegates portion of the unity amendment:
Section 3.
RESOLVED FURTHER:
That the Unity Reform Commission shall consider and make appropriate recommendations for revisions to the Delegate Selection Rules for the 2020 Democratic National Convention to provide for a change in the manner by which unpledged party leader and elected official (PLEO) delegates participate in the presidential nominating process. In particular, the Commission shall make specific recommendations providing that Members of Congress, Governors and distinguished party leaders (DNC Charter Art. Two, Section 4(h)(ii)(1)-(6)) remain unpledged and free to support their nominee of choice, but that remaining unpledged delegates be required to cast their vote at the Convention for candidates in proportion to the vote received for each candidate in their state.

2 Convener is the term used by the URC for leaders of the four working groups (unpledged delegates, caucuses, primary/participation and party reform). Like the commission leadership structure, there is a Clinton-appointed and a Sanders-appointed convener for each subgroup.

3 Flores continued that grassroots voices/unpledged delegates in the party are the most important and should not be treated as lesser than those of other delegates.

4 Of course, given the rules tinkering that has become customary every four years, one could argue that the search for "just right" is never-ending. And considering that new problems are raised with new conditions in different cycles it is. However, it is more maintenance now than it was in the early days immediately post-reform. The two 1970s cycles and even 1980 were less maintenance and more about an attempt at developing a working nomination system.

5 It would take an additional bit of rule-making to bring this enforcement/replacement into being. But it would be a necessary addition to the superdelegates provision in the resolution to create some basic functionality.

6 Interestingly, the expansion of congressional superdelegates from 80 percent to 100 percent was offset between 1992 and 1996 by the loss of Democratic seats in Congress in 1994. The combination had the effect of reducing the total share of superdelegates in 1996 relative to four years previous.

7 It should also be noted that Democrats lost seats in Congress and gubernatorial positions in 2010, reducing the number of superdelegates in 2012. But that change was slight compared to the other tweaks to the superdelegates rules.

Monday, October 9, 2017

Bill Would Push Massachusetts Primary to May

No, not the presidential primary. That will stay in March, unaffected by this proposed legislation.

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Massachusetts has tended to have a later than typical statewide primary compared to most of the rest of the country, sandwiching a general election campaign into a seven week window between an early September primary and a November election.

However, recently proposed legislation would reconfigure that set up. S 391, introduced last week by Senator Jason M. Lewis (D-Fifth Middlesex), would shift the statewide primary from the seventh Tuesday before the general election (which tends to fall in early September) to the third Tuesday in May. The practical effect, if this bill were to be passed and become law, is to tack an additional ten or so weeks onto the normal general election campaign for those running for federal/congressional and statewide offices.

And, in fact, that is part of the cited rationale behind the legislation: to mimic other states with earlier primaries as a means of increasing public engagement and, by extension, turnout. The move would also eliminate the late summer and early fall calendar conflicts that can arise. The scheduled primary's overlap with Labor Day in both 2012 and 2016 forced those primaries from the Tuesday immediately following the holiday to the Thursday of the same week. The former also conflicted with the Democratic National Convention.

This is not a new idea in the Bay state. For the last several years there has also been legislation to consolidate the Massachusetts primaries -- including the presidential primaries -- in June. Those efforts have met dead ends in the past. Whether this new bill meets the same fate remains unanswered.

Wednesday, September 27, 2017

Brown's Signature Sends California Primary Back to Super Tuesday for 2020


There had been some speculation in the time since the California state legislature passed legislation to move up the Golden state presidential primary for 2020 over whether Governor Jerry Brown (D) would sign the measure. That speculation ended barely a week after the legislature wrapped up its session by passing the primary bill.

Brown signed the bill -- SB 568 -- and in the process, moved not only the presidential primary into March but the statewide (midterm) primary as well.

Much has already said about what this move means. It means California shifts up 91 days on the calendar; bigger than any move during the 2016 cycle, and that the Golden state is joining an already crowded date on the 2020 calendar. Texas, Virginia and Massachusetts among others have been stationed there since at least 2016.

For more about what the move means, and perhaps more importantly, what it doesn't, please see our earlier primer on the subject.

Monday, September 18, 2017

California Primary Bill Passes Legislature. What It Means and What It Doesn't

On the final day the California legislature was in session for 2017, both chambers did what state legislatures often do at the close of a year: in short, legislate. The volume and pace of activity tends to markedly tick up as some bills make it through while others fall by the wayside. The final day in the Sacramento was no different.

But the bill FHQ was eyeing was SB 568, the amended legislation that would shift the California primary -- a consolidated presidential and statewide primary -- from the first Tuesday after the first Monday in June to the first Tuesday following the first Monday in March. That is not a proposal without significance, but in its amended form was scaled back from the more ambitious version that was originally introduced in February.

[Rather than rehash all of the particulars of the evolution of the bill here, I will encourage readers to check out those links from earlier in the year.]

It was that simpler version that eventually came up for a third reading and vote in the Assembly on the day the legislature was set to adjourn. Heading in, the early handicapping projected passage, and that was to be expected given Democratic support of the measure and the party in control in both chambers. Moreover, a similar bill that originated in the Assembly passed the lower chamber on a near party line vote back in July.

The vote on SB 568 mirrored that earlier vote on AB 84, passing 55-21 largely along party lines. Three Republicans crossed to vote in favor of the legislation while only one Democrat defected to vote no. That sent the amended bill back to the state Senate for concurrence where it, too, passed -- 26-10 -- on the strength of mainly Democratic votes. One member from each party opposed the party positions on the vote.

At this point, it seems as if Governor Jerry Brown (D) will sign the bill into law (but even in the event of a veto, Democrats have supermajorities in both the Assembly and Senate and would need to keep either nearly all of their members on board or the same supporters together to reach the two-thirds threshold to override the veto).

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Regardless of how it gets there, it looks like this bill will become law, and California will see its presidential (and statewide) primary shift up three months from June to March in 2020. What does it mean?

As it turns out, as others have gotten wind of this potential move, there has been no shortage of reactions to its impacts. Most have seen BIG STATE MOVING LOTS OF DELEGATES TO THE FRONT OF THE 2020 CALENDAR and have (over)reacted in predictable ways. Let's look at some of these reactions and offer some context along with some other notes of interest about the likely move.

Point I: 
Some have contended that a California move to the earliest date allowed non-carve-out states by the national parties will advantage homegrown candidates.

Counterpoint: 
That really is not an unreasonable conclusion. Someone like Kamala Harris would seemingly have a leg up in terms of organizing in the state, raising money from donors -- big money and otherwise -- in the state, and has already won statewide there. That looks good on paper, but is also a hypothesis that has been tested in other states with other candidates in past cycles. And the results have been mixed, and anything but a clear advantage for home state candidates.

Jimmy Carter's nascent 1980 team was involved in nudging legislators in both Alabama and Carter's own Georgia to move their primaries to coincide with the Florida primary in March. The idea was similar: give a candidate from the region (the South) some early wins. In addition, the primary motivation for the Carter team was to counter early hypothetical wins by Ted Kennedy in New Hampshire and Massachusetts. Of course, Carter benefited from but did not necessarily need that southern counterpunch after winning in New Hampshire.

And that is a decent lesson to take from this: unintended consequences. [Actually, that is a good lesson for anything involving the patchwork presidential nomination process.] Just because a candidate's home state has a well-scheduled primary or caucus, it does not mean that the move will pay dividends when it counts.

The reasons are quite simple.

First, those favorite sons and daughters have to survive to the point on the calendar on which their state primary is scheduled. California will be fifth among at least seven other states on March 3, 2020. Harris, Eric Garcetti or any other Californian vying for a presidential nomination in 2020 will still have to show some progress in the four likely February states, Iowa, New Hampshire, Nevada and South Carolina. Four losses and a month's worth of potential negative press/fundraising as a result is no way to go into what would become a do-or-die contest back home in the Golden state. And no, Rudy Giuliani, you cannot just skip those first states and put all your chips in the California -- or in the former New York mayor's case, Florida -- basket. One runs the risk of losing any positive reaction to good showings in the early states and/or the race and other (victorious) candidates passing you by.

Second, as mentioned above, candidates will have options other than California on March 3, 2020. Texas or Virginia or Tennessee or take your pick. Candidates can go elsewhere in search of delegates. The Democratic candidates in 2008 that survived to Super Tuesday steered clear of Illinois, for example. They ceded the state to Obama and focused elsewhere. The same was true of Arkansas on the same date that year. No one ventured into the Natural state either, yielding to Clinton (and Huckabee) there.

Third and alternatively, a home state contest could also be a net negative for their candidate(s). And that is not necessarily because there may be multiple Californians in the race. There will be winnowing during February that will likely guard against that (multi-Californian) negative. No, home state contests can become must-wins for their candidates or may be opportunities for opponents to deal a death blow to the campaign of those from that state by beating them there. Both Jeb Bush and Marco Rubio in Florida in 2016 comes to mind on both those points. Each had discussions about primary timing and allocation with Sunshine state legislators in the lead up to 2016, and both Bush and Rubio and their teams were thinking the same thing: an unpenalized, winner-take-all Florida primary sure would be beneficial.

On paper, well in advance of 2016 voting, it was. However, presidential nominations are not won and lost on paper. Few elections are. What looked good to Rubio's and Bush's teams during the invisible primary in 2013-15 looked far different in 2016. Bush did not make it to Florida on March 15 and the loss there knocked Rubio from the race. It takes time to organize elections, and in that time -- from date scheduling to actual election -- conditions can change and ruin even the best laid plans.

None of this is to suggest that California will not be a boon to one of its home-grown candidates. Rather, the point is to provide some context. It is much to early to come to any such conclusion with an level of confidence and that is mainly a function of how similar moves have played out in other states and for other candidates during the post-reform era.


Point II:
Others have argued that an early California primary could price out some candidates; that the financial burden will now be too great for all but the candidates richest in resources.

Counterpoint:
While there is a kernel of truth to that contention -- big, populous, expensive state newly early on the calendar makes it tougher on candidates -- another way of approaching the analysis of the impact is to look at how things would be in 2020 without California alongside seven or more other states in early March.

After all, there are already states in that position on the calendar for 2020 and California was not alone in 2017 in looking at moving its primary there. Legislation to move primaries to the beginning of March was also put forth in Arkansas and North Carolina this year (and in Nebraska in 2016). No, those efforts were not successful, but movement in the year following a presidential election is atypical. It just is not a priority for most legislators until the year before a presidential election. Additionally, the three caucus-turned-primary states for 2020 -- Colorado, Maine and Minnesota -- have a history of contests on that same date or in early March. It would not surprising to see those new primaries end up next to California. And Georgia would likely strongly considered setting its date there again if the remnants of the SEC primary remain on the date. [Georgia "Gardner-ized" its primary scheduling process ahead of 2012, allowing the secretary of state the power to set the date. It resets every cycle. More on this below.]

None of this even considers other states that may also look at this early March position between now and mid- to late 2019.

The point here is to highlight the fact that California has chosen a landing spot on the calendar that tends to be overly clustered with other contests and has typically allocated the most delegates of any date on the calendar in most cycles. That was certainly true in 2016. With or without California, the point on the calendar most often dubbed Super Tuesday was going to be super anyway. That creates an obstacle -- having to compete in many places at once -- for candidates that has usually separated the wheat from the chaff (if that winnowing had not already occurred to some degree during the preceding invisible primary and early contests).

Yes, California adds to that burden from a delegates and expenditures standpoint, but what is the marginal effect adding the Golden state to the mix on Super Tuesday? Do any more candidates drop out because of their -- California's -- addition to the line up? In real time, in the midst of primary season, probably not many. The effects will most likely be felt during the invisible primary, where much of the nomination maneuvering has transitioned to throughout the post-reform era.

Now, to be clear, this California move is endogenous to candidate decision-making. Prospective candidates may look at a slate of contests that includes California, Texas and others and say, "Hey, I can't compete with the fundraising (or endorsements, media attention, organization) of candidate X! I'm not running." But again, I am skeptical that those candidates would not arrive at the conclusion even if California still had a June primary in 2020.

And to be fair to Walter Shapiro, who wrote the article cited in the "Point" above, we really do not have a clear and specific answer to the the question of how Democrats will adapt to super PACs in 2020. The Republican experimentation in 2012 and 2016 likely indicates the limits, but the Democrats lag in that experimentation in the primaries phase following an uncompetitive race in 2012 and a battle in 2016 where super PACs and the Citizens United decision were negatively viewed.


Point III:
Still others have made the case in the lead up to these final votes on the California primary bill that California will provide a big net delegate margin that will effectively end the race for the Democratic nomination.

Counterpoint:
This is a problematic claim from at least a couple of perspectives.

First, that may be true, but not necessarily because of this California move. Again, legislators in the Golden state have settled on a date that is already moderately crowded with other contests and may get even more crowded between now and the end of 2019. Sure, that could lead to the effective conclusion of the nomination, but that depends on a lot of factors: invisible primary fundraising, media coverage and organization not to mention how the likely first four contests go in February. There is a scenario where someone runs the table like Al Gore did with a similar calendar in 2000. Such a scenario would likely see this hypothetical frontrunner build not a delegate majority but enough of a delegate advantage to render a comeback by a trailing candidate nearly impossible.

Absent that clear frontrunner running away with the nomination, however, the 2020 race is unlikely to see the race run its course by early March. That is even more true in light of the fact that the field of Democrats seeking the nomination looks like it will be quite large. There will be some winnowing in February, but it remains to be seen just how much the field will have shrunk by a Super Tuesday that includes California. There are and will be too many moving parts shifting between now and that point in the cycle.

Speaking of building delegate leads, the second reason California's presence on Super Tuesday will not be the decisive contest (via large delegate advantage) is the allocation rules. The Democratic National Committee has maintained a proportional allocation mandate on all states for every cycle stretching back into the 1980s. That affects the math. One candidate -- homegrown or otherwise -- is not going to waltz into the Golden state and leave with a win and nearly 500 delegates. California is not winner-take-all. Instead, it would take a significant victory in the state to produce what Matt Seyfang calls a net delegate margin large enough to offset potential delegate wins elsewhere for other candidates. Hillary Clinton has won each of the last two competitive California primaries by around 8 percent. That translated to a +38 delegate advantage in February 2008 and a +33 delegate margin in June 2016. That represents a significant building block in any race for delegates, but not a death knell to other candidates unless combined with many other wins across the Super Tuesday slate of contests. And to state the obvious, a 30-40 delegate advantage coming out of California is a far cry from a nearly 500 delegate margin under winner-take-all rules.


Point IV:
Further out on the fringes of social media, some are contending that moving the California primary is yet more evidence of the Democratic National Committee "rigging" the presidential nomination process.

Counterpoint:
The DNC is not rigging the nomination.

National parties create the overarching rules that provide guidance on the parameters around how states -- state parties and state governments -- behave in the process. The DNC has put in place limits on the timing of primaries and caucuses and has a mandate for proportional allocation (with minimal latitude provided to the states). Both parties have various ways of doing this, but both examine the rules from the previous cycle in the two years after a presidential election. In recent cycles, both parties have completed that process and approved new rules for the next cycle in the late summer or early fall of the midterm election year.

That gives the states about a one year window in which to respond with any tweaks to their previous scheduling, allocation or participation regulations, or to leave well enough alone if the previous configuration remains compliant with the national party rules regime.

If anything, California is acting perhaps too early by moving up its primary before the national party rules are complete for 2020. A change at the DNC level could mean that California is non-compliant and would have to again make legislative changes to the primary date. This is the main reason most states hold off until the year prior to the presidential election to make any changes. There is more certainty then in terms of the national party restrictions and how other states may be reacting to them.

And there is not any apparent evidence that the national party was in any way involved in the introduction of the legislation to move the primary up. For one thing, when frontloading and Iowa's and New Hampshire's carve-out positions on the calendar were being discussed at the first meeting of the Unity Reform Commission -- the group tasked with reexamining the Democratic delegate selection rules -- the California bill was raised. Sanders appointee, Gus Newport, mentioned in passing that he "thought" the California legislature was looking at moving its primary up to an earlier date. There was no reaction from the rest of the group; no angry denunciations, no commentary on how California has tried this in the past and its impacts, and no discussion of the implications for 2020 from Clinton or Sanders appointees. Nothing. And that was a day after one of the bills in the Golden state passed through its chamber of origin. It is not that the URC not responding is evidence that the DNC was not intervening in California. Rather, what was noteworthy at the time is that no outrage was expressed over it.

If anything the existing DNC rules -- directly or indirectly -- constrained the legislative actions in California. The bill that now heads to Governor Brown's desk for consideration began in a much more provocative form. The original legislation that passed the state Senate called for moving the primary to the third Tuesday in March, but with the added provision that the governor could shift the date up even further onto the heels of Iowa and New Hampshire. Under a hypothetical scenario in which the California governor opts in 2019 to move the primary into February, said primary would be non-compliant and thus open the state up a 50 percent cut to its delegation.

But that provision disappeared in late August and in its place was a more convention move to the first Tuesday after the first Monday in March that, more importantly, would be compliant with the DNC delegate selection rules that are likely to carry over to 2020.

Of course, the DNC Rules and Bylaws Committee (and later the full DNC) could change that in reaction to this move in California. The party will have the time to do that, but whether the inclination is there is another matter. There are a few Californians in the DNC that may balk at such a move.

But the reality of this likely shift in California is that it has been a self-interested maneuver aimed at increasing the state's influence in the process. Many state actors have sought as much many times in previous cycles. And that is something the DNC is hands off about unless a move violates the parties rules (see Florida and Michigan, 2008).


Point V:
Finally, some have argued that a California move will draw or has in the past drawn other states forward on the 2020 calendar.

Counterpoint:
This is trickier to tackle. The process is obviously complex as all of the above indicates. It should also be said that from a superficial angle, it makes sense to reason that if a big state moves up, others will follow. FHQ has even done that. However, when we do those exercises hey tend to be in the abstract with some historical examples to back it up.

The California move to late March for the 1996 cycle brought Oregon along for the ride, but that sort of intra-cycle call and response was unusual then. Yes, the majority of southern states coordinated a move nearly en masse to early March for the 1988 cycle, but prior 2000 most of the movement happened in a more independent (uncoordinated) fashion and between cycles rather than within them. There are exceptions to that -- the Great Lakes primary of mid-March 1996 or the aforementioned Oregon shift that same year -- but that began to change in 2004 and 2008.

States, then, reacted to California's 1996 move in 2000. California actually reacted to its 1996 move in 2000 by moving up from late to early March. So there was both intra- and inter-cycle reaction to California's double move.

But California's impact on the de facto national primary that developed for 2008 is being overstated by Politico in the article cited above. Democrats aligning their timing rules with the Republican National Committee by allowing February contests in 2004 set the stage for the formation of the 2008 calendar. There were 17 Democratic contests in February 2004, seven of which were on the first Tuesday in February. An additional four states moved to the first Tuesday in February before 2007. That is 21 February states that were either going to repeat February contests by law in 2008 or had a history of them in 2004.

Then add in wide open contests for both nominations.

All of this was in place before California moved its primary for 2008 during the first half of 2007. There was already a foundation in place drawing states to earlier dates on the 2008 calendar. California and three other states had legislation introduced in January 2007 to move their primaries to February 5, 2008. Only an additional seven primary states initiated legislation to shift to February or earlier positions after California began its effort to shift into February 2008. An argument could be made that California contributed to that stampede to what was called Titanic Tuesday. However, what was not witnessed in 2007 was "more than 20 other states also mov[ing] up their contests in response."

That is false. The conditions were already in place for a massive move before California legislators began their work on the effort in early 2007.

What is different in 2020 is that California has moved much earlier than most states tend to move.


Fun fact:
Should Governor Brown sign SB 568 into law, the two most populous states will occupy the same [early] spot on the calendar for the first time. Texas is already scheduled to have an early March primary in 2020. Those two states have never shared a date on the presidential primary calendar in the post-reform era. New York shared an early date with California in March 2000 and February 2008, but Texas had already slipped past New York in population by 2000. Texas offers another option for those [non-Califorinian] candidates who would be seeking delegates on that date outside of  the Golden state. But together, they are quite the pairing so early on the calendar. And likely to be joined by others.


Interesting possibility:
One early reaction to the California bill passing both legislative hurdles was from the heart of the SEC primary move for 2016. Like 1988, there was some coordination among some southern states to coalesce on an earlier spot on the 2016 primary calendar. That effort was spearheaded by Georgia secretary of state, Brian Kemp. Asked for comment in the wake of passage in California, Kemp's office suggested one option may be to move the SEC primary to a later date.

For the most part, states have not tended to unilaterally disarm in that way, moving to a later date. To the extent that has happened, it has usually been budgetary. It is a function of states experimenting with a separate and earlier presidential primary, but not getting as large a return on investment as expected. States like Alabama, Arkansas and North Carolina have decoupled their presidential primaries from (pre-convention) May and June consolidated primaries only to reverse course soon thereafter. The costs of funding a new and separate presidential primary were too steep to carry out more than once; particularly after it failed to net any of them the influence they sought.

The other scenario where states have moved to later dates is when forced to by a change in national party rules. It was mentioned above that in 2004 both parties allowed February contests. After the de facto national primary in 2008 and some of the other maneuvering that pushed Iowa and New Hampshire into the year prior to the presidential election, both parties moved to protect the early states -- carving out February for those four contests -- and prohibiting other states from holding contests prior to March. That left a lot of states with February primaries on the books in their states that were forced to move back in 2012. Some shifted to the newly established earliest allowed date -- the first Tuesday in March -- while others pushed back even further.

But those states were prompted to move by a change in the national party rules. At this time, there is no such prompting -- via penalty or incentive -- from the national parties. That may change between now and 2018 when the 2020 rules are finalized.

One final aspect to an SEC primary move, especially if it is to a much later date, is that on the Democratic side, such a move would mean shifting back a meaningful segment of the Democratic primary electorate: African Americans, who make up over half of the primary electorate in a number of those southern states. The optics on that would likely be bad, but it remains to be seen whether Republican-controlled legislatures across the south would view that as a roadblock.

Still, that is an implication of the SEC primary potentially moving back.


Interesting possibility II:
California had not adjourned its session before talk emerged from Oregon about the possibility of the Beaver state dislodging itself from its traditional May primary position to perhaps join California in March. But California was only part of the rationale in Oregon. Efforts in 2015 and 2017 to shift the Washington state primary from May to March were also a part of the Oregon secretary of state's calculus.

SEC primary meet a PAC12 primary (or at the very least a West Coast primary)?

Let's focus on the coastal states. There is some reason to be skeptical of Oregon and Washington joining up with California based on the evidence we have now. There are several factors that complicate matters for the Golden state's northern neighbors.

First, the efforts in both states to this point are mainly Republican-driven. It was the Republican secretary of state in Oregon last week who said he would push for an earlier primary. But Oregon has a consolidated primary in late May, one they would have to split up and fund to have an earlier presidential primary. The statewide primary cannot be earlier -- in March -- because it would conflict with the state legislative session and that is prohibited in the state (no campaigning by legislators during their legislative session). The key question in Oregon, then, is whether Democrats will be willing to fund a separate and earlier presidential primary in March 2020. They tried that in 1996 and went right back to the current set up in 2000.

In Washington, Secretary of State Kim Wyman (R) spent some of 2015 trying to get Democrats in the Washington state legislature to go along with a plan to move the primary there to the second Tuesday in March for 2016. That got bottled up in committee. In the grand scheme of things, that has everything to do with Democrats having opted out of the state-funded primary since it came into being via ballot initiative in 1989. Washington Democrats have just preferred caucuses. They -- caucuses -- are much easier to move around because they don't have to go through a legislature in most cases. And Washington has had earlier caucuses in the recent past. One could see Democrats there opting for caucuses aligned with a California primary, but again, there is reason to be skeptical that Secretary Wyman will be successful in lobbying to get the primary moved up.

Should Washington Democrats pull the trigger on such a move, it could put some pressure on Oregon Democrats to follow suit with a primary move. But that likely won't happen until 2019. And it goes without saying that at this point, March 3 looks like it is going to be quite crowded which could minimize the impact of a western (sub)regional primary. Should the SEC primary states disarm and move back, then maybe that western primary will be noteworthy, but see the above discussion about that SEC primary possibility.

There is also the chance of a more expansive PAC12 primary. Colorado has a primary now and the first Tuesday in March is an option at the governor's disposal in the Centennial state under the new state law. Additionally, Utah passed legislation earlier this year to fund a presidential primary. But the legislature will have to go back at some point and revisit the timing. The February and June options available to the state under law are both non-compliant with national party rules on timing. Finally, Arizona would have to move up a couple of weeks in March as well. There is no sign yet that anything along those lines is in the works. Overall, it is something that could gain traction if there are both Democratic and Republican proponents across those states.

--
In the end, it looks as if California will move up to March for 2020. But be careful about coming to conclusions about what that means. It is still early yet.