40675-nyu_93-4 Sheet No. 34 Side A 10/16/2018 09:18:32 \\jciprod01\productn\N\NYU\93-4\NYU403.txt unknown Seq: 1 16-OCT-18 8:59 POPULISM AND INSTITUTIONAL DESIGN: METHODS OF SELECTING CANDIDATES FOR CHIEF EXECUTIVE STEPHEN GARDBAUM† & RICHARD H. PILDES‡ The institutional design through which democracies choose nominees who compete to become a nation’s chief executive is among the most consequential features in the design of democratic elections. Yet there is surprisingly little scholarship that explores this issue in detail. This Article provides both historical perspective on the evolution over time of the nomination process in the United States and comparative perspective on how other major democracies structure this process. The central organizing theme of this piece is the contrast between nomination processes that entail a central role for “peer review”—in which party leaders have a central voice in the selection of their parties’ nominees—and purely populist selection methods, in which ordinary voters completely control the selection of nominees and party figures have no special role. The first half of the Article is historical and focuses on the United States. In the 1970s, the United States shifted almost overnight from the methods that had been used for nearly 200 years to select party nominees, in which official representatives of the political parties played the major role in deciding the parties’ candidates for President, to a purely populist mode (primaries and caucuses) for selecting presi- dential nominees. The consequences of this dramatic transformation have mani- fested themselves in recent presidential nomination contests. In this Part, we seek to show both how radical the change was that was made in the 1970s and yet how accidental, contingent, and inadvertent this transformation was. The “framers” of these changes did not actually intend to create the system with which we ended up, in which the primaries and caucuses completely determine the parties’ nominees. The second half is comparative and explores how other major democracies struc- ture the process of choosing party leaders and candidates for chief executive. This 40675-nyu_93-4 Sheet No. 34 Side A 10/16/2018 09:18:32 part shows that the U.S. system is an extreme outlier among major democracies: In no other democracy is the selection completely controlled by the mass of ordinary voters. Most other democracies use systems of pure peer review to select candidates for chief executive; or use systems that mix elements of peer review with popular participation; and in other ways continue to give official representatives of the par- ties much greater say than in the United States over the selection of the parties’ nominees for chief executive. † MacArthur Foundation Professor of International Justice & Human Rights, UCLA School of Law. ‡ Sudler Family Professor of Constitutional Law, NYU School of Law. We would like to thank participants for helpful comments at the New York University Law Review sym- posium, the Public Law and the New Populism workshop at NYU, the Yale Law School faculty workshop, the University of Arizona College of Law faculty workshop, and the International Society of Public Law (ICON-S) 2018 conference panel on Populist Chal- lenges to Liberal Constitutionalism where earlier versions of this article were presented. We are extremely grateful for the superb research assistance work of Christina Ford. Copy- right © 2018 by Stephen Gardbaum & Richard H. Pildes. 647 40675-nyu_93-4 Sheet No. 34 Side B 10/16/2018 09:18:32 \\jciprod01\productn\N\NYU\93-4\NYU403.txt unknown Seq: 2 16-OCT-18 8:59 648 NEW YORK UNIVERSITY LAW REVIEW [Vol. 93:647 This Article also contributes to the general analysis of the rise of populist politics in many democracies today by showing that the institutional design mechanisms for choosing party nominees and party leaders can enable or constrain how easily and quickly populist political forces are able to capture control of government. INTRODUCTION ................................................. 648 R I. THE MOST POPULIST SELECTION METHOD IN THE WORLD: THE UNITED STATES SINCE THE 1970S . 651 R A. Evolution of the Presidential Selection Process . 652 R B. Stumbling into the “Modern” System . 659 R II. HOW OTHER MAJOR DEMOCRACIES CHOOSE CANDIDATES FOR CHIEF EXECUTIVE . 667 R A. Selecting Party Leaders Versus Party Candidates for Chief Executive ..................................... 668 R B. Purely Peer Review Systems . 669 R 1. Australia and New Zealand . 669 R 2. Germany and Brazil ............................ 670 R 3. India and South Africa . 672 R C. Mixed Systems ...................................... 674 R 1. The United Kingdom . 675 R 2. Japan ........................................... 678 R 3. Ireland .......................................... 679 R D. Neither Peer Review nor Populist Systems . 681 R 1. Canada ......................................... 681 R 2. Israel ........................................... 683 R E. Mostly Populist Systems............................. 686 R 1. Italy ............................................ 686 R 2. France .......................................... 689 R 40675-nyu_93-4 Sheet No. 34 Side B 10/16/2018 09:18:32 3. Argentina ....................................... 693 R 4. South Korea .................................... 696 R F. Why the Recent Trend Towards Somewhat Greater Inclusivity? .......................................... 699 R G. Other Contextual Factors Resulting in Greater Party Control Outside the United States . 701 R CONCLUSION ................................................... 706 R INTRODUCTION The institutional framework and legal rules through which democracies choose the nominees who compete to become a nation’s chief executive (President or Prime Minister) are among the most important features in the institutional design of any democracy. Yet despite the considerable academic attention “the law of democracy” has received in the United States over the last twenty years, surpris- 40675-nyu_93-4 Sheet No. 35 Side A 10/16/2018 09:18:32 \\jciprod01\productn\N\NYU\93-4\NYU403.txt unknown Seq: 3 16-OCT-18 8:59 October 2018] POPULISM AND INSTITUTIONAL DESIGN 649 ingly little scholarly focus has thus far been devoted to this funda- mental attribute in the institutional design of American democracy. This lacuna is particularly striking because one of the most conse- quential and radical developments of the last fifty years in the way American democracy is structured is the fundamental change we made to the way the major party nominees for President are selected: the shift to a purely plebiscitary method in which primary elections (and a small dose of caucuses) completely determine the party’s nomi- nees. Similarly, there is little comparative analysis and assessment of the different methods various established democracies use to structure the process of choosing the principal candidates for chief executive. Yet different selection methods inevitably have profound selection effects on the kind of people who choose to run; on the kind of polit- ical figures most likely to succeed in capturing nominations and office; and, most importantly, on how the resulting administration functions and the interests and political forces to which it is most likely to respond. The primary aim of this Article is to provoke more widespread reflection about how best to design this crucial feature in the institu- tional framework of democracy. Precisely because the dramatic new system put in place in the United States nearly fifty years ago has remained largely unchallenged and unchanged since then, most Americans undoubtedly have come to take for granted that our cur- rent system of presidential primaries and caucuses is the “natural” or the only “democratic” way to select nominees for President. We seek to unsettle that notion by providing both historical and comparative perspective on this issue. 40675-nyu_93-4 Sheet No. 35 Side A 10/16/2018 09:18:32 The secondary aim is to contribute to the more general debate over the rise of populist forms of politics in many parts of the world, including the United States and Europe, in the last several years.1 We seek to explore how different selection methods for party nominees might affect the likelihood that populists will gain office as a country’s chief executive. 1 There is a good deal of debate currently taking place over how precisely “populist politics” ought to be conceptualized or defined. For the work which has received the most attention and inherently links populism to a rejection of political pluralism, see JAN- WERNER MULLER¨ , WHAT IS POPULISM (2016). For a critique of Muller ¨ and a defense of a more expansive conception of populism, see Robert Howse, Populism—A Defense: Reflections on the History of Democratic Thought and Practice 2–9 (unpublished manuscript) (on file with authors). For a recent review of Muller’s ¨ book applying its core analysis to identify the populist challenge to democratic constitutionalism in the United States, see Aziz Z. Huq, The People Against the Constitution, 116 MICH. L. REV. 1123 (2018). What we are primarily concerned with and about is illiberal, authoritarian populism of the right or left. 40675-nyu_93-4 Sheet No. 35 Side B 10/16/2018 09:18:32 \\jciprod01\productn\N\NYU\93-4\NYU403.txt unknown Seq: 4 16-OCT-18 8:59 650 NEW YORK UNIVERSITY LAW REVIEW [Vol. 93:647 Part I chronicles the historical development within the United States of the different methods and institutional frameworks