THE JEAN MONNET PROGRAM J.H.H. Weiler, Director Gráinne de Burca, Director Jean Monnet Working Paper 5/17 SYMPOSIUM: PUBLIC LAW AND THE NEW POPULISM Stephen Gardbaum and Richard H. Pildes Populism and Democratic Institutional design: Methods of Selecting Candidates for Chief Executive in the United States and Other Democracies NYU School of Law • New York, NY 10011 The Jean Monnet Working Paper Series can be found at www.JeanMonnetProgram.org All rights reserved. No part of this paper may be reproduced in any form without permission of the author. ISSN 2161-0320 (online) Copy Editor: Danielle Leeds Kim © Stephen Gardbaum and Richard H. Pildes 2017 New York University School of Law New York, NY 10011 USA Publications in the Series should be cited as: AUTHOR, TITLE, JEAN MONNET WORKING PAPER NO./YEAR [URL] POPULISM AND DEMOCRATIC INSTITUTIONAL DESIGN: METHODS OF SELECTING CANDIDATES FOR CHIEF EXECUTIVE IN THE UNITED STATES AND OTHER DEMOCRACIES Stephen Gardbaum* and Richard H. Pildes** ABSTRACT Donald Trump would most likely not be President but for the institutional change made in the 1970s, and analyzed here, in the nature of the presidential nomination process. 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 presidential nominees. This article explores 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, such as currently used in the United States, 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. The second half is comparative and explores how other major democracies structure the process of choosing party leaders and candidates for chief executive. In the historical sections, 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 comparative sections show that the U.S. system is an extreme outlier among major democracies: in no other democracy is the selection completely * MacArthur Foundation Professor of International Justice & Human Rights, UCLA School of Law. ** Sudler Family Professor of Constitutional Law, NYU School of Law. Thanks to participants for helpful comments at the Public Law and the New Populism workshop at NYU, where an earlier version of this article was presented 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 parties much greater say than in the United States over the selection of the parties’ nominees for Chief Executive. 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 also contributes to the general analysis of the rise of populist politics in many democracies today by showing how the institutional design for how party nominees are chosen can enable or constrain how easily and quickly populist political forces are able to capture control of government. The institutional framework and legal rules through which democracies choose the nominees who compete to become a nation’s Chief Executive (the 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 20 years, surprisingly little scholarly focus has thus far been devoted to this fundamental attribute in the institutional design of American democracy. This lacuna is particularly striking because one of the most consequential and radical changes in the last 50 years to 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 populist method in which primary elections (and a small dose of caucuses) completely determine the party’s nominees. 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 can have profound selection effects on the kind of people who choose to run; on which kind of political figures are most likely to succeed in capturing nominations and office; and, POPULISM AND DEMOCRATIC INSTITUTIONAL DESIGN most importantly, on how the resulting government 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 institutional framework of democracy. Precisely because the dramatic new system put in place in the United States nearly 50 years ago has since then remained largely unchallenged and unchanged, most Americans undoubtedly have come to take for granted that our current 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. A 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 be relevant to the likelihood that populists will gain office as a country's chief executive. Part I briefly chronicles the historical development within the United States of the different methods and institutional frameworks that have been used over time for selecting presidential nominees. Part I demonstrates that for most of American history until the 1970s, the selection system included a significant role for what is called “peer review,” in which those who were existing officeholders and party officials had significant weight in deciding who ought to represent the party as candidate for President. As Part I shows, the change in the 1970s can be characterized as the replacement of this “peer review” system to a purely populist system in which voters, through primaries and caucuses, completely determine the presidential nominees.2 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 MÜLLER, WHAT IS POPULISM (2016). For a critique of Müller 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 (unpublished manuscript) (on file with authors). 2 For clarification, by "populist" (versus "peer review") system, we are using the term in a procedural sense, where the mass of voters select a party's candidate, and not in the more general or substantive 3 After describing that shift, Part I also suggests that we did not so much intentionally choose this new “modern” populist system as much as stumble inadvertently into it. Part II then turns to comparative perspectives on how other major democracies structure the process of choosing party leaders or candidates for Chief Executive. In line with the framework just described, as a first cut the central divide is between more “populist” systems for making this choice versus ones in which “peer review” (the views of elected officials or party figures) plays a significant role. Comparative perspective can help further destabilize the idea that our current populist system is the “natural” or uniquely “democratic” way of choosing nominees for the highest office. Part II therefore explores how party leaders and/or nominees for chief executive are chosen in many other established democracies, including the major democracies of Western Europe— the UK, Germany, France, Italy—as well as a diverse range of other large or important countries, such as Canada, Japan, Israel, South Korea, Argentina. The comparative analysis in Part II is driven by, and organized around, three major aims: (1) to identify the greater role that “peer review” plays in many democracies than in the United States in the selection of party leaders and candidates for chief executive; (2) to explore whether significant changes have taken place in the methods of making this choice over recent decades among major democracies, and whether those changes, where they exist, have tended to move as far in the direction of greater popular control as they have in the United States; (3) to show the diversity of forms peer review has taken in other democracies, in recognition that different ways exist for building in a role for peer review in systems that are not purely populist ones. Although this article is on the surface primarily historical and comparative, we do not want to hide the normative concerns that animate it. We write to challenge the unexamined notion that our current populist system of candidate selection is the best way to choose the nominees who then compete in the general election for President.