NewYorkUniversity
LawReview

Volume 93 Symposium

2018
The Presidential Nominations Process

A Debatable Role in the Process: Political Parties and the Candidate Debates in the Presidential Nominating Process

Bob Bauer

As the federal campaign finance laws have withered, leading to the rise of super PACs and other forms of largely unregulated spending, the parties have remained subject to stringent legal restrictions and must contend with other factors adverse to their competitive position in the electoral landscape. Certain of the limitations they have encountered affect their ability to fund, control, and manage core institutional functions. One such function is the conduct of presidential debates, now largely financed, planned, and operated by the news media organizations and nonprofit organizations. The candidates, especially front-running candidates and party nominees, also have some say in the conduct of debates. But the parties occupy the periphery of these major campaign events that bear directly on how they present themselves and showcase their candidates to the electorate. Empowering parties through modest legal reforms to play more of a role in the debate process would be one limited but potentially important step in bolstering their standing and capabilities.

Parties by Design: Pluralist Party Reform in a Polarized Era

Bruce E. Cain, Cody Gray

While the debate over the role of political parties is longstanding and not completely resolved amongst scholars, most reform groups are skeptical that stronger parties are the solution to contemporary problems in the American political system. Looking at the effects of past reforms and related court rulings, we maintain that many of them strengthened the hand of party activists, independently financed candidates, and donors in the nomination process at the expense of elected officials and national party officials. This has not only fueled partisan polarization due to pres- sures from party activists and donors, but it also removed any ability of the party to conduct what some have termed “peer review.” Instead of focusing on reversing past party reforms, however, we propose taking a different tack. We ask what changes might make the political parties more effective umbrella organizations that promote coalition building and better governance in this period of high polarization. Toward that end, we propose some changes that might incentivize American political parties to serve that function better. The parties themselves would have to adopt some of these reforms. Others might require that reform groups and the courts be willing to give political parties a more privileged role in campaign finance.

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 presidential nominees. The consequences of this dramatic transformation have manifested 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 structure the process of choosing party leaders and candidates for chief executive. This 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 parties much greater say than in the United States over the selection of the parties’ nominees for chief executive.

Returning Peer Review to the American Presidential Nomination Process

Elaine C. Kamarck

As Americans, we take for granted that those we entrust with significant authority have been judged by their peers to be competent at the task. Peer review is a concept commonly accepted in most professions. For instance, in medicine “peer review is defined as ‘the objective evaluation of the quality of a physician’s or a scientist’s performance by colleagues.’” That is why we license plumbers, electricians, manicurists, doctors, nurses, and lawyers. We do this in most aspects of life—except politics. In 2016, Americans nominated and then elected Donald Trump, the most unqualified (by virtue of traditional measures of experience and temperament) person ever elected to the Office of the President of the United States, in a system without peer review. This Article is an argument for the restoration of some modicum of peer review in the modern nominating system of both major political parties.

Fixing the Presidential Nominating System: Past and Present

John Frederick Martin

For many centuries, political communities have contrived nominating systems that seek to attain similar goals across different countries—protecting the community from overly ambitious and powerful leaders, and uniting rather than dividing communities at election time around leaders with broad-based appeal. They have done so by resort to procedures that recur almost invariably—procedures framed to avoid plurality victories in multicandidate contests and to insulate nominators’ decisions from outside influence, including the influence of fellow voters’ decisions. One is struck by how painstakingly our forebears worked out the problems of nominations over time, with recurring themes and methods, which (ironically in this age of information) find no echo today in our own presidential nominating system.

Was the Process to Blame? Why Hillary Clinton and Donald Trump Won Their Parties’ Presidential Nominations

William G. Mayer

Given the widespread dissatisfaction with both major-party nominees in 2016, it is natural to ask if the American presidential nomination process is to blame for producing two such candidates as Donald Trump and Hillary Clinton. But when the dynamics of these two nomination races are examined, there is little evidence that the outcomes would have been affected by any plausible changes in the process. Hillary Clinton did gain an advantage from the Democratic rule that awards automatic delegate status to elected and party officials, but she also won a clear majority of the votes cast by ordinary voters in presidential primaries and of the delegates selected through primaries and caucuses. And though there is evidence that the leadership of the Democratic National Committee favored her nomination and wanted to aid her candidacy, there is little that the committee actually did—or could do—to make such an outcome more likely. On the Republican side, Donald Trump did not win because the Republican process was, in effect, taken over by independents. Trump won a solid plurality of the votes cast by primary voters who identified as Republicans. A different set of delegate allocation rules and a large contingent of Republican superdelegates might have slowed Trump’s road to the nomination, but, given his dominance of the primaries, probably would not have changed the final result. The only rules changes that might have aided both Clinton’s and Trump’s opponents were if more states had used a caucus-convention system instead of a primary to select their national convention delegates. Both Bernie Sanders and Ted Cruz fared substantially better in caucuses than in primaries. But given ample evidence that caucuses have a significantly smaller and less representative turnout than primaries, it is unlikely that either party—or their rank-and-file members—would have endorsed a substantially greater use of caucuses.

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