Equality by lot

Referendums not ideal for public input on laws, taxes

Simon Threlkeld
The Spectator [Hamilton, Ont] 16 Dec 1998: A11.

Monday, Mike Harris tabled his Balanced Budget and Taxpayers Protection Act. The act requires the Ontario government to get public consent in a referendum vote before increasing corporate, personal, retail, gasoline and employer health taxes.

One of the basic ideas of democracy is that the government ought to carry out the wishes of the people. In a fully democratic society, government would not be able to impose laws the public does not want. Instead, the government’s laws would require public consent.

Mike Harris and his cabinet think public consent is a great idea for certain tax increases they happen to oppose. But when it comes to requiring public consent for any legislation they might support, it’s no thanks.

However, the democratic approach is for all laws to get public consent, not just those hand-picked by a particular government.

The government’s choice of referendums as the method for expressing public consent is very unfortunate. Referendums are ill-suited for reaching the informed decisions necessary for meaningful democracy, are skewed in favour of wealth and power, and can be a heavy burden on the finances and leaders of the party in power.

Jury assemblies provide a far better basis for expressing informed public consent.

A jury assembly is chosen from the public by random selection. Each citizen has the same chance to be chosen as any other.

A jury assembly of 500 to 1,000 citizens is large enough to be a very accurate cross-section of the public.

By contrast, referendum voters can be unrepresentative. Certain portions of the public may be more inclined to vote than others, and a mobilized minority can defeat a majority’s interests and preferences, especially where voter turnout is low.

Informed public opinion

Jurors should be paid enough to let them work full-time for the days, weeks or months needed to become well informed about a law. By being both an accurate cross-section of the public and well informed, a jury assembly expresses the informed judgment of the public — the highest democratic mandate a law can have.

When the government passes a law, it could be considered by a jury assembly at a preliminary hearing. Opponents of the law and the government’s representatives could present their views to the jurors and respond to any questions jurors might have. The jurors could break into subgroups to deliberate the pros and cons of the law. By majority vote, the jury assembly could either consent to the government’s law or refer it to a full in-depth jury assembly hearing.

If a majority of jurors reject the law after such a full hearing, the law would be null and void. This arrangement would end the government’s undemocratic ability to legislate contrary to the informed judgment of the public.

In referendums, citizens only learn about proposed laws in their spare time as they feel so inclined, and typically only on the basis of whatever limited information is readily available in the media. By contrast, jurors work full time to become well informed, meet face-to-face with those best able to present the arguments for and against the law, and have full opportunity to ask questions and engage in discussion.

Running an effective referendum campaign requires a war chest of cash and an army of campaign workers. This is beyond the means of the vast majority of public interest groups, no matter how important their concerns, or how good their arguments. Also, the governing party might be reluctant to defend a law in a referendum because doing so can drain party finances and preoccupy the party’s leadership with campaigning.

Appearing before a jury assembly costs far less than running a referendum campaign and requires far fewer people. Capable public interest groups with little in the bank are on a level playing field with the rich and powerful. The burden on the governing party and its leaders is far less.

Jury assemblies are infinitely better than referendums for expressing the informed consent of the public.

Simon Threlkeld is a Toronto lawyer who grew up in Flamborough, Dundas and Westdale, and then did a philosophy degree at McMaster before going to grad school and law school.

Copyright, Simon Threlkeld, 1998, all rights reserved, posted here (at Equality by Lot) with the permission of the author Simon Threlkeld.

Filed under: Ballot measures, Press, Proposals, Sortition |