Equality by lot

In June 1998 Filip Palda, an economist who seems to have been at the time preoccupied with proposing democratic reforms, published an article in The Next City magazine in which he advocated the introduction of a plebiscitary mechanism to Canada. In the article, Palda recounted the standard arguments for “direct democracy”.

Under the present all-or-nothing approach to selecting government policies, the benefits of political specialization are lost. Most governments campaign on a bundle of services that includes health, education, welfare, transportation, the environment, and security. One party may be good at protecting the environment, but terrible at health care. Its rival may be good at health care but reprehensible on the environment. Instead of voting for a party while holding our noses, unbundling public services allows us to vote with a clear conscience, at all times. […]

Direct democracy — any form of voting that bypasses representatives — has another benefit, too; it allows voters to correct individual laws that representatives have passed to their detriment, without getting rid of the government. In April, hepatitis C victims lost their claims for compensation in our federal Parliament, their appeals falling on the deaf ears of a government riding high in the public’s esteem. If Canadians had the right of initiative, they might have succeeded in repealing the law, giving the public both the government and the laws it wanted, without the anguish that followed.[…]

Referendums and initiatives cut these middlemen out of power and let people decide issues for themselves. It is also natural for the public to continue its methodical, cautious, centuries-old drive for greater political freedom. They temper democracy’s worst aspects — the unaccountability of politicians — and bring out what is ultimately its best — the common sense of the common people.

In a letter to the magazine, Simon Threlkeld suggests that allotted legislative juries would be a superior alternative to plebiscites:

[R]eferendums are ill-suited for the informed decision making necessary for meaningful democracy and are heavily skewed in favor of wealth and power.

Groups of citizens chosen by lottery largely ran the Greek democracies of the fifth and fourth centuries BC; and in England, the United States, and other common-law countries, randomly chosen citizens make up trial juries. Adopting this basic idea from classical Greece and from the Anglo-American legal tradition can give citizens an effective say in lawmaking today.

Each year there can be a deadline for citizens to propose laws. All of the proposals, together with supporting arguments, can be posted on a web site. This serves as a notice to potential opponents who can publish their arguments on the same site.

Next, the supporters and opponents of the proposed law appear before a jury for a short preliminary hearing. The jury decides by majority vote whether to reject the proposal or to refer it to full in-depth hearings.

Threlkeld makes two related arguments: that the juries can make more informed and more considered decisions about proposals and that the legislative jury system provides equal opportunity to all proposals rather than filtering a-priori those proposals that are not backed by power and money:

In the initiative and referendum, citizens only learn about proposed laws in their spare time, as the spirit moves them, and often rely on summary TV coverage or on even more superficial 30-second TV ads. Also, the more numerous the proposals, the less likely citizens will become informed about them. The cost of running an effective campaign, whether for or against a proposal, is far beyond the means of the vast majority of public interest groups, regardless of how sound their ideas may be. The media can further skew the process by a deliberate or accidental bias that favors one side over the other.

By contrast, juries meet face to face with the supporters and opponents of the proposed law. Capable public interest groups with little in the bank are on a far more level playing field with the rich and powerful since appearing before a jury costs far less than running a referendum campaign. Jurors get the benefit of the best available arguments, not just those that are well financed, or that appear in TV ads or in news coverage. Further, no matter how many laws are proposed, each receives a jury’s full-time, focused attention.

In his response, Palda rejects this proposal. It now turns out that, unlike politicians, the allotted cannot be trusted due to a lack of expertise and accountability:

The main difference between Mr. Threlkeld’s scheme and representative democracy as we know it is a lack of expertise and accountability. Citizens yanked from their lives of designing web pages, patrolling national parks, or washing car windows at street corners would not be apt to juggle and filter the competing demands on government. If they had politics in their blood, they would have become politicians.

Politicians face the awesome task of passing laws that do not push or upset any one group too much. The public’s wrath awaits them at the polls if they fall off this tiger. Mr. Threlkeld’s juries would suffer no such wrath. Representatives are plucked at random and then returned to society after a fixed term. Without the spur of re-election digging in their sides, why would citizens in power pay attention through the endless committee meetings and the learned arguments of lobbyists? Why would they fear unjustly favoring one group over the other? This lack of attention to detail and fairness would be reflected in policies that upset the citizenry.

In the final part of the exchange Threlkeld points out that Palda made a complete about face – the politicians that were presented as “unaccountable” “middlemen” in the original article are now those facing the “awesome task of passing laws that do not push or upset any one group too much” knowing that “[t]he public’s wrath awaits them at the polls if they fall off this tiger”.

In fact, to the extent that the arguments that Palda makes against legislative juries have any validity, “they all apply as much or more to the citizen initiated referendums he supports.”

This particular comparison – juries vs. plebiscites – allows Threlkeld to focus very clearly on a fundamental fact: on every point of comparison, the allotted are at an advantage over the electorate. Sortition produces a more democratic system than an electoral system not by producing better Congresspeople or MPs, but by producing an improved substitute for the voters. This superior substitute for voters may be so effective that it can make elected officials completely unnecessary. But this question is to a large extent secondary. The primary point to consider is whether representative decisions should be made by the electorate or by an allotted body.

Palda seems to suggest that there is no need for jury assemblies to play a role in legislation because citizens can already make proposals to the government as well as to government appointed bodies like the CRTC. This same argument can just as well be made about citizen initiated referendums.

Unfortunately, government and government appointed bodies are not very good at carrying out the people’s wishes. This is why citizen lawmaking is necessary, whether in the form of the referendums favored by Filip Palda or in the form of the jury assembly hearings I favor. […]

Palda claims that the ordinary citizens who make up jury assemblies lack “expertise.” He seems oblivious to the public’s lack of expertise being far more of a problem in the referendums he supports. Jurors become far better informed about the proposed laws they vote on than referendum voters do. Referendum voters, unlike jurors, only learn about proposed laws willy nilly in their spare time amidst the distractions of daily living.

Another objection Filip Palda makes […] is that jurors lack “accountability” for how they vote. It apparently escapes his attention that referendum voters also lack accountability.

Politicians should be accountable to the people so that they will carry out the people’s wishes. But a jury assembly can be relied on to carry out the people’s wishes by virtue of being an accurate cross section of the people. This is much better than mere accountability.

In addition, the real world accountability of politicians is largely undemocratic. Politicians are disproportionately accountable to the rich and powerful interests that are best able to finance election campaigns and generate effective publicity.

[…] Palda objects that those with “the bucks” would have an advantage in making presentations to a jury assembly. Earth to Palda: running a referendum campaign and meeting the signature requirement is many times more expensive than presenting to a jury assembly. The far lower financial threshold involved in appearing before a jury assembly opens up the legislative process to capable public interest groups with little in the bank and no big business backers. The far higher financial threshold of the referendum and the signature requirement excludes the vast majority of public interest groups. This makes referendums and the signature requirement largely undemocratic and plutocratic.

[…] Palda claims that jurors will be inattentive to details and fairness. However, this is not the experience with trial and coroner’s juries who do tend to be concerned with details, fairness, and getting it right. Instead, it is the far more poorly informed referendum voting favored by Filip Palda that is apt to be characterized by an ignorance of details and of what the unfair consequences might be.

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