Citizens’ juries as activism: holding the US Congress to its constitutional role

For some time now we’ve been ‘proving up’ citizens’ juries as a means of consulting the people, but generally within the context of governments being in charge. As a result they’ve been mostly relatively innocuous. For instance the first two in South Australia were focused on making Adelaide’s nightlife safe and vibrant and getting motorists and cyclists to share the road more safely. They’re pretty anodyne and boutique issues for politicians so it’s pretty low risk. They might generate some answers they’re happy with, help get community buy-in to tricky issues. And if they don’t work out as hoped for, governments can walk away without too much angst.

Having tried exercises with a degree of difficulty of about 3 out of ten, the then Premier of South Australia Jay Weatherill had a rush of blood to the head and tried the citizens’ jury with pike and triple twist – rated in the diagnostic and statistical manual of democracy at 10. Should South Australia start a nuclear waste storage industry? The answer was … no, which wasn’t much fun for anyone. Elsewhere in Melbourne a citizens’ jury worked on a ten year budget plan which was certainly well received at the time. The plan is now a few years old and I’m not sure how well it’s stood the test of time.

In the UK, a consortium of academic and other interests held a citizens’ jury on Brexit but, in the angst ridden atmosphere of Brexit Means Brexit Britain, they were at great pains not to antagonise the politicians who were planning on spending the next four years masterminding what the overwhelming majority of them understood to be the disaster of Brexit (you know, the way Australia’s politicians did abolishing carbon pricing against the better judgement of around 80 percent of them – it’s costing the budget over $10 billion a year since you asked.)

Thus, as the organisers collateral put it dutifully, “The UK’s voters have decided to leave the EU. The Citizens’ Assembly on Brexit is not reopening this question. This decision has already been made.”[1] However I can’t think of any big change that came about from people playing by the rules of the existing system and asking nicely. And the fact is that sortition has roots going deep into our history and culture – in fact back two and a half millennia to Athens, the birthplace of democratic politics, but also back more than 800 years to Magna Carta in our legal system in the form of juries. As public trust plummets for so many institutions, its trust in juries is alive and well and while ‘vertical’ trust – the trust of people in large and powerful institutions – has been falling, horizontal trust – in people’s peers and People Like Them has not fallen and may have risen.

And, not being able to recall any form of political activism that brought about major change except by asserting its own legitimacy in competition with the legitimacy of the existing system, I want to find ways of confronting the existing system in its weakest places with the legitimacy of citizens’ juries and sortition where they are strongest. This is the way I put it in a recent interview:

“Detoxing democracy requires a new form of political activism,” Gruen argues. Citizen engagement, and public consultations in particular, have become common strategies to address our growing sense of remoteness from government decisions. However, more often than not, public consultations seek citizens’ views only on small matters. At times, they merely have the function of validating existing decisions. That’s not to say that consultations should not be used by government. Rather, legitimacy requires a fundamental change in the way that public debates take place.

In a number of papers and a public lecture at King’s College London, Gruen is proposing the concept of citizens’ juries as a form of political activism; as a bold assertion of a legitimacy outside the existing (electoral) system of democracy. Citizens’ juries as permanent and fully citizen-driven bodies can bridge the gap between what governments do and the will of the people. “They should ultimately become a core component of our constitution in a deliberative, detoxified democracy. Until then, they’d be an incredibly effective way of putting pressure on the existing system from the outside. If we could find some philanthropists to get them going, I think they’d be a fantastically cheap investment in another, better future” Gruen argues.

That’s why I’m trying to convince people with the money to have a Considering Brexit Day in the form of 10 citizens’ juries around Britain all concluding on the same day. As I’ve argued there’s very strong evidence that it would produce a decisive swing from somewhere around 50:50 to around 60:40 against Brexit.

For a long time I’ve been wondering how to do this in the US with its very different constitutional structure and culture. Anyway, this evening I realised that one of the greatest dangers for the US is what happens if the revelations about Donald Trump start sliding into illegality and the question of impeachment comes up. It would be pretty terrible for the US constitution for the Republicans to simply ignore all this and keep smiling – with the odd Flake and McCain (if he’s still with us) voting for impeachment.

In such circumstances, a representative panel of Americans swinging from around 40 odd percent support for Trump (which is the support the polls suggest) swinging strongly towards impeachment – which I expect they would if Trump was clearly guilty of criminal activity – could be very influential in making it difficult for the Senate to avoid doing its duty. Of course the citizens’ jury might not swing as I expect, but I’m putting my faith in it not doing so. And if it does, well then things are even worse, a lot worse than I thought. And if it does do it’s duty there’s the American Constitution saved right there – the self-evident truths and the right to life, liberty and the pursuit of happenstance might just keep on chugging along.


1. Likewise Kate Green, Labour MP for Stretford and Urmston maintained party discipline:

It’s a great pity that we didn’t have a citizens’ assembly before the referendum took place, on what is actually the biggest political, economic and constitutional decision of my adult lifetime. I think we have an opportunity now to use the outcome of the Assembly to inform decision-making as we leave the EU.

16 Responses

  1. Nicholas,

    > I want to find ways of confronting the existing system in its weakest places with the legitimacy of citizens’ juries and sortition where they are strongest.

    I think neither of your proposed citizen juries are actually cases that fit this criterion. Both Brexit and Trump impeachment are issues that divide the population at large. A citizen jury would be at its best when it addresses an issue where the population is largely united but is opposed by the elite. Monitoring elected officials for corruption is such an issue worldwide. In addition, in the USA such issues include universal healthcare insurance, tuition reduction and minimum wage.

    Liked by 1 person

  2. Nicholas I share your desire to move beyond consultation and I appreciate your post.

    I’d like to add on to Yoram’s comment. I agree with him that those proposed citizens juries do not meet your criterion, and I’d also suggest that both sound like attempts to use citizens juries to legitimate your currently held political positions (against Brexit and for impeaching Trump). While I may or may not share those positions, I think convening a Citizens Jury hoping for specific policy suggestions is the wrong starting point if we want a deliberative process that has integrity and legitimacy (in my mind the only way to detoxify democracy). I would discourage any attempt to use citizens juries instrumentally to advance certain political agendas, no matter how sensible or righteous they may seem. It will inevitably undermine their process and the reputation of citizens juries as a whole as impartial reflections of informed and deliberate public opinion. If we believe in the policy-making potential of well-informed groups of randomly-selected everyday people, I think that should be our motivator and we should try to check our personal politics and assumptions at the door. This is not to say that citizens juries can’t be used for contentious issues, I think it has been well documented that they can. It’s just to say that we as conveners/practitioners should not take sides, and we should avoid being the ones to convene/run citizens juries on political issues that we may not be able to be sufficiently impartial about.

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  3. Thanks Adam, but I think you may somewhat misunderstand what I’m trying to get at.

    I certainly do think that the electoral decisions on Brexit and Trump are mistakes, but I would not see what I am trying to do as reverse them. I’m trying to place sortition at the centre of the issue. If sortition doesn’t change the mind of the British people on Brexit, then I for one have no problem with the British people exiting the EU. I don’t think they’ll like the consequences, but that’s their call – and I’d have the same view if I were British.

    But the fact that I know there’s good evidence that sortition produces an anti-Brexit swing making the vote around 40/60 against Brexit means that this presents an opportunity for those opposing Brexit who don’t want to just rely on the usual alarums and excursions of business-as-usual campaigning, that they could commission a sortition-based process. Of course, if they didn’t attend to the governance of the process so it wasn’t genuinely impartial, then it wouldn’t have any sway.

    I’m quite aware that people who didn’t like the idea would claim that it was tainted by the motives of those running it, but if you got yourself a trusted and moderate Brexiteer to be a joint chair of the process with a counterpart Remainer with both vouching for the integrity of the process, it seems to me to be a very powerful political move.

    And I don’t see any other way of playing this repertoire into the crucial issues of the day. How would you propose to do it.

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  4. *** Adam Cronkright comment underlines a very serious point. A citizen jury opposing a referendum about a very hot issue with binary answer would be the target of very strong criticisms as the elite’s puppet ; criticisms centering I think about representativity (if it is volunteer) and about the way information and debate were carried. We could say as kleroterians that it is better to have a negative debate underlining the problems of democracy-through-minipublics that no debate at all about the idea, but it is a risky way. One-sided use of referenda by the half-authoritarian regime of Napoléon III had a very strong negative effect on the referendum idea in France, for a very long time.

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  5. *** I agree with Yoram Gat’s comment : « A citizen jury would be at its best when it addresses an issue where the population is largely united but is opposed by the elite ». But I would add a suggestion. A citizen jury could be useful likewise when it addresses an issue where the common people is divided, but not as strongly as it is suggested by factional extremism, which is used by opposite elites to divide the common citizens and have other subjects forgotten, and where the response is not binary. I don’t know really the US public opinion about firearms control, but maybe it could be such an instance ?

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  6. Adam, I agree with you objections to the use of sortition for partisan goals (overturning Brexit and impeaching Trump). However

    >If we believe in the policy-making potential of well-informed groups of randomly-selected everyday people, I think that should be our motivator and we should try to check our personal politics and assumptions at the door.

    That sounds a tad idealistic, as the “everyday” people that you reference will come replete with personal politics and assumptions.

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  7. Keith – Thanks I agree that it is idealistic to think that ‘everyday’ people will check their personal politics and assumptions at the door, and I don’t expect them to. The ‘we’ I was referring to is us practitioners/conveners. We who champion sortition and convene citizens juries need to work hard to be (and be percieved to be) impartial. I don’t expect the same from the randomly-selected participants.

    André – Gun control came to my mind as well, but like gay rights and abortion, it will generate significant animosity from people who’s views don’t align with the Citizens Assembly’s decision. I’m not sure if there is any way around that, however, other than avoiding contentious issues, which I’m not keen on.

    Nicholas – Thanks for clarifying. I hear what you’re saying and it is an interesting opportunity you’re trying to seize, but I think it would be hard to do well. For example, getting a prominent Brexiteer on board would probably be difficult. If there is ‘good evidence that sortition produces an anti-Brexit swing making the vote around 40/60 against Brexit’, you won’t be the only one who knows that (especially once your idea gains some traction and both sides start doing their homework). So if Brexiteers already won, and they know there is a good chance a Citizens Assembly could swing the vote against them, why would they want to support this? Maybe UK politics is different, but I can’t imagine either Democrats or Republicans supporting something like this that goes against their strategic interest.

    How would I propose doing it? Good question. I’ve been wracking my brain for months on that question. I second Yoram’s suggestion to focus on issues that divide the people from their politicians rather than questions that divide people from their neighbors. I’ve also been trying to identify other areas to advance the institutionalization lotteries beyond the obvious. For example, in the US many judges and sheriffs are elected in partisan elections. This is crazy, and there is good evidence that upcoming elections and donor considerations influence their decisions. No one thinks it’s a good idea, yet the only alternatives are non-partisan elections (which few care to vote in), or appointment by a Governor, commission, or legislature (rife with partisan and special interests and not accountable to the public). Judges sit right next to juries – why not use the jury model to form hiring panels that evaluate nominated candidates, select judges, and periodically review their performance? And for sheriffs? Prosecutors? And all other positions that are suppose to be independent and publicly accountable? It seems to me like something everybody but the Bar Association, the ruling party, and rich criminals could get behind! I’ma keep giving this some thought…

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  8. Adam:> We who champion sortition and convene citizens juries need to work hard to be (and be perceived to be) impartial.

    Yes indeed, but the same principle applies to the officials whose job it will be to advise the allotted body and provide it with balanced information. To my mind this is impossible outside a truly dialectical and partisan exchange. My original proposal (2013-16) for a Brexit assembly involved both parties (Remainers and Brexiteers) providing the information and advocacy, leaving the judgment in the hands of the allotted jury.

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  9. Keith – Agreed. And I think a Citizens Assembly could and should have been done BEFORE Brexit because I think that would have been a better process (whatever the result). I just find it hard to believe it can be done impartially (and be perceived as impartial) now that the referendum is over. I’m not really up to speed on how Brexit works, but it sounds like Brexiteers won, so why would they want to come to the table again and revisit the decision in a Citizens Assembly? Before the referendum took place when it was anybody’s guess I can see why both sides would be able to be convinced to get on board with this type of event. But after? If that was either party here in the US, forget about it. (Unfortunately) In electoral politics on this side of the Atlantic, to the winners go the spoils and there are no do-overs.

    Anyways – I’ve enjoyed the back-and-forth. Thanks for your stimulating piece Nicholas and keep us posted.

    Adam

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  10. Adam, I agree — there’s zero chance of a citizen assembly to reconsider the decision of the referendum. It would be seen as another case of keep on voting until you give the right answer.

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  11. “Getting a prominent Brexiteer on board would probably be difficult”

    Thanks Adam, particularly for expressing yourself in a tentative fashion. We’re all guessing here. None of us knows. It’s true that if someone was motivated solely by advantaging the side of the Brexit debate they favour they’ll be hard to convince if they’re pro-Brexit. I’m thinking there would definitely be people who were pro-Brexit and who had either changed their mind or still favoured Brexit but understood how important it was for the decision to be seen as legitimately made.

    Of course if the process was simply pursued in order to defeat Brexit it couldn’t have any legitimacy. On the other hand if it really was pursued in a spirit of genuine reaching across the aisle in search of better understanding across it, I think it would be useful. Of course it could be attacked as continuing to ask the Brexit question until the people got the ‘right’ answer. It would very likely be funded predominantly by people who were pro-Brexit. Obviously that means people will object to it, but if the governance is clearly and demonstrably bi-partisan, it seems to me that it will generate results that will be influential.

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  12. Nicholas – agreed that some Brexiteers would be eager to mend the divisiveness of the Brexit issue and might see this as a good way to do that – even if they risk ‘losing’. But as you pointed out, probably not the big-donor Brexiteers!

    I personally think it’s a long shot, and yes there is the risk that it ends up lacking legitimacy (either because, for all the attempts, it wasn’t truly pulled off in a impartial way, or because it was unfairly smeared as being partial), and yes there is the risk André mentioned of having a Citizens Jury leave a bad taste in people’s mouths that lingers for years/decades. That said, since you have the right motivations I’d be a huge hypocrite to tell you not to give it a try if you think you can get some traction! Every strategy we currently have for advancing the use of lot in meaningful ways is a lot shot. Every strategy we have could backfire. I think we’d be well served if some of us start going for home runs even if that’s going to increase our number of strikeouts. So, if you like the pitch, take a swing!

    (Btw, I know baseball is a very American/Caribbean sport and so my language will probably be lost on many readers, but it’s just so loaded with great metaphors!)

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  13. Thanks Adam,

    One more thought.

    I’d like to get to a stage where one or other of the mainstream political parties challenges their opponent, not to a debate but a citizens’ jury. It’s thinking along those lines that has led me to the idea I have for subjecting Brexit to citizens’ jury deliberation.

    Of course one would like to say that both sides equally funded such an exercise, but if this kind of thing is to be a reality, it will usually be the case that going to a citizens’ jury will generally favour one side or the other.

    So they’re likely to stump up more of the cash to run it. But whatever the cheap shots that are available in the hurly-burly of debate – and there are always any number of cheap shots – the actual experienced facts on the ground will usually speak more loudly. And if impeccably respected people on both sides AND jurours themselves aver during and hopefully after the vote that they felt it was conducted scrupulously, then I think that can be very influential, and increasingly so as people come to see the constructiveness of sortition in action.

    But of course as you say, these are all long shots, and we’re all guessing.

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  14. Yeah that would be interesting. Especially since that type of challenge would seem to require that the outcome be binding. Otherwise, both sides (especially that making the challenge) will lose face.

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  15. > mainstream political parties challenges their opponent, not to a debate but a citizens’ jury

    We don’t want to be in a situation where we depend on the parties to be calling the shots. Again, the best issues for an allotted chamber are not those on which the elite is split, but those on which the elite is united against a large majority of the population.

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  16. Nick:> mainstream political parties challenges their opponent, not to a debate but a citizens’ jury

    I would endorse this kind of adversarial language, as it is a close match to the dynamics of the Athenian legislative courts — the parties being the modern equivalent of the proposer(s) and the five persons selected by the assembly to defend the old law. It’s a long way removed from the (Habermasian) deliberative ideal.

    Yoram:> the best issues for an allotted chamber are not those on which the elite is split, but those on which the elite is united against a large majority of the population.

    Actually Brexit is a good example of the latter (the elite advocates for Brexit are drawn primarily from the Ledru-Rollin school of leadership).

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