Fishkin: Random Assemblies for Lawmaking? Prospects and Limits

James Fishkin’s contribution to the September 2017 workshop “Legislature by Lot” was titled “Random Assemblies for Lawmaking? Prospects and Limits”:

Abstract
A randomly selected microcosm of the people can usefully play an official role in the lawmaking process. However, there are serious issues to be confronted if such a random sample were to take on the role of a full-scale, full-time second chamber. Some skeptical considerations are detailed. There are also advantages to short convenings of such a sample to take on some of the roles of a second chamber. This article provides a response to the skeptical considerations. Precedents from ancient Athens show how such short-term convenings of a deliberating microcosm can be positioned before, during, or after other elements of the lawmaking process. The article draws on experience from Deliberative Polling to show how this is both practical and productive for the lawmaking process.

Keywords
Athens, corruption, Deliberative Polling, elections, minipublics, nomothetai, representative democracy, sortition

In arguing for short term “Delibertive Polls”, Fishkin offers three problems with long-term allotted chambers: (1) lack of technical expertise, (2) potential for corruption, and (3) not maintaining what he calls “the conditions for deliberation”.

The argument regarding the lack of technical expertise of the allotted is a standard – in fact, the standard – argument against sortition and is easily refuted. But in any case, it is hard to see how such an argument can be considered as supporting short-term allotted bodies over long-term allotted bodies. Clearly the shorter the term of a body is, the more it would be “dependent on experts”, lacking the time to contrast and examine their claims and thus form independent opinions. In fact, Fishkin’s argument is that shorter term bodies would not be required to have any technical expertise because the decisions they would be asked to make would be pre-arranged so that all the technical considerations have been pre-decided while the allotted are asked merely to apply tradeoff between “value laden options”. Fishkin thus supports shorter term bodies because they are more easily constrained. They allow – indeed, they require – “democratic” settings in which the organizers present to the allotted prescribed options and force them to select between those based on prescribed considerations.

The corruption argument – that “there is a serious risk that efforts to bribe or promise later employment to members of the sample would distort the deliberations” – is also a standard one. In the context of advocating for short-term allotted bodies, it involves the implicit claim that the elites organizing the bodies – as Fishkin would have it, prescribing the options and the information presented to the allotted – are less susceptible to corruption than the allotted themselves. This, of course, would not be true even when considering a straight envelopes-with-cash-under-table type exchanges. But considering the fact that corruption is normally much more an affair of cooptation rather than straight-forward purchase, it is clear that the elites are much more corruptible (or inherently corrupt, i.e., representing narrow interest) than the allotted.

Finally, Fishkin likes short-term bodies because with those he can “maintain the condition of deliberation”. By this he means simply that he can control the setting decisions are arrived at. Left to do as they see fit, who knows what the allotted might do? Rather than “engage in mutually respectful and moderated small-group discussions, and carefully work through an agenda of choices ensuring that the pros and cons of each choice have gotten a hearing” they may have “individual meetings, caucuses, efforts at coalition building or even caucus or party formation, and meetings with lobbyists, staff, and constituents”. This, of course, is unacceptable.

In short, for Fishkin long-term bodies run the risk that they wield real power and take decisions that are outside the range considered acceptable by the organizing elites. His Deliberative Polling procedure is a formidable defense against this “serious issue”.

11 Responses

  1. I agree with Fishkin that organising elites have a key role to play in decision making by allotted juries and would argue that elections are essential in order to ensure that their role is a democratically legitimate one. In 4th century democracy, the advocacy role was always undertaken by elite orators and that is the only working precedent that we have for legislative decision making by allotted bodies. The nomothetai are the template for Fishkin’s DPs and the only error he makes is insisting on supplementing jury voting with small-group deliberation, on account of his wish to curry favour with Habermasian deliberative democrats (although he insisted to me in a private communication that he is not a Habermasian).

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  2. Yoram Gat:> “The corruption argument – that “there is a serious risk that efforts to bribe or promise later employment to members of the sample would distort the deliberations” – is also a standard one.”

    An objector to the proposal by Callenbach and Philips clutched his/her pearls and said that this would mean that there’d be four prostitutes in the sample citizen legislature. Talk about begging the question!

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  3. *** When Fishkin “insists on supplementing jury voting with small-group deliberation”, Keith Sutherland relates that to “his wish to curry favor with Habermasian deliberative democrats”.
    *** Fishkin may likewise, as me, think that a good democratic process must include a step of small group deliberation, which in ancient Greek cities was brought about by the agora informal deliberations. A new law was voted in the last times of Athenian democracy by a big legislative jury, but the draft of the law was to be published well before, as to allow for informal agora deliberations.
    *** The interest to small group deliberation may come likewise from the example of Western criminal juries, which are the one instance of power allocated through sortition which is currently known.
    *** Sutherland may be exaggerating the role of Habermas.

    *** PS Habermas wrote against Dahl mini-populus. Did he write something about Fishkin deliberative poll?

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  4. *** Roger Knights writes “An objector to the proposal by Callenbach and Philips clutched his/her pearls and said that this would mean that there’d be four prostitutes in the sample citizen legislature.”
    *** Interesting. Is Knights able to give a reference?
    *** My personal answer. I don’t know the percent of personal prostitutes in our elected chambers, but I am afraid there are a good number of “political prostitutes”, people who vote more or less often against what they think right, because they need support by parties, medias, lobbies, to keep their seats or their political future.

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  5. Andre:> a good democratic process must include a step of small group deliberation, which in ancient Greek cities was brought about by the agora informal deliberations.

    The modern equivalent of this would be conversations in the pub (the modern equivalent of the Habermasian coffee house) or on internet forums; the Athenians would certainly not have limited it to a tiny group of citizens selected by lot. And those who insist (against the evidence) that the Council was a deliberative forum must also accept that most citizens would have served on it at least once in a lifetime. This is impossible in a large state, hence the need for representation, and the speech acts of a small group of citizens are not subject to the LLN, so there is nothing “democratic” about small group deliberation. It’s also the principal candidate for the wide variation in decision output between different DPs on the same topic that share the same information briefings and advocates.

    I don’t know whether Fishkin and Habermas have engaged with each other, but they both describe themselves as deliberative democrats.

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  6. *** Is there something common between the very different theorists labeled “deliberative democrats” other than the label? Maybe a “philosophical” tenet, that the “common good”, the “general will” etc. are not preexistent and to be discovered by individual or collective reasoning, but to be constructed through deliberation. And the influence of such an idea may be linked to the dynamic character of modern societies.
    *** But if we consider the model of sovereignty, Habermas and Fishkin seem in different worlds. Whatever we think about Fishkin practical ideas, they belong to the dêmokratia perspective, whereas Habermas “democracy” excludes both dêmos and kratos, does not consider the Athenian model, and rejects Dahl’s mini-populus as “abstract” and “utopian”; he is actually a radical foe of dêmokratia.

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  7. André Sauzeau:> Interesting. Is Knights able to give a reference?

    No; IIRC it was an objection quoted in a book review shortly after the original edition was published. Or maybe it was in an Amazon review of a now-defunct early edition.

    André Sauzeau:> I don’t know the percent of personal prostitutes in our elected chambers, but I am afraid there are a good number of “political prostitutes”

    The latter was what I was alluding to.

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  8. Andre:> Maybe a “philosophical” tenet, that the “common good”, the “general will” etc. are not preexistent and to be discovered by individual or collective reasoning, but to be constructed through deliberation.

    I read an interesting paper a few years ago which questioned whether the role of the assembly was to uncover (reveal) or discover (construct) the general will — Rousseau is ambiguous on this point. I think deliberative democrats are divided between liberal/pluralist/pragmatic constructivists and essentialists — those who believe that “the people” (as opposed to the elites) have pre-existing interests and that the role of the assembly is to uncover and facilitate them. It’s important that we should clarify this ambiguity as it has strong entailments for the design and protocol of a sortition-based assembly. If (like me) you are a liberal constructivist then preserving the ongoing representativity of the microcosm is the most important task, but if you believe that the will of the people simply needs to be uncovered and then facilitated you will be more relaxed about issues of representativity — any old bunch of “ordinary folk” will do. Of course the (Machiavellian) distinction between the virtuous people and the corrupt elites is the philosophical underpinning of populism.

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  9. PS agree that Fishkin (along with his mentor Robert Dahl) is a democratic constructivist, that’s why I’m puzzled that he continues to pay obeisance to the Habermasian perspective by insisting that small-group deliberation is an essential component of the DP.

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  10. […] a paper, previously linked to on this blog, James Fishkin identifies some potential shortcomings of citizen’s chambers which justify his […]

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  11. […] a recent paper, James Fishkin identifies some potential shortcomings of citizen’s chambers which justify his […]

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