Wachtel: Let’s Choose Legislators Randomly from the Phone Book

Ted Wachtel is the founder of a political organization called “Building A New Reality“. He is a sortition advocate.

15 Responses

  1. A very good presentation and proposal in my view. And concise.

    Good, in my view, is that Wachtel proposes that the lottery-chosen jury/minipublic only consider one issue and that they make a proposal only on that issue, (as opposed to considering many issues). Implicit in this is I think that the jury serves only for a fairly short term (long enough to make a well-informed and well-considered legislative proposal but not longer), which I also agree with. He does not specify whether the jurors would be paid and would work full-time for their period of service, but as he proposes it as a jury version of the House of Representatives perhaps that is implicit.

    Also good I think is the separation of powers between the jury that works out and makes a proposal, and who decides if it is enacted. (Of course I would like it to be decided by a large legislative jury rather than by Congress, but referring it to Congress is closer to present reality so making that the proposal is not without merit it seems to me.)

    This is (of course) a variation on earlier ideas such as the 2004 B.C. Citizens’ Assembly on Electoral Reform (but with the proposed legislation being referred to Congress instead of to a referendum vote).

    I of course think it necessary and have always proposed that legislative juries decide laws, not Congress, nor any other popularly elected body. But things like what Wachtel proposes above, the Irish Citizens’ Assembly, and so on, are hopefully steps on the way to that.

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  2. > Also good I think is the separation of powers between the jury that works out and makes a proposal, and who decides if it is enacted

    As we discussed many times before, reducing the powers of decision-making bodies has both positive and negative effects. For example, knowing that your proposal can be rejected by a subsequent body is a good way to disincentivize people from putting in the hard work necessary to create high quality proposals.

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  3. I wonder if anyone else on this forum agrees with Yoram that the separation of function between proposers and disposers is counterproductive? Harrington’s gloss was the exact opposite of Yoram’s — the proposer would be incentivised to come up with ideas that the disposer would find agreeable. It’s also difficult to reconcile this with Yoram’s oft-repeated rejection of the notion of “rational ignorance” — if both proposers and disposers are drawn from the same population profile (with the same “interests”) then surely there would be no conflict?

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  4. Yoram:> knowing that your proposal can be rejected by a subsequent body

    If both bodies were constituted by random selection from the same population (as Simon, Terry and others propose), then which decision would be the “representative” one? And how would this be possible if they shared identical interests and were not subject to rational ignorance?

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  5. Yoram, Keith, I of course agree with Keith on this particular point. But Yoram’s supposition (effort is disincentivised if rejection/veto is possible or likely) is I think worth exploring.

    What does the empirical evidence say regarding minipublics (or approximations of minipublics) who are engaged to make an informed proposal/recommendation, and whose proposals might be rejected? Are they in fact disincetivized? Do they slack off and not pay attention because their proposals and advice may be rejected? My understanding is that the opposite is true (they do their best to do a good job). If they were well-paid, this might be even more the case.

    Even if a minipublic can both formulate and decide a proposal, each individual member of the minipublic is at risk of having their views rejected or vetoed as their views could be in the minority. Does this disincentivize the members of a minipublic from paying attention and considering the matter before them?

    Keith’s suggestion (citing Harrington) re the incentives of a proposing minipublic seems intuitively correct to me (I’ve not read Harrington’s argument).

    If they make a proposal on gun control (to keep to W’s example) I think they will want to get it right out of a sense of civic duty and because of the important things that are at stake (mass shootings, Second Amendment type rights), and as Keith indicates, so that it stands a better chance of being approved (rather than being rejected for example because it contains some flaw or stupidity that they did not think through). The proposal will be extremely public and will reflect on the members of the minipublic. If they do a bad job it will be apparent and reflect badly on them. If they do a great job, or a thoughtful, fair and even-handed job, then whether Congress approves their proposal or not, it will reflect well on them. Given the choice between doing a paid job well and and being seen to have done it well by the entire public, or doing it badly or carelessly and being seen to have done it badly or carelessly (and therefore to be seen as something like a bunch of lazy jerks or nitwits who failed to fulfill the civic duty they were paid to perform), I think the incentive to do it well and get it right is very strong.

    Not everyone is as determined as Ruth Bader Ginsberg, but the fact that her opinions are regularly defeated by the conservative/Republican majority at SCOTUS, does not seem to have had the slightest disincentivizing effect on her, regarding doing her best to write opinions setting out the case for her point of view to the best of her ability, explaining why the majority is wrong, and sometimes implying the views they purport to hold are ridiculous. The fact that her view will be rejected is I think an incentive for her to get it right, and to explain why she is right, not a disincentive.

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  6. Simon,

    Why do you, and every other citizen or any other group of citizens, not bother to do the research and write a report and a detailed proposal for, say, gun legislation? After all, you could send your personal (or group) proposal to the office of your representative (or any other elected politician, or any mass media organ, etc.) and hope that they adopt your proposal and, following them, the entire legislature would do so and your proposal would become law.

    Why do you not put this effort into writing legislation right now and yet you say (and I surely believe you) that you would put a lot of effort into doing this if you are selected as a member of an official legislative jury?

    Is it not obvious that the difference is due to the fact that you believe your personal effort would be wasted because it has very little chance of affecting policy, while you believe that your work within the framework of an official legislative jury would have a reasonable chance of affecting policy?

    My point is that telling a jury that their effort may be nullified by a subsequent decision-making body puts that body one step farther from the levers of power and one step closer to the same situation of powerlessness of an average citizen. It will surely be a disincentive. There could be very little question about that. The question of how much of a disincentive is of course complex and would depend on many factors.

    You could argue that the advantages of the separation of powers outweigh the disadvantages. That’s a possible argument, although it is not going to be a simple or straightforward one and its power would, again, depend on very many factors. But it is an outright falsehood to assert that reducing the powers of a decision making body is purely a design improvement and does not also have the potential to substantially reduce the quality of the decisions made by that body.

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  7. Yoram, does the empirical evidence from Deliberative Polls, Irish Citizens’ Assembly, French Climate Convention, and such indicate that a minipublic of jurors, with a well-designed process, paid to work full-time, will not do their best to propose something as good as they can? My understanding is that the evidence indicates they would do their best.

    Those paid to work out a proposal have in one regard a stronger incentive to get it right if they do not also decide it. Specifically, their proposal has to be good enough not only to pass muster with them, but also to pass muster with a body independent from them that will scrutinize it very carefully before they endorse it.

    When lawyers are hired for a case and are paid by the hour or day for as many hours or days as needed to do a good job, the reason they have a strong incentive to do their best is exactly the risk that they could lose the case. If they were also the judge in the case, and could stroll over to the bench and make the decision after closing arguments, they might have less incentive to make the most compelling case they could. Not being the decider is not necessarily a disincentive to doing the best job we can. “Reducing the powers of a decision making body” is not necessarily a disincentive for those in that body to do the good job they are paid to do.

    I think we all agree that we need to look carefully at the incentives and disincentives minipublics can have to do their jobs well. Having more power is not always an incentive to do better and is sometimes the opposite. Lord Acton: “All power tends to corrupt; absolute power corrupts absolutely.”

    Not that a rhetorical question seeks an answer, but as of course you know I do not try to work out a proposal on gun legislation because I have only so much free-time, the likelihood of me changing public policy is zero, and I assume that others who have studied this for a long time have already worked out something that is better or as good as anything I could come up with. But were I hired and paid to be part of a minipublic to propose such legislation, I’d do my best to help get it right, and the proposal of such a body would of course be far more credible and newsworthy than my individual opinion.

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  8. Keith:> If both bodies were constituted by random selection from the same population (as Simon, Terry and others propose), then which decision would be the “representative” one?

    Both would be representative, at least to a large degree, but one might be more representative than the other. For example, because it was the larger random sample.

    A jury of 100 might be a good size to figure out and make a proposal in the context of procedures well-designed for that purpose. A jury of 1,000 might be a good size to decide if that proposal really is an improvement on the status quo, and if it is to also decide whether it is better than some other proposal they’ve deemed better than the status quo (maybe a proposal from a law reform commission, or a minority proposal from the same jury of 100).

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  9. Simon,

    > pass muster with a body independent

    Again, you might as well argue that the fact that you personally, or a you and a group of fellow activists, do not have any official powers would make you work harder and better as you write your gun proposal than members of an official legislature jury. After all, while the legislative jury has needs “pass muster” with just one more independent body, you would need to convince many other people and many other bodies before your proposal would become policy.

    It is rather obvious that the same motivation disincentives that affect you as powerless citizen would affect – to some degree – members of a jury who are aware that their hard work may come to naught. Yes, a salary would surely be important, media attention would be important, having a professional staff and investigative authority would help as well. But none of that guarantees dedication by the members of the jury. To what extent knowing that there is a good chance that your hard work is rejected can undermine motivation is hard to know, but claiming that it has no negative effect flies in the face of common sense.

    The effects of separation of powers (in various ways) is something to be explored and experimented with as part of a process of self-design of a democratic system. It is not something that may be asserted a-priori. It could easily turn out that only high-powered, parliament-like, bodies generate enough motivation among their members to allow them to work effectively.

    > But were I hired and paid to be part of a minipublic to propose such legislation, I’d do my best to help get it right

    Let’s imagine the following process: instead of having one such body, there would be N such bodies, for some number N (members’ salaries and other terms of service would not be affected). Then once each of the bodies makes its proposal, there would be some filtering process in which an allotted body (or a sequence of allotted bodies) would select one among the N proposals. It would be that selected proposal that would be adopted (or maybe rejected by a final body). You think your motivation as a member in one of those N bodies would be the same as in the situation in which there was only one body, no matter if N = 2, or 10, or 100, or 1,000? Would you say that as a member you would work harder the larger N is because with a large N your proposal would have to pass muster with more and more filtering bodies?

    Personally, I know that if N would be greater than, say, 10, I would not even bother to show up.

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  10. Yoram, I tend to agree re your N hypothetical. If there are 100 other juries working on a proposal on the same topic that’s probably a disincentive for a juror doing more than just enough to collect their pay. It is a plausible example of rational ignorance. However, I would not be too sure about that, at least or especially if the number is reduced to maybe just 10 or five or three juries. Many people enter contests where the chance of them winning is not that high. Contests for the best apple pie, the highest pole vaulter, being the winning team in a high school football league, and so on. Just because there are a number of other competitors does not mean that people do not do their best to win.

    But of course no one is proposing 100 juries, or 10 juries or 5 juries to all work out a proposal on the same topic, whether it is gun control or something else.

    In Wachtel’s proposal there’s no reason to suppose the members of the minipublic (assuming they are paid to do the job they’ve been randomly selected to do) would not try hard to propose the best proposal they could. Nor that they’d try harder to provide the best proposal they could if they had the power to enact it instead of only to propose it to a decision-making body. It might be, for the reason I’ve said (pass muster with an independent body), that they will try harder if they only have the power to propose.

    Yes, being able to decide is sometimes an incentive to find the best possible solution, but not necessarily, and there can also be other incentives at play (such as the need to make the solution good enough to pass muster with an independent body).

    Regular unpaid citizens of course have little incentive to do their best to figure out the best gun legislation they can, because their efforts will almost certainly have zero effect, will most likely attract little or no attention, and because they are receiving zero pay.

    Separation of powers can in many cases (of course not all, depends on what powers are being separated and so on) create incentives to do a better job and make a better proposal. The lawyer example I gave is one example of that (separating the power to decide a case from the power to bring and present a case).

    If you want kids to all get the same sized slice of pie, a good way to do it is to have the kid who slices the pie be the last to choose which slice is their’s. Separating the power to cut the slices from the power to choose can work wonders.

    Re activists and public interest groups. If Ralph Nader was able to propose gun legislation, or a new bankruptcy law, to a legislative jury for a final decision, would he do his best? I can see no reason to think he would not.

    If his only power is the one he has, namely to try and influence public opinion and legislators, despite being largely shut out of the corporate and public media since the 70s, he might be less dedicated to the task of getting it absolutely right. But that does not at all indicate he’d not do his best re making a proposal to a legislative jury for a final decision (if he had the opportunity to do so).

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  11. Simon:> If you want kids to all get the same sized slice of pie, a good way to do it is to have the kid who slices the pie be the last to choose which slice is their’s. Separating the power to cut the slices from the power to choose can work wonders.

    Two of them have a cake yet undivided, which was given between them: that each of them therefore might have that which is due, ‘Divide’, says one to the other, ‘and I will choose; or let me divide, and you shall choose.’ If this be but once agreed upon, it is enough; for the divident, dividing unequally, loses, in regard that the other takes the better half. Wherefore she divides equally, and so both have right. (James Harrington, The Commonwealth of Oceana, 1656

    This was the organisational principle behind Harrington’s “republican” proposal for an (elected) Senate to propose legislation, that would then be decided by a (randomly selected) Prerogative Tribe. In his view this provided the ideal combination of expertise (the elected chamber would, when combined with agrarian reform, be a “natural aristocracy”) and the wisdom of crowds. And he’s certainly ahead of his time with his use of the “inclusive” pronoun.

    >It is a plausible example of rational ignorance.

    Unfortunately Yoram rejects the principle of rational ignorance as, according to his model of political anthropology, all people at all times act according to their interests.

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  12. Keith, you’ve convinced me to read Harrington, and fairly soon. Thanks for providing the great quote! And the short summary.

    The key thing is I think that minipublics or allotted bodies decide the laws, as Harrington wisely proposes (wise in our view at least). Although I think it is also good for minipublics to propose laws, I do not (as I believe you know) think this should be the only source of proposed laws. I am also in favour of elected bodies being able to propose laws, preferably elected by jury, not by popular election.

    Regarding Yoram’s views on rational ignorance and people’s interests, I think there is room for reasonable debate.

    I think rational ignorance is one of the reasons for widespread voter ignorance, and therefore also one of the reasons why public officials should be elected by jury instead of by popular vote, and why minipublics are preferable to referendums..

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  13. Simon,

    > Regarding Yoram’s views

    It is worth keeping in mind in this context that Sutherland is a habitual liar. His description of my views bears little resemblance to reality. If you are really interested in my views, we can discuss them. Do not make the mistake of taking Sutherland’s word on this or any other matter of fact.

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  14. Yoram, I did not take Keith’s word on your views as gospel, and always prefer to hear them from you.

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  15. Contrary to what Keith posted… Although Yoram does not see rational ignorance as the primary REASON for moving from elite-dominated elections and elite-dominated referendums to mini-publics, in designing and empowering mini-publics his entire argument in this thread is that rational ignorance will reappear if there are too many bodies, so that members may feel it isn’t worth their time to pay attention (it is rational to remain ignorant). Simon and I seem to agree on just about everything, and Keith and i agree on at least this point… dividing up tasks is a definite positive, as long as the number of mini-publics is not too great.

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