Sortition in the Executive

Much of the sortition discussion revolves around the legislative branch, but historically, it was often the random selection of magistrates that signaled a true democracy. I would like to start a discussion of how executive officers can be selected by lot in a modern state. This is crucially important, because while the legislature may be the traditional home of sovereignty in a democracy, the executive branch is what most citizens experience as the state.

My first post deals with a structure that I call a coordination hierarchy, which I believe should be the standard way to organize the political layer of the executive branch. In future posts, I will discuss criticisms and challenges to this structure, as well as fleshing out some other requirements to make this system work in practice. My ultimate goal is to describe a way in which the political layer can be populated by a political service: a professional corps of public servants who are responsive to the public through citizen juries, but which operates under a set of constraints that make it look more like the civil service.

13 Responses

  1. I think that sortition is most effective in the executive domain. The legislative branch asks for more time and expertise (to carve useful lawsà while taking a decision after asking expert’s opinions is less ressource-consuming.
    Plus a lot of frustration comes from that the alloted bodies are consultative (no executive power), in the end the real power cherry pick what they want (see the CCC); if not completly ignore it (see again the CCCand their conclusion on 5G)

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  2. Alex,

    What steps would be taken in your system to ensure accountability? In the UK the education minister, a member of the ruling party, is (or should be) held responsible for departmental failure. But this principle has been breached by the proliferation of quasi-autonomous public agencies, thus enabling the education secretary to pin the blame for the recent exam results fiasco on the agency (OFQUAL) and the senior departmental mandarin (along with a “rogue algorithm”). Would your system have a clearer route to accountability?

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  3. Agree 100%. The executive is what most people experience as the government; it is also the most likely to metastasize. If sortition can clean it up then we are all wasting our time.

    Liked by 1 person

  4. Keith:

    I’m not really familiar with OFQUAL, but I did read the first line of the Wikipedia article on Non-ministerial government departments, so I am now an expert on this topic.

    Basically, this class of department is designed to be “apolitical” as if political is a dirty word. But what makes political a dirty word is the command hierarchy; i.e. the power of the apex officeholder to treat the executive as a personal accessory. The whole point of the coordination hierarchy is to break this up. At that point, “politics” is no longer a synonym for cronyism, and offices like OFQUAL can be run by a political officers in the best sense.

    I will go into this further in a future post, but basically, the fact that each executive office is truly independent, with a clear scope of responsibility, allows for much greater accountability. Add the fact that a citizen jury overcomes the problem of rational ignorance and we have a political layer that does what it is supposed to do.

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  5. Alex:> each executive office is truly independent, with a clear scope of responsibility, allows for much greater accountability.

    The doctrine used to be that ministers were “jointly and severally” accountable, but both principles are now honoured in the breach. I believe the last UK cabinet minister to resign on account of a departmental blunder was Lord Carrington (Margaret Thatcher’s foreign secretary), as the FO did not foresee the invasion of the Falkland Islands. As for joint accountability, governments are far more likely to fall on account of contingencies that have little or nothing to do with executive competence.

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  6. Keith:

    One advantage here is an increase in the granularity of accountability. A blunder within a department might be due to a cabinet minister, but it might be due to a lower office holder. Because each office has a well-defined scope, it should be much easier to figure out who really made the mistake.

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  7. Alex,

    I like the principle of jury oversight and ability to appoint and dismiss the executive, but I fear your proposal falls short of its aims in a couple of places.

    First, to follow your OSHA example: while the branch office may be unable to arrogate its leaves’ functions to itself, if the same party controls the branch and (say) the heavy industry leaf, it can ‘define more and more items as relating to heavy industry’ and accrue advantage to itself and its agenda, just as in the pathological case you describe.

    Second, the power built up by the executive through its appointments has an upside as well as a downside: it allows the executive to more effectively pursue its legitimate agenda as well as its illegitimate interests. A departmental chief executive of one party may find their initiatives running into stumbling block after stumbling block if many of their inferiors are drawn from another – or if they are career civil servants who just don’t think much of the executive’s proposed reforms. This would also make the job much more frustrating than a comparable position in a hierarchy that allows more freedom of action, potentially starving the system of talent.

    I think the best solution is probably a compromise. It makes sense to have chief executives responsible for different cabinet-level briefs – education, health, defence, etc. – appointed and overseen by different juries. This means there is no presidential-style unitary executive set up against the sortitional legislature, greatly reducing the opportunity for executive empire-building. But below that level, I think it would be more sensible to retain a hierarchy in which superiors can appoint and dismiss their inferiors. The cabinet level is the lowest level at which there is, in present societies, any widespread name recognition or possibility for public monitoring outside the juries – not only would I be loath to dismiss the opinion of the media and the public as aids to the juries’ judgement, but cabinet-level responsibility for departments’ performance also allows the system’s executive-accountability mechanisms to be seen to work by the public. That’s an important factor in retaining public confidence in the system.

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  8. Oliver:> …if the same party controls the branch and (say) the heavy industry leaf, it can ‘define more and more items as relating to heavy industry’ and accrue advantage to itself…

    This is harder than you think. Even officers of the same party are confirmed independently by a citizen jury, so while they may share a similar ideology, they are not co-conspirators. Also, with staggered terms they will not share this advantage for long. This post is part of a series, so I will explain my ideas further in subsequent posts, but I think there are a few firebreaks to prevent this.

    Oliver:> Second, the power built up by the executive through its appointments has an upside as well as a downside: it allows the executive to more effectively pursue its legitimate agenda as well as its illegitimate interests.

    I just disagree with this. The executive branch isn’t there to pursue some grand design. It’s there to implement policy enacted by the legislative function.

    Oliver:> I think the best solution is probably a compromise. It makes sense to have chief executives responsible for different cabinet-level briefs – education, health, defence, etc. – appointed and overseen by different juries.

    I think this is reasonable. I have a question, though. When you say “overseen”, are you imagining a jury that persists over time? Because my understanding of juries is that they are convened for a single purpose and then disbanded.

    Oliver:> The cabinet level is the lowest level at which there is, in present societies, any widespread name recognition or possibility for public monitoring outside the juries…

    So what? The whole point of juries is that they allow democratic decision making on matters that do not make it into the headlines. Your proposal loses a lot of granularity in the accountability mechanism. That leads to less accountability, not more.

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  9. My proposal (of long standing) is (thinking of the US context at the federal level) to choose the president by jury (instead of by popular election or by a popularly elected electoral college), and also to choose by jury all the independent and supposedly independent public officials now chosen by the president and confirmed by the Senate.

    Length of terms of office could be the same as now, except that judges would be chosen for set terms rather than for life.

    I have not put in published form how officials who fall short of “good behavior” could be removed from office, though there is of course an existing and very rarely used way of doing that in the US (and arrangements for doing so elsewhere). Nor have I suggested a system of juries with the power to recall jury-chosen officials.

    I have suggested that with regard to the Supreme Court (and also the state supreme courts) that in the case of split decisions (one or more of the judges dissents from the majority), which of the two or more opinions of the judges prevails be decided by a judicial jury after a fair hearing. This same idea could also be used for split decisions of regulatory and administrative boards, but I have not proposed that.

    This is my most recent published article on the choosing of a wide range of public officials by jury, October 23, 2019: https://dissidentvoice.org/2019/10/let-juries-choose-public-officials/

    My first published article arguing that many public officials be chosen by jury (rather than by popular election or by politicians) was in 1997. So far as I know, there is no previous such proposal (though the Athenian Council of 500 did sometimes choose envoys and I’m guessing some other officials as well from time to time, and trial juries choose their foreman/foreperson sometimes, so the idea of a jury choosing a public official is not entirely novel).

    I have not proposed replacing modern regulatory and administrative boards/commissions with Athenian type 10 member allotted boards, or other allotted bodies, nor judges with jury-courts (though I am in favour of a greater use of juries in the legal system).

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  10. Alex,

    > “Even officers of the same party are confirmed independently by a citizen jury, so while they may share a similar ideology, they are not co-conspirators.”

    More links professional party members than ideology. A party’s candidates and officials (as opposed to its mass membership) are tied together by the party structure, which holds them accountable to the party’s agenda (or tries to). That means that two independently confirmed office-holders of the same party *are* usually co-conspirators in your sense, regardless of how they were appointed. (This also means that the ‘separation of powers’ between elected officials is mostly null and void when both offices are held by the same party – witness the US Presidency and Senate at the moment.)

    > “The executive branch isn’t there to pursue some grand design. It’s there to implement policy enacted by the legislative function.”

    ‘Policy enacted by the legislative function’ is just a subspecies of ‘grand design’ for the executive to pursue. Just because the agenda does not originate with the chief executive doesn’t mean the same problems don’t arise. Either way, effective executive action is required, and that demands a unity of purpose your proposal undermines.

    > “When you say “overseen”, are you imagining a jury that persists over time? Because my understanding of juries is that they are convened for a single purpose and then disbanded.”

    ‘Oversight’ need not mean continuous oversight. It could equally mean that a jury is convened periodically to review the executive’s performance and impose sanctions in the event it doesn’t satisfy. That said, I’m not necessarily opposed to juries sitting for extended periods of time and performing multiple tasks, if the benefits outweigh the risks.

    > “So what? The whole point of juries is that they allow democratic decision making on matters that do not make it into the headlines. Your proposal loses a lot of granularity in the accountability mechanism. That leads to less accountability, not more.”

    I’ll concede that you might be right insofar as the benefit to good executive performance of clear lines of accountability easily visible to the public might be outweighed by the improved granularity of your mechanism. But I think it’s important not to underestimate the need for the public to see the system working. And just because appointments aren’t directly accountable to juries doesn’t mean there are no accountability mechanisms at work – they would simply operate within the hierarchy rather than across its boundaries, with inferiors being accountable to their superiors, and those decisions part of the evidence to be considered by the jury or juries that hold the superiors accountable.

    One last consideration that might weigh on your proposal is efficiency. The average state bureaucracy makes many thousands of hiring, review, and firing decisions every year. That’s an awful lot of jury time if every one of them is to be made by a jury, not to mention any delays the process might involve.

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  11. Oliver:> That means that two independently confirmed office-holders of the same party *are* usually co-conspirators in your sense

    Not so. Witness Jeff Sessions, who was not only in the same party as Trump, but was one of his original supporters. He was bounced because he couldn’t muster sufficient dishonesty to meet Trump’s high standards. In fact, the entire Trump administration has taken a couple of years to reach its full potential as a criminal gang. If he just filled his administration with normal Republican operatives, it wouldn’t be nearly this bad.

    Oliver:> Policy enacted by the legislative function’ is just a subspecies of ‘grand design’ for the executive to pursue.

    True enough. I did not express myself well. The point I was trying to make is that a grand design coming from the legislature (i.e. from outside the hierarchy) is fundamentally different from one coming from the apex officer. When it comes from the apex officer (king, president, or prime minister) it requires the belief and support of lower officers. When it comes from the legislature, it simply requires executive officials to be reasonably competent and honest. There is a fundamental conflict involved when the apex officer is in charge of both interpreting the law for executive purposes, and executing their personal vision. We must eliminate this conflict.

    Oliver:> But I think it’s important not to underestimate the need for the public to see the system working. And just because appointments aren’t directly accountable to juries doesn’t mean there are no accountability mechanisms at work

    This post is part of a series, so I’ll have more to say on this in the future. We can continue the conversation then.

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  12. Simon:> These are all good ideas, and mostly compatible with what I am suggesting. I would encourage you to consider not just the manner of selection of these officials, but the context in which they will serve. The systems we have today grew up around command structures. Choosing officers through sortition requires some rethinking of the basic executive structure.

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  13. Alex,

    > ‘Not so. Witness Jeff Sessions, who was not only in the same party as Trump, but was one of his original supporters. He was bounced because he couldn’t muster sufficient dishonesty to meet Trump’s high standards.’

    I’ll allow that independent confirmation introduces a point of friction into the process of corruption. But this is a little bit of an edge case because Trump, at his nomination, was effectively an outsider beginning a hostile takeover of the Republican Party. Had he come up within the ranks, as is more usual, his network of corruption within the party would have been far better established, and independent confirmation would not have offered such a significant obstacle.

    > ‘[…] a grand design coming from the legislature (i.e. from outside the hierarchy) is fundamentally different from one coming from the apex officer. When it comes from the apex officer (king, president, or prime minister) it requires the belief and support of lower officers. When it comes from the legislature, it simply requires executive officials to be reasonably competent and honest.’

    Why should this be the case? Lower officers are as likely to have opinions on legislative agendas as on those of the chief executive. In both cases, the initiative is coming from a ‘legitimate’ source, but may be undermined by unenthusiastic and partial compliance from the lower officers.

    I look forward to your future posts on this topic!

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