The following is a translation of an AFP article.
Reform of the CESE: The question of sortition generates a heated debate in the French Senate
October 15, 2020
Representative democracy vs. participative democracy: the question of the usage of allotment of citizen for participation in public consultations has generated a heated debate in the Senate during the discussion of the proposal for the reform of the Council for the Economy, Society and Environment (CESE).
The organic law bill, adopted by the National Assembly in September was approved on Thursday in first reading by the Senate with 292 votes for (LR, UC, PS, the large majority of RDSE, LIRT) and 50 abstentions (RDPI – mostly the LREM members, CRCE – mostly the communists, EST).
Assembly members and Senators are now going to try to reach an agreed text in a joint committee. If that fails, the National Assembly will have the last word.
During his speech in front of Congress in 2017, President Emmanuel Macron spoke about transforming the CESE, a little-known consultative institution which convenes representatives of employers, of workers’ unions and of NGOs at the Palais d’Iéna, into “a chamber of the future, where all the stakeholders of the nation take part”.
Short of a constitutional reform, the organic law bill aims to breathe new life into this institution in order to respond to strong demand for participative democracy in public opinion. Notably, the bill streamlines petitioning the CESE for it to form an opinion on economic, social and environmental questions raised by the public. The number of required signatures would be reduced from 500,000 to 150,000. The senators have approved this procedure with some reservations.
Moreover, opposing “any legitimization of sortition”, the right-wing Senate majority has removed any possibility for the CESE to organize “public consultations” based on allotment modeled after the Citizen Climate Convention. The removal of this central tool has been debated at length, with the government and the Left failing to reintroduce it through amendments during session.
The attorney general Eric Dupond-Moretti has defended this “central tool” of the bill. Sortition “does not weaken democracy. On the contrary, the more citizen participate in public debate, the more it would reinforce the legitimacy of those they elect”. On the other hand, the spokesperson for LR, Mariel Jourda, asserted that this appointment method “is the negation of democracy as it exists in France, in which we have elected officials in charge”. Philippe Bas (LR) has denounced the Citizen Convention as “fake democracy”, or “a small number of individuals who have arrogated the right to speak for the people without the least democratic legitimacy”.
“We talking about the core of what society is expecting of us”, replied Jérôme Durain, PS, advocating for “democratic safety valves”. He rebuked the Senate right-wing for being defensive. “This is truly being hidebound”, he lamented. His colleague Jean-Yves Leconte said that if public consultations are not organized by the CESE, the may be “organized by the executive, without any oversight”. “This is a new and complementary input”, said Marie-Noëlle Lienemann about the CESE, preferring “citizen democracy over the tyranny of opinion polls”. For the environmentalist Guy Benarroche, “citizen engagement” is “necessary for the vitality of our democracy”.
The reform also includes a reduction in the number of CESE members (currently 233). The Senate has kept the number at 193, while the Assembly set the number at 175, eliminating the 40 members who would be appointed by the government. An amendment by the PS allocated representation for overseas territories and increased the from 4 to 6 the number of representatives for young people and students.
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Absolutely, the key word being “speak”, and the issue is not representative vs participatory democracy. In The Concept of Representation Hannah Pitkin questioned how a “descriptive” representative could be expected to “really literally to deliberate as if he were several hundred thousand people? To bargain that way?
To speak that way? And if not that way, then how?” (Pitkin, 1967, pp. 144-145). Just because “ordinary citizens” participate directly there is no good reason to believe that their speech acts represent anything other than their own views. Pitkin’s question has still not been answered.
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“a small number of individuals who have arrogated the right to speak for the people without the least democratic legitimacy” could better describe elected politicians in many countries. The key feature of sortition is that the selected individuals don’t arrogate anything – power is thrust upon them. It’s the system, not the individuals, which has democratic legitimacy, because it’s a reliable mechanism for good government – meaning the demos can trust it with its powers over them.
In terms of isegoria and isonomia, a deliberative sortition system at bare minimum recognises those rights in that it allocates the limited number of seats in the assembly among the citizenry on no basis. The randomness of the selection is an acknowledgement that all candidates have an equal claim to participate. Methods of mass participation can then be added to the system to help it better fulfil the two equalities – for example, citizens’ initiatives demanding an assembly be convened on an issue. These would be used much more commonly in a deliberative system because, in the absence of elections to office, they would be the main means by which political parties could affect decisionmaking.
It’s also important to note that how broadly ‘participatory’ a sortitional system is is a function of the entire system, across the whole of society, not a property of a single assembly. The more sortitional bodies there are at all levels, the greater the chance that any given individual will be invited to participate in one in any given time period. A society in which every person is invited to participated in a citizens’ assembly with real power roughly once every ten years can plausibly claim to be a participatory democracy.
Finally, a point that came up in Hélène Landemore’s talk at the Bard College workshop on sortition yesterday was that, in the French Citizens’ Climate Convention, the jurors’ questions for and criticisms of the experts were an important means by which they pushed back against the experts’ attempts to drag them to their favoured conclusions. But cross-examination of experts by jury members cannot practically be separated from deliberation among the jurors themselves – try to allow one and ban the other, and jurors will start using questions to the experts as an indirect means of communicating with one another.
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> “a small number of individuals who have arrogated the right to speak for the people without the least democratic legitimacy” could better describe elected politicians in many countries.
Very true. Polls show that the CCC has much more democratic legitimacy – i.e., popular support – than the elected have (and the indirectly elected French Senate is probably even less popular than other elected institutions). In fact, this is probably the real reason why the senators are so up-in-arms about the convention.
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Oliver, some excellent points here. Your point that, “…cross-examination of experts by jury members cannot practically be separated from deliberation among the jurors themselves…” gets at the heart of the difference between an assembly and a jury, and why juries are the proper direction to go. My solution is to require that all information used by the jury must be entered into the record prior to deliberation. The jurors could engage in small group discussion to aid their progress, but not large group, so as to avoid group think.
Such an “information wall” would help prevent jurors from succumbing to the confirmation bias that is so pernicious in final decision making. Perhaps there is a softer “information wall” that might be acceptable, have you thought about that?
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Alex,
I have two questions. Firstly, you “require that all information used by the jury must be entered into the record prior to deliberation.” But how is that to be possible on matters of broad public interest (quite unlike most criminal trials)? Although the advocating parties and commissioned experts might address the assembly on the record prior to deliberation, we can’t expect jurors to sequester themselves like cardinals electing the Pope for the duration of their deliberations. Public debate and lobbying in the media and (perhaps) via the jurors’ personal contacts will surely have an influence on each juror’s thought process.
Secondly, you allow for small group discussion among the jurors – this seems like quite a significant softening of your anti-assembly position! Is it?
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Oliver:>
I am very concerned about the social media risk you describe. But sequestering jurors is very much possible, I’m not sure why you dismiss that so easily. That could be a “soft” sequester: telling people to turn off their cell phones and social media accounts, or (hopefully in rare cases) a “hard” sequester, where they stay in a hotel and have isolation enforced. That happens on occasion with juries today. But there are other tools as well. Lobbying a juror could be made a crime, much as jury tampering is now a crime.
As for small group discussions, I think there are two issues. One is the epistemic quality of jury deliberations, the other is the independence of jurors leading to convergence of jury results. By “convergence” I mean the expectation that one randomly chosen jury will tend to the same result as another under similar conditions, within a certain error tolerance. These two considerations are in tension: there is a great deal of literature showing that people reason better when they engage in some form of discussion or argumentation. On the other hand, convergence requires independence. I split the baby by having, say, 50 small groups of 10 in a 500 person jury.
You are correct that this is a change, but I don’t think it is a huge one. My previous commitment to isolated deliberation was based solely on the convergence constraint. I now think the epistemic need for interaction warrants some give, though by no means an abandonment of convergence.
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For some issues there would be no need for full blown sequestering of a mini-public (e.g. setting waste water rates for the city). But for hot issues where monied interests or organized lobbying groups exist, sequestering is absolutely appropriate. The equivalent of jury tampering laws would be needed. The jurors should be told there will also be “sting” operations where jurors are offered bribes, and reporting of such attempts would be rewarded. An important exception to having all presentations drafted in advance, is that the jurors must be able to ask clarifying questions of witnesses (and probably call new witnesses).
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> “An important exception to having all presentations drafted in advance, is that the jurors must be able to ask clarifying questions of witnesses (and probably call new witnesses)”
This brings us back to the problem I brought up in my first comment – that jurors asking questions of the witnesses is in practice a kind of large-group deliberation.
On the question of sequestering juries, my guess is that it all depends on how long it takes to assess a question. If it’s a few days, sure, it’s doable, but if it’s weeks or months – and on some complex issues it might have to be – there’s just no question of asking people to switch off their social lives for the duration. It’s not just a matter of social media – face-to-face socialisation and ordinary media consumption can also be expected to have an impact. The boundaries of ‘lobbying’ are fuzzy, too – are jurors’ friends and family to be prosecuted for expressing their opinion on an issue of public policy within earshot? I think attempting to sequester juries is a minefield.
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I think this is the kind of question that would find a natural equilibrium in practice. Just empower some committee of overseers (perhaps from the judiciary) whose only job is to decide the sequestration level of each jury. I don’t think this in an existential question at all.
As far as the follow-up questions issue is concerned, perhaps it could be limited. For example, if a jury meets over two weeks, they could take a week to review the materials, then submit written questions on Friday of the first week, and when they come back on Monday the answers would be available. The questions should be given to witnesses anonymously, so the answer is addressed to the whole jury.
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