Anthoula Malkopoulou (Lund University) and I just published a paper in Constellations entitled “Allotted Chambers as Defenders of Democracy.” Here’s the first paragraph:
In this paper, we identify a problem—the problem of which actors should serve as defenders of democracy—and propose a solution to that problem—the creation of randomly selected citizen bodies, or allotted chambers (hereafter ACs). Having in place institutions that are tasked with democratic self-defense, is, we argue, a critically important pillar of democratic government, but its importance has often been neglected. This neglect is exacerbated by the evasive nature of the task that these democratic defense institutions are called to perform. Part of the problem is that the task of democratic self-defense is often mistakenly conceived as an ad hoc response to an occasional problem, rather than a routine task to which democracies should devote regular attention. Once the task of democratic self-defense is properly specified, the advantages of assigning this task to ACs, rather than courts or legislatures, become evident.
You can read it here: https://onlinelibrary.wiley.com/doi/full/10.1111/1467-8675.12580
Filed under: Academia, Applications, Elections, Sortition, Theory |
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Equality by lot 
Peter,
You write:
This rather conventional narrative of the “crisis of democracy” seems to mistake the symptom for the disease. The result is a complete reversal of terminology.
The rise of alternatives to the established neo-liberal elite consensus – ranging from socialists to Fascists to sotitionists – is a symptom of the increasingly oppressive, anti-democratic outcomes of this establishment. Thus, creating institutions that are aimed at shoring up this establishment in the face of this crisis does not amount to defending democracy but rather to defending an oligarchy. Shouldn’t we instead be aiming at creating institutions that will replace the existing electoralist oligarchy with a sortition-based democracy? (This would, of course, also undermine any Fascist tendencies that are fueled by the status-quo.)
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I’m always troubled by depictions of the status quo as completely antithetical to democracy. It feeds into the crazier segments of the Left that either see no difference between Trump and Biden or think Trump would somehow be better–because if there’s nothing worth preserving about the “establishment,” then why not just burn the whole thing down? That way lies madness.
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Peter,
Whatever are the differences between Trump and Biden, about 50% of the US population thinks those differences make Trump the more appealing choice. Is a system which produces such collective madness democratic? Which parts of a system which produces such madness do you wish to preserve? And how? By empowering allotted bodies where 50% of the members would be afflicted with such madness?
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I agree–the system is broken, in the U.S. and in many other places. But there’s a difference between a broken democracy and a nondemocracy. As for which parts of the system I’d like to keep–there are many of them for me, as there hopefully are for you. Freedom of speech, the rule of law–there are many things like that. As for how to deal with a country full of extremist supporters–well, we discuss that in the paper.
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“Freedom of speech” (in fact, freedom for the elite to dominate public discourse, freedom for average citizens to annoy passers-by with their “extremist” opinions) is fine, but it is a poor excuse for marketing a thoroughly, deliberately-designed oligarchical system as a democracy (even if a “broken” one).
As for how ACs will defend democracy, other than the comment that “even supporters of extremist parties may prove more reasonable than party members” and that extremists can be kicked out of the AC if they become unruly, I could not find an explanation for how ACs full of Trump voters would supposedly protect “democracy” against Trump’s anti-democratic tendencies.
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Peter:> if there’s nothing worth preserving about the “establishment,” then why not just burn the whole thing down? That way lies madness.
Agree. I’ve been fighting against this madness that afflicts many of commentators on this forum, but I seem to be a voice crying in the wilderness. Unfortunately, as on all forms of social media, it’s the extreme voices that garner most publicity.
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This conflates equality of opportunity and equality of outcome. With random selection you’re either a winner or a loser, whereas every vote cast in an election has equal weight (subject to the constraints of the local electoral rule).
That bears a closer analogy to the equality of outcome involved in election, but is subject to serious constraints (principally size and quasi-mandatory participation.) Pitkin implies that the equality realised by sortition would only apply to the final vote of the AC, as it’s not clear how the speech acts of individual “representatives” would respect the descriptive representation principle:
“If the contemplated action is voting, then presumably (but not obviously) it means that the [descriptively-mandated] representative must vote as a majority of his constituents would. But any activities other than voting are less easy to deal with. Is he 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)
Previous experiments with citizen juries and assemblies have been reliant on briefing and task delegation from external bodies, but the suggestion of your paper is that the AC would assume a corporate agency role. It’s unclear how that would work and what its democratic status would be. It strikes me that the AC you are suggesting is a liberal rather than a democratic body, so the relevant comparison is with a constitutional court.
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There isn’t any conflation between equality of opportunity and equality of outcome here. This is an argument I’ve made many times before–for example, in my book. But if you want a more extensive treatment of the subject, Springer will soon be publishing a Handbook of Equality of Opportunity. I’ve contributed a paper to it distinguishing the “equality of opportunity” provided by elections (ideally) from the “equality of opportunity” provided by sortition. They’re simply apples and oranges, not comparable at all, and it’s wrong to conflate them.
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Many sortition advocates argue that the even chance of being selected is a form of political equality. But the chances of being selected for a national lottery (in a large state) are so remote that this isn’t really a form of equality worth having. So the democratic value of sortition is restricted to outcomes (and the form of equality realized is proportionate). When someone buys a ticket for the national lottery I doubt if equality is foremost in their mind, but they would expect that their chance of winning increases in proportion to the number of tickets they buy.
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Regarding the judiciary as a defender of democracy, this depends very much on how judges are chosen.
The choosing of judges by politicians, by the president with the consent of the Senate for the US federal judiciary, poses a serious and ongoing risk and danger to democracy and freedom.
When politicians have the power to choose judges they can choose judges that further the self-interest of themselves and their party, and of the economic elites they may be aligned with or serving, and that may tend to entrench the ruling politicians or a broader establishment in power.
The Republican majority on the US Supreme Court has been waging a war on democracy for decades, electing Bush 2 in 2000, removing election spending limits in cases like Citizens United, and gutting The Voting Rights Act in Shelby and Brnovich.
If Trump or worse-than-Trump wins in 2024 as seems quite possible as Biden continues to break his campaign promises and shaft regular Americans, and given that Kamala Harris is unelectable, the US federal judiciary could become even more of an opponent of democracy than it is now.
The Republican majority on the Supreme Court could also I imagine find ways to gut the power and influence of ACs if there were any.
A basic feature of a democratic constitution in my view is that the judiciary is not chosen by politicians. The best option in my view is for judges to be chosen by jury so they can be chosen in an informed and very democratic way by representative cross-sections of the public, independently from politicians, political parties, moneyed interests and the media giants.
A jury-chosen Supreme Court would tend to be far more reflective of public concerns and public support for democracy than what we have now. For example, it would almost certainly reject the Republican majority decision in Citizens United because Americans overwhelmingly oppose that decision right across the political spectrum.
Jury-chosen judges could serve for 10 year terms. The juries choosing Supreme Court justices could each number two or three hundred citizens.
Another democratic option for the judiciary that I favour, and that is I think at the least worthy of serious consideration, is to refer all split decisions of the Supreme Court to a judicial jury which would decide whether the majority decision or the minority decision (or a minority decision if there is more than one) would prevail and become the law of the land. Were this in place when Citizens United was decided, it is almost certain that the minority decision of the Court in favour of spending limits would have prevailed and become the law of the land.
Possibly, if judges were chosen by jury, the deciding of split Supreme Court decisions by a judicial jury would be an unneeded fifth wheel. But whether it is or is not a fifth wheel should in my view be decided by the informed judgement of the people through a jury. Each November a jury could convene and decide whether or not judicial juries would be in place for the coming year.
Peter, ACs in your proposal do not have the power to interpret the Constitution and make judicial decisions. Therefore they are not an adequate substitute for the democratic reform of the judicial branch.
For more on selecting judges by jury see Threlkeld, August 9, 2016. For the first publication of this proposal see Threlkeld, Spring, 1997.
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Simon:> Peter, ACs in your proposal do not have the power to interpret the Constitution and make judicial decisions. Therefore they are not an adequate substitute for the democratic reform of the judicial branch.
Good point. Sortition among the general population is no substitute for expertise.
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Peter and Anthoula,
In the present system, the politicians and political party elites that hold power have a massive amount of legislative and appointive power that they can use to undermine and curtail democracy, to skew the political playing field in favour of themselves, to entrench themselves in power, and to entrench a broader elite in power that they are a part of or have been captured by.
This poses a serious ongoing risk and danger to democracy and freedom.
Shifting legislative and appointive power to informed rule by the people, through civic juries, is a very good way to protect democracy and freedom from the self-interest of politicians and party elites, including from anti-democracy, authoritarian and fascistic politicians and party elites that may win elections, and that may fool the people into electing them through falsehood and deception.
Your AC proposal shifts power to an allotted body, to varying extents depending on which of the three versions of the proposal.
However, I do not think this is enough, nor the only sortitionist avenue that should be taken, to protect democracy and freedom from the self-interest of politicians and political parties, including from authoritarian demagogues.
In addition to what I said above re shifting the power to choose judges from politicians to juries (which I think is a very important and desirable reform), there are further steps that i think are called for in addition to your AC proposal, and that may be more effective than it.
I think that all of the independent public officials now chosen by politicians should be chosen by jury, such as for example regulatory commissions. With regard to democratic self-defense, this would prevent politicians from filling such offices with their supporters, allies and cat’s paws, and from undermining and curtailing democracy and freedom through doing so.
I also of course do not accept that politicians should decide laws, but rather think that legislative juries should, and that politicians should only have the power to propose laws to legislative juries. This would greatly curtail the ability of politicians to undermine democracy and freedom, to entrench themselves in power, and to refashion the political system in their own self-interest.
However, even if not all laws are decided by jury, there are areas of law regarding which transferring the power to decide laws to juries is especially important for protecting democracy and freedom.
As you note in your article, some believe that election laws ought to be decided by civic juries or allotted bodies. I have long thought so too. This is essential so that election laws will be decided in an informed and democratic way that is independent from the self-interest of politicians, political parties and economic elites.
Another extremely important area for laws to be decided independently from politicians are laws that affect the media, including laws about public broadcasting and such further public media as could be established. The reasons for this are obvious. Legislative juries are a democratic and informed way such laws could be decided independently from politicians, political parties and economic elites.
I am also very wary of multi-tasking ACs that serve for long periods of time. I far prefer the separation of powers/tasks we see in the trial jury, and in sortition in Classical Athens. (Trial juries decide the case they hear, but do not decide which case they hear, members of the jury do not present or help present the case for the plaintiff or prosecutor nor for the defendant, nor do they decide who is charged with a crime, and each trial jury only decides one trial. It is the same with Athenian jury-courts, and much the same with Athenian legislative juries {nomothetai}, and also similar with the Council of 500 which can propose but in general did not decide proposals.) I agree with Terry on this, and also in general with Owen and Smith’s critique of multi-tasking ACs in Legislature by Lot, published in 2019, chapter 14.
For more on why I think juries, not politicians, should choose independent public officials see Threlkeld, October 23, 2019, and Spring 1997.
With specific regard to why I think juries should decide election laws see Threlkeld, February 14, 2017; July 26, 2016; June 8, 2016.
Re my basic views on democratic public broadcasting see Threlkeld, October 14, 2015.
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I certainly have no objections to the idea of using ACs for other purposes as well. And as you note, I have long supported using ACs for various purposes relating to the well-being and maintenance of the political system–redistricting, making and enforcing legislative ethics rules, etc. Beyond that, I suppose it all depends on what, if any role for professional politicians is supposed to exist in a reformed system. I think some Kleroterians imagine an “end to politicians” (as Brett Henning put it), but I don’t go that far.
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Peter:> I have long supported using ACs for various purposes relating to the well-being and maintenance of the political system
I attended a workshop this week entitled Citizens Empowerment in Global Perspective. This was a collaborative venture between Exeter University (UK) and Fudan University (Shanghai) and I was struck by the contrast between western and eastern approaches to citizens’ empowerment. Broadly speaking the western perspective is rooted in the (liberal) theory of the separation of powers, in which power is sliced and diced and the different powers constrain each other, whereas the Chinese approach has more in common with the Polybian theory of the mixed constitution in which the different estates “facilitate” each other in a cooperative manner. An interesting project would be an analysis of Chinese society to determine the nature of different socio-economic estates, and whether modern China is best viewed as a polyarchy. In the west we see the party-state as a unitary phenomenon, but Chinese scholars don’t view it that way.
Needless to say the “end of politicians” would require the abolition of the separation of powers/mixed constitution and that would leave us in turbulent waters (the past history of such endeavours being decidedly illiberal).
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I don’t subscribe to the “end to politicians” view.
I do think professional politicians need to be chosen in a more democratic way, that laws should be decided by jury, and that a great deal of appointive power should be transferred to juries.
I would like to see more separation of powers than we have now, with such separation being in a very democratic context.
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In Aristotle’s view all-powerful juries were inimical to the mixed constitution; and the separation of powers (at best an analytic concept) often leads to gridlock. The Polybian view is that each power should be a distinct sociological estate. If you slice and dice the power of a single estate — whether through separating the legislative and executive function or appointing multiple juries — you are effectively asking it to constrain itself. I’m still impressed that the only example of the decisions of an allotted jury being automatically implemented (by a different estate) is Fishkin’s participatory budgeting project in Zegou, China.
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We really do need some serious sociology here. Current distinctions between citizens are either viewed in terms of ethnicity, gender etc. and/or crude slogans about the 1% vs the 99%. It was interesting to hear at the seminar that Chinese sociologists draw a sharp distinction between the CCP and the government — which is generally elided in the perception of the west. I also remember Fishkin’s claim that the Chinese were experimenting with a new model of democracy that “may set an example for public consultation around the world”. Given its provenance in Harrington (and, ultimately, Polybius), perhaps we might dispute the word “new”.
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