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”.
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Dan Hind: The Cooperative State

Dan Hind proposes using sortition to achieve a “cooperative state”.

Rather refreshingly Hind rejects the “modernization” argument:

I do not propose far-reaching constitutional change in Britain or the United States because the current arrangements are irrational or anachronistic. On the contrary, these arrangements are, for the most part, rational and frighteningly up-to-date.

Hind’s proposal is an elections-sortition hybrid:

The idea is not to do away with elections. Some offices require technical abilities or experience and election does not seem like a terrible way of filling them, even if at times it is hard to imagine a worse person for an elected office than the person holding it. But it does not follow that public office should be monopolised by those who, for whatever reason, manage to win an election. Indeed, if representation is to retain its authority, it will have to be supplemented by more properly democratic institutional forms.

Hind seems to fall into an obvious fallacy: the simple point that not every position should be filled by lot does very little to advance the argument that some positions should be filled by election.

That said, Hind does propose to invest allotted bodies with some real powers of oversight:
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Venice and Why Sortition is Not Enough

Without much commentary, given the high level of knowledge and debate on this blog, I share an important document about elections in Ancient Venice. As most here will know, I hold it that ‘pure’ sortition is a suitable and necessary tool for democracy. However, it is also an insufficient one, as has been criticised already at the time of sortition’s outset, with the powerful “Socratic Objection” as documented by Xenophon. Today, I describe the missing element specifically for appointments to positions of power.

As most here will know, the Ancient Venetians combined sortition with elections in multiple iterations to determine their leadership, the Doge. Their success with this add-on innovation was superior to the Athenians, as evidenced by the significantly longer duration of their system. Now, there clearly were flaws, room for improvement, as their system ended by reversal to today’s unfortunate party system but that’s for another day.

So far, most scientific papers on this topic have been descriptive. Now Miranda Mowbray, and Dieter Gollmann of the Enterprise Systems and Storage Laboratory at
HP Bristol expand the debate with this paper on the mathematical properties of the Venetian method in avoiding usurpation of power while still finding the best leadership. The authors have their mind on applications in distributed computing security, but for us here, the advantages for a more mundane topic such as democracy may be good enough to give it some thought.

Enjoy.

As an aside, the statutes of G!LT in Austria therefore employ the Venetian model for all executive leadership elections. My rationale is that the party system with its unholy alliance with mass media rewards showmanship and superficiality, as evidenced by the high proportion of TV Actors and Reality Show Stars in top jobs. Instead G!LT’s protocol ensures a reasonably self-experienced, direct, personal knowledge of a candidate’s ability and suitability for an executive position. For those who read German, here to the Statutes of G!LT. For those who don’t there is Google Translate.

Luc Rouban on sortition

Luc Rouban, director of research at CNRS, is the author of the book La démocratie représentative est-elle en crise ? (Is representative democracy in crisis?). In an interview with Vie Publique that took place in March he addressed the idea of sortition along with other reform proposals. An excerpt [original in French, my translation]:

There is a lot of talk about sortition as a way to give all the citizens an equal chance of being chosen to participate effectively in politics. The idea is to revive the ancient concept of Greek democracy at the time of Pericles. But it is necessary to recall that in the Athenian model, the electoral body was composed only of active citizens, sufficiently wealthy to buy military equipment, and excluding women, slaves and metics, that is foreigners who lived permanently in the city which were half the the Athenian population. In addition, this model relies on mistophory, that is the remuneration of allotted citizens for carrying out the charges of office, which allowed the less fortunate to participate in democratic life. It is very evident that such a system would be difficult to generalize in modern democracies, except at the local level, for example in the framework of citizen juries such as those being increasingly used recently to give their opinion to the public authorities on matters of planning projects.

In general, sortition – despite the supposed equality which it leads to – poses a philosophical and judicial problem. In fact, if Article 6 of the Decleration of the Rights of Man states that “all citizens are equally eligible to public offices, places and public employments, according to their abilities with no distinction other than their virtues and their talents”, it is proper that the evaluation of abilities, of virtues and talents of candidates are at the heart of representative democracy. Sortition, by definition, annuls this evaluation, which is taking place by the citizens when they vote. At bottom sortition depends on chance assemblies and cannot lead to the selection of the most commendable citizens. In sum, these risks lead to see sortition as no more than useful for consultation on specific projects at the local level when the purview of decision is well circumscribed. But sortition, just like the referendum, cannot provide good results unless it is associated with procedures allowing to clearly describe the objectives of the debate and allowing the involvement of experts or representatives of organizations.

Frey and Tridimas on sortition

George Tridimas wrote to draw attention to the recent issue of the journal Homo Oeconomicus which has a set of comments (including one of his own) on a 2017 paper by the Swiss political economist Bruno Frey titled “Proposals for a Democracy of the Future” (PDF).

In the paper, Frey has a section called “True  Democracy  by  Random  Decisions?”. Some excerpts from that section:

The major advantage of random procedures in politics is to guarantee equal chance and therewith fairness, given the underlying body (e.g. Stone 2007). Each and every one in the underlying population has an equal chance of getting elected. It is therefore not necessary to introduce special quotas e.g. for the share of women. Interestingly, random procedures even take into account dimensions not yet discussed or even beyond imagination. Most importantly, the body politic is opened to new ideas and otherwise disregarded views. This also holds for preferences not yet even known but which may be important in the future.

The disadvantage of random decisions in politics is that capabilities, education and the intensity of desires are disregarded. This is the main reason why random choices in politics are rarely, if ever, taken from the population as a whole. The advantage of equality and fairness must be compared to the disadvantage of lower competencies. There are a great many possibilities to combine the two – a worthy subject for future research.

In addition to proposing combining sortition with elections, Frey also proposes deciding the outcome of referenda at random with the probabilities of the outcomes given by the vote shares.

Tridimas’s comment contains a review of the use of sortition in Athens. He concludes with a section called “Why Sortition may not Work”:

Clearly, the Athenian democracy was fundamentally different from the present representative democracy. Assembly deliberation, the rule of simple majority, absence of political parties, citizen participation through the courts, and sortition were a joint constitutional package, inexorably linked and mutually reinforcing. Therefore, an institution like sortition that served the direct democracy well may not be easily transferable to a representative democracy without the rest of the institutional structures. Cutting and pasting sortition from Athens to today is not the same thing as grafting it to the current institutional structure, and may fail to deliver ‘‘a better democracy’’.

Sortition in Jacobin magazine

Tom Malleson, assistant professor of social justice and peace studies at King’s University College at Western University, Canada, writes in Jacobin magazine that “we need a legislature by lot”.

Some excerpts make the following points. Electoralist regimes are not democratic:

[There is] widespread disillusionment that many of the world’s people feel towards their purportedly democratic systems. [T]he truth, widely known yet rarely acknowledged, is that the American political system is increasingly run not by the people, but by the rich. Plutocracy. Leading scholars of American politics Martin Gilens and Benjamin Page conclude their recent study with the observation that “the majority does not rule — at least not in the causal sense of actually determining policy outcomes. When a majority of citizens disagrees with economic elites or with organized interests, they generally lose.”

The standard reform proposals show little promise to fundamentally improve the situation:

What, then, is to be done? There has long been a conventional answer on the center-left: proportional representation and campaign finance reform — the former to enhance the representativeness of elections and the latter to reduce the distorting effects of money. This intuitive belief that the answer to our democratic problems is enhanced elections runs so deep that it is like an article of faith.

Yet should reformed electoral democracy really be the ultimate aim of our democratic hopes and dreams? Consider some of the places that are much closer to achieving an equitable electoral system, such as Canada, the UK, and particularly Western Europe. Such systems tend to function much more democratically than the US, but they run into the same basic problems with elections.

Money continues to play an important role, biasing elections towards the wealthy. Governments continue to be incredibly unrepresentative of the population — almost always composed of rich, white, middle-aged men. Even in Sweden, the young, the less educated, and the working class continue to be dramatically underrepresented (for instance, blue-collar workers make up about 9 percent of members of parliament despite comprising 41 percent of the electorate).

[T]he electoral process is inherently biased in favor of the rich — thereby undermining the cherished democratic ideal of political equality — because the precondition to winning an election is having the time and resources to communicate with the public and mobilize support, and that will always be done more effectively by those who have more money. This means that electoral democracy, regardless of campaign finance rules, will always be somewhat tilted towards the affluent.

Democracy and elections are incompatible:

If you lived in any previous historical era and told your neighbor that you believed in democracy, they would have understood what you meant. Yet if you had said that you believed in democracy and elections, they would have thought you’d lost your marbles.

For more than two thousand years, it was common knowledge that the only people who wanted elections were the rich and the powerful, since they were the ones who invariably benefitted from them. Those who genuinely believed in democracy, on the other hand, believed that political power must be kept in the hands of regular people and typically advocated the selecting of political positions by lot.

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Citizens’ juries as activism: holding the US Congress to its constitutional role

For some time now we’ve been ‘proving up’ citizens’ juries as a means of consulting the people, but generally within the context of governments being in charge. As a result they’ve been mostly relatively innocuous. For instance the first two in South Australia were focused on making Adelaide’s nightlife safe and vibrant and getting motorists and cyclists to share the road more safely. They’re pretty anodyne and boutique issues for politicians so it’s pretty low risk. They might generate some answers they’re happy with, help get community buy-in to tricky issues. And if they don’t work out as hoped for, governments can walk away without too much angst.

Having tried exercises with a degree of difficulty of about 3 out of ten, the then Premier of South Australia Jay Weatherill had a rush of blood to the head and tried the citizens’ jury with pike and triple twist – rated in the diagnostic and statistical manual of democracy at 10. Should South Australia start a nuclear waste storage industry? The answer was … no, which wasn’t much fun for anyone. Elsewhere in Melbourne a citizens’ jury worked on a ten year budget plan which was certainly well received at the time. The plan is now a few years old and I’m not sure how well it’s stood the test of time.

In the UK, a consortium of academic and other interests held a citizens’ jury on Brexit but, in the angst ridden atmosphere of Brexit Means Brexit Britain, they were at great pains not to antagonise the politicians who were planning on spending the next four years masterminding what the overwhelming majority of them understood to be the disaster of Brexit (you know, the way Australia’s politicians did abolishing carbon pricing against the better judgement of around 80 percent of them – it’s costing the budget over $10 billion a year since you asked.)

Thus, as the organisers collateral put it dutifully, “The UK’s voters have decided to leave the EU. The Citizens’ Assembly on Brexit is not reopening this question. This decision has already been made.”[1] However I can’t think of any big change that came about from people playing by the rules of the existing system and asking nicely. And the fact is that sortition has roots going deep into our history and culture – in fact back two and a half millennia to Athens, the birthplace of democratic politics, but also back more than 800 years to Magna Carta in our legal system in the form of juries. As public trust plummets for so many institutions, its trust in juries is alive and well and while ‘vertical’ trust – the trust of people in large and powerful institutions – has been falling, horizontal trust – in people’s peers and People Like Them has not fallen and may have risen.

And, not being able to recall any form of political activism that brought about major change except by asserting its own legitimacy in competition with the legitimacy of the existing system, I want to find ways of confronting the existing system in its weakest places with the legitimacy of citizens’ juries and sortition where they are strongest. This is the way I put it in a recent interview:

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