Sortition for judges on the ballot in Switzerland

The Swiss Radio Lac reports:

Sortition is proposed

[In addition to other proposals] the Swiss will also have to vote [on November 28th] on the proposition regarding the judicial system. The proposition would institute appointment of judges using sortition in order to make them more independent. Official languages would have to be equitably represented and the judges would be able to serve up to 5 years beyond the normal age of retirement.

Parliament has rejected the text, without offering a counter-proposition, either direct or indirect. According to the elected, sortition would not guarantee better independence or better equality. Moreover, it would damage the democratic legitimacy of the judges.

Judges in Switzerland are currently appointed by the Swiss Parliament and they need to be re-appointed periodically. The notion that this provides judges with “democratic legitimacy” runs against standard liberal dogma:

At present, the Swiss parliament awards the posts of federal judge according to party strength. Judges with no political affiliation thus have no chance of gaining office.

When a judge is elected, she or he has to hand over money to the party – the so-called mandate tax, which is unique in the world, and constitutes an important source of funding for parties. In return, the judge can count on party support when it comes to re-election.

In this system, the judiciary is therefore politicised. Judges can be influenced by their party membership when passing verdicts, as studies have shown. And not just out of ideological considerations. Parties sometimes also exert tangible pressure. If they do not approve of a ruling, they can threaten not to re-elect the judge.

This mutual dependence calls into question the independence of the judiciary and the separation of powers. […] The Council of Europe’s Group of States against Corruption (GRECO) has also rebuked Switzerland.

Citizens’ Assembly in Bosnia and Herzegovina

The EU delegation to Bosnia and Herzegovina reports:

The EU in BiH [Bosnia and Herzegovina] has launched the Citizens’ Assembly, an innovative model of deliberative democracy, which offers a unique opportunity for citizens in BiH to directly express their views on constitutional and electoral reform, to recommend concrete solutions for elimination of the discriminatory provisions in the BiH Constitution as well as for improvement of the Election Law. This process is based on two rounds of sortition, practice of random selection of citizens as a representative sample of a country’s population. During the preparatory phase of the process a team of local and international experts and the independent company specialized in polling representative samples of the BiH population (IPSOS) jointly developed the methodology for random selection of citizens’ and completed the first round of sortition. The letter signed by the EU, the US and OSCE Ambassadors in BiH was sent to 4,000 randomly selected households in BiH, inviting citizens to express their interest in participating in the Citizens’ Assembly.
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Short refutations of common arguments for sortition (part 2)

Part 1 is here.

The two arguments presented below pin the problem with elections on the voters.

4. The masses are rationally ignorant. Therefore any system that relies on their judgement would not function well. Sortition does not rely on mass judgement.

According to this argument elections present a variety of choices to the voters, with some of these choices being on the whole materially better than others as measured by the interests and values of the voters. The voters, however, each knowing that the impact of their vote is tiny, are too selfish (or more politely, too busy taking care of their private business) to spend the time and effort to determine which candidate or party are better than others. Instead they hope that others would do the work for them, and in this way they would save the effort of figuring out which alternatives are the better ones but at the same time they will enjoy the good outcomes of other people’s choices. But since everybody, or at least the large majority of voters, follow the same calculation, almost everybody is uninformed and as a result when they arrive at the voting booth, they often select poor alternatives.

All this sounds very sophisticated and has the stamp of approval of the economists and rational-choice theorists. The argument suffers, however, from at least two severe problems. First, the assumption that the electoral alternatives present to voters a meaningful choice is theoretically problematic. Since the electoral choice is between elite factions, the range of choice must be severely limited. The factions of the elite all share certain elite values and interests that any of them will promote if and when they are in power. The promotion of those values and interests is often made at the expense of the values and interests of the general population, making the policies pursued by government – regardless of the elite faction in power – detrimental to the general population.
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Waxman and McCulloch: The Democracy Manifesto

Wayne Waxman, a retired professor of modern philosophy, and Alison McCulloch, a scholar of philosophy and retired journalist (as well as a contributor to this blog), have just published a book named The Democracy Manifesto: A Dialogue on Why Elections Need to be Replaced with Sortition.

The Democracy Manifesto is about how to recreate democracy by replacing elections with government that is truly of, by and for the people. Written in engaging and accessible dialogue form, the book argues that the only truly democratic system of government is one in which decision-makers are selected randomly (by sortition) from the population at large, operating much the way trial juries do today, but 100% online, enabling people to govern together even across great distances. Sortition has a storied history but what sets The Democracy Manifesto apart is its comprehensive account of how it can be implemented not only across all sectors and levels of government, but throughout society as well, including the democratization of mass media, corporations, banks, and other large institutions. The resulting Sortitive Representative Democracy (SRD) is the true heir to ancient Greek democracy, and the only means of ensuring ‘we the people’ are represented by our fellow citizens rather than by the revolving groups of elites that dominate electoral systems. In the process, the book grapples with myriad hot topics including economic issues, international relations, indigenous rights, environmentalism and more.

Meyer-Resende: Citizen assemblies do not address the biggest problem in democracies

Michael Meyer-Resende writes in the EUobserver:

[M]any climate activists want to expand democracy. They are deeply frustrated with the insufficient response to the threat of global heating.

There is much talk that the old institutions of representative democracy are not good enough to meet the challenge. “Politicians simply can’t see past the next election,” says the group Extinction Rebellion. The role of citizens is reduced to voting once every four or five years. Or so the argument goes.

That is why one idea has gained much enthusiasm among climate activists: citizen assemblies.

In these assemblies, people who are drawn by lot from pre-defined groups that broadly represent society, hear from experts, discuss what should be done about climate change and adopt recommendations, or even decisions.
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Short refutations of common arguments for sortition (part 1)

Some years ago I wrote a set of posts refuting several standard arguments against sortition (1, 2, 3, 4).

It seems useful, however, to refute some oft-offered arguments for sortition as well. These are arguments that provide a poor foundation for the idea of applying sortition in government. Such arguments are made, and repeated reflexively, by academics, by members of the sortition-milieu, by sortition activists, in the press, and by others who discuss sortition. Often, in addition to being factually or logically unsound, these arguments also lead to advocacy of the application of sortition in ways that are bound to lead to a failure to realize the full democratizing potential of sortition, and in some cases are bound to lead to complete discrediting of the entire notion.

The first three arguments presented (and refuted) here all deal with supposed superior competence of an allotted chamber over an elected one. All suffer from essentially the same flaw. In fact, the advantage of an allotted chamber over an elected one is not that it is more competent but that it is more representative.

1. Allotted bodies would carry out real deliberation whereas elected bodies are the setting for partisan performances and grandstanding.

This argument is a favorite of propounders of “deliberative democracy”. According to this argument, a major reason that public policy is poor is that it is not determined through meaningful deliberation. Supposedly, the elected are too busy electioneering, or are too stubborn ideologically to deliberate with each other and develop good, common sense, widely popular policy. But why would a government with a majority in the legislature avoid deliberating within itself – in public or behind closed doors – in order to produce policy that would make it popular? Are they too stupid? If what they seek is “good policy”, or even if they just seek reelection and if deliberation could produce policy options that would make them more popular and increase their chance for reelection, why would they be unable to engage in such deliberation?
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Report Back from the Hannah Arendt Center Conference on Sortition, part 3/3

Shmuel Lederman: “Representative Democracy”

Lederman’s intervention began with a theme quite familiar to this forum but one that still surprises the general public, probably due to our prevailing Whiggish and/or mythological approach to teaching political history—at least in the US.

Until the 19th century, elections were considered “an anti-democratic or aristocratic form of government.” It was assumed that winners of elections would be powerful or celebrity-like figures, Lederman underscored. The question that he attempts to answer is, “how did elections come to be associated with ‘democracy’ beginning in the early 1800s?” In an upcoming APSR [I think] article he argues that European Imperialism and Colonialism had to do with the recognition of elections as “democratic.” Lederman reasons that one cannot separate—as Western political theorists have—John Stuart Mill’s thoughts on the proper form of government for India (and other “barbarian and semi-barbarian” parts of the world)–tutelage or “enlightened despotism”–from his thoughts on “the only rational form of government” (for civilized Europeans) generally. You “cannot take out the East India Co.” from Mill’s thought and be left with something democratic, insists Lederman.

Rather, Lederman explained, there is a common thread between the “civilizing” trope in regard to the “backward” places on Earth in the 19th century and the “meritocracy” myth behind today’s electoral representative government. “Enlightened despotism” and “representative government” were and remain mutually reinforcing ideas.

Lederman underscores that there were democratic alternatives to representative government at the beginning of the 19th century (and earlier). There were, for example, among workers’ movements schemes for pyramidal council systems that would involve the population as a whole in decision making. The very fact that Mill, like the American founders and French republicans, had to make a case for representative government reflects the fact those alternatives were seen as a threat. [One might add that perhaps humans are not by nature simply willing to let others rule over them; but that might get this blog censored for being “populist.”] Evidence that the council system and freedom as self-government, the themes of Arendt’s On Revolution, were not mere aberrations in her political thinking, Lederman adds, can be found in her letters to her long-time friend and mentor Karl Jaspers. In the letter Arendt expresses her pleasure that the book earned his “approval,” because “every word you wrote strikes at the very heart of what I mean to say… Heinrich’s experience, of councils, to the experience of America.”

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Report Back from the Hannah Arendt Center Conference on Sortition, part 2

Reporting from Bard College’s Hannah Arendt Center Annual Conference by Ahmed R. Teleb

The Hannah Arendt Center at Bard College recently hosted a two-day in-person and live webcast conference on sortition on Oct 14-15, which I attended online. Each day of the conference also included a midday break-out small group discussions in person and online. Estimated participants came to about four hundred, who, in my estimation, demonstrated enthusiasm for participatory democracy through sortition, but also a dose of critical awareness of, among other things, organizational and economic/structural difficulties with participation via sortition and in general.

I share here my impressions of the panels I attended and my most significant take-aways. This Conference marks an important step, because the Arendtian perspective on mini-publics and citizen councils has long been missing from the discussion of sortition. As it happens, this is also my area of research. From this perspective, “The meaning of politics is freedom,” as David Van Reybrouck quoted Arendt during his intervention, and not just “better” policy or results. Of course, I see these as going hand in hand. Freedom of people to actively shape the world they live in tends also to create better results from a public perspective but it is a by-product rather than the basis. As Shmuel Lederman put it, “benevolent dictatorship” and “representative government” follow the same logic that has roots in 19th century European colonialism.

P.S. The word sortition was a non-issue for the activists, practitioners, and members of the public who attended—the exception being Peter McLeod who used “civic lottery.” As a nice surprise, the three mayors/managers of the small NY towns who participated in Van Reybrouck’s class all plan to (attempt to) implement some kind of citizen assembly or citizen jury to tackle the issue that each brought to the class as one needing an innovative solution. One, whose town has exactly one traffic light, promised on the spot that she can get a PERMANENT citizens’ assembly approved by the city council and that funding the project would be a non-issue.

Opening Address by Roger Berkowitz: Revitalizing Democracy, Sortition, and Citizen Power

The American Founders, remarked Berkowitz, were “scared of democracy,” at least those identifying themselves as Federalists. He went on to quote from Federalist papers that stressed the instability of “ancient democracies” and “petty republics of Greece,” Fed # 9, 10. They emphasized the importance designing a system in which elites run the government, via an “elective system”. Moreover, they feared “factions,” and thought that an “extended republic” would be THE preventative measure against them, Fed 10, 51, since imposing a unity of will was not practical. Madison thought, we could “replace virtue with size.”

So far, well-known territory, although a bit different than the mythologized version taught in middle and high schools in the U.S. Berkowitz replied that for Arendt, factions are the very reflection of the basic human condition of plurality. He then went on to summarize Hannah Arendt’s assessment of the American system as articulated in her book On Revolution and the “Crisis of the Republic.” But Arendt did praise, for example, the “federal principle,” because its discovery, “was partly based upon an experience, upon the intimate knowledge of political bodies whose internal structure predetermined them, as it were, and conditioned its members for a constant enlargement whose principle was neither expansion nor conquest but the further combination of powers.” This kind of local-based power from the bottom up, Arendt saw as analogous to the council system or the town-hall system, one that permitted just about anyone to appear and act in public.

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Report Back from the Hannah Arendt Center Conference on Sortition, part 1

On October 14-15 Wayne Liebman and I (and we presume many other followers and contributors to EbL) attended (online) the HAC’s Annual Conference: “Revitalizing Democracy: Sortition, Citizen Power, and Spaces of Freedom.” We each independently wrote our impressions and comments. Below is Wayne’s overview. Subsequent parts contain more detailed summary and commentary on what I considered the most important of the presentations, where I also attempted to add some US context for international readers, or other context for those not immersed in the world of Arendt studies. That appears in brackets or under the heading “commentary.”

We invite anyone else who attended to correct or complement what we have below. I am sure each of us came from a different perspective and took note of different aspects of the event. And we hope this provokes some discussion of some familiar and new themes. Throughout, I use the word citizen in a POLITICAL not a legal sense, as I believe most speakers do. [P.S. Subjectively, the highlights of the conference for me were the interventions from Akuno and Lederman]. ~ AT

NOTES FROM THE CONFERENCE by Wayne Liebman
Revitalizing Democracy, Hannah Arendt Center, Bard College

“Representative government is in crisis today, partly because it has lost, in the course of time, all institutions that permitted the citizens’ actual participation, and partly because it is now gravely affected by the disease from which the party system suffers: bureaucratization and the two parties’ tendency to represent nobody except the party machines.”

(Hannah Arendt, Crises of the Republic, 1970)

If you missed the livestream of this year’s Revitalizing Democracy Conference, you can watch the videos online HERE. My subjective (activism oriented) highlights follow.

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Lottery Selected Panels in California (maybe)

On September 23, Linn Davis (Healthy Democracy) and I traveled to Sacramento for the California League of Cities Conference, an annual gathering of mayors and city council members from across the state. We presented a workshop on Lottery Selected Panels as an out of the box technique to approach difficult municipal decisions. About 200 municipal government personnel attended the presentation. A League publication promoted the workshop this way: 

Many elected officials are seeking completely different approaches to decision-making as they want to pivot away from the “way we have always done things”. One novel idea that is gaining momentum is called policy juries or sortition, where randomly selected representative members of the community are empaneled to learn about a topic, hear expert testimony, consider public comment, and make a decision. While the members of the policy jury are selected randomly, there is a process to ensure the jury reflects the demographics of the community, meaning the juries can truly be a microcosm of their city.

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