“I would sooner live in a society governed by the first two thousand names in the Boston telephone directory than in a society governed by the two thousand faculty members of Harvard University.”
William F. Buckley, Jr
The dismay and disillusionment regarding elections in the U.S. continues to grow. Americans question the shortcomings of politicians and the specific procedural flaws in the electoral process, but never question the central role of elections themselves. In reaction to corruption, poor representation, uncivil campaigns, and political standoffs in Congress, a stream of electoral reforms are proposed. However, the source of democratic dysfunction is more deeply rooted than most people imagine. It’s not just the corruption of money, nor gerrymandering, nor low voter turnout, nor lack of civility, nor winner-take all plurality election laws. We assume that elections are the only legitimate means of forming a representative popular government, and that elections fundamentally define democracy. Reforms may nibble around the edges, but the fundamental dysfunction of modern democracy is inherent in elections themselves, no matter how they are reformed. There is another way. Few Americans are aware of the global resurgence of an ancient tool of democracy called sortition – the use of random selection or scientific sampling to form genuinely representative deliberative bodies that are sometimes referred to as “mini-publics.”.
People can govern themselves better, with a representative government, without this exclusive reliance on elections. I will describe some of the inevitable failings of our competitive electoral democracy and present the democratic alternative of sortition. Juries are the prime example today.
According to philosophers of classical Greece (such as Aristotle) through the European Enlightenment (such as Rousseau) sortition was natural to democracy, while elections were deemed to be the appropriate tool for aristocratic oligarchy. It was understood that elections naturally favored elite citizens of wealth and power. Looking back to the beginnings of democracy, most Americans today are aware of the mass assembly direct democracy in classical Athens. However, they are generally unaware that most public officials in Athens, including the administrative council of 500 (boule), the courts and the legislative commissions (nomothetai)that adopted laws, were selected by lottery.
Selecting law-makers by lot is an idea that can initially elicit laughter. But once the issues of competence and accountability are adequately addressed, it often leads to head-nodding enthusiasm. In 1999, when asked by the Center on Policy Attitudes whether Congress or a representative sample of 500 Americans, given information and opportunities for discussion, would make better policy decisions, 66% said the random sample of Americans would do better, while only 15% picked Congress.
Many people might worry that average citizens, using reasoned judgement after study and deliberation, wouldn’t be expert enough to handle complex legislation. But it is important to note that elected legislators are not “expert” at law-making, nor especially competent. The skills needed for writing laws are concentrated in the professional staff – not in the elected legislators.
Elections select for people who stand out in terms of public relations skills and projecting self-confidence, neither of which are particularly beneficial traits for genuine deliberation. In fact confirmation bias and certainty in one’s opinions makes elected legislators especially ill-suited for give-and-take deliberation.
During my decade as a member of the Vermont House of Representatives, it became obvious to me that the “people’s house” was not very representative of actual Vermonters. In dealing with a bill affecting the rights and responsibilities of tenants and landlords, committee members relied on information from their own life-experience and that of their fellow committee members, and seemed biased in favor of landlords. I conducted an informal survey to find out how many of my colleagues on the committee were tenants, as opposed to home-owners or landlords. There were none, though roughly one third of Vermonters were renters. As far as I was able to determine, only one out of 150 members of the entire House was a renter. The resulting laws reflected this. If the House had really represented the population, and one third of the legislators had been renters, that the nature of the deliberation, and possibly the outcome, could have been very different.
A genuinely random group would be more representative in terms of the renter/landlord balance, but also in virtually every other respect, such as sex, class, race, ideology, etc., as well.
At the federal level, the distinction between members of Congress and the general population is even more extreme. After more than 230 years, working-class people, women, -- indeed, almost all demographic groups other than old, wealthy, white males -- are dramatically under-represented in our legislatures. According to data from the Center for Responsive Politics, Congress is about 80% male and a majority of members are millionaires, including roughly two thirds of U.S. Senators.
In 2004, the Canadian Province of British Columbia created a Citizens’ Assembly to study and make a recommendation for reforming the Province’s election system. Its 160 members were chosen using a random lottery process, selecting one man and one woman from each legislative district in the Province. The quality of the work performed by this randomly selected group was impressive. The recommendation of the Assembly went to a Provincial referendum in May 2005, receiving 57% of the vote (just shy of the 60% super-majority threshold imposed by the legislature for passage).
This sortition model for creating citizen assemblies has been replicated in other Canadian provinces, and in other nations. It has been used to establish city budgets in Australia, and propose constitutional rewrites in Iceland and Ireland. Random assemblies have debated a variety of topics in Belgium the Netherlands. Political parties focused on advocacy for sortition have been spawned in Spain and Canada. Sortition has even been introduced in legislation in California, and actually implemented in a limited way in Oregon, where initiative referendum ballot items must be reviewed by a randomly selected Citizens Review Panel, which interrogates both sides, deliberates and issues a report to the voters about before the referendum.
Sortition is not pie in the sky idealism, but rather a practical tool that has been used successfully for centuries and is currently undergoing a dramatic resurgence around the world.
But the goal of genuine popular self-rule, which is at the heart of this democratic passion, seems always beyond our reach. What we’re left with is the meager ability of voters to remove one set of elites and replace them with a different one -- ideally without bloodshed. This is no trivial accomplishment, but is it the best we can hope for? Since Joseph Schumpeter’s disheartening assessment of democracy in the 1940’s, many political scientists have accepted this dismal view. But that analysis is fundamentally about electoral representative democracy rather than democracy itself.
In America today there is widespread distress about the way our democracy functions. The election contest between Trump and Clinton (a match up of two of the most despised candidates in American history) is merely an extreme example of an underlying propensity. Hyper-partisanship, lack of civility, poor representation, and the failure of politicians to tackle critical issues is a disheartening mix. These traits may wax and wane, but they have been a recurrent part of American electoral politics from the beginning. In 1800 the Federalist Connecticut Courant warned that if Jefferson became president “Murder, robbery, rape, adultery, and incest will be openly taught and practiced, the air will be rent with the cries of the distressed, the soil will be soaked with blood, and the nation black with crimes.” Some accept these disheartening characteristics of American politics as lamentable but unavoidable. Others actually revel in the spectacle and power games of contemporary politics that is the mainstay of news media coverage. But many people decry these as threats to our society’s sustainability. Our politicians’ inability to seriously deal with the dire threat of global warming is just one example of this concern.
“Free and fair elections” are almost universally seen as the cornerstone of representative democracy. But could elections themselves be an inevitable cause of the problems that are foreclosing the potential for a better democracy?
I am not suggesting direct democracy by referendum. Informed deliberation rather than off-the-cuff public opinion is essential to wise decision making. Direct democracy in which all citizens can vote on legislation through referenda or internet voting misses this key element. Instead, let us examine the idea of democracy based on the jury model and bring back the ancient Athenian democratic tool called “sortition,” or “allotment” -- forming representative government bodies by random selection.
Our democracy is broken
Before delving into how sortition might revive our democracy, we should first understand that our current system is really and truly broken. Voter turnout is sometimes used as a crude barometer to assess citizens’ engagement in their democracy. Sadly, in the 21st Century the United States ranks 73rd among the world’s nations for turnout in our presidential elections -- close behind Yemen, Uganda and Romania (according to voting-age population data compiled by the International Institute for Democracy and Electoral Assistance). In off-year Congressional elections, when only one third of America’s voting age population typically turns out, the U.S. ranks 165th in the world -- just behind Burkina Faso and Pakistan. The percentage turnout in American municipal elections frequently dips into the single digits. On the other hand, high voter participation is not proof of a vibrant democracy either.
Elections often have a corrosive effect on civil society and governance. The strategic demands of elections generate an “us versus them” culture that goes beyond criticism to demonization of opponents, with. ad hominem attacks. The electoral system promotes a strategic focus on knee-jerk “wedge issues” instead of dealing with long-term critical policy challenges. This casting of opponents as “the enemy” infects the rest of society. Any efforts to seek the “common good” seem unrealistic and naive in this combative atmosphere.
In addition to the partisan polarization between Democrats and Republicans, there is another polarization between the political class as a whole and the rest of the population. A 2010 Rasmussen poll found that just 12% of respondents thought members of Congress were sincerely interested in helping people, while 76% said members of Congress were more interested in their own careers. Further, 41% said that most members of Congress were corrupt and only 33% disagreed with this view. This assessment is long-standing. The University of Michigan’s Center for Political Studies conducts an opinion survey of the American public every two years. One of their standard questions has been “Would you say the government is pretty much run by a few big interests looking out for themselves or that it is run for the benefit of all the people?” Substantial majorities (often more than two thirds) believe government is run by a few big interests.
This has been the finding in every survey over the past 45 years, except the one conducted following the Sept. 11, 2001 attacks, when 48% held this view. As Professor John Gastil wrote in the introduction to his book By Popular Demand, “There are two fundamental problems in American politics. The first is that most Americans do not believe that elected officials represent their interests. The second is that they are correct.”
There is a competing argument that has been made by the Federalist framers of the Constitution, that members of Congress should diverge from the average man, by instead being the cream of the crop, or “natural aristocracy.” James Madison believed a geographically diverse elected elite could overcome the danger of factions, and deliberate for the common good. Those who observe the stream of scandal and corruption emerging from the Capitol have reason to doubt the optimism of Madison’s plan. Rather than resisting factions, the structure of Congress and the adversarial partisan electoral environment has empowered them, with Congress members trading votes in order to service favored special interests and lobbyists.
The skills required to win a seat in Congress do not match up very well with the skills needed to draft or deliberate over legislation that is broadly beneficial to the people. Indeed, the willingness to run for high office, often reflects a self-important ego-mania that is not be conducive to constructive public policy-making.
The demographic and psychological homogeneity of Congress (regardless of party) is not only unrepresentative, but also a liability for optimum decision making. Extensive research has shown that decision making is generally enhanced by having a diverse group, rather than a homogeneous group, even one made up of experts. Legal scholar Cass Sunstein, in his 2003 book Why Societies Need Dissent notes that research consistently shows the importance of diversity to competent decision making. This awareness dates back at least to Aristotle, who wrote of men, “Each of them by himself may not be of a good quality; but when they all come together it is possible that they may surpass -- collectively and as a body, although not individually -- the quality of the few best.” As James Surowiecki noted in his book, The Wisdom of Crowds, “Bringing new members into the organization, even if they’re less experienced and less capable, actually makes the group smarter simply because what little the new members do know is not redundant with what everyone else knows.”
Why election reforms are not sufficient
Of course, many of the problems with American elections have garnered proposals for remedies. Low voter turnout is to be remedied with same day voter registration, automatic registration or voting by mail. Gerrymandered districts are to be eliminated through independent redistricting commissions. Public campaign financing is to overcome the domination of big money. The list of reform proposals is long. While many of these reforms may be worthy, none of them address what the ancient Greeks, and many of the framers of our Constitution, believed to be the fundamentally aristocratic nature of elections – what the political scientist Bernard Manin calls the “principle of distinction.” A person who stands out from the crowd (due to wealth, celebrity, ambition or other traits) has an automatic advantage in an election.
Campaign finance reform is perhaps the most widely proposed remedy for our unrepresentative legislatures. The Supreme Court’s opening of the flood gates through its Citizens United ruling, has only made the long-standing problem worse. With huge sums of money already being spent in Congressional campaigns, it might seem reasonable to conclude that seats are essentially being bought.
But the dynamics of campaign finance are far more convoluted than generally recognized. Causes and effects are often the opposite of what people assume. While money can be decisive in open-seat primaries and non-partisan races, the level of campaign spending in Congressional elections is generally irrelevant to the determination of the winner. Steven Levitt, co-author of the entertaining book on unexpected economics, Freakonomics, studied the impact of campaign spending on election outcomes using hard data rather than “common sense” or anecdotes. The difficulty is to compare apples to apples, since different elections have different candidates, and it would seem impossible to do an experiment by re-running a given election, but with different spending levels. He was able to control for the unmanageable factors such as candidate quality by looking at a thousand federal races in which the same two candidates faced each other in different election years. In this way Levitt could focus in on the impact differential campaign spending may have had. He found that spending levels hardly mattered at all. A winning candidate could cut his spending in half and still win with a decrease of only 1 percent of the vote. Likewise, a losing candidate could double his spending and pick up only about 1 percentage point.
Yes, huge amounts of money flow to the candidates (generally incumbents) who are bound to win, but that does not mean this flow causes their victories. It is inaccurate to suggest candidates “buy” elections through the campaign finance system. Rather, the candidates who are virtually assured victory in “safe seats” find it much easier to raise cash, and find money flowing into their campaign coffers, as moneyed-interests seek to buy access. While there are a few districts that are genuinely competitive and cannot be reliably predicted, they are a small minority.
At the level of state legislatures also, the winner of most elections are obvious well in advance, even before campaign fund-raising is considered. Between 35% and 40% of state legislative races typically have only one of the major parties fielding a candidate, because those races are so “in-the-bag” that they are considered a waste of effort and resources by the other major party.
However, the more realistic hope for public campaign financing is not how it affects election results, but its impact before and after the election. Prior to an election, especially for an open seat, the ability to raise large amounts of money is seen as a de facto “wealth primary.” A candidate who can’t raise a substantial war chest is not deemed to be “serious” by the media or other potential donors. Citizens who might make superb legislators never seriously consider running if they can’t access the money. Depending on how high the hurdle to qualify for public financing is, candidates would not need to be tied to wealth as a prerequisite for running a serious campaign. After the election, rather than corruptly rewarding big donors, or at the very least preferentially taking their calls and input, legislators would have more time to engage with ordinary constituents. Former U.S. Senator Ernest Hollings in a 2006 Washington Post opinion piece estimated that nearly one third of a Senator’s time is spent fund-raising. A publicly financed legislator wouldn’t have to spend a huge percentage of his or her time raising money for the next campaign.
The amazing accomplishment of the Bernie Sanders crowd-funding a national campaign with millions of small contributions unfortunately does not offer a workable alternative. While a presidential campaign has the possibility of generating enough excitement to prompt a social media chain reaction, this can rarely be replicated at the state or local level. Public financing still seems to be the only path to providing competitive resources to a range of candidates without ties to big money.
Altogether, public financing may address the corruption issue to some extent, but is unlikely to significantly alter current demographic unrepresentativeness. One might hope that more working class people would become legislators if access to big money were removed as a prerequisite, but that, unfortunately, does not appear to be the case. In Maine, which adopted public financing in 1996, over 80% of legislators were using public financing by 2010. But data collected by the National Conference of State Legislatures (NCSL) showed that Maine’s legislators were no more likely to have working class occupations than legislators from similar New England states. Public financing of election campaigns in Maine has also shown no impact on gender bias.
Gerrymandering is another issue reformers often point to. Competitive elections are seen as essential to voters’ ability to hold legislators accountable. It turns out that, while gerrymandering to create non-competitive districts is a slimy process, it also is not the core reason that we have non-representative legislatures.
Arizona reformers passed a constitutional amendment in 2000 to eliminate gerrymandering using an independent redistricting commission. With legislators removed from the process of drawing their own district lines, and with lofty goals and guidelines, the hope was that elections would be more competitive. However, the elections under the new districts are even less competitive than before, with incumbents from both parties winning every single State Senate race in which they have run. Because like-minded people tend to live near each other (what author Bill Bishop and others refer to as “the big sort”), if Arizona were to elevate having competitive races as the top priority, they would have to give up other priorities such as compact districts that respect communities of interest, as well as risk a far less representative legislature.
As final evidence that gerrymandering is not the root of unrepresentative legislatures, one need look no further than the U.S. Senate, whose district boundaries, state lines, never change, and thus are never gerrymandered. Gerrymandering cannot explain the Senate’s mal-representation.
Most democracies seek to achieve representativeness through one of a variety of proportional representation voting methods. Unlike the current winner-take-all election rules in the U.S., the underlying principle is that while the majority has the right to rule, everybody should have the right to fair representation. If a party gets 30% of the vote, it should get 30% of the legislative seats.
Nations using proportional representation have legislators who come closer to looking like their people, with more women, for example, but are still a fairly homogeneous political class distinct from the general population. Proportional representation could open the doors to more diverse political opinions, but it is not clear that it would remove the incentives for demonization of opponents in preparation for the next election, and the promotion of partisan interest while forsaking the search for the common good.
Another usual suspect for causing unrepresentative legislatures is the fact that some segments of society, low-income and young people for example, register and vote at significantly lower rates than richer and older voters.
The reform strategies resulting from this voter discrepancy seek to make registration and voting easier, and include same-day voter registration, automatic registration, extending the voting period, making election day a holiday, voting by mail, etc. While states which have adopted such reforms do have somewhat higher turnout, the effect is modest at best, and there is little evidence that it actually results in more representative legislatures. A crucial question is whether higher participation among low-income citizens, for example, would change the kind of candidates they get to choose from to include more working class citizens. In the vast majority of cases, candidates of both major parties are from the same race, income, class, etc.
Some opponents of these voter participation reforms raise concerns about voter fraud, though there is no evidence that voter fraud is a significant problem. A deeper, and more troubling concern is the fact that current non-voters are less well-informed, and arguably less fit for participation. With media coverage of elections devoted to the horse race aspect of politics and sound bites, rather than policy substance, exactly what value “following” government and public affairs has is not clear. Henry Thoreau wrote “What is called politics is comparatively something so superficial and inhuman, that, practically, I have never fairly recognized that it concerns me at all.” Following political news as presented in the American media, or worse, through echo chamber social media feeds may simply serve to reinforce pre-existing biases, rather than genuinely inform.
Public choice theory scholars have written extensively about the concept of “rational voter ignorance.” They point out that since there is little chance that one’s single vote will actually make any difference in the outcome of a large scale election, there is no rational grounds for investing any time or effort in becoming informed about candidates or issues. The return on the voter’s investment of time is essentially always zero. Following politics, and voting might be the result of delusion (thinking one’s single vote has a realistic chance of determining the outcome). On the other hand, it may be an “expressive” act of group solidarity. Voting fulfills a felt duty of “doing one’s part” in a democracy. Following political news is akin to following a sports team. Being a voter or being a sports fan provides psychological satisfaction and camaraderie rather than giving any significant power over the outcome.
One alternative reform that has gained renewed interest since the advent of the internet, is the notion of direct democracy through referenda. A major complaint about referenda in states with ballot initiatives, is the big money and media domination of public debate and the low level of public understanding. While the internet may ease the challenge of providing access to information (whether balanced or accurate at all), it can’t overcome the inertia of rational voter ignorance and widespread unwillingness of most people to spend the time it would take to become objectively informed. The internet is used more effectively as a mobilizing tool than an educational tool. One of the features of a smaller representative body, is that it provides both opportunity for meaningful participation and deliberation. But just as importantly, it provides an escape from the rational ignorance trap with incentive for its members to become informed. Unlike a mass referendum, in the case of a representative body, the small numbers involved dramatically increase the likelihood that a given member’s vote may be decisive. Even if a decisive vote is unlikely, a member’s informed contributions in debate may swing a winning number of votes within the body.
American devaluation of democracy
The notion of democracy can be grounded in at least two distinctly different claims. The optimistic claim is that the people know their own interests best, and therefore democracy allows for optimal decision making by a society. The more pessimistic argument is agnostic about this first claim, but asserts that at least giving people the ability to replace the current ruling elite with a different ruling elite is a powerful defense against tyranny. In this view, democracy is about the power to throw the current bums out, and little more.
Though the terms “democracy” and “republic” are often used interchangeably today, James Madison made a sharp distinction. He believed a republic, by which he meant a government of elected elite representatives, roughly modeled after the ancient Roman republic, was preferable to a Greek-style democracy. Concerned about the risk of popular passions if the people ruled unfiltered by representatives, Madison wrote in Federalist No. 63 that the new republic should be governed with the “total exclusion of the people, in their collective capacity.”
Even the father of the Constitution, James Madison recognized that elections did not necessarily elevate worthy representatives. In a 1787 essay setting forth the failings of the Articles of Confederation, entitled “Vices of the Political System of the United States,” Madison presented this troubling dynamic of elective representation:
“Representative appointments are sought from 3 motives. 1. ambition 2. personal interest. 3. public good. Unhappily the two first are proved by experience to be most prevalent. Hence the candidates who feel them, particularly, the second, are most industrious, and most successful in pursuing their object: and forming often a majority in the legislative Councils, with interested views, contrary to the interest, and views, of their Constituents, join in a perfidious sacrifice of the latter to the former. A succeeding election it might be supposed, would displace the offenders, and repair the mischief. But how easily are base and selfish measures, masked by pretexts of public good and apparent expediency? How frequently will a repetition of the same arts and industry which succeeded in the first instance, again prevail on the unwary to misplace their confidence?” [http://press-pubs.uchicago.edu/founders/documents/v1ch5s16.html]
The framers did not include women, slaves, or poor whites in the group that needed to give consent. But setting that fact aside -- even if all adults were deemed worthy of being asked for consent, there is a separate issue of who should be eligible to actually do the governing. There is a fundamental distinction between “consenting” to an elite who would govern the people, and people being allowed to govern themselves. The famous set of prepositions in Abraham Lincoln’s Gettysburg Address, -- of, by and for the people -- encapsulates the true spirit of democracy.
Setting aside , for the moment, the relative representativeness of elected verses allotted legislators -- what about basic competence? The Athenians did not assume that all citizens had equal skills or abilities, but that they did generally have enough basic common sense to successfully take a turn at governing. In Athens, service was not mandatory and citizens who either lacked interest or didn’t feel up to it could refrain.
A modern revival of sortition would also likely excuse those who refused to serve. It would be necessary to sort out whether to use scientific sampling methods to assure representative bodies, or rely on the somewhat distorted sample created by randomly selecting from among those willing to serve. But in either case, the resulting bodies would be far more representative than any existing today.
Are average American citizens up to the challenge of self governance? The stunning lack of political knowledge among the general public has been exposed by countless polls. When members of the public know their decisions genuinely matter, however, they have incentive to learn and act earnestly, as they generally do when serving on juries.
Put the other way around, are our elected representatives more competent than average citizens (when citizens have incentives to put in serious effort)? My experience as a legislator suggests that under the current elective system, most consequential competency, or expertise resides in professional staff, rather than the legislators themselves. Also, most of the so-called experts within Congressional offices are oriented towards the public relations, fund-raising and the campaign implications of policy, rather than focused on actual policy substance. Such pseudo-expertise can enhance re-election chances, but may be detrimental to good policy making.
What if a group of average citizens had the relevant information and opportunity to tackle complex policy questions? The results of a study recently conducted by the Program for Public Consultation (PPC), affiliated with the School of Public Policy at the University of Maryland, are promising. Unlike a traditional “off the top of the head” poll, PPC presented a representative sample of Americans with information on the national budget deficit challenge and a range of options for addressing it. Through a combination of budget cuts, particularly to the defense department, and tax increases, such as income taxes on the wealthy and the estate tax on large estates, they were able to dramatically reduce the deficit. Congressional practices, such as log-rolling, where members trade votes benefiting favored special interests, effectively block such solutions. This consultative exercise did not involve actual deliberation among participants and was too simplistic to carry great weight. Yet, Steven Kull, director of PPC observed that, “when given information and a chance to sort through their options, most Americans do a pretty good job of dealing with America’s budget problems—better than most politicians.”
To fairly compare the competence of average citizens and elected legislators, it would be necessary to put them within a similar context. They would need both the opportunity and incentive to become educated on the matters at hand. This incentive exists in a representative body, where one’s vote is decisive, rather than advisory (as in the consultation project mentioned above), or a mere drop in the bucket, (as in a referendum or general election.)
One plausible way that sortition could begin to be used is the way it happened in British Columbia -- with “meta-legislative” tasks (developing and enforcing rules about how legislatures will be selected or be redistricted for example). Perhaps the campaign finance laws or ethics panels that oversee Congressional ethics should not be under the control of the politicians affected. Might it not be better to have disinterested citizens selected by sortition, who are not members of Congress fill such roles?
Intro about wholesale replacement of an elected legislature by sortition body (one chamber of two... Randomly selecting a legislative “jury,” which tackles a single issue for a succinct time period has intriguing potential. There are numerous details that would need to be figured out, such as how to choose expert and staff support, set compensation for participants, decide on face-to-face vs. internet meetings, etc. Should a sortition panel be subject to lobbying, or should lobbying be treated like jury tampering? How would an allotted body best be protected against manipulation by its expert advisors or the bureaucracy? Perhaps these details could best be tackled by a separate allotted body. There is always a risk of corruption when a group with power defines its own rules -- such as Congress setting its own campaign finance election laws, ethics enforcement procedures, etc. The separation of powers is almost always a good idea. When a single cookie is to be divided by two children, the kid who breaks the cookie in two pieces should not be the one who also decides which child gets which piece.
Another plausible initial role for sortition is in areas of society that aren’t currently governed by elective democracy . Health care is a perfect example of where sortition could be advantageous. The fear of “death panels” and “government intrusion” raised by Republicans during the Federal debate on health care reform had a major impact. While these concerns might have been invented for partisan purposes, such concerns played a major part in keeping single-payer (i.e. a government financed system) “off the table,” and just about stopped any reform at all. What if instead of “government” with all its electoral partisan baggage, a representative panel of average citizens chosen by lot were empowered to represent our common interest in health care. This panel could listen to the best (and competing) experts, and bring the common sense and community values of society to bear, without undue influence by drug companies, insurance companies and their army of lobbyists. The right doesn’t trust liberals and government bureaucrats, and the left doesn’t trust conservatives and corporate bureaucrats. Why not oversee the health care system democratically through sortition?Political scientists have proposed adding a new “People’s House” by having one hundred citizens selected by lot in every Congressional district to debate the major issues of the day. Others have proposed amending the constitution to make the House of Representatives selected by lot. John Burnheim, in his landmark book Is Democracy Possible? proposes what he calls “demarchy” outside the state structure, using sortition to select a variety of governing boards from among those with legitimate interests in various public services. Sortition might also be used to select oversight review panels that could hire or remove chief executives such as mayors or governors. In addition to the governmental realm, sortition might be useful for governing cooperatives, non-profit membership organizations, unions, or business enterprises. Tentative steps are already taking place across the globe. The notions that slavery could be abolished and that women should have equal political rights were once dismissed as forever unattainable. Restoring public awareness of sortition as a possibly superior means of democratic self-governance may open the door to reforms that today seem unimaginable.
Moat of the implementations of sortition around the world since 2004 have been one-off single projects, in which a jury is assembled to tackle a particular issue. This is a necessary stage, since people need to develop confidence in the concept before adopting in a big way. The British Columbia Citizens Assembly was the first of many such efforts. In Iceland and Ireland sortition was used to propose constitutional amendments. Interestingly, the recent Irish legalization of same sex marriage was a direct result of their sortition deliberation, in that few elected officials were willing to touch the issue in that overwhelmingly Catholic country, until a randomly drawn mini-public of citizens proposed the change. Sortitoin has been used by local governments across Australia in recent years. As one example, the city of Melbourne selected a random jury of 43 residents who decided on the ten-year $5,000,000,000 (billion) financial plan and capital budget for the city (no minor task).
Mini-publics could also be established to play an oversight role for the existing government. Some obvious possible roles are a citizens police oversight body to keep tabs on complaints of police brutality, or a legislative ethics commission to monitor ethical lapses by elected officials (who typically monitor themselves currently). Mini-publics could also oversee the performance of the chief executive (a mayor or governor) and conduct hearings for removal for poor performance or unethical behavior . Any situation that deserves public oversight, but in which the bulk of the citizenry simply doesn’t have the time or motivation to become well-informed, can be an appropriate place for sortition.
Existing governments are willing to pass along certain tasks to policy juries, but realistically, probably not those that would fundamentally reduce their own power. Another potential problem with elected officials assigning given tasks to mini-publics is the risk of abusing the system to provide political cover for an otherwise unpopular decision. In South Australia, for example, a random jury of 350 residents was charged with evaluating a proposal for the state to host a nuclear waste dump. Premier Jay Weatherill who seems to favor the proposal as an economic development plan apparently had hoped to pass any blame for a positive decision onto this group of citizens. However in late 2016 the jury, after hearing vast amounts of testimony (and taking an active role in deciding what witnesses to call) voted by a 70% majority to reject the proposal. As a result, Weatherill decided to ignore the considered judgment of the citizens and called for a referendum on the issue (hoping for a different result). Unlike sortition with deliberation, a referendum allows monied interests to shape the public’s attitudes.
But even within the referendum concept there can be a role for sortition. The first institutionalized sortition implementation (though advisory, rather than decisive) was in Oregon where state law now mandates that whenever a referendum question is petitioned onto the ballot that a Citizens’ Initiative Review panel be randomly drawn to hear the pro and con arguments and issue a report to the voters, that is then published in the voter guide. While the Review panel law was passed on a bipartisan basis by the state legislature, a more far-reaching expansion of sortition that directly challenges the power of elected officials may have to rely on the ballot initiative route for enactment. Sixteen states allow petition initiative referendums not only for statutes but for constitutional amendments. Countless municipalities have initiative processes for amending their municipal charter.
A fundamental element of a successful sortition design is to have the procedures and flow of information be independent of the elected elites. In Australia this has been accomplished by having procedures and facilitation established by independent groups (university academics, or the non-profit NewDemocracy Foundation) with no stake in the decisions to be reached.
It is typical for mini-publics called by government to have narrowly defined tasks, and to have their decisions be advisory (to the elected legislators or the referendum voters). A true sortition democracy will ultimately need to give definitive decision-making authority to the mini-publics. Also, sortition democracy needs a democratic means of setting the agenda as well. Some scholars have proposed a bicameral system with one legislative chamber elected and one selected by lot, at least as a transition.
I would suggest there is a benefit to avoiding the all-purpose legislative chamber model which is standard among elected legislatures, however. There is no reason to merely mimic the legislative design that evolved in a partisan electoral environment. Using different mini-publics for different aspects of law-making may be preferable. A separate agenda-setting mini-public could take a long-view perspective and initiate issue-specific juries. An Agenda body should be ongoing, but with an sequential rotation bringing in new members to help avoid concentration of power (and corruption). A separate Rules or Oversight mini-public should oversee professional staff and the procedures and information flow for all of the other mini-publics, so as to protect the mini-publics from bureaucratic capture. Such a Rules council can also play a vital role of evaluating past mini-public performance and propose improvements over time, allowing a sortition democracy to evolve through self-reformation. I have not set out a blueprint here, because one of the beauties of sortition is that it can be self-correcting.
The way forward for sortition inevitably involves relatively small scale trials that allow the general public to see the potential. One-off mini-publics at the municipal level are an obvious option, but sortition can also improve democracy within a host of other entities. Any large membership organization that currently relies on elections (in which most members do not personally know the candidates) could experiment with sortition. Consumer co-ops, unions, condo associations, etc. are all possible candidates. While it would no be ideal to select a small board of directors randomly (the risk of an unrepresentative sample of members with inadequate commitment to the organization is too great), a short duration random assembly could be charged with essentially hiring a board of directors – seeking out an optimal mix of skills and other traits. Self-perpetuating boards and those with nominal elections (in which the number of candidates tend to match the number of seats) make a mockery of democracy. Sortition can empower the members to democratically govern their organization by taking brief turns on a mini-public focusing on the organization’s needs.
Democracy does not mean voting every few years to choose between ego-driven elite would-be-rulers. Democracy and political equality as well as objectively superior public decision making with resistance against corruption are possible through the use of sortition. It’s time to give it a try where you are right now.
One Possible Path
Most of the elites who benefit from the existing electoral framework and the officials who gained their positions through that system are unlikely to be sympathetic to such a radical transformation in the very concept of “democracy.” It might be helpful for the reader if I present a hypothetical path for how the adoption of sortition might take place in one city. This is not a strategy recommendation – merely one of many conceivable paths.
A first step is the spread of awareness of sortition as an option. Nobody will advocate its implementation if they’ve never heard of it. Now imagine that some issue comes along, perhaps a major downtown redevelopment project like a sports arena, that is very controversial. Perhaps the mayor or city council thinks this is a good idea for the city’s economic vitality and want to subsidize it. However, there are many outspoken critics who are suggesting there is some corrupt closed-door financial deal behind this. The elected officials worry that if they move forward with the project the economic benefits won’t be realized until long after the next election, and that the allegations and suspicion about corruption will lead to their election defeat. Here is a case where calling a representative mini-public, a jury of the community, might help save the politicians’ skins. By giving authority over the hot issue to the community this way, they free themselves from political fallout. Either the jury concludes there is no corrupt deal-making and decides to go forward, or rejects the project, and the politician suffers no backlash.
The next year there is a rash of police brutality allegations. Using the positive experience from the development jury, the police chief calls together a random sample of community members to monitor the police performance. These are citizens who will get all the facts and give the community an informed assessment – either clearing the police or showing the need for reform. That police monitoring jury gets institutionalized, with regular rotation to assure the mini-public does not itself become suspect of being “captured” by the police department.
By now the sortition model is an accepted democratic tool, which many city departments use to tackle controversial issues as they arise. Then a scandal breaks where some elected official has been caught taking a bribe. The rest of the officials decide to set up an independent ethics mini-public to act as a trusted monitoring entity (allowing the honest elected officials to demonstrate their integrity. The next time a hot controversial issue becomes the focus of media coverage in the city, a citizens group launches a petition drive to amend the city charter to create an ongoing mini-public with regular rotation and independent staffing, This mini-public has the authority to review and hold up city council decisions that are suspect, with those decisions being referred to a special jury to make a final judgment after testimony and education on the issue.
Voters recognize that the public judgment of mini-publics is superior to that of politicians, and superior to their own uninformed judgment in referendums, so a new charter amendment is passed in a final referendum that allows regularly called mini-public charter commission to propose charter amendments as deemed appropriate.
Eventually entire policy areas are transferred from the city council to mini-publics as the result of charter commission charter amendments, including zoning, budgets, etc. At some point, as the role of elected officials diminishes and the trust in mini-publics deepens, the city council is finally abolished, and the mayor is annually reviewed by a mini-public, with the power to remove a mayor who does not adequately administer the decisions of the mini-publics, with a special hiring mini-public being called to recruit a replacement chief executive officer when needed.
Democracy was engineered in Athens when one aristocrat, Cleisthenes, found it tactically advantageous to empower the citizenry, who would be on his side against opposing aristocratic families. As has been said about those in power, they will willingly sell you the rope with which to hang them. Even though sortition may be a mortal threat to electoral democracy (aristocracy), that does not mean elected officials will never help its advance along the way. True democracy needs sortition, and it is long past time to get going.
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The author served for ten years as a member of the Vermont House of Representatives after ten years as a Burlington city councilor. Since leaving public office he has worked as an election reform policy analyst, and election administrator.