Detoxing democracy 2: A mixed model of democracy for Australia

Crossposted from The Mandarin today where they almost never make comments :(

[T]here is an Australia of the spirit, submerged and not very articulate … [b]orn of the lean loins of the country itself, of the dreams of men who came here to form a new society …. Sardonic, idealist, tongue-tied perhaps, … it has something to contribute to the world. Not emphatically in the arts as yet, but in arenas of action, and in ideas for the creation of that egalitarian democracy that will have to be the basis of all civilised societies in the future.

Vance Palmer, 1942

The period from the late eighteenth to the first decades of the twentieth century saw the establishment of democratic institutions or the democratisation of existing institutions with debate focusing checks and balances between popular sovereignty – represented by lower houses such as the British House of Commons, the American House of Representatives and Legislative Assemblies in the Australian colonies – and upper houses representing aristocracy and/or the propertied classes – as in the case of the British House of Lords, the American Senate and Australian Legislative Councils.

I both propose and predict that in 21st century we’ll rework this canvass, but where the checks and balances were between popular elections and ‘elites’ of some sort, the new checks and balances will be between the people as represented by election and the people as they were much more commonly represented in ancient Athens by sortition or selection by lot. In the American context the legal scholar Ethan Leib has proposed a “Popular Branch” to join the other three branches in the US constitution.1 

Under the model I propose here, the lower house would continue as the seat of government be elected as it is today. However there would be an additional house chosen at random from the Australian population. It could replace the Senate, though for those such as myself who think that on balance the Senate has improved our democracy as a house of review, the ‘people’s chamber’ could simply be added to what we have now. As will be seen, though this could make it harder to get certain things through the parliament, not only will that only occur where the people’s chamber evinces a strong, considered democratic opinion that deviates with the people’s elected representatives, but the new chamber would provide a way of energising the search for policy options long since put in the too hard basket. I’m thinking of questions like tackling obesity, drug addiction and crime and perhaps even nuclear power and genetically modified products in ways that move beyond the moralistic narratives into which electoral politics is forced by the politico-infotainment complex.

I suggest the People’s Chamber comprise an odd number of citizens chosen by lot. I like the number 201 which corresponds to the smallest number of citizens within juries within the tribunal (the Heliaia) in ancient Athens which functioned as a check on the Ecclesia or the Assembly of all citizens and seat of participatory democracy. 2 

I also like the idea of this body having some continuity. So contrary to most implementations of sortition, I’d like to see people chosen for substantial terms and would propose six-year, non-renewable terms with 67 appointed every two years. That way you’d have a growing body of citizen’s expertise and ‘old hands’ two and four years into their terms could help newcomers get up to speed. I’d also make acceptance of such a position conditional on some prohibition of such people graduating to traditional (elected) political office for an additional six years after they left the chamber. Anyway, these are obviously details, offered for illustration. They are not integral to the model.

The powers of the people’s chamber

The real interest is in the powers we give such a body, how they relate to other parts of the system and in what circumstances. Until we have more experience, I have previously suggested that a simple majority of the People’s Chamber not have a blocking power. After all with a few hundred people chosen at random, a bare majority may reflect randomness rather than represent any clear views of the people. Thus I’d provide such a body with a delaying power as has the UK’s House of Lords.3 A majority should also enable it to propose legislation. This encourages the rest of the system to take the chamber seriously, but otherwise leaves the status quo largely intact. (It’s interesting to think how the chamber or some other means of selection by lot might also have some involvement in the executive. There’s also some anecdotal and theoretical evidence that selecting some members of the elected chambers by lot would improve the incentives on elected representatives, but I’ll leave discussion of both those matters to another time.)

But consider what it means if a super-majority – say 60 percent of members of the people’s chamber disagree with the elected house or houses. To me that has the tell-tale signs of political elites obeying the dictates of vox pop democracy, that is their own careers as dictated by their parties and the vested interests that influence them – rather than the considered wishes of the people. Remember, this is over 60 percent of ordinary people, just like you, me or anyone else, who, having informed themselves and deliberated with their peers, have come to disagree with elected representatives despite the prestige, power and resources those enjoying the majority of the lower house enjoy. So I’d want to give them more constitutional power to break any deadlock between their chamber and the other(s).

The first power I’d give them is a subtle, indeed sneaky one. The secret ballot was known in the nineteenth century as the “Australian ballot” after South Australia and Victoria instituted it in 1856 to prevent citizens being intimidated into voting against their will. So it’s fitting that we take the Australian ballot further and use it to loose the bonds of careerist intimidation within our Parliament. I’d give any super-majority of the people’s chamber the power to compel a secret ballot of the other chamber(s) on the matter in question. In fact, a secret ballot isn’t unknown to Parliament today. The Speaker of the House and President of the Senate are elected by secret ballot, and that fact has changed outcomes. 4 If this didn’t resolve the deadlock, I’d use a mechanism like S57 of our constitution uses for resolving a deadlock between the House and the Senate after an election. If, after three months, the deadlock between the houses remained, the matter would be resolved in a joint sitting between them.

A pathway

It’s all very well for me to opine about how I’d like to become a modern Solon. The real test I think is whether it is possible to take much smaller steps which would be beneficial in themselves however far they took us towards my lofty goal. I think it is. We simply need to do it for ourselves. I’d like to go hunting for the funds – from philanthropists and from ordinary concerned folk like you and me via crowdfunding – to simply establish a people’s chamber outside our official constitutional institutions.

Operating either at state of federal level, can you imagine a body of – say 101 people chosen at random from the relevant population sitting as a citizen’s chamber? It would be given the resources for some research capacity and to call expert witnesses. One might sit four times a year for nine days – encompassing one week and the weekend on either side of it. Resources would have to be found for at least the airfares to a central location and accommodation, but ideally also for some pay for all that work.

And if that were beyond the resources of a fledgling social movement, a more targeted approach would involve creating the chamber on an ad hoc basis, perhaps to coincide with a looming election, though if I were in England I’d make it an issues based convention – on Brexit. The chamber would deliberate on the choices before the electorate at large in just the way the citizens bodies in Oregon do on specific measures. 5

They would deliberate on the parties’ policies, they would invite spokespeople for those parties or others to address them and help them deliberate on the merits of the choices to be made by the people. They would also, as occurs in Oregon, work on brief communiqués explaining the case for and against various options together with how the body voted on them. It would also be highly instructive if members of the body were asked to identify how they intended to vote at the beginning and the end of the process with the aggregate results also communicated to the public.

I think this could have an electrifying effect on political business as usual. No-go areas such as those I itemised above might start to become more appealing for politicians under cover of strong support from the people’s chamber, but the reckless policies like abolishing carbon pricing and resource rent taxation which were designed not to endure a decade or more in government, but rather to get an Opposition through a radio interview might be much more hazardous for vox pop politicians to propose.

At least that’s what I confidently expect. And if I’m wrong we will have lost very little.

  1. Ethan J. Leib, Deliberative Democracy in America: A Proposal for a Popular Branch of Government.
  2. It’s often thought that the Ecclesia as the embodiment of all the people was supreme in the Athenian constitution, but it’s not so. The whole way the Athenian constitution worked (and it changed through the ‘golden age’ of the fifth and fourth century) is hard for us to get our heads around given the sway the distinction of judicial, legislative and executive power has over us. In any event in the fourth century the Heliaia could, rather like an upper house, sit in judgement over the legality of decisions of the Ecclesia and the propriety of those proposing motions there. From Wikipedia:

    The graphē paranómōn … was a form of legal action believed to have been introduced … somewhere around the year 415 BC … The name means “suit against (bills) contrary to the laws.” The suit could be brought against laws or decrees that had already been passed, or earlier when they were merely proposals. … The suit served a double function. Firstly, it provided a means of reviewing and perhaps rescinding decrees and legislation passed by the assembly. In this it seems to resemble a court of review such as the modern U.S. Supreme Court. However, the judges (who in English are usually referred to as jurors) of the judicial formations of the Athenian court of Heliaia were, like those attending assembly, ordinary citizens and not legal experts, just as the court used was a general one and not a panel devoted to legislative matters. … The mechanism can be compared to the upper houses found in many modern democracies. However, in Athens this review was not automatic, but had to be initiated by a citizen. Unlike both an upper house or a specially established court, the review was not framed as an impartial and objective re-examination, but was couched as a prosecution to be defended by a defendant who stood to suffer a penalty in the event of conviction.

  3. To get fancy if it’s a majority of less than 1% of the chamber I’d make the period quite short – say three months – but if the majority is reasonably clear – say of five or more people in a chamber of two hundred, I’d give it a one year delaying power as has the House of Lords.
  4. As it did in 1974 when Labor Senator Justin O’Byrne won the Presidency of the Senate despite his party commanding notionally fewer votes than its opponents.
  5.  Amidst growing disquiet about the extent to which citizens’ initiated referendums were being manipulated by vested interests, Oregon trialled a system in which such referendums were accompanied by a citizens initiative review. The review is conducted by a jury of 24 citizens over four days. In 2010 Measure 73 was an old standard of vox pop democracy. It proposed mandatory sentencing. And at least on a cursory look, what was proposed sounds reasonable. Around 70 percent of the Oregon electorate favoured the measure. But, after four days of deliberation 21 of the 24 citizens’ jurors voted against the it.
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20 Responses to Detoxing democracy 2: A mixed model of democracy for Australia

  1. Alan says:

    Dikasterion (pl) dikasteria meant a slate of jurors appointed to hear a particular case, and more broadly any body of officials elected by random draw. The English word ‘dicastery’ has somehow come to mean a department of the Roman Curia, bodies that are definitely elected by random draw. Bit nevertheless we should appropriate the word to our own purposes.

    Service on a dicastery should disqualify you for life from service on a second dicastery, including the people’s chamber. To prevent members of a people’s chamber fro being drawn into the slimy world of competitive politics you would also have to disqualify them from parliamentary or ministerial office for an extended period. Twice their term in the chamber feels about right.

    I could accept abandoning the senate, but if and only if, you introduced proportional representation for the house of representatives. In that case you could simply retain the old title for the random chamber (as the Athenians did for the Boulé) rather than use the rather East Bloc-sounding ‘peoples chamber’.

    • Moz of Yarramulla says:

      I think a life ban/suspension from further service is reasonable (including jury duty and conscription). I think we would also want a cooling-off period after their term, say six months at half pay with some office facilities to allow them to find a job again. Six years out of the workforce is going to cause a few problems for most people. On the other side, if someone is so utterly wonderful that their services can’t be dispensed with, hire them. Call them the parliamentary factotum or something.

      I’m also inclined to pay them the same as the highest paid elected official (likely the Prime Munster) ….ooooh, better, the dicastrixen set parliamentary salaries, and are paid the median of what they set. It’s one step better than the “independent” commission we have now.

  2. Alan says:

    ahem ‘bodies that are definitely not elected by random draw’

  3. Moz of Yarramulla says:

    I think that’s a fascinating idea. While I treasure the upper house, the current random element seems to combine the worst features of both options, to give us a few randomly chosen unsuccessful politicians as ballast. I’m a fan of citizen’s juries (and juries in general), so this proposal as an extension does bear thinking about.

    I am somewhat concerned that the extended term will allow capture or corruption, not least because I’ve seen it happen in senators (the gap between “Kerry Nettle, aspiring politician” and “Kerry Nettle, expiring senator” was frankly disturbing). Given six years of careful cultivation and enculturation, I expect we would see more than a few Sortition House Independent Titleholders become enthralled with the levers of power and very keen to help out their new mates by voting “the obvious way”. I would be inclined to limit terms for their staff as well for that reason (viz, staff can’t work for more than one SHIT), and if we had a federal ICAC I would be much happier.

    Also, as Irreverent Australian Larrikans{tm} I think we do have an obligation to give them a title that discourages them from being too serious about their engagement with the existing powers that be. Give them ABCC style powers to compel self-incrimination by all means, but lumber them with a requirement that they be addressed as “The Random Bozo” rather than “The Right Honourable”. Perhaps also dump Robert’s Rules for the meeting rules used by formal consensus models like “On Conflict and Consensus” (rather than actual consensus). Basically, an external facilitator runs the meeting but has no decision-making power, including lacking the power to expel people from the meeting. Speaking order rotates and requires explicit rejection of the desire to speak. Etc. Discipline is imposed by the members if required (and with electronic voting from the Bozo’s seats, can be done mid shouting match if required)

  4. Kien says:

    Seems a good idea. I suggest trialling it at a city or town level. Maybe Sydney’s mayor could be persuaded to set up a People’s Chamber to review regulations or propose initiatives that apply to Sydney.

  5. paul frijters says:

    for reasons I gave earlier, I think the idea of a random jury of the population is mainly useful when it comes to judging people for high offices rather than judging policies.

    Still, I think it is great you are proposing to set up things outside of the current system and thus do not take our system to be immutable and sacred.

  6. Ken Parish says:

    You would need a life ban on MPs from the People’s Chamber standing for election for either of the other Houses, otherwise some/many would certainly parlay their good fortune in the political lottery into a high public profile they would later use to gain subsequent popular election once their six year term had expired (e.g. Pauline Hanson). It would be just another mob of self-interested politicians jumping on the gravy train and espousing populist silliness to carve out an ongoing political career.

    However I certainly agree the concept has merit subject to the necessity for a life ban. Your proposal for a 6 year term would overcome most of the objections of skeptics like Paul Frijters that such a system would condemn us to politicians with little knowledge or understanding of the policy issues they are being asked to decide, because they would be there long enough to acquire that knowledge, experience and understanding. At the same time they would be systemically separated from the cynical, careerist, ossified party political system Australia has developed.

  7. Nicholas Gruen says:

    I agree with the sentiment Ken, but I think you’re overdoing it. I think it would be the exception rather than the rule. Pauline Hansons are more likely to pop up through the electoral route as it’s self-selecting.

    Be that as it may, the main reason I proposed a temporary rather than a permanent ban, was that I thought some of those $10,000 a day defenders of the Little People from the legal fraternity would find that a life ban was an unreasonable restraint of trade. If they can be kept at bay, bring it on!

  8. Alan says:

    You would of course need a rule that the random draw e my a mechanical process that is transparent and verifiable. If necessary we can start manufacturing kleroterions. I have absolutely no desire to see a random assembly generated by the Engulf and Devour Software Corporation under a commercial-in-confidence MOU backed by investor-state dispute settlement procedures.

    • Nicholas Gruen says:

      But Alan, how could you trust the software, or any other method of selection if it isn’t patented and can’t let the vendor of the service take the government to a group of friendly corporate functionaries on an international ISDS panel?

      Makes no sense to me.

      • Alan says:

        A little off topic, but New Zealand insists that any trade agreement must include a Treaty of Waitangi exception and that an ISD panel cannot interpret the exception or deal with Waitangi measures.

    • Moz of Yarramulla says:

      There’s what, 12M voters? Number them and pick a number. Distribute the lists of numbers, ideally on a write-once media like CD/DVD so that anyone who wants to can have a copy before the draw (just to avoid the problem of Bob Smith mysteriously always being whatever number is drawn).

      That’s 8D10 to the dungeons and dragons fans. The one subtlety is that you have to discard out of range numbers rather than rounding (so you would want to roll the most significant dice/digit first). In the case of 12M you could use a D12 for the first “digit” so save some re-rolls.

      It’s not too difficult to make mechanically random systems, even for choosing one item from millions. Lotto draws do it every day.

      • Alan says:

        The Athenians had a mechanical device called the kleroterion, which was relatively tamper proof. The Florentines, alas, used a system of purses that proved highly tamperable when the Medici decided the system needed tampering. So there is ample precedent for corporate interests willing to subvert random draws to seize control of the state.

        • Nicholas Gruen says:

          You may have detected some irony in my tone.

        • Alan says:

          Indeed I did. I mention the Medici only to deter the inevitable all our businesses are wonderful view. I will also resist the temptation to recast Marx on history repeating as farce when one compares the cultural standing of the Medici and Trump dynasties.

  9. John r Walker says:

    Nicholas from The Leopard:

    What would the Senate do with me, an inexperienced legislator who lacks the faculty of self-deception, essential requisite for anyone wanting to guide others? “

  10. Nicholas Gruen says:

    Flattery is generally encouraged here at Troppo, though you’ve always had to do better than that to the Merc Sports for the weekend.

    • John r Walker says:

      Nicholas
      Thanks but you can keep the, merc for the brand conscious. :-)

      After all we have in the garage our Sunday drive a full kit, and beautiful to the eye 1991 Aero : ” best car in the world, at one hundred miles an hour”.

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