In a recent paper, James Fishkin identifies some potential shortcomings of citizen’s chambers which justify his own preference for ad hoc, and temporary citizens’ panels. I think he makes some good points. I think his arguments need further exploration which I do in the first half of this post before articulating a more general unease at where Fishkin and many protagonists of sortition are coming from.
His central concerns with a citizen’s chamber are that it might:
- have insufficient technical expertise
- be susceptible to corruption and
- not maintain the high quality “conditions for deliberation” that have been achieved in more ad hoc citizens’ juries.
These are legitimate concerns. But they have a ‘theoretical’ ring to me. Firstly Fishkin doesn’t provide much evidence that these problems would arise or if they did how bad they’d be. Secondly, he also fails to compare the likely problems with existing similar problems in the existing chambers. I’ll go through these arguments regarding each of the claims in a little more detail below before proceeding to my more general concern.
If someone can suggest a means by which one or two hundred people can represent the polity and not lack expertise in all the functions of government, I’ll be interested to hear it. Perhaps a random selection from the great unwashed will be less technically expert than elected representatives. For instance, in wealthy countries today, over 90 percent of elected political representatives are university educated compared with around half the population. But that greater level of education comes with its own blind spots as we’re discovering. Moreover, a university graduate in law or psychology won’t be much help in steering fiscal policy and in that regard, the people’s elected representatives often rely in such matters on delegation to independent experts and being advised by experts. But this comes with the territory.
Another skill is humility – knowing and conceding the limits of one’s knowledge. It is also morally worthy and important to compromise between perspectives and interests which is the essence of democracy. My guess is that those chosen by sortition would be more attuned to the limits of their own expertise – and, one can also hope, to the limits of expertise itself – both because of they were relatively less educated but also because they had not sought the job and had nothing to prove.
It’s possible that less well-educated people would dismiss expertise altogether. However, for the best part of the last decade elected politicians, particularly on the right in the US and Australia began habitually discounting what appears to be robust climate science whilst they and their fellow travellers received generous funding from vested interests which benefited from such stances.
It is unclear to me that ordinary citizens are more susceptible to corruption than our elected representatives. Indeed elected representatives are actually inured to a soft kind of corruption and careerism by which I mean not just party discipline overriding their consciences but also in the access politics now gives to post-politics career opportunities. Ex-politicians are already well connected with existing ones giving them advantages in lobbying their former colleagues. But it’s worse than this. Certain vested interests which can make or lose billions depending on government decisions (for instance banks and providers of privately funded infrastructure) are already gaining a reputation for looking after ex-politicians who have previously treated them well.
To the extent that members of citizens’ chambers turn over more often than career politicians and have less direct access to ministerial decision making the risk from the citizens’ chamber seems correspondingly less. Their influence as lobbyists is also likely to be less given their lack of connection with a political party and establishment.
I also think they’d be more resistant to soft corruption. I recall when Australian Prime Minister Malcolm Turnbull faced down parliamentarians from ‘micro-parties’ in the Senate (unlikely politicians who managed to scrape into parliament on very slender primary votes by doing deals with other parties). The hard-heads in the Press Gallery suggested that this was a masterstroke because it would give them a career interest in supporting the Prime Minister’s agenda. But the Press Gallery were judging these political newbies by the standards of career politicians. Representatives from the micro-parties proved more resistant to such blandishments and threats based on their political interests than career politicians.
Maintaining good conditions for deliberation
Fishkin makes his third point – that a citizens’ chamber might be antithetical to the careful deliberation as follows:
If the roles and behaviors of randomly selected full-time legislators were anything like the ones we are familiar with for legislators in modern society, then there would be a host of behaviors outside any such deliberative structure. There would be many individual meetings, caucuses, efforts at coalition building or even caucus or party formation, and meetings with lobbyists, staff, and constituents. Individual representatives might deliberate or they might not. But we have no institutional design to predict reliably that they would.
This is holding a citizens’ chamber to an infinitely higher standard than elected representatives all around the world whose collective conduct has more or less comprehensively emptied deliberation from their chambers thus traducing the meticulous designs of their founders – for instance of the founders of the United States Constitution. There are negotiation and coalition building on the rare occasions where the government doesn’t have the numbers or there’s a conscience vote, but otherwise, the system we have is all declamation rather than deliberation to arrive at a better position.
Towards sortition as activism
More generally, I fear a kind of squeamishness in Fishkin’s arguments, that he’s making the best to be the enemy of the good. Right now we have a terrible deliberative deficit in representative democracy. I think it’s self-evident that greater use of sortition can address that in a powerful way. It won’t be perfect, but then we’re talking about democracy – so it can’t be. Even if caucusing and coalition building became the norm within a citizens’ chamber, it would all be in the service of a collectively deliberative purpose. In each and every case, conduct within the chamber and in its corridors or offline would all be directed towards the ultimate goal of persuading those who’d not yet decided, a great rarity today in elected chambers today.
I agree with what I presume Fiskin thinks – that a critical role of sortition is to help guard against excessive polarisation in our politics. But, thinking of great political leaders – whether activists outside mainstream party politics like Martin Luther King or those within it like Abraham Lincoln – we need to vigorously assert the alternative legitimacy we claim. When King stood on the bridge at Selma, when Lincoln signed the Emancipation Proclamation they were doing that – simply asserting an alternative legitimacy to the one that had dominated politics until that time.
There were no trials to be run and no presumption that they could comfortably roll out this new world without struggle and without problems which needed to be addressed as they arose. When Franklin Delano Roosevelt called for “bold persistent experimentation” something our existing system now renders incredibly difficult if that experimentation treads on important toes or can be easily traduced and misrepresented in political combat, he was asserting the urgency of that need and the impossibility of meeting it with perfect safety. As he put it to the graduating students he was talking to that day “As you have viewed this world of which you are about to become a more active part, I have no doubt that you have been impressed by its chaos, its lack of plan.”
For me, until I see evidence that sortition won’t do what we all think it can, I want to find ways of asserting its legitimacy against the legitimacy and power of the current system, not in order to replace it, but to introduce itself as a check and balance, and so to heal it as we move towards a more mixed constitution (with representation by election and sortition each contributing). That’s why I proposed a ‘Brexit Deliberation Day‘ and actually got quite close to getting it funded. But of course it didn’t fit anyone’s agenda because, though I think we know what it would have shown – a swing on deliberation away from Brexit – I couldn’t guarantee what the outcome would be to any funder and I didn’t want it to be an anti-Brexit exercise in any event. The goal was to surface the considered will of the people on such a critical matter, whatever it might be. I also couldn’t get funding from the promoters of sortition because they don’t want to rock the boat too much. Note how the citizens’ jury that was run on Brexit was assiduous in seeking to avoid re-litigating Brexit, assiduous in other words in not asserting the legitimacy of sortition to challenge the status quo.
I agree that coalition building, caucuses of groups and so on within the citizens’ chamber could charge the atmosphere somewhat. But I see these things as part of making an idea real. Of course, it’ll have costs, as any unfolding of sortition into the harsh reality of navigating real politics will. But it will also have benefits and I think they’ll outweigh the costs.
For instance for as long as we are concerned by these things we’ll stay in charge of the process. We’ll govern it, and if it’s to mature into a successful contributor to our politics it must begin to govern itself. So I’d like to see the issue of factionalism and also the question of how those with less advantages get a fair say being owned by those in the chamber rather than managed by facilitators from outside. In that regard, one might provide services to the citizens’ chamber and seek its own input on establishing systems of governance to deliver such things – if the chamber itself considers them valuable, which I have little doubt it would.
The kinds of mechanisms practiced today to keep citizens’ juries in deliberative mode, which seem to be the ones Fishkin is appealing to given his emphasis on sticking with tried and tested experience seem to position the citizens’ chamber as no more than advising the lawmakers, the real politicians – in the executive and in the legislature (which, I might add is already failing to hold the executive to account.)
Our existing policy system is so degraded in deliberative capability, so riven with careerism and manipulation from the top that Australia recently abolished carbon pricing against the better judgement of what I would imagine was over three-quarters of its parliamentarians. The UK is engineering something similar with Brexit against the better judgement of its parliamentarians, political polling now underway and against the best evidence of what citizens appear to think once they’ve deliberated on the question. So I want citizens’ chambers to come to challenge the status quo at its worst.
One of the ways that has to happen is that an eco-system has to develop around sortition which can take up that challenge. Fiskin acknowledges this where he talks about needing mechanisms that are “connected enough to the political fray that the selected proposals have actual proponents advocating them to the electorate”. I can’t see how sortition can come of age until this stage is reached. I don’t know whether Fishkin has in mind that these advocates coming from within the sortition body or outside, but I think of the body as a field in which some people will come to be leaders. I hope the way they emerge will reflect what I think of the ethos of community service rather than self-assertion. We may not agree on which ones are good and which bad – in a democracy that’s a feature not a bug.
If one is concerned at giving too much power to such a body early on it can be made advisory only. If one is still concerned that it sets a precedent or otherwise prejudices the way we develop these ideas, we can subject it to sunset clauses, establishing a citizens’ chamber for the life of a legislature after which it would lapse unless extended. And one can expand their power and the tenure of the chamber and/or its members as one gains experience. When we have it we can proceed (conservatively) according to the evidence we generate.
I couldn’t see Fishkin mention super-majorities but surely this is the way to deal with concerns that a chamber might not be sufficiently representative. It’s certainly how we deal with it in juries – requiring very ample majorities to be dispositive. If over 60 percent of a randomly selected chamber of 200 people think something I’m comfortable that it represents the considered will of the people. I also think giving a super majority of a citizens’ chamber the power to impose a secret ballot on a chamber it disagrees with offers a safety valve. It’s saying nothing more than that a super-majority representing the considered will of the people has a right to insist that if the contrary view of another chamber is to have force it tolerably represents not just the state of party discipline but also the private wisdom of the chamber. I can’t see what there’s not to like.
Finally we can’t really ever run proper experiments with giving such bodies real power and influence until we do so as power and influence change the game. So we have to have some minimal level of boldness. I’ll finish by quoting the same speech in which Roosevelt called for “bold persistent experimentation” ditching what fails and capitalising on what works:
Probably few will disagree that the goal is desirable. Yet many, of faint heart, fearful of change, sitting tightly on the roof-tops in the flood, will sternly resist striking out for it, lest they fail to attain it. Even among those who are ready to attempt the journey there will be violent differences of opinion as to how it should be made. So complex, so widely distributed over our whole society are the problems which confront us that men and women of common aim do not agree upon the method of attacking them. Such disagreement leads to doing nothing, to drifting. Agreement may come too late.