Detoxing democracy 2: A mixed model of democracy for Australia

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

¹here is an Australia of the spirit, submerged and not very articulate … ²orn 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.³ 

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. ⁴ 

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.⁵ 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. ⁶ 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. ⁷

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. T[↩]
2. b[↩]
3. 1. Ethan J. Leib, Deliberative Democracy in America: A Proposal for a Popular Branch of Government.[↩]
4. 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.[↩]

5. 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.[↩]
6. 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.[↩]
7. 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.[↩]