Citizens’ chambers: towards an activism of selection by lot

By Nicholas Gruen

Wednesday December 5, 2018

Sortition would address the yawning deliberative deficit and weaken many of the pathways by which polarisation, cronyism and party influence occurs, says Nicholas Gruen.

In a recent paper, James Fishkin identifies some potential shortcomings of citizens’ chambers which justify his own preference for ad hoc, and temporary citizens’ panels. He makes some good points.

His central concerns are that a citizens’ chamber might:

  • have insufficient technical expertise
  • be susceptible to corruption and
  • not maintain the high quality of deliberation achieved in the best ad hoc citizens’ juries.

These are legitimate concerns. But they have a ‘theoretical’ ring to me.

Firstly, he does not dwell on the evidence for these arguments or speculate about how bad they would be so much as raise questions. Secondly, he fails to place likely problems in the appropriate contexts.

The shortcomings of citizens’ chambers are rarely juxtaposed with the similar, sometimes much graver problems in the existing chambers. Perhaps, more importantly, his caution about what the evidence permits us to do safely privileges the experiments we’ve already made, which have typically been cast as forms of advice and supplication to the existing powers that be. He doesn’t tell us what we’re giving up by continuing in that cautious vein.

I’ll explore Fiskin’s three claims above in a little more detail below before proceeding to my more general concerns.

Technical expertise

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.

A random selection from the great unwashed will very likely be less technically expert than elected representatives. Over 90 per cent 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. Indeed, the people’s elected representatives often rely in such matters on advice from and delegation to independent experts.

Another skill is humility – knowing and conceding the limits of one’s knowledge – and preparedness to compromise. My guess is that those chosen by sortition would be humbler not just because they’d be relatively less educated but also because their pathway to leadership had not come by way of self-assertion. They wouldn’t have sought the job and so would have no debts to pay and nothing to prove.

Might some less well-educated people dismiss expertise altogether? Perhaps. Who knows? We can say that for the best part of the last decade elected politicians, particularly on the right in the US and in Australia, habitually discount strong scientific consensus when it suits them (though this occurs en masse with the US right and only in a substantial faction in Australia – though one which is immensely strengthened by the logic of contemporary political combat.

Corruption of careerism

Elected representatives today are inured to the soft corruption of careerism. This involves party discipline overriding their consciences on all but a few matters that representatives agree to treat as ‘conscience votes’. This has led to our elected politicians voting for positions that well over two-thirds of them would personally regard as barmy, including Brexit and the abolition of carbon pricing in Australia.

And the careerism morphs into cronyism when politicians become ex-politicians. Their privileges as MPs make them well connected to lobby their former colleagues. But it’s worse than this. Vested interests (including foreign ones) are already gaining a reputation for looking after ex-politicians who have previously treated them well.

Sortition weakens or completely interdicts many of the pathways by which this kind of influence occurs. Even if they were given a term of a few years, citizen representatives would turn over more often than career politicians. Their career progression in the chamber would be impossible to influence beyond their term and very difficult to influence from the outside for the duration of their term. Their influence as lobbyists is also likely to be less given their lack of any shared dependence on a political party and its associated establishment.1

Maintaining good conditions for deliberation

Here’s Fishkin making his third point – that a citizens’ chamber might not be conducive to careful deliberation:

If the roles and behaviours 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 behaviours 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 holds citizens’ chambers to an infinitely higher standard than elected representatives who have almost comprehensively emptied deliberation from their chambers. Except in the case of conscience votes and where the government lacks the numbers (in which case persuasion is directed to specific ‘weak links’ on the cross-bench – most of it behind closed doors), deliberation went out with poke bonnets.

Towards sortition as activism

More generally, I fear a kind of squeamishness and timidity which is unsuitable if, like me, you think our situation is dire. At the very least this makes the best the enemy of the good.

Right now, we have a shocking deliberative deficit in our electoral democracy. It seems self-evident that introducing elements of sortition into our system can powerfully address that. It won’t be perfect, but then we’re talking about democracy – so it can’t be.

Without a citizens’ chamber, it’s hard to see how sortition bodies won’t always be at the service of existing elected representatives. They’ll decide what citizens’ juries deliberate on, and the circumstances in which they deliberate.

And that more or less guarantees they’ll be advisory only, which will minimise the pressure they can exert on elected representatives to support the considered will of the people. A citizens’ chamber would be the natural body to propose ad hoc citizens’ juries or chambers on specific issues, to definitively address any inconsistencies that might arise between them and to press for them those in power to give them the regard they’re due.

Another concern is that everyone in the chamber be given a fair go – that there’s due regard for those who may not be as assertive or articulate as others. I too would like to see these values reflected in the chamber, especially since the chamber itself would be an expression of the community’s commitment to similar values. Indeed as I’ve argued elsewhere, sortition is a central means for reflecting those values in our democracy – values that the Ancient Greeks had a name for – isegoria – or equality of speech.

But, ultimately if they are to be reflected in the chamber these values need to be taken on by the chamber operating as a sovereign body – not one which is controlled from outside and imposed by some elite that we presume has our best interests at heart and whom we hope somehow to remain in control of.

Even if caucusing and coalition building became common within a citizens’ chamber, it would all be in the service of a collectively deliberative purpose. In each and every case, conduct inside and outside the chamber would be directed towards persuading those who’d not yet decided, a great rarity in elected chambers today.

I agree with what (I presume) Fishkin thinks – that sortition can help guard against excessive polarisation in our politics. But politics isn’t for nice guys. It’s a struggle. When Martin Luther King Jr stood on the bridge at Selma, when Lincoln signed the Emancipation Proclamation they weren’t playing nice. After years of persuasion and care they’d come to see the need to simply assert a different legitimacy to the one that was dominating politics at the time. That’s what we need to do with sortition.

When Franklin Delano Roosevelt called for “bold persistent experimentation” to tackle not just the depression but the political economy of the time, 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 addressed 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.” When I look at the democracy we have, we see the chaos of Brexit, of the abolition of carbon pricing and the resulting paralysis in our energy markets. Doesn’t everyone see a 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 incumbent system, not to replace it, but to insinuate itself as a check and balance, and so to heal it. That’s why I proposed a ‘Brexit Deliberation Day‘. We got quite close to getting it funded. But because we couldn’t guarantee what conclusions citizens’ juries would come to, we couldn’t secure any funding from pro or anti-Brexit forces preoccupied as they were on the media manipulation that passes for campaigning.

The citizens’ jury that was funded by existing research institutions was assiduous in going along with the narrative that radiates out from electoral politics in Britain in all its non-glory and anti-deliberative dysfunction; that Brexit is a done deal, the only legitimate debate being what shape it takes. As such, in the charged atmosphere of Brexit, it was largely ignored.

Forming groupings and coalition building within the citizens’ chamber could, of course, have costs. But aren’t these the very kind of costs that would be incurred in any unfolding of sortition into the harsh reality of real political influence?

It will also have benefits and I think they’ll outweigh the costs. For instance, if citizens’ juries are to have influence on political business-as-usual, then, as Fishkin acknowledges, sortition backed proposals need “actual proponents advocating them to the electorate”. I don’t know whether Fishkin has in mind these advocates coming within the sortition body or outside, but I think of sortition as a field in which some people will emerge as leaders. That’s why I’d like to see the modes of selecting the leaders within citizens’ juries and chambers reflecting community service rather than self-assertion.

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. Surely, as I’ve proposed, giving a super majority of a citizens’ chamber the power to impose a secret ballot on a chamber it disagrees with offers a valuable safety valve. It guarantees that, where an elected chamber votes inconsistently with the considered will of the people it be subject to an additional check of running the gauntlet of elected representatives having an additional conscience vote on the matter.

Finally, we’re dealing with human beings and democracy. This means there are no perfect options. And we’re dealing with power. This means there are no perfectly safe options. And as legitimate as concerns might be that giving such bodies power might change things, power is like that. Granting real power can’t be tested in the lab.

So those of us who want to change things for the better need some minimal level of boldness. In the same speech in which Roosevelt called for “bold persistent experimentation” ditching what fails and capitalising on what works he said this:

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.

I salute all the work those supporting sortition have done over the years. But there comes a time when the child must make its way in the world. Given how much we already know about the capacity for sortition to heal our democracy, and given the dire state of things today, that time is now.

1. 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.

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