A Better Transition to Sortition

From "The Trouble With Elections: Everything We Thought We Knew About Democracy is Wrong," Chapter 17.3

Paris Commune, “Women of Paris,” Harper’s Weekly, May 27, 1871

To avoid the problems of a hybrid bicameral system, I propose a system that allows elections to coexist with sortition, whether permanently, or during a transition to an all-sortition system, though not in a bicameral design. Below, I explain why sortition should eschew an all-purpose chamber even without a bicameral design, and use multiple citizen bodies instead.

Avoiding an all-purpose legislative chamber

An all-purpose legislative chamber is a mismatch for sortition, whether in a unicameral or hybrid bicameral system. All-purpose (full-charge) elected bodies manage a huge variety of issues by dividing into smaller committees. The chamber as a whole does not meaningfully deliberate, or even understand the nuances of most of the bills they nominally debate and vote on. Instead, members rely on one of a few heuristics. Commonly, they simply defer to the judgment of the members of their own party who serve on the committee of reference.

This approach has shortcomings for elected chambers, but is even less appropriate for a sortition chamber. Even if members of the allotted body organized into partisan caucuses (undercutting one of the benefits of sortition), small committees would have a greater likelihood of being unrepresentative of the population, simply owing to smaller sample sizes. Deferring to even a conscientious committee could result in very unrepresentative decisions. The sheer number of bills under consideration by an all-purpose chamber precludes dealing with them all in a committee of the whole. Hypothetically, this problem might be resolved with a vast chamber with hundreds of members on each committee. David Owen and Graham Smith have proposed something a bit like this, but also with frequent rotation, but this has not generally been the scheme imagined by advocates of hybrid bicameralism.

A transition strategy, which occasionally occurs to people, is adding some randomly selected members to a body that is currently made up of elected members. Variants of this “mixed-member” idea is that voters could select “none of the above” on their ballot, or the ratio of non-voters in the population compared to voters could apportion the randomly selected seats. One proposal that occasionally surfaces is even to have a political party contend in the election that commits to appointing any seats won to random citizens. All of these mixed-member chamber concepts are untenable. Having two classes of “members” in a chamber, one with no experience, often not a lot of self-confidence, and no agenda on the one hand; and the other class of members made up of self-confident professionals with partisan goals, who would likely seek to recruit the allotted members into their partisan caucus, and who also have a career path, only exaggerates the problems of a hybrid bicameral system. The logic of their legitimacy is also starkly different, and fundamentally incompatible in a mixed body.

Anthoula Malkopoulou notes that "lotteries may offer valuable improvement to current practices of democratic selection, but only if special measures are taken to compensate for the limitations they entail.” The special measures she favors (limiting the role and power of mini-publics) are nearly the exact opposite of those I support, but we agree that one must adjust the law-making design to fit the unique character of mini-publics. The framers of the United States Constitution substantially copied the design and legislative form of the British House of Commons, since they were not making any fundamental change to the principle of distinction for an elected elite governing the populace. Even the Senate was largely modeled on the House of Lords, but substituting a “natural aristocracy” selected by the various state legislatures, for its hereditary aristocracy (US Senators were not directly elected until 1914 following the ratification of the 17th amendment, but even then persisted with essentially the same kind of elites.) The sort of fundamental shift in the locus of power envisioned by a sortition democracy precludes such rubber-stamp replication of design. As Karl Marx wrote, in evaluating the revolutionary governance of the  Paris Commune of 1871, “the working class cannot simply lay hold of the ready-made state machinery, and set it in motion for its own purposes.”

The Peeling Transition Strategy

Most of the experience with modern-day sortition has been through citizens’ assemblies that have had a single function and topic.  Also, the vast majority of citizens’ assemblies have been asked to deal with issues where the elected politicians have not already staked out partisan positions, thus side-stepping the risk of “head-butting” I worried about in the section above. While recent citizens’ assemblies have been exceptionally successful in terms of deliberation and policy (though significantly less successful in terms of seeing follow through on their recommendations by elected decision-makers), that internal success is irrelevant to how well a full-charge sortition chamber might function.

In this book I have presented the concept of a sortition democracy with an interconnected network of mini-publics, each with a specific legislative function or a specific topic or issue. In addition to being a more desirable end state, unlike a full-charge allotted chamber (which handles all functions and issues in the way a standard elected chamber does), the means of transition is built into the model itself. I refer to this as the peeling strategy. 

Peeling away issue areas one at a time from elected representatives and transferring those policy domains to allotted bodies allows communities to learn from the experience of recent experiments in terms of process. But, crucially, it also avoids the danger of an elected chamber and a newly established full-charge sortition chamber opposing each other head-to-head on a given bill, which could trigger the aforementioned sortition delegitimation. 

The ultimate design using multiple single issue and single function mini-publics not only solves the dilemmas of sortition design discussed in chapter 16. It is also pragmatic, and provides a step by step path for evolution to an all-sortition democracy. This transition strategy also avoids the need for a sudden seizure of power, as in the Paris Commune of 1871. By peeling away one issue area or function at a time from the traditional elected legislature and entrusting it to a compound sortition process, it might be possible to transfer power to a sortition wing of government in a sequential process. 

There are certain inviting issue areas where this might begin, such as issues in which elected legislators either have a conflict of interest (election laws, as in the case of the British Columbia Citizens' Assembly, ethics oversight, etc.), or “hot potato” issue areas that elected officials are happy to be rid of because they are no-win topics from a politician’s campaign perspective (such as the nuclear waste issue tackled by a mini-public in South Australia, or abortion in Ireland). Initially, bills with no substantial budget impacts are most appropriate, as coordinating conflicting budget requests is a higher order challenge for a system based on separate mini-publics.

The goal is to institutionalize the transfer of an issue area on an ongoing basis. The authority of the sortition process must be decisive, rather than merely advisory. This must also be combined with verifiable independence, such that a mini-public is not subject to manipulation by the elected government through control of their staff or information flows. In the short term, this might be accomplished through facilitation by an impartial non-governmental organization, such as Australia’s newDemocracy Foundation or a university. Ultimately, however, there must be a budget and staff not beholden to the elected representatives. The staff and functioning of the sortition process should be overseen by a mini-public devoted to these tasks.

If the public appreciates the fruits of these mini-publics, governments could feel a growing pressure to try this model for other issues, especially following scandals that crop up among elected representatives. 

Imagine a scandal in which a developer was discovered to have bribed members of a city council for some favorable spot zoning to allow a profitable project. If the sortition option were well known, it is possible to imagine that all future zoning decisions would be removed from the city council and instead entrusted to a jury-like sortition process. Community groups might demand this reform, and the city council members might wish to be seen as permanently solving the problem of zoning bribes, while not having much interest in holding on to zoning authority in any event.

This approach allows for baby steps (likely at the municipal level first), with a gradual popular assessment that might grow more favorable with each process refinement along the way, cresting into a huge tsunami wave of reform. Creating an all-purpose sortition chamber dealing with all bills would require a greater leap of faith all at once. In this way, elections steadily become less and less significant. I use the analogy of what happened to the monarchies of Europe. While many nominally still exist, they are virtually powerless today. I foresee a future in which elected chambers may still exist, but are reduced to passing resolutions naming post-offices after local celebrities.

Key for the advance of a sortition-based democracy is the use of sortition in forming municipal charter review commissions and constitutional conventions. A randomly selected constituent assembly seems far more likely than an elected chamber to transfer powers from elected bodies to other sortition bodies. There have already been precedents that suggest this strategy has potential. When the legislature of British Columbia established the Citizens' Assembly, it set up a process that allowed the Assembly's recommendations to go directly to referendum without further involvement of the elected legislators. Ireland and Iceland have incorporated random selection in recent constitutional review bodies, although in an advisory role, explicitly interposing the elected legislature between the mini-public and the opportunity for referendum on the mini-public's proposals. Neither of these are the precise model needed, but they hint at the possibility.