Final Adoption of Laws (Policy Juries)

From "The Trouble With Elections: Everything We Thought We Knew About Democracy is Wrong," Chapter 16.4

A key feature of this proposal is that we don’t leave the final decisions on legislation to Interest Panels nor to Review Panels. Because of the risk of groupthink, pride of authorship, or simply inaccurate representativeness (due to smaller sample size and self-selection bias), final decisions are made by separate bodies, I call Policy Juries. This separation of functions would also reduce the likelihood of extreme polarized majority positions coming out of the Review Panel, since members of both the Interest Panels and Review Panels would understand that their final products must be able to pass muster in front of a large, fully representative Policy Jury. Finding middle ground, or win-win options, and addressing the needs of minority perspectives might enhance their chances of ultimate adoption.

Each Policy Jury would vote on one piece of legislation, like the Legislative Panels (nomothetai) of Athens did. To avoid self-selection distortions, jury service should ideally be quasi-mandatory (though with reasonable hardship excuses allowed). It is unlikely that early implementations would have legal authority to mandate service, so substantial alternative means of encouraging participation would need to be employed. People have few, if any comparable opportunities for civic engagement in modern America, so we can only speculate about potential participation rates. Short service durations (perhaps a week or two) combined with compensation and some symbolic status honors might achieve adequate participation, and thus descriptive representativeness. A state or national Policy Jury should probably have between 500 and 1,500 members to achieve a representative sample. A municipal Policy Jury would probably be significantly smaller, simply for financial reasons, and the fact that the issues would generally be significantly less consequential. 

The essential task, and the procedures of the Policy Jury are intrinsically different from those of the Interest Panels and Review Panels. Like the Athenian Legislative Panels (nomothetai)  and People’s Courts (dikasteria), a Policy Jury would listen to pro and con presentations on the proposed legislation, and without further debate, vote to adopt or reject the law by secret ballot. This procedure is intended to benefit from the wisdom of crowds described in James Surowiecki’s book while avoiding the groupthink and polarization dynamics that can arise when participants engage in discussion and advocacy. 

This procedure elevates the skill of democratic listening – an often neglected skill that is distinct and apart from debate. Some researchers and political theorists note that it is unfortunately far more common to focus on the value of speaking, or “voice,” than listening when examining democratic behaviors. But when debating (or even conversing), as we hear another speaker, our mind often gets preoccupied with making a plan for our response or counter-arguments, not openly absorbing or seeking to understand others’ perspectives. Debate is about winning – not learning. Narrowing the jurors’ task to listening to presentations and voting, (with the uncommon inducement of exercising actual decision-making authority) will also increase willingness to participate and thus the jury’s descriptive representativeness. 

The secret ballot is important, as it helps avoid the social pressures and deference to high-status members that can interfere with a juror’s ability to make their own independent assessment, and vote as they think best. The secret vote also reduces the risk of corruption and vote buying. Jury tampering protections (including announced sting operations of pretend bribers) would still be appropriate, but potential corrupters are less tempted to try buying votes when there is no way of knowing if the votes were delivered.

Preparation of the pro and con presentations could be overseen by the members of the Review Panel who had been on opposite sides of the decision within that body. The Rules Council might be wise to also allow jurors to ask clarifying questions, and perhaps even seek out independent expert witnesses. The Policy Jury is the failsafe check that assures new laws will be deemed appropriate and desirable by an informed population. 

Since the jurors aren’t engaging in all-to-all deliberation, it would be logistically feasible to create far larger juries – in the thousands – through the use of the Internet. Here we face one dilemma that requires an additional procedure to resolve. The larger the sample, the more statistically accurate the representation, but also the greater the risk of inattention and the resurfacing of rational ignorance (“my one vote won’t matter”), or what Jeremy Bentham termed a lack of “active aptitude."  One option is to hope that trial and error will eventually lead to finding the “sweet spot” that achieves adequate statistical representation but also motivates participants to overcome rational ignorance, and put in the effort needed to make a considered judgment. 

The alternative strategy is to adjust the majority voting threshold. If a bill receives a seventy percent majority in a jury of 500 people, it is almost certain it would also have passed if the body had been 1,500 (though not necessarily by the same margin). However, if it passes in a jury of 500 by a mere fifty-one percent majority, we would be right to be concerned that the bill might have been defeated if the sample size had been 1,500, which more precisely represented the will of the community. One solution is to set an adoption threshold greater than a simple majority, and then if a bill gets a small majority, smaller than the threshold, convene an entirely new Policy Jury, which could be larger, to see if they come to the same conclusion about the bill.

Policy Jury members are not intended to “represent” geographic constituents (as in an electoral system), nor any particular constituents (e.g. based on demographics or partisan loyalty). The electoral concept of accountability of individual representatives to particular constituencies simply doesn’t apply. This may seem strange at first, but once the jury analogy is fully understood, it is obvious. We expect jurors of a particular race, for example, to seek justice, rather than be "accountable" to citizens of their race. They may be more likely to assess information and think in a similar way, but “accountability” is not pertinent. Each member of a Policy Jury (as with a court jury) is expected to vote as they think best, with the collective result mirroring what the community as a whole would decide if they had the information and time to reflect. 

Experience with deliberative polls conducted by James Fishkin, in which randomly selected community members are asked to make decisions about public policy matters, suggest that such representative groups may be more able to favor long-term and community interests over egocentric self-interest, than elected representatives are. Even if no elected official were corrupt or self-serving, re-election campaign dynamics may pressure them to make harmful, but “popular” decisions on high-visibility issues. This can happen if they believe their constituency would initially favor the short-sighted decision, due to a lack of information, understanding, and reflection, rather than decisions that the elected representative genuinely believes would be in their constituents’ long-term interest. If a politician considers taking a long-term view on a policy, they know that their partisan opponents will seek to frame their vote as detrimental to the (short-term) interests of their constituents in the next campaign, making such principled votes problematic for politicians.

To enhance democratic listening, and this promotion of the common good, it might be beneficial to have members make a pledge, not unlike the Athenian Heliastic Oath that reverberates down the ages from two and a half millennia ago. The pledge might state that they will vote impartially as their conscience suggests will be most just and beneficial for the community. I drafted a possible Juror’s Pledge during my work on a global sortition design effort in 2017 : 

“I agree to treat all participants with respect. I will listen with an open mind, and delay making any final decision on the matters under consideration until I have heard all of the evidence and arguments. I recognize that some things that I believed to be true may turn out to be wrong, and that other things that I did not accept may turn out to be valid. I commit to making a final decision that on balance I genuinely believe is in the best interests of all.”  

Although research on the unconscious “priming effect” has been called into doubt by failures of replication studies, such a pledge, which makes these expectations express and overt, might help members consciously seek to withhold their decisions until they have heard all the evidence.

But even if we assume that most members of a randomly selected body will ignore the common good (or we assume that the very concept of a “common good” is a vain myth), and instead vote according to each member’s selfish interests, at worst we arrive at the ideal outcome championed  by adversarial competitive (electoral) democracy, which is finding the majority preference among competing interests.