Meta-legislative Functions (Rules and Oversight Councils)

From "The Trouble With Elections: Everything We Thought We Knew About Democracy is Wrong," Chapter 16.5

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Setting the rules of the process (Rules Council)

The rules committee of a traditionally elected legislature has a built-in conflict of interest. The faction in the majority typically tailors the rules to favor their preferred agenda by enhancing the power of the majority. Balanced, fair rules that facilitate deliberation are anathema to elected majority factions. To avoid this tendency in allotted legislative bodies, I propose the creation of an allotted Rules Council, similar in form to the Agenda Council. 

The Rules Council  would establish rules and procedures for all of the other Panels and Councils, such as the lottery process, quorum requirements, means for soliciting expert testimony, procedures to be used in deliberation, compensation, etc. Members would have limited terms and could not know how the rules might hurt or help any particular piece of future legislation they might have a personal interest in. Their natural motivation would be to assure the fairest and best functioning of all of the bodies. 

It might be appropriate to limit the lottery pool for this particular Council to those who have previously served on some other allotted body, so that they understand the dynamics involved. This won’t be possible at the commencement of the multi-body sortition design, since that lottery pool will be empty or at a minimum, too small. However, since it is the Rules Council itself that makes these sorts of process and design decisions , it is important that any changes adopted by the Rules Council affecting the Rules Council itself (a snake eating its own tail) not go into effect until the membership has completely turned over through rotation and lottery, so that the Council members are not able to inappropriately enhance their own power.

Enforcing the rules (Oversight Council)

While the Rules Council decides the rules and procedures, monitoring a large number of mini-publics would over-tax this body. There would need to be at least one, but more likely, a large number of Oversight Councils, responsible for enforcing the rules. Take for example, the question of who presents the pro and con arguments to the Policy Juries, and how do they decide exactly what content to include, in order to give a “balanced” presentation? Even the relative charisma, eloquence, appearance or social status of different presenters may be significant. One possible approach the Rules Council might adopt is to have the same staff members present both pro and con arguments crafted by members of the Interest and Review Panels who fall on either side of the pro con divide. However, this leaves the Policy Jury in danger of being steered by the administrative bureaucracy promoting its own interests -- a common problem with elected bodies. Many state and national legislatures try to solve this problem by allowing each legislator to hire their own staff. However, this individualized staff often ends up spending an inordinate amount of time on re-election concerns, such as public relations and constituent service, rather than policy. 

Instead, for a sortition system, I propose the creation of Oversight Councils, chosen by lot, which deal exclusively with staff performance and fairness, rather than the policy issues themselves. In addition to evaluating the general competence of the staff, they would rule on complaints about biased or unfair presentations given by staff. They should also have the power to hire and fire staff serving the other sortition bodies.

At a state or national level it might be appropriate to have several separate meta-legislative councils. I have described a Rules Council establishing rules and procedures for good deliberative process, and an Oversight Council overseeing the staff of all of the sortition bodies. A full sortition system might also have one that monitors the performance of the executive in implementing the laws adopted by the Policy Juries, as well as a Coordinating Council that seeks to harmonize and integrate laws passed by Policy Juries when they conflict. For a municipality, a single meta-legislative council seems appropriate; with the limited task of assuring that sortition-formed bodies have good process and staff that provide balanced presentations – independent of any existing government or bureaucracy. 

Summary

At a bare minimum, democracy requires that agenda setting and the final decisions are in the hands of informed and genuinely representative bodies. However, replacing elected legislators with randomly selected representatives also opens the door for innovative and superior means of proposing and evaluating draft legislation. In traditional elected legislatures the same set of elite elected officials are empowered to establish the agenda, prepare specific bills and amendments. They are also responsible for engaging in (or sidestepping) fact-finding, advocacy for or against bills, and finally judging legislation to adopt or reject it. With a randomly selected set of legislators these tasks should be divided among a variety of other groups of people. These groups should generally be randomly selected, (or possibly self-selected in the case of Interest Panels) to optimize diversity, representativeness, avoid self-selection distortion, and promote resistance to corruption. Interestingly, both the randomly selected Australian Citizens’ Parliament and the Belgian G-1000, two of the earliest sortition implementations, provided an additional means for interested individuals who were not part of the randomly selected body to participate in a manner online, by providing proposals or assessments and “raw material” for the formal deliberators. This process of providing a come-one-come-all opportunity for interested citizens to feed into the decision-making process, but countering the self-selection bias by then submitting proposals to the more descriptively representative body, is a model worthy of emulation.

While it seems inevitable that the use of sortition in the near term will be as part of a hybrid system that also includes elected representatives, it is important to understand that maintaining an electoral component is not essential, nor desirable, for democracy, and that it would be possible to have a democracy with no mass elections at all. In this chapter I set forth a multi-body design of democracy that does not use elections. Societies have been on the beaten path, relying on elections for so long that such a sharp break in how we think about formulating a democracy is extremely challenging. I will examine some transition strategies in the next (final) chapter. But the design I set out here is intended to help people appreciate that elections should not be the default tool when setting up a democracy. We need to understand that a better way is possible before people will willingly abandon the familiar ways.