Representation by Sortition
From "The Trouble With Elections: Everything We Thought We Knew About Democracy is Wrong," Chapter 7.5
The court jury is a useful analogue for beginning to think about how randomly selected policy-making bodies might earn legitimacy. But sortition panels should not hew too close to the current court jury model. There would need to be major differences in terms of selection methods, size, procedures, and functions. Policy jurors must be free to ask questions, and bring in experts of their own choosing, rather than being spoon fed only the information pre-selected by experts (lawyers) seeking to shape the jury decision. Sortition uniquely allows for the melding of deliberative and participatory democracy, so long as there are numerous allotted bodies at national, state and local levels. Some might be short-duration single issue policy juries, while others might review executive performance, set agendas, deliberate to craft draft proposals, oversee the lottery process and mini-public procedures and staff, etc. Anyone might directly participate in actual self-government at various times throughout their life.
Potential transition strategies to a sortition-based democracy will be addressed in a later chapter. However, the fact that the vast majority of citizens’ assemblies convened in the past two decades have been single-issue focused, is not coincidental. Institutionalizing sortition will likely begin one policy domain at a time, rather than in a broad sweep. For example, a city is more likely to initially just move decisions like zoning regulations to sortition panels, than replace the city council altogether. There are distinctly separate decision-making tasks of government that are typically all mixed together that could (and should) be separated out. There is agenda setting, adopting internal rules and procedures, crafting proposals, amending and narrowing to a final draft bill, advocacy for and against a bill, judging whether to adopt the bill, executing the new law, and evaluating the performance of the new law and of the executive.
In standard elective governments, a single set of legislators take on all of these lawmaking tasks.1 Having the same sets of people handle all these functions is a very bad design for lawmaking. The mere act of crafting a bill and the act of advocating for or against the bill, makes those people unfit to then judge their own handiwork. Pride of authorship, information cascades, or group-think warp their ability to judge the final product, or to evaluate its performance. They become biased. When a law isn’t working well, those who adopted that law are unable to fairly evaluate its performance, as they want to believe their law is working well. Failing policies are continued for years after impartial people recognize they are a failure. Perhaps most egregious, the leaders of the controlling faction in a chamber write the rules and procedures for how business will be done, which promotes corruption and the concentration of power.
This design of a chamber that takes on all functions has been passed down from repurposed advisory chambers created to advise the monarchs in Europe. Elected legislatures were not designed for democratic, nor competent lawmaking. This all-function design would be even worse for a sortition-based democracy. Simply substituting lottery selection for election in filling such an all-functions legislative body would be a mistake. I’ve written a journal article on this topic, entitled “Why Hybrid Bicameralsim is Not Right for Sortition.” A sortition-based lawmaking process needs to be designed from the ground up. For example, the committee structure in elected chambers would be extremely problematic with sortition. The sample of members in a body as small as a committee would not be very representative. Also in elected chambers, the committee system means that most members do not study or understand most bills they eventually vote on. Instead, they rely on the opinions of the committee members from their particular party who serve on the committee of reference. This poor design is completely inapplicable in a non-partisan sortition system.
Different lawmaking functions should be taken on by different sortition bodies. One might be limited to deciding, after consultation with a variety of experts, what bills should be proposed to a large policy jury, or evaluating the effectiveness of an existing law. These are two decision-making steps that have a powerful subjective aspect and cannot be decided purely based on expertise. Referring to Plato’s ship pilot analogy, an expert can be hired to pilot the ship, but the passengers should decide where the ship is going to go. For example, a society might decide that a goal of full employment for all who want to work should be pursued. No amount of expertise can establish definitively whether this is a good goal. The evaluation step simply examines whether this has been achieved, and whether the unintended consequences are acceptable. Again, no expert can decide whether the cost of achieving this goal is acceptable to the people. Sortition can be beneficially incorporated into almost all phases of the lawmaking process.
A crucially important fact about sortition, which is often ignored by deliberative democracy sortition advocates, is that this tool can be used for a variety of tasks other than creating descriptively representative deliberative bodies. As Oliver Dowlen pointed out in his book The Political Potential of Sortition: A Study of the Random Selection of Citizens for Public Office, using its nonrational (not irrational) “blind break,” sortition is also useful for its impartiality and anti-corruption characteristics. The current jury system that selects only 12 jurors is too small of a sample to have much probability of creating accurately descriptive representation. But that is not the goal. Random selection in this case is intended to select a panel of impartial citizens who are diverse and only roughly typical of the population. Indeed, it is common to have judges randomly assigned to particular cases to avoid corruption. Depending on their functions, not all panels in a sortition-based democracy would necessarily need to achieve, or even seek, descriptive representation. The final decision-making policy juries, however, should be accurately representative in order to achieve the needed legitimacy.
When people first learn about sortition, some suggest there would need to be some minimum competency requirement, some education level, or at least the ability to read. For some functions this may make sense, but the notion springs from conflating the individual mini-public members with individual “representatives” in an electoral system. Remember, the goal is to have the body as a whole represent the community as a whole, including its disabilities. For example, the inclusion of a person with Down's syndrome in the room, (who perhaps needed to listen to audio versions rather than read background material), may contribute unique information that no other member has, or spark empathy and insights among other members that lead to better policy, because it anticipates and accommodates the needs of such people in society. In short, the inclusion of nominally “incompetent” members may increase the competency of the group. We will examine diversity and other design considerations in a later chapter.
Modern Sortition Revival
The modern resurrection of sortition took a major step in Canada, starting in the province of British Columbia in 2004. Sortition was used to form a deliberative body to consider making changes to their electoral system. Canada is one of the few modern democracies, along with the U.K. and the United States, that uses the archaic single seat, winner-take-all election system (discussed previously). Recognizing that elected politicians had an inherent bias when it comes to fiddling with the election rules that got them elected, some far-sighted political leaders in British Columbia decided to establish an independent Citizens’ Assembly to consider reforms and place a referendum proposal directly on the ballot. This Assembly of 160 members (80 men and 80 women), which met throughout the year, was created using stratified random selection of one man and one woman from each district with the addition of one randomly selected male, and and one female Aboriginal (First Nations) members.
In his speech at the opening ceremonies of the Citizens’ Assembly, the Chair, Dr. Jack Blaney, stated
“Starting today, we have an incredible and unique opportunity, and an equally incredible and unique responsibility. To our knowledge, nowhere, at any time in a democracy, has a government asked nonelected citizens to undertake such a commitment, and then give those same citizens such potential power over an important public policy question.”
In later remarks, he did add the qualifier “in modern democracies.” For in fact, this was far from being unique, as this was the standard practice in the mature Athenian democracy, and it is only in modern electoral “democracies” that this is novel.
Following British Columbia’s historic and precedent-setting adoption of sortition with its Citizens’ Assembly, Ontario copied this procedure. Similar citizen assemblies, selected by lot, were also created in Australia, Belgium, and in Iceland in response to the financial crises. In the two decades that followed over 600 such citizens’ assemblies have been empaneled around the world, though very few in the United States so far. These have nearly all been advisory bodies, rather than final decision-making bodies. However, they are demonstrating the validity of sortition as a democratic tool, hopefully encouraging further expansion and authority down the road. Details about some of these and other remarkable experiments in sortition-based democracy are discussed in a later chapter.
Although it is common to have two chambers, such as a House and Senate, both of these bodies duplicate all of these tasks, with the exception that in a non-parliamentary presidential system such as the one in the US, the executive function is separated into a branch of government of its own.