This is part 1 of my legislative series.
At the heart of modern democracy has been, from the very beginning, the notion of the “representative assembly”: a body of citizens with some claim to “representing” the general public. The selection mechanism has been election since the enlightenment, but prior to that, the English Parliament was selected by the King from among the aristocracy and (later) the landed gentry.
We now view the assembly as being tasked with advancing the common good, but that was not the original purpose of the English Parliament. That institution was created to give the King and local feudal lords a place to hash out their differences, with the King ultimately dependent (to varying degrees throughout history) on Parliament for raising taxes. Landed gentry were added to the mix in the House of Commons, but even then, the members of the Parliament (both Lords and Commons) were representing their own interests as a class, not the general good. It is important to reflect on how significant a distinction this is. It is far more natural to “represent” one’s own interests in dialogue with another political actor than it is to “represent” the general will.
The other major historical inspiration for modern assemblies is ancient Athens. In this case, the assembly (ecclesia) included a large percentage of citizen, excluding women, slaves, and the poorest citizens. This was therefore a direct democracy, at least to a first approximation. But unlike the English Parliament, the ecclesia did have the general welfare as its mandate.
The contemporary assembly (including the British Parliament in its current form) is therefore missing one element from each of these examples: it is concerned with the general good, rather than representing one class or estate, and its members constitute a tiny subset of the population. The question is, do these differences fatally damage the assembly as we know it today?
My answer is yes. To understand why, let’s look at the conditions under which the assembly structure can function effectively. Assemblies function by trying to achieve consensus, which in this context means that the assembly is able to come to a single decision that is widely understood to represent its will. Note that it does not require the agreement of the entire assembly.
Consensus is never guaranteed. Failure is always an option, which is a source of tremendous instability. Under what conditions is an assembly more likely to achieve consensus? When it represents a class or estate within a larger political system has a strong incentive to do so. The members of such an assembly (assuming they have not been corrupted) know that failure puts them at a severe disadvantage with respect to other political forces.
The general assembly has a more difficult challenge: get to consensus without an external force. In the direct democracy case, however, there are some positive dynamics. Since the members of the assembly do not represent anything other than themselves, they are far freer to change their minds in response to new information. They are also not professionals, so are less likely to have strong ideological commitments—or, more importantly, entrenched political rivalries.
In addition, the legitimacy of the assembly derives in part from the experience of participation. Many sortition advocates tout the experience of being in an assembly as a primary selling point. Members meet people they would not otherwise meet, they hear ideas they would not otherwise hear, and they come to an understanding of policy and society they would never otherwise consider. Truly wonderful stuff…for the members of the assembly. But what does it do for the rest of society?
In truth, very little. From the outside, such an assembly is quite opaque. The results are the product of interactions that do not translate easily into media (mass or social). Further, if you do broadcast every interaction, every committee meeting, and every sidebar within the legislature, the behavior of the members would completely change, almost certainly negating the social benefits of the experience.
Then there’s the matter of corruption. If the assembly proceedings are public, moneyed interests will hover just outside, making clear what they want, and by implication what they will pay for. Do you think you can make such behavior illegal? Forget it. There are so many ways to hint at future rewards, a practice that will be strengthened over time as potential members see the jobs and other gifts that are showered on compliant former members, their family, and friends. This problem is even worse if selection is voluntary. A big payday makes quite an incentive to “volunteer”.
We also have the thorny matter of how the assembly operates internally. “Majority Rule” seems like an obvious choice. But majority rule is not an operating principle, it is merely a threshold. How are agenda items generated? How are amendments debated and agreed to? How is the schedule set? All of these things assume that the “majority” exists prior to the assembly itself. This is the real logic behind legislatures worldwide, which must first establish a ruling coalition prior to conducting any actual business. This is indeed the most frustrating aspect of modern politics. Majorities should form dynamically, as a result of the merits of each proposal. Instead, a durable majority is a precondition of the assembly’s basic operation. This dynamic has nothing to do with the manner of member selection. It is an artifact of the assembly’s structure—or lack thereof.
Thus, the only improvement from selecting members at random is that they have less of an initial ideological commitment. All of these other structural problems exist irrespective of how members are chosen.
The recent success of citizen assemblies in Europe seem to contradict this conclusion. The Citizen’s Convention on the Climate (CCC) enjoyed significant but not universal support from the French population, and its conclusions were largely viewed as legitimate. The Irish Citizens Assembly has functioned since 2016 (and before that, the Irish Constitutional Assembly) and has been met with similar modest approval. But a closer inspection reveals that these bodies behave more like juries than assemblies.
Take the French example. This was by no means an assembly in the vein of the U.S. Congress or British Parliament. For one, it had only one agenda item, “To reduce the French emissions of greenhouse gas by at least 40% compared to 1990, in a spirit of social justice” . The members of the assembly were then divided into “thematic groups” which considered different aspects of the problem. The themes for these groups were defined by the organizers of the assembly, not its members. In fact, the schedule and manner in which assembly members considered all of its issues were highly circumscribed, from the questions asked to the facts and witnesses admitted.
With this highly structured approach, the assembly functioned quite smoothly. It also came to conclusions that were mostly predictable. It ratified a series of technocratic solutions that had been raised many times in a variety of other contexts. It’s easy to be cynical about this approach: the fix was in, with only a small amount of uncertainty expected or tolerated.
This conclusion ignores the fact that it had to be so. Without external structure, the CCC would have failed completely. Further, the body had some freedom to buck the establishment, as French President Emmanuel Macron did feel the need to reject three of the CCC’s proposals. In addition, one particular proposal, the creation of a new crime of “ecocide”, was considered quite controversial. It wasn’t merely a rubber stamp.
Perhaps a better way to think of the CCC is as a jury, not an assembly, whose purpose was to render a verdict on various aspects of the technocratic consensus. I actually think that’s a fine objective. But there is one thing missing: an adversarial matchup of different ideological viewpoints. In a court case, this would be lawyers from opposing sides. But for the CCC, all of the structure came from a single source: the French Economic, Social, and Environmental Council . They seemed to have done a good job from a substantive point of view, but procedurally, a single source is unacceptable. What’s needed, then, is a way to accomplish this task pluralistically.
The CCC therefore represents a fork in the road for sortition. It had some features of an assembly: the members did generate proposals, albeit in a highly circumscribed manner. It had some features of a jury: members worked within structures they did not control, and listened to witnesses they did not appoint. So where do we go from here? We could push future citizen panels to become more general, with less structure and more autonomy. Or we could push them to become more specific, with narrower mandates but more pluralistic control structures.
I believe strongly that narrower mandates and more pluralism is the way to go. The other route is simply replicating the failure of current legislative bodies, with a chaotic lack of structure. Why would we want to reproduce that? Instead, let’s imagine the CCC with one difference: it gets direction from multiple, diverse sources. There are many ways to do this, which I will discuss in a future post. But one thing should be clear: the best path forward is to call citizen bodies more frequently, with narrower mandates, and external structure determined by ideologically diverse elements from within the existing political order.