The Jury of the Whole

This is part 3 of my legislative series.

With the superminority, we now have a way to express a country’s ideological diversity productively, unchained to the need for consensus. Now we must consider the given alternatives. The obvious thing to do would be to send the options to a citizen jury for a final verdict. But we would also like to mimic some of the features of the Athenian assembly; in particular, we’d like to include the entire body politic as much as possible. So we allow a few weeks for the press and the public to digest the proposals.

This might seem like a minor change, but I think it will be transformative in a few ways. Democracy as it is practiced now is a series of contests. With a few exceptions, all of these contests are only indirectly about policy. In an immediate sense, most of these contests are about either people (candidates) or parties. The few contests that directly involve policy are referendums or initiatives that suffer from rational ignorance and polarization.

When a political contest is about people and parties, policy takes a back seat. I think a lot of people who are deeply interested in policy fail to appreciate this. Indeed, our entire political system is really based on the idea of delegation, not representation; i.e. we vote for a person or party to make decisions for us, not to carry out our wishes or even act in our best interests. But policy wonks need to imagine what it’s like to participate in an election without having any interest in policy whatsoever. What does such a contest look like? Just a bunch of people talking. Who are you going to vote for? The person you like the most. The person that your friends tell you is best. The person who seems like they are on your team.

What about policy debates around referendums? Examples like the Brexit vote do not give us much hope for a quality debate. But there are some reasons to question whether the poor quality of that debate would be replicated in our context. For one, we have produced at least three alternatives, breaking up the toxic dynamic of binary choices. For another, this debate will occur in advance of a jury that can overcome the rational ignorance problem. That changes the way the press will cover the issue, providing more reason to discuss substance.

It is natural to object that such a public debate will taint the jury pool. But this is where traditional juries differ from legislative juries. Traditional juries exist to protect the rights of the accused; they are a way to avoid elite bias and corruption of professional judges. A trial has many other safeguards of a defendant’s rights; those safeguards are meaningless unless jurors are naive to the facts of the case. A legislative jury, on the other hand, is an expression of isonomia—citizens’ equal right to decide. That expression is sampled, not direct, but isonomia never requires impartiality or naivete. I don’t think it would be very democratic to exclude people from a legislative jury just because they knew too much.

This intermediate period turns the entire population into a jury of sorts: the jury of the whole. This is the closest a large country can come to direct democracy. Citizens cannot meaningfully participate in the negotiations of a consensus-based assembly, even vicariously. While final disposition will be made by a sample of citizens, the debate during this period will have a large impact. It will affect the jurors themselves, and it will inform how interest groups create materials for consideration by the jury. It will also provide opportunities for social research, from traditional polling to focus groups and deliberative polls.

Probably the most noticeable difference will be mass media. Current mainstream media outlets spend a lot of airtime covering personalities and “horse race” politics, to much criticism from more policy oriented commentators. But maybe this criticism is misplaced. The mainstream media is there to report news that impacts people’s lives, and when the political system centers most of its contests around people, with very little granularity on issues, what else would we expect them to do?

Instead, perhaps our political system isn’t giving the media any real policy contests. Most debates in the legislature are entirely shambolic, why should they cover that? The real legislative decisions are made behind closed doors, and rammed through by force, which requires reporters to engage in “access journalism” to do their jobs. Besides, the electoral system offers no granularity on policy, so reporting on policy is only a benefit to voters who are both undecided and inclined to study a wide range of policy in making up their mind. That’s not a lot of people.

This system gives the media a story for every agenda item. It includes multiple proposals to analyze, real suspense as to the outcome, and a guaranteed deadline for a resolution. What news outlet wouldn’t want to cover that? And it’s real policy, not personalities. They don’t even have to engage in access journalism; the proposals are published in advance, and such proposals are, by definition, an honest picture of a party’s policy intentions. The news media can do their jobs if we make it easy for them.

The jury of the whole is essential feature of real democracy, one that cannot be supplied by simply replacing elections with selection by lot. Ordinary citizens need to see real policies from all ideological factions. Yes, most citizens won’t follow every debate. But a few will follow most issues, and many will follow some issues that are of interest to them. This makes for better citizens and better elites.

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