Essay

Sortition

Reimagining democracy

ANY DEMOCRACY WORTHY of the name must be an ongoing experiment in institutional design: there must be a willingness to adapt the ways in which representation is handled in order to maintain legitimacy. It is within this context that the idea of sortition arises, a system of appointing office holders not by voting for them, but by random selection, similar to the way our legal system appoints jurors. What I want to do here is make the case for a minimalist implementation of sortition as a way of addressing the persistent and growing view among citizens that governments are failing to properly represent their best interests (for the maximalist view, see my book, The Future of Everything (NewSouth, 2018)). In so doing, I also want to revive the notion of political participation as a good in itself and, ultimately, as a source of joy. Yes, joy.

In his 2014 essay ‘Good For Nothing’, which is about the social roots of personal depression, British writer Mark Fisher sets out what I think we can also see as an overarching rationale for sortition:

For some time now, we have increasingly accepted the idea that we are not the kind of people who can act. This isn’t a failure of will any more than an individual depressed person can ‘snap themselves out of it’ by ‘pulling their socks up’… Inventing new forms of political involvement, reviving institutions that have become decadent, converting privatised disaffection into politicised anger: all of this can happen, and when it does, who knows what is possible?

You cannot, as Fisher says, simply demand that people become more involved in political decision-making (‘snap out of it’). You have to change the institutional structures that encourage non-participation in the first place. Sortition offers a meaningful and transformative alternative – or adjunct – to voting. It allows widespread participation in the political process, and so addresses the sort of disaffection commonplace in democracies around the world. It is a structural reform that recognises the structural nature
of the problem.

In arguing for sortition, I am not saying that voting is bad. But I am saying that it is not enough. We need at least one institution, perhaps one of the houses of parliament (maximalist), or some auxiliary to those houses (minimalist), where ordinary people get to represent themselves and participate in the governing process themselves, rather than just send someone else to do the job for them.

 

SORTITION IS AN ancient wisdom we have forgotten or have been taught to ignore. In ancient Athens it was the norm, used to fill all legislative and executive roles. The founders of democracy understood that the voting process could be captured by the powerful: instead of self-rule, where every citizen has the opportunity to govern as well as be governed, voting leads to the creation of an entrenched political class whose interests are, eventually, at odds with the rest of the citizenry. Aristotle himself said, ‘It is accepted as democratic when public offices are allocated by lot; and as oligarchic when they are filled by election.’

To better understand the arguments in favour of sortition, let’s begin with a quick look at two democratic nations, the United States and Australia – a comparison that illustrates the different ways in which matters of representation have been handled and that will help us understand the arguments for reform.

James Madison, the main author of the Federalist Papers – the key document that lays the groundwork for self-government in the United States – makes a distinction between ‘democracy’ and ‘republicanism’. He understood the former as direct rule by the majority of voters, and this was, to Madison, something akin to – or at least vulnerable to – a tyranny of the majority, the fear that the mass of citizens will govern in their own interests and ignore the rights of minorities. He believed such a system was inherently unstable. In Federalist No. 10 he writes, ‘…democracies have ever been spectacles of turbulence and contention…and have in general been as short in their lives as they have been violent in their deaths.’

Madison preferred republicanism, a representative form of democracy guarded by various mechanisms of elite control – or, more kindly, checks and balances – on the exercise of power. Again, in Federalist No. 10 he notes, ‘A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.’ The ‘auxiliary precautions’ he helped devise include everything from the federal structure of the nation to the electoral college, and they were all designed to provide a check on the will of the people as reflected in a straight, unencumbered vote. But in protecting against a tyranny of the majority, the US has arguably fallen out of balance in the other direction and is suffering from elite capture, where so many restrictions are placed on voting that ordinary citizens are effectively (or actually) disenfranchised.

Australia provides a startling contrast. After it gained independence from Britain in 1901, it ended up with what is often called a ‘Washminster’ system: one that combines features of the US’s federal republican system (Washington) and Great Britain’s parliamentary democracy (Westminster). So, like the US, Australia has as an elected Senate conceived as a states’ house (each state is entitled to the same number of senators, no matter their overall population), with the power to reject legislation from the lower house, even though government can only be formed in the lower house. And like the UK, it has a system of responsible government where ministers must be members of parliament and thus answerable to it.

Where Australia really differs from the US (and the UK for that matter) is the way in which it has balanced the risks of a tyranny of the majority against those of elite capture. In this area, Australia has been an innovator and world leader. It was one of the first nations to extend the franchise to women, to instigate a secret ballot, to allow non-landowners to vote, and to pay parliamentarians a living wage so that they could be full-time members of parliament (a necessity if working-class people were to be able to participate). It also legislated for voting to happen on a Saturday, making it easier for
working people to vote, and in 1902, one year after Federation, formed what is now known as the Australia Electoral Commission (AEC), a non-partisan body with sole responsibility for setting electoral boundaries, maintaining electoral rolls and managing public awareness programs (as I write, the AEC has texted me to inform me that early voting has opened for the 2018 Victorian state election). Australia has also been an innovator in voting methodologies – such as proportional and preferential voting – that better reflect the intention of the electorate than the first-past-the-post system still used in the UK and most of the US.

In 1924, Australia also introduced compulsory voting, ostensibly aimed at increasing turnout rates, which were hovering around the 50 per cent mark, but also in response to concerns from conservatives that the ability of unions to get out the vote disadvantaged the non-Labor side of politics. Although compulsion can be seen as an elite imposition, its net effect has been to help guarantee politicians cater to a broader section of the nation than simply their ‘base’, the people they can convince to vote. That compulsory voting is, in essence, a progressive measure is reflected in the fact that contemporary attempts to get rid of it or undermine it have all come from right-of-centre parties and politicians.

 

DESPITE THIS DEMOCRATIC temper and these innovations – all designed to broaden the franchise and ensure that a plurality of citizens’ voices are heard and heeded – Australia has been far from immune to the sense that our governments are failing in their basic duties of representation. This is largely because the federal parliament has been captured by the two-party system. Traditionally, this hasn’t been a problem, and Australians have enjoyed a surprisingly stable system of government for most of its modern history.

However, that party system has started to unravel.

One reason for this is that the role of government has diminished under a globalist, neoliberal dispensation. This has not only reduced common ownership and democratic control of various services through the privatisation of everything from the power supply to the road system, but has caused key economic decisions to have been, to some extent, taken out of the control of sovereign governments and handed to international instrumentalities and markets. The net effect has been to reduce the ability of governments to respond to the concerns of citizens.

Also, the two-party system has been undermined by ideological schisms within the major parties, particularly on the conservative side of politics. Beginning with John Howard’s purging of more moderate Liberals (the so-called ‘Wets’) during his tenure as party leader and prime minister, and extending to the (related) growth of a hard-right faction focused on ‘culture war’ matters, including opposition to marriage equality and the espousal of climate-change denialism, the conservative side of party politics in Australia has been riven with divisions, the most obvious effect of which has been the turnover of party leaders at the federal level (there have been five changes of leadership since 2007).

Parties have also become self-perpetuating machines for a particular class, preserving their access to power while providing a secure career path to a cadre of individual members (a career path that increasingly extends to placement with corporations after members, particularly ministers, leave politics). Concomitantly, members of parliament are increasingly drawn from a smaller and smaller section of the population, and in fact, an inordinate number of them are political operatives of one sort or another, ushered into parliamentary seats where, especially in safe seats, they become virtually immoveable.

So whereas less than 1 per cent of Australians work as political consultants or lobbyists, such operatives make up a disproportionate 11.9 per cent of parliament. Party and union administrators are also a vanishingly small part of the general population (again, less than 1 per cent) but they make up 8.4 per cent of parliament.

On the other hand, nurses make up 2.1 per cent of working Australians (there are 220,000 of them), but there is precisely one former nurse in parliament. Tradespeople are 13.5 per cent and teachers 3.5 per cent of the general population, but each constitutes just 0.4 per cent of parliament.

In terms of ethnicity and gender, it is even more marked: 6 per cent of parliamentarians come from non-English-speaking backgrounds compared to 23 per cent for the rest of us. Women may hold up half the sky, but they make up just 29 per cent of the House of Representatives and 39 per cent of the Senate. Labor is 44 per cent women to 56 per cent men – a good result achieved with a quota system – while the Coalition runs at an embarrassing 20 per cent to 80 per cent.

Although religious affiliation is considered hard to measure, it is fair to say that the federal parliament is more overtly religious than the general population, though most of that over-representation involves those who identify as Christian (the Islamic and Jewish faiths, for instance, are under-represented). Forty per cent of the Coalition and 30 per cent of Labor are Christian, this in a country that is constitutionally secular and where almost a third of the population identifies as having no religion. In fact ‘no religion’ is the fastest growing category measured by the national census, having increased from 18.7 per cent in 2006 to 30.1 per cent in 2016.

Given how unrepresentative it is, are we really surprised Australians are losing faith in parliament and in democracy itself? The 2018 Lowy Institute Poll, which measures Australian’s attitudes to various aspects of governance, found that, especially among a younger cohort, democracy is falling from favour: only 47 per cent of Australians aged eighteen to forty-four years agreed with the statement ‘democracy is preferable to any other kind of government’.

Under such circumstances, it seems prudent to examine ways of addressing such imbalances of representation, and sortition presents a straightforward way of doing that: it is relatively easy to design a system that chooses a representative sample of the population, and we do this regularly in opinion polling and, as already noted, jury selection.

The question then becomes, at what point do we insert this deliberative body of randomly selected citizens into the governing process? What is the exact role of such a body?

A number of possibilities present themselves, including ones suggested by James Fishkin, the US academic who has popularised deliberative polling, a form of sortition that uses microcosms of citizens to consider – generally over the course of three or four days – specific legislative matters. In his 2018 article ‘Random Assemblies for Lawmaking? Prospects and Limits’, he argues that precedents ‘from ancient Athens show how such short-term convenings of a deliberating microcosm can be positioned before, during or after other elements of the lawmaking process’. In other words, the deliberative body chosen by sortition could either be used to decide what matters the formal legislative body (parliament, Congress) would consider, to have the final say on whether a given piece of legislation was accepted as law (similar to what the Australian Senate does now), or to decide on legislative matters that could be put to the people in the form of a plebiscite or what Americans call a ‘ballot initiative’. Fishkin notes that, ‘These roles and entry points for deliberation hardly exhaust the possibilities. But they illustrate the many possibilities for officially incorporating the conclusions of a deliberating microcosm into the lawmaking process.’

Whatever form such a deliberative body takes, the guiding principle is that it would allow the possibility for all citizens, at some stage in their life, to have the chance to participate directly in the governing process rather than simply being passively represented by others.

The key objection to this form of self-governance is that such a body is unlikely to have the expertise required to make complex decisions. But the evidence from deliberative polls and various other forms of citizens’ juries and assemblies suggests such concerns are exaggerated. In fact, the jury system itself best illustrates the weakness in this objection. Juries work because jurors are not lawyers or judges – they are peers of the accused – and it is precisely their lack of expertise that is being sought, an ability to reach a conclusion that the society they represent is likely to accept. So provided experts are available to advise any body or assembly based on sortition – as they are now for conventional parliaments – there is no reason an ordinary citizen is any more or less likely to be able to make good judgements than the elected non-experts we currently vote for. And given that most of the serious problems governments must deal with are as much about values as they are about technical implementation, relying on expert professional judgment is unlikely to produce better outcomes than relying on ordinary citizens. This is not to ignore the need for expertise, but the guideline we should use is: experts for means, citizens for ends.

Fishkin points to a number of other concerns. These include risks of corruption arising from the members of such a full-time body becoming publicly known and therefore being vulnerable to bribery and other forms of influence. He also suggests that the full-time nature of the body would lead to ongoing meetings among members and the formation of coalitions and perhaps even the creation of full-time parties. The risk here is that bargaining replaces deliberation in the name of longer-term advantage for the individuals involved and thus helps enable the very political class formation sortition is trying to avoid.

Fishkin’s point is that these concerns do not arise as readily in a short-term or minimalist version of a body constituted by sortition. If that body consists of members who deliberate only for a number of days, or perhaps weeks, they are by definition less vulnerable to such weaknesses. He says, therefore, that for ‘lawmaking amid normal politics, it would be immensely useful if there were a deliberative input showing the considered judgments of the public about what needs to be done’.

So a minimalist version of sortition has the very strong potential to address the dissatisfaction many feel about the way democratic government currently operates. It provides a more representative set of people looking at issues than we currently have; it is better able to deliberate on the value of given legislation rather than simply negotiate outcomes on the basis of matters other than the legislation itself; and it is less likely to be open to powerful outside influences such as lobbyists, vested interests or even the media. Such short-term gatherings of random citizens have the potential to inject an important alternative perspective into the legislative process in a way our current representative-only, party-dominated system cannot.

 

THERE IS ONE further advantage of sortition worth highlighting: namely, the value of participation itself, the sense of involvement and satisfaction – of joy – that arises when citizens are truly able to exercise political power on their own behalf. This is what the founding fathers in the US were getting at when they wrote into the Declaration of Independence ‘the pursuit of happiness’. As Hannah Arendt reminds us in her book, On Revolution, what they meant by this was ‘public happiness’, not simply the pursuit of private satisfaction. It is this public aspect of participation that sortition allows us to rediscover, and this is important because, as Arendt says, ‘No one…could be called free without his experience in public freedom, and…no one could be called happy or free without participating, and having a share, in public power.’

If sortition seems radical to us now, it is because we have allowed voting alone to become synonymous with democracy and have thus forgotten there is more to self-government than showing up at the ballot box every three or four years (five in the UK). We have lost that sense of ongoing self-rule that is the heart of democracy, as well as the sense that participation can itself be a source of joy and empowerment. It is incredibly instructive to study the responses of those who have been involved in deliberative polls and citizens assemblies and see how transformative the experience has been for them. One participant in the deliberative poll held in Canberra in 1999 on the question of Australia becoming a republic put it this way:

Can I just say that as an elder citizen that I’ve been tremendously informed and stimulated by this gathering. I would just like to say how wonderfully I’ve seen the democratic process at work.

His comments are entirely typical of participants in such experiments in sortition around the world. The Guardian, reporting on the 2017 citizens’ assembly in Ireland that led to the referendum on abortion rights, notes that, ‘Assembly participants certainly seem delighted to have taken part. Of more than half a dozen consulted…all were hugely positive.’ Liz Connell Jones, a 63-year-old retired teacher and mother of two from Wexford, south-east Ireland, was quoted as saying, ‘I’m almost sad it’s coming to an end. It’s been a life-changing experience for me.’

A share in public power, allowing us control over our own lives, is central to addressing the concerns citizens have about the relevance and efficacy of their governments. But more than that, such participation is an end in itself – and a joyous one.

The best way to fight the enemies of democracy, then, is more democracy. ‘More democracy’ means designing institutions that allow a broader cross-section of citizens to self-govern. Random selection – sortition – achieves this in a way that voting alone cannot.

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