Yet he sees no new relationship on the horizon that might supplant the old ways of representation, only fragments of the former mainstream parties and upstart populists vying to put their team in power through the exercise of electoral contests in which ever fewer believe. The resulting polarization and paralysis has divided nearly all societies in half or splintered them even further into a multitude of tribes, unable to reach a governing consensus.
This disaffection with and distrust in governing institutions has gained more traction than ever before because of the participatory power of peer-driven social media. It levels the playing field of information among amateurs, professionals, and meritocratic experts. As a platform open to all, social networks challenge the custodianship of elites and, not least, the legitimacy of representative democracy.
This rise of social networks heralds a new distribution of power that is a gamechanger for governance. The political corollary of this powershift is a disposition by disaffected constituencies to make the big decisions themselves through participatory platforms or through the direct democracy of referendums and citizen’s initiatives at the ballot box. Increasingly, the connected citizenry is inclined to dispense altogether with governing intermediaries. According to a global Pew Poll conducted in 2017, 66 percent of respondents preferred a system in which “citizens, not elected officials, vote directly on major issues to decide what becomes law.”70
We’ve seen this sentiment in action not only with the Brexit referendum and the Catalan independence vote but also with innovations like Decidim, the on-line platform in Barcelona conceived as a “civic alternative to Facebook,” that enables citizens to participate in decision-making in areas from housing to transport and pollution. We’ve seen it as well in the advance to power in 2018 of the internet-based Five Star Movement (FSM) in Italy under the slogan “participate, don’t delegate.” After a fraught coalition with the anti-immigrant League Party headed by Matteo Salvini before that government fell, the FSM forged a coalition in 2019 with the mainstream Democratic Party (PD)—even though the FSM (with some justification) regards the PD as the old politics of an insider establishment and the PD regards the FSM (with some justification) as incompetent and demagogic. In a never before seen political coalition, the defenders of representative democracy and the proponents of direct citizen participation are trying to govern together.
“Our experience is proof of how the Internet has made the established parties, and the previous organizational model of democratic politics more generally, obsolete,” says Davide Casaleggio, who runs the movement’s on-line platform and is considered the power behind the network. “The platform that enabled the success of the Five Star Movement is called Rousseau,” he explains, “named after the 18th century philosopher who argued politics should reflect the general will of the people. And that is exactly what our platform does: it allows citizens to be part of politics. Direct democracy, made possible by the Internet, has given a new centrality to citizens and will ultimately lead to the deconstruction of the current political and social organizations. Representative democracy— politics by proxy—is gradually losing meaning.”
In 2018, the governing coalition in Italy created the first ever Ministry for Direct Democracy in a national government that will administer the newly established right of citizens to initiate measures that make law directly at the ballot box without going through Parliament.
Following the FSM’s lead, a key demand of the gilets jaunes in France has been for a similar process of citizen-initiated referendums, a demand to which President Emmanuel Macron has at least partially acceded at the local level and in a highly constricted way at the national level that requires joint qualification by citizens through signature gathering as well as
by a certain percentage of votes in the Parliament. Macron has also announced he will submit the recommendations of the Citizen’s Climate Convention to a referendum vote so that the entire public has a voice in setting future climate policies. Over several months, across seven weekends, the citizen assembly members—150 people chosen by random sampling from a pool of 250,000—have been briefed by experts and deliberated on issues including fast fashion, plastics, transport and housing. “This is not a consultation asking for people’s views; we’re asking them to produce concrete, structural measures; that’s what’s original,” said Julien Blanchet, who is overseeing the process.71
“People want more democracy. They don’t just want to follow the laws, but to participate,” Macron said in January 2020. That statist, centralized France would move at all in this direction is indicative of the gathering momentum behind the idea that citizens can “take back control” through direct democracy.72
In 2020, New Zealand will hold a series of referendums on euthanasia, legalization of cannabis and abortion, which they call “conscience votes,” to guide the parliamentary agenda on these issues.73
Also in 2020, James Fishkin, the deliberative polling guru from Stanford University, has been invited to Iceland to mediate the drafting of a new constitution between a crowd-sourced document and the extant constitution.
The whole Brexit episode has converted some longtime traditional politicians to the cause of deliberative gatherings.
“Trust has broken down in our representative democracies because political parties are no longer performing their traditional role of assembling and then aggregating public opinion to build an informed consensus,” says former U.K. Prime Minister Gordon Brown. “In their place, Facebook, Twitter and our social media give the impression that we have a direct democracy where, through by-passing representative institutions, leaders and led can communicate with each other on equal terms.”
He continues, “At its best, however, our social media is a shouting match without an umpire and at worst an echo chamber isolating and reverberating the most extremist of views. It may take years to rebuild the party system. In the meantime we can attempt to build an informed direct democracy through Citizens’ Assemblies. They would bring together, in microcosm, citizens who would spend time hearing the facts, interrogating the experts, and challenging factional views . . . I am certain we will find [through such citizen platforms] that we are far more tolerant, more fair-minded, and more outward-looking than the extremists who today claim to speak in our name.”74
The Scottish parliament has commissioned a citizens’ assembly that will discuss options and pathways for Scottish independence from the United Kingdom in the wake of Brexit.
In an editorial on August 11, 2019, the Financial Times endorsed the growing attraction of deliberative democracy:
“When polarized opinion turns democratic norms into a source of paralysis, too many voters are driven to strongmen who have no use for such principles other than as a veneer to decorate their grab for power. But democracy is not helpless. Institutions struggling with polarization must innovate. To stay true to their democratic justification, they should adapt in the direction of a better exercise of reasoned disagreement—never a silencing of it. There is a case for making democracy more deliberative, not just within the political class but among citizens at large through citizens’ assemblies—deliberative groups made up to be representative of the electorate at large . . . ”75
This trend is also taking hold outside the long-standing democracies of Europe or some American states. In August 2019, activists from six continents met in Taichung, Taiwan and declared “a strong shared sense that modern direct democracy— and tools like the initiative and referendum—should have a greater role in the world. Direct democracy systems must not exist by themselves, like a lone tree in a desert. They must be surrounded by participatory and democratic infrastructure—such as citizens’ assemblies—that make clear the rules of the process and guarantee that all people can use direct democratic tools and exercise their democratic rights . . . the Internet and digital tools can make direct democracy more robust, accessible, and transparent, as we have seen here in Taichung, with the city’s mobile platform for government transparency and citizen ideas.”76
Audrey Tang, the Digital Minister of Taiwan, is leading the way. The transgender minister administers the annual “presidential hackathon,” born out of the Sunflower protest movement of 2014, which engages nearly 10 million citizens each year through a digital deliberation platform to reach consensus on key issues that then guide parliament and government policy. “Data collaboration” through “radical transparency,” instead of centralized data control, is the motto of her office.
Minister Tang offers this coda for tech-assisted citizen participation as the alternative to Silicon Valley’s app-down template:
When we see “Internet of Things,” let’s make it an Internet of beings.
When we see “virtual reality,” let’s make it a shared reality.
When we see “machine learning,” let’s make it collaborative learning.
When we see “user experience,” let’s make it about human experience.
When we hear “the singularity is near,” let us remember: the plurality is here.
In Chile, after months of demonstrations that led the government to call for a new constitution, citizens are demanding a say in its makeup through local citizen assemblies in advance of the measure going to a referendum vote. Both the government and citizens’ groups have invited Fishkin to Santiago to mediate the constitutional discussions.
In Mexico, the left-populist president, Andres Manuel Lopez Obrador, has also called for “participatory democracy,” initiating a series of “consultations,” though these are widely criticized as manipulated efforts to affirm the president’s agenda. The new president of Tunisia, constitutional lawyer Kais Saied, has proposed non-partisan local councils for deliberation that elect regional counselors who, in turn, elect members of parliament, a sort of combination of direct democracy and indirect elections that aims to return government to the citizens and avoid a system locked up by political parties.
Former Greek Prime Minister George Papandreou has gone the whole distance, calling for a citizen-dominated “fourth branch of government.” “This new deliberative branch in which all citizens—the ‘demos’—could participate, would sit alongside the executive, legislative and judicial branches,” he has written.77
THE MEANING OF PARTICIPATION
Before going further, it is important at this juncture to define clearly what is meant here by the demand for participation. This does not imply that publics will somehow be perpetually mobilized into activists, spend all their free time studying the issues, and turning out in droves for every referendum vote. The average citizen is by and large way too busy with work and family to engage actively on an ongoing basis in politics, and there is no indication that is what they want.
The demand for “participation” as a way to “take back control” means the reliable expectation of a process in which all voices are heard and weighed among others in decisions which affect each of our lives. If the operational practices and institutions of self-government are considered impartial and inclusive, citizens will accept the outcome of the competition over ideas and interests as fair—even if they end up on the losing side of a dispute or get only half a loaf through trade-offs that enable a consensus. It would be going too far to say that a system works best if there are “happy losers.” But it would be appropriate to say that when citizens are satisfied that the process is legitimate because it has not excluded their express concerns, they will not become disaffected with the system.
The growing appeal of direct democracy is precisely this: Citizens know there is a ready venue for their immediate “agency” when elected representatives captured by an insider establishment of organized special interests neglect, or are unwilling to address, issues of primary concern to the average person.
As Bruno Kaufmann reports, “113 of the world’s 117 democratic countries offer their citizens legally or constitutionally established rights to bring forward a citizens’ initiative, referendum or both. And since 1980, roughly 80 percent of countries worldwide have had at least one nationwide referendum or popular vote on a legislative or constitutional issue. Of all the nationwide popular votes in history, more than half have taken place in the past 30 years. As of May 2019, almost 2,000 such votes have taken place: 1,075 in Europe, 193 in Africa, 192 in Asia, 187 in the Americas, 117 in Oceania.”78
The explosion of direct and participatory democratic practices at the local and provincial level, argues Kaufmann, is related to the rise of populist authoritarianism. “Frustration is growing with democratic systems at national levels,” he reports, “and yes, some people become more attracted to populism. But some of that frustration is channeled into positive energy—into making local democracy more democratic and direct.” Some call it “leading from below.”79
WHERE DELIBERATION COMES IN
Switzerland, many American states such as California, and cities around the world have long employed the direct democracy mechanism of citizen’s ballot initiatives—with highly mixed and often deleterious results. What makes this new surge qualitatively different is the scope and scale of social connectivity that fortifies it. Indeed, if unmediated, direct democracy in the Digital Age will look a lot like social media itself. It will encompass the good, the bad and the ugly, a platform not only for the spread of innovative ideas that respond to citizen concerns, but for ill-tempered blogmobs, hateful sentiments, alternative facts, outright lies, utopian delusions, and worse.
But the genie is now out of the bottle and won’t be squeezed back into the forms and concepts of democratic governance that have prevailed since the 18th century.
All this presents a paradox for governance in the Digital Age: The more participation there is, the greater the need for the counterbalance of impartial practices and institutions that can process the cacophony of voices, sort out the deluge of contested information, negotiate fair trade-offs among the welter of conflicting interests and dispense with the magical thinking or xenophobia that comes along with networked popular sentiment. In this new era of distributed power, such a deliberative ballast is as essential to the survival of republics as the direct engagement of citizens in governance.
The exercise of collective intelligence requires “cool and sober deliberation” that “enlarges the public view” even more in the Digital Age than in the era of the American Founding Fathers and others who designed the constitutional frame that has enabled the liberal democracy we have so far known. If the ethos of the digital disruptors has been to “move fast and break things,” the counterpoint of 21st century democracy must be to “move deliberatively and fix things.”
WHEN AI ARRIVES IN POLITICS
Jamie Susskind, the author of Future Politics: Living Together in a World Transformed by Tech, takes an even longer view of the effect of digital technology in self-government, situating today’s revolution in its historical context. He contemplates how the advent of artificial intelligence (AI) has the potential both to diminish the quality of democratic governance but also to enhance it—with respect to deliberation, decision-making, public administration, and the enforcement of laws and rules.
“Deliberation,” he writes, “is the process by which members of a community discuss political issues in order to find solutions that can be accepted by all (or most) reasonable people. The Internet has already changed the nature of the forums we use for deliberation. For ordinary citizens, a growing amount of political speech takes place on digital platforms owned and controlled by private entities. The early consequences of this development are becoming clearer, with recent concerns centering on polarization and fragmentation between rival factions, and the proliferation of ‘fake news’. Another source of growing unease is about the privately-made determinations about who may participate in the deliberative process (and who is blocked or banned), what may be said (and what is prohibited), and how it may be said (no more than 280 characters, etc.).”
He considers the prospect of a “more radical—but by no means fanciful—prospect for the long term” with “humans [ceasing] to be the only participants in the deliberative process. It is important to recognize that bots in the future will be able to deliberate in ways that rival—and even exceed—human levels of sophistication.” To the extent that AI can aggregate collective preferences and discern patterns better than humans, he argues, it will augment deliberation. More and better data can only improve decision-making.
He then turns to the notion of direct democracy—“disregarded for centuries because of the size and complexity of modern polities.” It is possible, he writes, “if not necessarily desirable, that citizens in the future might be able to vote on several policies a day, using smartphones or whatever replaces them. It will also be possible for people to delegate their vote on certain issues to others whom they trust—for instance, allowing a consortium of doctors, nurses, and patient groups to cast their vote on matters of health policy. This is so-called ‘liquid democracy’.”
For Susskind, the big question for democracy going forward is how increasingly capable systems, which can quantify and process the massive data gleaned from the “Internet of Things” that integrates billions of connected devices, will impact how we govern ourselves.
Participation without populism
The most urgent task today, therefore, is to figure out how to exploit the new tools of the Digital Age and apply innovative practices of deliberation to help mend the breach of distrust between the institutions of self-government and the public. That will entail integrating social networks, AI, and direct democracy into the political system through the establishment of new mediating practices and institutions that both complement, and compensate for, the waning legitimacy of representative democracy. This evolved form of democracy for the 21st century can be called “participation without populism.”
FOUNDATIONAL FRAME: BEYOND THE BALLOT BOX
In conceiving a new institutional design for governance going forward, we must return to first principles. Philosopher and political theorist Philip Pettit has set the foundational frame. The aim of popular sovereignty is “control of government by its citizens” through mechanisms that assure consent of the governed. What happens outside the ballot box, he argues, is as essential to control of government by all its citizens as elections. It is the operational constraints on power and the impartial rules and practices of “competitive collaboration” and deliberation that guarantee an “inclusive” democracy in which the values and interests of all citizens, and not just the electoral majority or organized special interests, are weighed in any decision-making process. This is the essential distinction between a mixed constitutional republic and the pure democracy many are promoting today, which was so loathed by the American Founding Fathers that Thomas Jefferson described it as “elective despotism.”
In an inclusive governing system, design must strive to reach a “detached judgment” that respects all citizens as carrying the same weight even in a majoritarian regime in which “affective interests and investments” can lead to “stable divides, with some being cast as more or less fixed minorities.”
To navigate these shoals of self-government where the aim is inclusion and consensus requires more than everyone seeking to maximize their own interests through bargaining power. That alone will lead to might making right, or gridlock among factions. Only governing through a deliberative process “constrained by common reasons” can transcend divisions to reach a governing consensus.
As Pettit puts it: “The need for participants in public discussion to accept the constraint of invoking only reasons accepted as relevant on all sides (that is, not your self-interest alone) is a special case of the general need for people in a democracy to abide by the rules that allow them to compete with one another for victory. Indeed, this constraint may be the rule that is most fundamental to the possibility of democracy. If and only if it is accepted can there be a hope of people finding a common framework under which to pursue their competitive, political ends in a peaceful way.”
In our populist age of polarization and paralysis tempted by, and indeed embracing, rule by plebiscite, nothing is more important than fostering practices and building new institutions that establish trusted frameworks for exercising the constraint of common reasons. In diverse societies, the possibility of reaching consensus and compromise requires impartial platforms – islands of good faith and will – that are beyond the sway of organized special interests and insulated from the immediate electoral fray of partisans seeking advantage as they vie for power. In short, decision-making, especially where direct democracy is involved, requires depoliticization of the institutions where deliberation takes place and where verified facts and expertise are brought to bear. As the American Progressive Era journalist Walter Lippmann once wrote: “The value of expert mediation is not that it sets up opinion to coerce partisans, but that it disintegrates partisanship.”
To be abundantly clear, this is not to wishfully imagine that partisan perspectives and real conflicts can somehow be purged from politics. It is to say that the fair competition among disparate interests and values that makes decisions legitimate can only be assured through deliberative platforms that are themselves impartial and non-partisan. And it is to say that the more likely path to achieving compromise solutions and consensus is when partisan passions are constrained.
As Pettit suggests, such a process of deliberation that feeds into either legislative or referendum decision-making can involve referral of contested issues to expert committees, referral to an individual or group that is taken to be impartial or even resort to a lottery mechanism, among other similar arrangements.
(Footnote: *With respect to expert committees, it is worth noting the practice of Base Closing Commissions in the United States. Since closing a military base in any constituency, with all its economic consequences, was deemed too politically costly for sitting politicians, those decisions in the 1980s-1990s were delegated to an independent commission appointed by the Congressional leadership that comprised former generals, former local elected officials, and former Congressmen or women. The recommendations of the commission could only be voted up or down as a whole—no amendments—by the Congress. This insulated politicians from any local political cost while making decisions in the interest of the entire nation.
To go a bit further, the value of a non-elected technocratic government, such as the one that Mario Monti presided over as prime minister of Italy from 2011-2013, is that it can make the tough decisions and formulate policies that take into account the long-term interests of all citizens instead of the immediate priorities that prevail in a government formed by elected parties representing organized special interests. It is doubtful that the fiscal measures implemented by the Monti government, including the trimming of new pension benefits and advancing the retirement age, could have been achieved through a partisan election. That the coalition in power today in Italy aims to rescind the pension measures exposes the chief flaw of technocratic government: it was perceived as lacking popular legitimacy— despite the fact that Monti was appointed by the non-partisan President of Italy to run a government in which a parliamentary majority was already in place and approved his appointment and the reforms he proposed.
Democratic governance could be improved by combining the impartial and knowledgeable character of technocracy with mechanisms beyond representative government to establish legitimacy, balancing administration by the best and brightest with alternative means of registering consent of the governed. One way to do this would be to put the proposed policies, developed after broad consultation, to a public vote in a “confirmation referendum” preceded by the convening of a series of Citizens’ Assemblies in advance of the poll, a process that could include possible amendments if consistent with the purpose. The experience of Citizens’ Assemblies in Ireland shows how a group of citizens gathered in a way indicative of the whole can come to a consensus even on a highly emotional issue if issues are deliberated outside the electoral arena. In the Irish case, this process entrusted to citizens “like ourselves” persuaded voters at large to remove an anti-abortion clause from the constitution by a large margin in a referendum.)
Following this foundational frame, any new design of governance that empowers participation without populism entails establishing (a) open platforms for public discourse where the trustworthiness and integrity of information is assured; (b) robust venues for citizens to voice their concerns and set the political agenda; and (c) disinterested, impartial, and “depoliticized” spaces for the deliberation and processing of popular concerns through negotiation and compromise into responsive and sound policy for a public vote at the ballot box or in legislatures.
ELEMENTS OF A HYBRID SYSTEM: PARTICIPATORY AND DIRECT DEMOCRACY + REPRESENTATIVE GOVERNMENT
The challenge ahead for liberal democracies is incorporating the new tools of technology and present methods of deliberation and administration into a new hybrid political system that features both direct democracy and greater citizen engagement with their representatives in government. This includes:
- Innovative practices such as “crowdlaw” that mobilize “collective intelligence” through networked deliberation as a way to register public priorities and set the agenda for both legislators and sponsors of citizens’ initiatives and referendums;
- Interactive civic software, such as Lex Iscritti employed by the FSM in Italy, that enables constituencies to propose, deliberate, and iterate legislative measures directly with their elected representatives;
- Citizens’ Assemblies, policy juries, and deliberative polling which bring together randomly selected groups of citizens indicative of the population as a whole, including through lottery, who hear pro and con arguments and are presented with verified facts in order to reach consensus on a given issue. The results of these deliberations may serve as recommendations to legislatures or voters in a referendum, or may be binding through an up or down vote;
- Requiring the deliberative process of a “second reading” of citizen-initiated measures as well as government sponsored referendums before they go to the ballot box for a vote. This can be done through:
- Citizens’ Assemblies and review panels of the kind noted above to deliberate both government sponsored referendums as well as citizens’ initiatives;
- Authorization of legislatures to negotiate with citizen sponsors to vet the constitutionality of their proposed measures, fix problems, discover unintended consequences, and make amendments consistent with the sponsor’s intention. If agreement is reached on addressing the issue through legislation, the citizen’s measure can be If no agreement can be reached, the legislature can place an alternative, competing measure on the public ballot without going through the step of gathering the requisite signatures to qualify;
- Re-configuring the upper house, or senate, of legislatures as a non-partisan body that is selected in part by sortition and in part through indirectly elected or appointed members on the basis of experience and expertise (to insulate it from the pressures of special interests in electoral contests) as the primary institution for a “sober second reading” of citizen-initiated measures as well as legislative proposals from the lower house. It would be empowered, per above, to negotiate with citizen sponsors to reach common agreement or place a competing measure on the ballot.
- Creation of a European Citizens’ Assembly as a second house of the European [Intermediate steps to this goal would include a “Citizens’ Bill” under the current European Citizens Initiative (ECI) process that mandates debate and an “indicative vote” on the proposed issue in the EU Parliament (since the Parliament cannot initiate legislation, only the EU Commission). Further, the Commission should clearly define the areas of its competence to propose laws, and if ECI qualifying signatures for a measure within those parameters reaches a certain threshold, formulate legislation in response to the proposition or put it to a European-wide referendum.]
- Integrate the learning algorithms of AI in all of the above practices to the extent they enhance citizen consultation, deliberation and decision-making.
Though not systematized as a template for the governance of liberal democracies in the Digital Age, many of these embryonic elements and practices of deliberation already exist across the West.
Since the practices and institutions of democratic deliberation are the central platform through which open societies make their most consequential choices, rebuilding trust in the inclusivity and impartiality of institutions of self-government is the core imperative if citizens are to “take back control” of their destiny. Neither a turn toward autocracy nor lame attachment to forms of government that have become dysfunctional offers an answer to the question of how to govern open societies in the 21st century.
A mixed constitutional system for the Digital Age that accommodates the participatory power of social media by expanding the zone of direct citizen engagement, replete with its own set of deliberative checks and balances, would both complement, and compensate for, the waning trust in mass political parties and representative government.
CROWDLAW: CITIZENS SETTING THE AGENDA
More than a hundred local city councils and parliaments at both the regional and national level, from Iceland to Ireland to India, are turning to “crowdlaw,” a form of crowdsourcing that uses novel collective intelligence platforms and processes to help governments engage with citizens. Crowdlaw is based on the simple but powerful idea that parliaments, governments, and public institutions work better when they leverage new technologies to tap into diverse sources of information, judgments, and expertise at each stage of the law and policymaking cycle. This helps improve the quality as well as the legitimacy of the resulting laws and policies.
Because collective intelligence helps to aggregate collective wisdom, it is useful for identifying problems. For example, the crowdlaw project vTaiwan, championed by Taiwanese Digital Minister Audrey Tang, enables the public to define public problems. It then utilizes machine learning software to form working groups to create policy recommendations. In more than 80 percent of cases, publicly-defined issues have led to government action, in large part because the process tightly integrates collective intelligence into public decision-making. So far, 26 national issues, including the regulation of Uber, telemedicine, and online education, have been discussed with over 200,000 participants.
Collective intelligence is also good at helping groups of people deliberate and discuss. In Iceland, the capital of Reykjavik has its own crowdlaw project called Better Reykjavik, created by the Active Citizens Foundation, where users identify and then devise ways to improve city services through forum discussions. A reported 20 percent of Iceland’s population has used the site, and more than half of those registered use it regularly. More important, the site is having an impact. When the economic crisis in Iceland left people homeless and literally freezing to death, the platform helped the public devise a new homelessness policy.
Another way that collective intelligence platforms can be used is to help citizens evaluate laws and policies after the fact. In Ghana, tech entrepreneur Prince Anim launched TransGov, a social auditing platform, in 2014. This site is used by about 600,000 Ghanaian citizens who monitor the progress of local development projects and hold their government accountable. In Brazil, the government launched a platform in 2016 that enabled students across 10 Brasília public schools to share information about their learning environments. The platform helped identify the major issues students faced and then helped pinpoint root causes and generate ideas on how to fix them.
Despite these proliferating examples, however, the success of collective intelligence platforms has been mixed. Many projects remain in the pilot phase, failing to expand. When Spain’s Podemos was still an upstart political party, for example, it successfully engaged its supporters in drafting an online party platform but saw less success embracing these crowdsourcing practices once in government. And the Decide Madrid platform, to which 400,000 people have signed up to propose policy to the city council, has resulted in only two new policies but not a single new law. This is because bureaucracies are very resistant to change. Furthermore, governing is an arcane and jargon-filled process, and most of us simply do not have the know-how or vocabulary to discuss public policy. Nor do politicians or public servants typically want to engage us. After all, there is little political will to do something that could result in a loss of power, especially in a hyper-partisan environment. This is most likely why, now that Italy’s Five Star Movement is in power, it no longer meaningfully uses the Rousseau online system it created for campaigning, preferring to tightly control how policy is made.
Another reason for failure is bad design. Each stage of decision-making, from identifying to evaluating problems, demands distinct forms of information and action. Identifying problems requires large-scale input from diverse members of society whereas solving them often requires more time and expertise, which means investing a substantial amount of time into designing workable solutions. The best crowdlaw projects—and we are only just beginning to understand which ones result in enhanced problem-solving—offer different ways of participating, such as consultations, competitions, and participatory budgeting, each of which are designed for a distinct phase of decision-making, be it spotting or evaluating problems.
To be sure, more research is needed to understand what incentives will get both individuals and institutions to collaborate. But the reality is that new technology has the potential to unlock approaches that enable more individuals to weigh in on how to solve our collective problems, and it has the potential to offer city councils or parliaments rapid counsel from entrepreneurs, artists and engineers.
Advances in science and technology are set to transform the way we live together, with profound consequences. We need to use some of those same tools to redefine democracy, not as a once-a-year or less sporting competition between warring teams, but as robust conversations about how to solve our greatest challenges together.
As Michael Cottakis reports, the millennial organization Generation 89 used crowdlaw survey methods to determine the commonly held preferences of young people across the 27 European Union states. “Across the board,” he writes, “young citizens express a desire to become more involved in policy making at the EU level” and favored “citizen debate” over consequential issues. The data also showed that while young voters are less likely to join political parties, they are keen to be engaged on single issues that affect their lives.
The Five Star Movement in Italy advertises the civic software of its Lex Iscritti program that operates over its internet platform, Rousseau, as allowing its members “to become real legislators.”
Every month there is a vote on bills proposed by the members. The two with the most votes are assigned “tutors”, who will have the task of formalizing the proposal into draft legislation. In the last three votes up to the end of January 2019, more than 40,000 votes were cast by members on a total of 83 proposals.
Among the “most voted” proposals were a bill for free broadband and the introduction of secure and certified digital voting for elections. Among the measures that made it to the Parliament and was passed was a prohibition on public managers taking up positions when they leave office in the private sector in companies that were involved in public tenders.
The members who have uploaded the proposals to Rousseau that qualify for legislation come to Parliament to shoot a video presenting the proposal together with the tutor. The proposal transformed into a drafted bill after being submitted to the scrutiny of drafting experts will be tabled in the Chamber or in the Senate. The name of the proposing member will also be quoted within the tabled text to highlight the voluntary work for the good of the community.
The Citizens’ Assemblies most widely heralded as successful were held in Ireland from 2016 to 2018. As a result of their success, many others are now considering using this deliberative process in other countries.
The details of how the Irish Assemblies were set up and executed are important to understand in terms of how their legitimacy was established in the first place, how the process itself lent legitimacy to the outcome and how the outcome informed the actual implementation of that outcome into binding law.
Here are the details of the Irish Assemblies:
- The Citizens’ Assembly was an exercise in deliberative democracy, placing the citizen at the heart of important legal and policy issues facing Irish society.
- It was the second deliberative democracy exercise in Ireland, following its predecessor the Convention on the Constitution, which ran from 2012–2014.
- The Programme for a Partnership Government 2016 committed the Government to ‘the establishment of a Citizens’ Assembly, within six months and without participation by politicians, with a mandate to look at a limited number of key issues over an extended time period.’
- Establishment of the Assembly was approved by resolution of both houses of the Irish parliament (the Houses of the Oireachtas) in July 2016.
- The Chairperson was appointed by the Government and was former Supreme Court judge, the Honourable Mary Laffoy.
- There were 99 citizen Members of the Assembly, in addition to the Chairperson. Members were chosen at random to represent the views of the people of Ireland, and were broadly representative of society as reflected in the Census, including age, gender, social class, regional spread, They must also have been on the electoral register to vote in a referendum.
- The five issues the Assembly was mandated to consider were:
- the Eighth Amendment of the Constitution (which concerns abortion);
- how to best respond to the challenges and opportunities of an ageing population;
- how the State can make Ireland a leader in tackling climate change;
- the manner in which referenda is held; and
- fixed term parliaments
- In respect of each topic, the resolution stated that ‘all matters before the Assembly will be determined by a majority of the votes of members present and voting’. Therefore, the output of the Assembly was a series of voted recommendations following the development of a Ballot Paper in consultation with the Members.
- The five issues the Assembly was mandated to consider were:
Expert Advisory Group
- The resolution provided for the establishment of an Expert Advisory Group to assist with the work of the Assembly in terms of preparing information and advice.
- The Chairperson put in place four distinct Expert Advisory Groups throughout the lifetime of the Assembly. The members of the Expert Advisory Group were academics and practitioners across a number of specific fields of interest, depending on the topic being considered.
- A Steering Group comprising the Chairperson and a small representative group of Assembly Members elected by the Assembly Members was in place to support the Assembly in the efficient and effective discharge of its role and functions. In practice, the Group assisted with planning and operational issues associated with the work programme.
- There were five meetings on the Eighth Amendment, two meetings each on both how best to respond to the challenges and opportunities of an ageing population and how the State can make Ireland a leader in tackling climate change, one meeting on the manner in which referendums are held and one meeting on fixed term parliaments.
- The final report on the manner in which referendums are held and fixed term parliaments was published on Thursday, 22 June 2018. In Chapter 8 of the report, the Chairperson takes the opportunity to outline her recommendations around citizens’ assemblies, and the views of the Members taken at the final meeting form part of this.
The Assembly met on 12 occasions between October 2016 and April 2018, which includes an inaugural meeting. Each Assembly meeting was a full weekend (Saturday morning until Sunday afternoon) at a venue on the outskirts of Dublin.
The Assembly has published a final report and recommendations on the Eighth Amendment, how we best respond to the challenges and opportunities of an ageing population and how the State can make Ireland a leader in tackling climate change.
The report and recommendations on the Eighth Amendment was considered by a joint committee of politicians from both Houses of the Oireachtas, who in turn also recommended a referendum to remove the Eighth Amendment from the Constitution. This referendum took place on May 25, 2018 and passed by a majority of 66.4%.
PERMANENT CITIZENS’ COUNCIL, ROTATING ASSEMBLIES
In 2018, the German-speaking areas of Belgium (Deutschsprachige Gemeinschaft or DG) put in place a hybrid system that includes both a permanent Citizens’ Council and Citizens’ Assemblies that rotate membership for specific issues. Here is how they work:
Mini-publics, or long-form deliberative processes (citizen assemblies), are the type of deliberative democratic innovation that have already been used and proven in many places around the world, including within the DG in 2017.
Rather than having ad hoc citizens’ assemblies, it is preferable that their agenda is set, and their activities followed-up, by a permanent body (also controlled by citizens) that provides a continuous and stable underpinning for the different citizens’ assemblies. Moreover, this creates a separation of power within the citizens’ process where the same people do not set the agenda and decide on the content of a proposal.
The DG model consists of three separate entities:
- A Citizen Council that will decide on the topics that will be discussed by citizens in separate deliberative processes throughout the This Council will also follow up what is done with recommendations of past deliberative processes and prepare those that are upcoming. It is the permanent body of the model.
- A Permanent Secretariat (PS) that does most of the logistical work to prepare the separate deliberative processes. This involves doing the sortition to select citizens for these processes, preparing the information packages for them and inviting The Permanent Secretariat also provides support to the permanent Citizen Council.
- Single-topic Citizens’ Assemblies, of which a number of these will be organized every year and will discuss one topic set forward by the Citizen They will make recommendations for policy on that topic to the political actors in the DG.
The Citizen Council (CC)
This is a permanent body, but with annually rotating membership. It sets the agenda for the individual Citizens’ Assemblies (CA’s), monitors these CA’s to see whether they are run according to best practices and finally, it does the follow-up on the recommendations so that they are attended to in a timely way by parliament.
The CC has two distinct tasks:
- Agenda setting: Because agenda-setting is a crucial role, the CC would do this in a way that differs from its normal routine meetings.
Once every year at the end of September, members take one or two weekends to determine what the topics should be for the CA’s that will take place in the following year. This meeting only takes place after the yearly ‘state of the union’ by the Minister-President (September) to ensure that the CC does not set a topic that is subsequently earmarked by the government for policy-making that year. The minimum number of CA’s is to be set by the parliament of the DG, and the expert group would suggest a minimum of two per year.
The CC will set the topic in cooperation with a legal expert from the DG parliament. Both the CC and the CA’s should also have access to the parliamentary services that ordinary commissions also have such as the legal service, archive, etc.—this way they can define the elements of the topic that are within the jurisdiction of the DG parliament. The questions asked should be broad and open enough so as not to constrain the specific CA in their ability to explore creative solutions to the topic at hand. The CC will take its input for this agenda-setting from different sources, but these will be suggestions and the CC is free to choose the topics it deems most important after thorough deliberation. Among the sources for this input are parliament, the government and the citizens of the DG, which can be consulted through many and varied forms of public consultation. (See a more detailed note on organizing this input later.)
- ‘Routine’ tasks: The CC will convene monthly to assist new CA’s being set up and to follow-up past ones—monitoring the preparations for the next CA to take For example, the Permanent Secretariat will present a list of experts it has earmarked for the topic and the information it will provide for the participants in the CA, which the CC will review for balance and can therefore request be changed. (More on the PS below.)
Beyond this, the operating process foreseen for a CA (facilitator, sessions, etc.) will also be presented to the CC ahead of a CA so it can monitor that the CA will take place according to the agreed upon standards. The CC can also decide that a certain CA requires a larger number of participants if the CC feel this is needed for the topic. This could be if this is a sensitive political topic so a larger group is useful to increase the legitimacy. Similarly, the CC can decide that a CA on a specific complex topic will need more time than usual and plan this together with the PS. The CC also monitors the yearly budget together with the PS and the impact that different CA sizes and duration have on it. According to how it plans to spend this budget, more or fewer CA’s per year can be delivered, but there should always be a minimum number of CA’s per year as agreed with parliament (as stated above, we suggest two for the DG as a minimum).
Finally, the CC will also follow-up the recommendations of previous CA’s that are to be handled by parliament. The head clerk of parliament (who can sit as ‘liaison’ and advisory member) will provide information on what has been done with recommendations from previous CA’s in parliament and at which stages of implementation some of these are (or why not). The CC will also follow-up that an official feedback moment is organized in parliament with the members of a specific CA. (See a specific note on how recommendations could be handled later.)
Composition of the CC: The CC consists of 24 randomly- selected citizens who have been members of previous CA’s. They will be selected from the pool of participants of previous CA’s, with a maximum number of years that one stays in the pool (e.g. after three years one is removed from the pool). The membership in the CC rotates, where one-third (i.e., eight) of the members change every four months.
This means every member sits for one year on the CC, but every four months there is a change in composition. This ensures that there is stability in the working of the CC, but also that the limited term means that citizens on it do not become entrenched in their role. Having very long terms would mean that they become too socialized in their role, not unlike elected politicians, and lead to a concentration of power in the hands of a few citizens. Long terms also make membership in the CC too heavy a burden for many citizens and thus impair recruitment.
The rationale for having members of the CC drawn from previous CA members is because they will already have a clear understanding of the process and the workings of CA’s from their own experience. This allows them to be more efficient and insightful in monitoring and following-up CA’s. If CC members had never sat on a CA themselves, they would have to rely on others to get acquainted with how a CA works rather than having an in-depth understanding of what this entails from the outset.
In the first year, as a transition measure, six members would come from each of the parties represented in the DG parliament and the others from the mini-public held in 2017.
The CC has as non-voting members the member of the permanent secretariat (see next), the Ombuds(wo)man of the DG and, for its relationship with the parliament, the head clerk.
The Permanent Secretariat (PS)
This consists of at least one permanent employee. The PS is responsible for organizing process logistics and coordinates the content of the CA’s in several ways. The person holding this position should therefore, ideally, be highly knowledgeable about participatory and deliberative processes, and capable of understanding the many kinds of bias. Because the PS plays such a central role, it is important that it has an independent and neutral position. This could be achieved by having this person work for example under the office of the Ombuds(wo) man of the DG.
The PS is responsible for:
- Managing the sortition process to assign members to a specific CA: This is the organization of the recruitment and lottery itself.
- Sending out invitations, following-up replies, and responding to queries: This also includes helping potential participants with practical issues such as sorting out their travel, childcare,
- Organizing basic logistics for CA’s such as providing rooms, catering, etc.
- Recruiting the facilitator(s) to a specific CA: This needs to be done with great care as these are crucial to having a high-quality deliberation process. One could even institute over time a form of accreditation by the PS for facilitators for CA’s in the DG.
- Preparing and managing the yearly budget: This is the budget for specific CA’s and for the annual budget for the CC. The CC supervises this budget and the PS reports at regular intervals to the CC.
Beyond these logistical tasks, the PS coordinates the preparation of information and documentation for the specific CA’s. This includes asking various diverse stakeholders for input, balancing views, and ensuring that all perspectives on the topic at hand are available. This involves setting up an ad-hoc advisory group for every CA. The PS is also responsible for reviewing the final program with balanced questions and methodology to be used by the facilitators for the CA’s. It also involves preparing a list of experts and stakeholders that will come to talk to the CA.
Because the PS holds a crucial position in the organizing of the whole process, it is necessary that the CC is involved when this person is appointed or when the person holding the position is replaced. The CC monitors the work of the PS to see that it holds to a strong standard of neutrality and impartiality.
The work of the PS is very important and requires a good knowledge of how deliberative processes are set up. The person that will hold this post will therefore need excellent skills and be knowledgeable on this. But the G1000 organization has also foreseen in its current planning and budget that it would assist and monitor the process developing in the German speaking communities for the next two years. This will also include giving advice to the PS in the first two years.
The Citizen Assemblies (CA)
These are single-topic citizen assemblies that bring together a minimum of 25 citizens for a number of days, at least for four to six days depending on the complexity of the topic.
As stated above the topic is decided by the CC. The CA’s are professionally facilitated and deliver a set of recommendations to the parliament of the German- speaking community of Belgium.
The citizens in each CA are drawn by lot and are remunerated for their time. The topics that they can discuss are a priori limited to the policy areas in which the DG has its competences.
A CA will propose recommendations to the parliament of the DG on the topic it was given to discuss. There should be a clear regulation as to how these recommendations will be handled by parliament. The extent to which they are seen as binding to some degree is up to the political actors of the DG to decide, but the most important element that previous experiences with CA’s tell us is that expectations should be clearly set at the start of a CA and should be kept after it. A separate note below goes into possible ways parliament can work with these recommendations.
Perhaps as important, as one citizen participant noted, sitting down face to face with those of opposing opinions, and arriving at a consensual agreement on the facts, prompted each to see the point of view of others as reasonable disagreement and not as enemies in the other camp.
DELIBERATIVE POLLING: DIGITAL UPDATE
Stanford University’s James Fishkin is the global guru of deliberative polling, which he has been perfecting in practice since the 1990s.80
Just such an exercise took place outside Dallas, Texas in September, 2019 in a project called America in One Room that was organized by the Stanford political scientists James Fishkin and Larry Diamond along with the farsighted network of young social entrepreneurs, Helena, and the University of Chicago research institution NORC.
“As the presidential primaries approach and a new impeachment crisis looms, America seems to be careening toward a doubling down of our partisan polarization,” Fishkin and Diamond said. “But are our divisions really so entrenched and unbridgeable? What if we had civil and evidence-based dialogue across our great divides of party, ideology and identity?” they ask.
As they describe it, a scientific sample of 523 registered voters from around the country gathered over a weekend in September where “diverse small group discussions facilitated by moder- ators featured experts and presidential candidates from both parties who answered questions from participants” on issues ranging from immigration to the Iran nuclear deal abandoned by President Trump.
“The participants were guided by a 55-page handbook,” they note, “prepared by policy experts from both parties, offering arguments for and against each proposal. The participants had been surveyed on the policy proposals in advance, and they took the same opinion survey again upon completing the four days of deliberation.”81
The conclusion: “The most polarizing proposals, whether from the left or the right, generally lost support, and a number of more centrist proposals moved to the foreground. Crucially, proposals further to the right typically lost support from Republicans and proposals further to the left typically lost support from Democrats.”82
Perhaps as important, as one citizen participant noted, sitting down face to face with those of opposing opinions, and arriving at a consensual agreement on the facts, prompted each to see the point of view of others as reasonable disagreement and not as enemies in the other camp.
Snap and YouTube along with other media organizations broadcast the content and results from the event to millions of people. It was extensively covered by the New York Times.
CITIZENS’ BALLOT INITIATIVES
During the Progressive Era at the turn of the 20th century, many American states as well as cities adopted the direct democracy of citizens’ ballot initiatives that originated in Switzerland at the end of the 19th century. California, America’s largest state, has used the initiative more intensely than any of the others. Oregon has introduced one of the more innovative ways for citizens themselves to vet and review propositions so as to inform their fellow citizens before they vote.
Switzerland: The federal popular initiative is the instrument of direct democracy in Switzerland that allows citizens to propose changes to the Swiss Federal Constitution. A vote will be organized for every proposition of modification that collects 100,000 valid signatures in 18 months.
The most frequent themes tackled by initiatives are healthcare, taxes, welfare, drug policy, public transport, immigration, asylum, and education. There’s been a surge of ballot initiatives: more than 75 since 2000, and there are about two dozen in the pipeline. That’s more than all the ballots in the 80 years after they began in 1891.
There are only two kinds of restrictions on the content:
- Formal criteria (the initiative should deal with one topic at a time, etc. )
- The initiative should not infringe on the core of the human rights, known as jus cogens. 83
Unlike a mandatory referendum, a proposition to change the constitution is initiated by the citizens and not by the parliament. The legislative authorities cannot reject a qualified initiative but they can make a counter proposal, known as counter-project, that appears on the ballot alongside the original proposition with the additional option of “neither of the above.” A double majority of people and cantons is required to change the constitution.
As Bruno Kaufmann reports, “unlike the Brexit process, which was based on a single piece of paper asking the people of Britain to vote ‘Remain’ or ‘Leave’, the Swiss approach is an elaborate one. It seeks to ensure that every voter is properly informed, clearly detailing both the government and the opposition positions. The ballot paper in four languages is actually accompanied by a small multi- page dossier, a voter pamphlet, ensuring that anyone who has not followed events can quickly read up on the basic pros and cons. So there is no excuse not to be informed.” To ensure the impartiality of the ballot language, a non- partisan office of experts is assigned to write it according to this dictum that hangs on a sign in that office: “Think like a philosopher, write like a peasant.”
And while there are criticisms that Switzerland holds far too many popular votes—there is one every three months with about half the electorate taking part—the process is done professionally, credibly, and always in the interests of the citizen. And when decisions really matter, people turn out to vote in huge numbers.
Popular initiatives exist at the federal as well as the cantonal (cantons) and communal (town) levels.
California and Oregon: Though it has a governor and legislature, California is, in essence, a direct democracy. The most consequential decisions of recent decades—on taxes, budget, the environment, and other areas—have been made at the ballot box directly through citizen-initiated legislation.
The Citizens Ballot Initiative was adopted from Switzerland in the early 20th century as a way to circumvent a corrupt legislature controlled by the westward-expanding railroad trusts, alongside the referendum (to amend legislation) and the recall of officials by popular vote. In the original enabling legislation in 1911, proponents who gathered signatures equivalent to five percent of the last statewide vote presented a petition to the legislature, which then had 40 days to replace the measure with its own. If the Legislature did not act, the measure would go to the people. That process was dropped in the 1960s when the California legislature became a full-time body.
Present requirements for signature qualification are a number equal to eight percent of the previous general election vote for Governor for a constitutional amendment and five percent for a statutory measure. Initiatives are limited to a single subject and require the submission of the full text of the proposed law, from which the state’s Attorney General writes a brief “title and summary” that appears on the ballot on election day.
Legislative measures initiated in the state’s Assembly or Senate go through committees and are debated and reviewed and amended. This process, known as a “second reading,” can strengthen bills and eliminate problems with them.
By contrast, the review process for citizen ballot measures is woefully inadequate and sometimes leads to the passage of initiatives that don’t stand up to legal scrutiny. That’s what happened with Proposition 8, which outlawed same-sex marriage, and Proposition 187, which limited public services to immigrants who are here illegally. Both measures won at the polls but were later thrown out by the courts.
Citizen legislation has also produced a dysfunctional tangle of fiscal policies. Take the seminal case of Proposition 13, passed in 1978. Because property taxes were locked down, while spending for schools and public services continued to rise, deficits were inevitable.
And there was Proposition 55, passed in 2016, which has left California with a tax system so dependent on a tiny base of wealthy taxpayers that the budget is exceedingly vulnerable to economic cycles. A mere one percent of the state’s residents now pays nearly 50 percent of all income and capital gains taxes, the primary source of general fund revenue. That has meant that an economic downturn can lead to as much as a 25 percent drop in the budget.
Ballot measures have proven easy to hijack by special interests over the years. Real estate, tobacco, and oil interests, as well as some unions, introduce measures aimed at protecting their spoils in the guise of the public good. One example of this was Proposition 23 in 2010. A ballot measure misleadingly titled “The California Jobs Initiative” was sponsored by mostly out-of-state oil interests aimed at undoing legislation stemming greenhouse gas emissions. In the end, fortunately, the public voted against the measure. But $75 million, a record at the time, was spent by the battling sides in the campaign to sway voters to one side or the other.
Still, ballot measures are powerful tools when they work. On the upside, Californians have passed initiatives that ended gerrymandering by shifting redistricting to citizen commissions and that busted partisan gridlock by requiring only a simple majority vote on budgets.
Still, ballot measures are powerful tools when they work. On the upside, Californians have passed initiatives that ended gerrymandering by shifting redistricting to citizen commissions and that busted partisan gridlock by requiring only a simple majority vote on budgets. Initiatives have also enacted far-reaching environmental laws to protect the coast and address climate change.
There has been some progress in fixing problems with the initiative process to introduce the deliberative filter of a “second reading.” Legislation sponsored by the Berggruen Institute’s Think Long Committee that passed in 2014 amended the state’s initiative law for the first time in 40 years, requiring the Secretary of State to notify the Legislature when 25 percent of qualifying signatures have been gathered for a ballot measure. At that point legislators can seek to work with sponsors to get rid of flaws and unintended consequences or even decide to pursue the matter through legislation rather than an initiative if the sponsors agree. The Legislature is also required to hold hearings on the subject of the measure no later than 131 days before the date of the coming election.
Under the law, sponsors can withdraw their measure from the ballot by the 131-day deadline if they are able to reach a negotiated consensus on legislation. This process has already led to passage in the Legislature of landmark minimum wage and digital privacy legislation, both of which began as ballot propositions but were instead enacted by lawmakers.
Organized special interests, however, were quick to exploit the loophole in this law, enabling virtual “extortion” of the legislature by some ballot sponsors, such as the soda companies in 2018, who refused to withdraw an initiative that would have required 2/3 vote on all local taxes and fees (which would have devastated local government finances) until the legislature agreed to grant them a 12-year moratorium on local taxes on sugary drinks.
The best way to respond to this problem of leveraging the legislature is to further borrow from the Swiss system by enabling the legislature to place a counter-measure on the ballot if they can’t reach agreement with a sponsor whose measure they believe to be against the public interest.
At present, the legislature can do this with a 2/3 vote. We propose that this can be done by retaining the 2/3 vote when constitutional change is involved, but require only a simple majority vote on statutory matters. As in the Swiss system, that competing legislative measure would go on the ballot alongside the sponsor’s measure with three options for voters. They could vote either their preference for a or b, or c—no to both.
By 2019, business-sponsored initiatives aimed at pressuring the legislature were becoming common practice. In that year, Uber, Lyft, and other ride-hailing services announced they would file ballot initiatives to counter AB5, a bill backed by some private-sector organized labor groups that would define drivers as employees. The initiative would instead offer portable benefits, a minimum of $21 per hour pay, accept bargaining across the entire ride-hailing sector instead of within individual companies and define drivers as a category—“dependent contractors”— other than employees. Whatever one thinks of these competing causes, this increasingly habitual use of the citizen’s initiative by businesses at odds with legislation leaves out the citizens entirely—all the more reason for the
Two further reform steps seem sensible. The first is to require a 2/3 approval vote by the public on any initiative that imposes a 2/3 threshold to pass measures either on the legislature or to implement an initiative. As it is now, if 20 percent of registered voters turn out to vote, and a majority defeats or passes the measure, that means only slightly more than 10 percent of registered voters have made law and policy for the entire body politic, including requiring a 2/3 vote to change the passed measure. The second reform should consider making voting on ballot initiatives, especially constitutional amendments, mandatory for all citizens. Thus, any such vote would more faithfully reflect “the will of the people” than at present.
Another good next step for California would be to adopt the kind of citizen review panels already up and running in Oregon. The state impanels a randomly selected group of voters to hear from a ballot measure’s proponents and opponents as well as experts on the implications of the proposed policy. The panel, which could follow the form of policy juries or a Citizen’s Assembly, then would present its findings to the public through a 750-word summary published in the voter guide. When voters go to the polls, they have the advantage of being informed by the disinterested considerations of a body of their fellow citizens.
For now, the Oregon process is funded by private foundations, a model California might follow as a first step. Ultimately, however, these panels should be institutionalized in the Secretary of State’s office as part of the regular electoral landscape.
Another alternative might be for the Governor, or the Speaker of the Assembly, or the Pro Tem of the Senate, to call on the Secretary of State to organize a citizen’s assembly/jury on a given controversial or hot topic ballot initiative once 25 percent of the qualifying signatures are gathered. This would turn what is often merely a pro forma “public hearing” that involves mostly insiders and self- interested stakeholders into a rigorous “second reading” deliberation by an impartial citizens group. If done early in the process it can inform legislators and sponsors in their negotiation and in fixing mistakes and unintended consequences. If negotiation between sponsors and legislators is not successful and the measure proceeds to the ballot, a summation of the citizens’ review would appear on the ballot alongside the title and summary of the sponsor’s measure as well as the legislature’s alternative measure if they chose to place one on the ballot.
Ultimately, the aim would be to collapse the present state Senate (40 members) and Assembly (80 members) into one lower house, reducing the size of districts so there is closer engagement between legislators and constituents. A new indirectly elected Senate would be constituted through appointment by a combination of local elected officials, the Governor and legislative leadership based on the criteria of expertise, and experience to serve as a permanent body for the “second reading” of citizen ballot initiatives as well as legislation originated in the lower house. This permanent body can be leavened through adding a rotating membership of citizens chosen through sortition to serve for a more limited period of time.
Appointed members of that body would serve for eight years to insulate it from electoral cycles and to be well- staffed so as to play a “think tank” role both to thoroughly vet and improve citizen initiatives and to initiate legislation in response to crowdlaw-type engagement to determine citizen concerns and priorities.
While this body would deliberate and propose measures, the ultimate decision would have to be confirmed by either the elected legislature or the public at the ballot box.
The following chart describes a proposed design template using the California example described above.
70 Richard Wike et al., “Globally, Broad Support for Representative and Direct Democracy,” Pew Research Center, October 16, 2017, https://www.pewresearch.org/global/2017/10/16/globally-broad-support-for-representative-and-direct-democracy/.
71 Angelique Chrisafis, “Citizens’ assembly ready to help Macron set French climate policies,” The Guardian, January 20, 2020, https://www.theguardian.com/world/2020/jan/10/ citizens-panels-ready-help-macron-french-climate-policies.
72 Robert Williams, “France’s President Calls For a Referendum on Climate Change,” Bloomberg, January 10, 2020, https://www.bloomberg.com/news/articles/2020-01-10/ france-s-president-calls-for-a-referendum-on-climate-change.
73 Charlotte Graham-McLay, “New Zealand is Tackling Hot-Button Liberal Issues in One Scoop,” New York Times, November 16, 2019, https://www.nytimes.com/2019/11/26/ world/asia/new-zealand-euthanasia-cannabis-abortion.html.
74 Gordon Brown, “Divisive Us v Them nationalism is biggest threat to Union in 300 years,” Gordan and Sarah Brown, June 25, 2019, https://gordonandsarahbrown. com/2019/06/gordon-brown-divisive-us-v-them-nationalism-is-biggest-threat-to-union-in-300-years/.
77 George Papandreou, “We Need a Fourth Branch of Government,” New York Times, October 8, 2019, https://www.nytimes.com/2019/10/08/opinion/fourth- branch-of-government.html.
78 Bruno Kaufmann and Joe Matthews, “Democracy doomsday prophets are missing this critical shift,” Washington Post, May 8, 2018, https://www.washingtonpost.com/news/theworldpost/wp/2018/05/08/direct-democracy-is-thriving/.
81 James Fishkin and Larry Diamond, “This Experiment Has Some Great News for Our Democracy,” New York Times, October 2, 2019, https://www.nytimes. com/2019/10/02/opinion/america-one-room-experiment.html.