The preceding chapters have introduced different conceptions of sortition, but even if the concept now feels familiar, it remains a radical departure from the status quo. Our opening essay championed the idea of establishing sortition as a powerful complement to an elected chamber, but even that bicameral arrangement would break from centuries of tradition. We laid out this proposal, and invited critiques, to glimpse future possibilities. The gravest doubt offered by our critics is the fear that a sortition body with a broad array of powers would become so overwhelmed that its members would welcome an administrative takeover by professional staff, follow the lead of the same political parties running the elected chamber, or fall prey to the enticements of special interests. Freed of any electoral accountability, the randomly selected citizen legislators might become corrupt power brokers, no better than the worst electoral counterparts.
Broadly speaking, the critics see two ways out of this problem: either drastically reduce the remit and powers of sortition bodies, making them serve very specific functions to improve existing centralized democratic institutions, or dissolve the centralized power of the state itself and shift power to an assortment of more fragmented sortition bodies. We remain committed to the view that modern democratic societies require a strong state capable of coherent action and thus reject the second, more anarchist option of dismantling the state.1 But we also believe it is possible to have a strong state in which sortition plays not simply a subsidiary role but is instead fully empowered and integrated into the heart of the machinery of the state.
Still, the comments in this book have raised serious concerns about incompetence, capture, and corruption. We don’t deny the risk of such outcomes—all of which occur already in legislative systems the world over. If a society rushes into empowered sortition, it could unleash unintended consequences on a grand scale. In this concluding chapter, we hope to show that one can embrace radical possibilities and still be attentive to such risks. We do this by revisiting three central issues—the scope of a sortition body’s responsibilities, its context dependency, and the political transitions that could lead to it.
The Scope of a Sortition Body’s Authority
We began this book by imagining a body with broad authority analogous to existing legislative chambers. This worries critics who saw too wide a gap between this expansive vision and the realities of existing minipublics, which typically convene to give nothing more than advice on a narrow range of issues over the course of a few days or weekends. Now, there may be special historical circumstances in which it is possible to move directly from a system in which sortition assemblies play such a limited role to a full-bore sortition chamber. One could imagine, for example, a deep political crisis of legitimacy in the British bicameral system in which the House of Lords was directly converted to a sortition assembly, and then its powers augmented fairly rapidly to match those of the elected parliament. But in most situations, the only plausible scenario for moving from limited minipublics to wide-scope empowered sortition would take place over an extended period of time with many intermediary stages. Such sensible caution about moving too fast, however, needn’t induce a fear of going too far. We can think about sortition’s scope incrementally and test its efficacy at each step.
The Transition Toward a Sortition Legislature
Most of the critics in this book recognize the need for state power but fear its abuse by a body of untested amateur legislators. Incremental implementation can test the gravity of that concern, and each step along the way should come with careful research into the behavior of sortition legislators and its consequences for democratic governance. Such a gradual transition is already under way, if one thinks about the stages of development over time among the randomly selected bodies and minipublics that already exist.
The first stage consisted of juries and grand juries, which showed the capacity of the public to render judgments on legal questions of limited scope. Diversification of these bodies in the twentieth century showed that juries could continue to function effectively even when encompassing a plurality of perspectives.2 Starting in the 1970s, a variety of public forums borrowed on this tradition to create citizens’ juries and policy juries, which sprung up alongside planning cells, consensus conferences, and other small bodies of randomly selected citizens.3 These proved that small bodies of citizens can tackle the broader public-policy questions put before them—replacing legal verdicts or judgments with practical political recommendations. This broadened the reach of “juries” but at the cost of their authority.
A similar transition occurred with the “town meeting,” which morphed from a legally authorized government into a metaphor for public deliberation generally. Drawing on romantic visions from Swiss cantons to New England town meetings, public deliberation processes such as Twenty-First Century Town Meetings tried to show that citizens could gather on larger scales and replicate the magic of the face-to-face meeting.4 The deliberative poll took the idea farther by insisting on a rigorous random selection of participants to glean the “considered judgment” of a representative microcosm of the public.5 Once more, these experiments sacrificed scope and authority for scale. In doing so, they showed that big bodies of citizens could render sound judgments on specific questions, at least when freed from the responsibilities of making final decisions.
Recent experiments have gone farther by giving citizens real authority. The Canadian provinces of British Columbia and Ontario both convened more than a hundred citizens to write new election laws, which were put to a public vote. Several times, the state of Oregon has authorized the selection of two dozen citizens to scrutinize ballot measures, then place their one-page analysis in the official voter pamphlet. In both cases, stratified random sampling was employed to ensure demographic representation, but true random selection was not achieved. Nonetheless, these small- and modest-sized bodies proved capable of taking on important public questions under a modicum of political pressure.6
The Irish Constitutional Convention described in this volume represents another step forward, in that the randomly selected citizens tackled more contentious questions, such as same-sex marriage. That said, they did so within a body that included elected politicians, though the elected made up a minority. They remained an advisory body, though with a standing that made their recommendations more politically potent. The fact that Ireland is now moving forward with a citizen-only body shows a willingness to move incrementally forward—to see how the citizens fare without the company of political veterans.7
From there, the next step is not a full sortition body, even in a bicameral legislature. Many other intermediate paths remain, including variations that appear in this volume. David Owen and Graham Smith propose a system that farms out specific questions to bodies drawn from an even larger pool of randomly selected citizens, who remain available for such service for a limited period of time.8 James Fishkin describes convening single-use bodies that can operate legislative levers, such as providing a check on proposed constitutional amendments. All such proposals feature limited public service on the narrowest-possible policy question.9
The next stage of innovation might go one of two ways. First, a citizen policy body serving for a year or more, akin to a grand jury, might function as an empowered oversight board on a public-policy domain that involves large institutions and complex legislation, such as criminal justice, health care, or the environment. Such a body might have veto power over proposed laws, or it might be authorized to convene investigations.
Second, a body convened for a more limited duration might have the authority to prioritize an issue for legislative action from a large menu of options. This body’s agenda-setting authority would require considering the trade-offs tackling one versus another public concern, but it would not have to act on specific legislation. A set of existing bills, or citizen initiatives, might be placed on its agenda, and its endorsement of one or more of these potential laws might force a legislative up/down vote—perhaps with substantial amendments being subject to review by this same citizen body before passage.
The final stage could combine longer service duration with a broadened remit. That could come about in nonobvious forms, such as through a mixed-member body that seats citizens alongside legislators. In such a system, one could phase out elected seats gradually through each successive election cycle. The scope of this citizen chamber’s authority could likewise grow gradually, beginning with narrower regulatory questions or other issues that conventional legislatures fail to address effectively. In a bicameral system, the elected body can always handle issues outside the sortition body’s remit.
Perhaps the ideal starting point for this last stage of development is to give a sortition body authority over the issues that pose the most serious conflicts of interest for elected bodies. Within constraints that vary by political system, legislators frequently have the authority to amend election laws, set legislative pay and benefits, and police themselves for ethical violations. A sortition body could take on one or more of these roles, and it could also hear complaints from minority parties (or dissenting legislators within a majority party) about the application or unfairness of existing procedural rules for debate. Again, the point of such a transitional body is to expand gradually both its length of service and the breadth of its remit.
At every step in this transition, researchers can evaluate the capacity of citizen legislators to deliberate and render sound judgments. Remembering that there exists no independent standard by which to judge such a body’s recommendations and decisions, one can still investigate whether such bodies absorb key policy facts, demonstrate empathy toward disadvantaged social groups, recognize the trade-offs of difficult policy choices, and formulate logical and well-evidenced rationales for their findings.10 All the while, their behavior should compare favorably against status quo alternatives—as opposed to an idealized standard for governance.
A Sizable but Shared Service Load
Some might agree to the transitional approach to sortition, yet stop short of a sortition body with the service duration and load of responsibilities that we envision. Most of the authors in this volume remain skeptical of a strong central sortition body, but eschewing such an institution limits the capacity for empowered citizen deliberation to extend across the full breadth of public issues. Leaving those questions to an elected body means that a sortition chamber cannot consider the largest questions, which set the public’s priorities across issues.
At least as a transitional stage, one compromise is to empower sortition to address the largest questions before the legislature—but in a different way. One scheme would retain a central sortition body that has the ability to shape the agenda and convene fresh minipublics; those more provisional bodies, in turn, have the authority to render final decisions on specific legislation.11 Alternatively, the sortition body could be more reactive than generative. For instance, instead of creating new legislation, it could pick and choose among bills introduced in the elected chamber, then have the power to amend and force votes on those pieces of legislation. This would take advantage of the elected body’s ability to draft complete laws but address the same body’s inability to move forward legislation that party leadership suppresses—sometimes to protect narrow interests. Even just forcing public debate on such legislation might give them the exposure they need to win passage.12
The sortition body also could share its responsibilities with the wider public. We pointed toward this in our opening chapter’s section on “Direct Public Engagement,” but after reading the critiques of our proposal, it’s clear that this idea requires elaboration. Most of all, we envision the sortition chamber not as a replacement but as a complement to other democratic institutions—from protests, petitions, and elections to minipublics, participatory budgeting, and other democratic innovations. Each provides a different path for expressing a public voice, and their additive virtue outweighs the downsides of tension between elected and sortition bodies. As Jane Mansbridge argues in her chapter, citizens could gain a different form of accountability from sortition without ceding the one they already have through elections.13
More than this, we see the plausibility of Dimitri Courant’s hypothesis that sortition could embolden the wider public to find and use its voice.14 In the past, the public has been responsive to other opportunities for empowered engagement, and a sortition body might provide an indirect civic spark to citizens who can identify with the members of that body.15 Toward this end, a sortition chamber could elicit direct public input through multiple channels. It might create a new path for input by broadcasting and livestreaming sortition chamber debates, then posing specific questions to online forums for further debate and input. Online engagement tools are still in their infancy, and it’s likely that more deliberative modes of debate will continue to develop. These various inputs would inform, rather than replace, the judgment of the sortition body.
The Context Dependency Problem
If the preceding discussion sounds too abstract, it is because we wish to stress the context dependency of attempts to institutionalize sortition. Any civic innovator must respect that a given reform’s efficacy will depend on the social setting in which it appears. For example, sortition’s success may depend on its acceptance by major social movements and nongovernmental organizations in some societies, whereas in others the key variable might be how the major political parties respond.16 Or in a more fractured society, broader but shallow popular support might prove sufficient.
We envision sortition as a useful means of improving democratic governments both young and old, more capitalist and more socialist, and at both local and national levels. Thus, we more often describe sortition through design principles rather than procedural details. Sortition designs should adhere to democratic values but remain flexible enough to recognize and respond to the particular challenges in any given social setting.
With this in mind, we take a second look at two of the most persistent concerns about creating a sortition chamber that has both a wide scope of authority and multiyear terms of office. In our opening chapter, we addressed a sortition chamber’s potential for corruption and the challenge of representing all sectors of society, but we now revisit those issues to underscore how social circumstances shape both their gravity and their remedy.
The Specter of Corruption
One reason we recommend an incremental approach to establishing sortition is the need to test such a body’s resistance to external pressures. In conducting such tests, it will be important to take care when generalizing from a single case to all others. For instance, were a sortition chamber established in a high-functioning municipality rich in social capital, the corruption problem might prove modest. That finding would not necessarily foretell the fortunes of a sortition body instituted in a society known for endemic corruption.
More fundamentally, the political context shapes what counts as the most serious form of corruption. Though every political system has egregious cases of corrupt public officials, they vary tremendously in their overall level of corruption, with public perceptions of electoral systems being the most favorable in New Zealand and lowest in countries such as Venezuela, as recorded by Transparency International.17 In high-functioning democracies, the gravest concern is whether officials serve in the public interest, broadly construed, whereas the most corrupt countries have persistent problems with the outright buying and selling of public offices and votes.18
In the context of sortition critiques, the more serious issue isn’t bribery, per se, or other illegal activities. Those might happen in marginal cases, but the more serious danger is that lay citizens end up catering to—or being captured by—special interests. This can involve legal but unethical behavior, such as expecting long-term “payouts” via future employment or contracts after leaving office. More commonly, it means becoming responsive to elite economic interests or concentrated interests to the exclusion of broader public views, or the concerns of disenfranchised social groups.
Sortition legislators could become dependent on lobbyists owing to the direct influence of such persons, or owing to a dearth of influential input from independent media, political parties, public-interest groups, social-movement organizations, and the broader citizenry. Thus, guarding against that problem depends partly on ensuring the vitality of the public voices and public-interested expertise that reach sortition legislators. The prevalence of this form of corruption, then, is not an inevitable expression of flawed human nature so much as a failure to surround legislators with the resources and incentives to remain responsive to the public interest.19 Once again, this comes down to the context in which sortition becomes institutionalized, rather than a flaw in the design of sortition.
That said, we do believe that procedural safeguards could help a sortition chamber perform better—or at least no worse—than its elected counterpart in a bicameral system. Even after hearing arguments to the contrary, we remain convinced that secret ballots are appropriate for a sortition chamber. These are a hallmark of many large-scale minipublics, most notably deliberative polls. They make quid-pro-quo voting impossible to verify, which makes it irrational to attempt buying a citizen legislator’s vote. The secret individual ballots also stress the judgment of the whole body over the individual legislator, which protects individual dissenters within the legislature from rebuke by the majority. Anonymous ballots also shield individual members from public attack for expressing unpopular views. To require public sortition ballots confuses the body with its electoral counterpart, which has a different form of accountability.20
As for those cases where individual members commit egregious ethical lapses that fall short of criminal corruption, we suggested in our opening chapter that the sortition chamber should be capable of policing itself. An oversight board made up of current and former sortition members won’t have the same partisan entanglements as equivalent committees in elected chambers. With no loyalties to parties or entrenched leaders, such a body should serve as an effective deterrent to corruption, or as a means of removing members who repeatedly violate the sortition chamber’s ethical norms.
Failure to Represent the Full Society
Just as broader political context shapes the threat of corruption, so the structure of a society determines how difficult it is to achieve representation through random selection. Because our sortition chamber requires two or more years of public service, critics fear that there will be demographic groups for which even a carefully drawn sample with expert recruiters will fall short. Even if quotas for geography, income, gender, and ethnicity show the sortition body to represent the wider public, those statistics could obscure special subpopulations unable (or unwilling) to make the commitment to serve.
The magnitude of this problem depends on the nature of the larger society. The general public’s readiness to serve in sortition will depend on preexisting levels of civic education and engagement. People also may be least equipped to serve in societies that have state-run media, a dearth of institutions that provide neutral information, and extreme partisan schisms prone to sparking political violence. In the worst cases, sortition recruiters would be asking alienated citizens to serve in a system they view as illegitimate, which would amount to putting themselves at risk for no foreseeable purpose. Recruitment would fail in such a setting just as surely as would sortition itself.
In a more favorable political setting, sortition recruitment might still need assistance in the form of incentives and legal protections. We noted in our opening chapter the importance of compensating citizen legislators, but there are also ways of ensuring that their service doesn’t diminish the prospects for long-term income earnings. Experience in a sortition body would provide experience in networking, leadership, and deliberation, which has value across a wide variety of professions. Those in more specialized career arcs might need rules that preserve their existing employment or progress toward a degree—akin to the protections given civil and criminal jurors but broader because of the long term of service.
One difficult segment to recruit might be those individuals for whom extended time away from work poses special hazards. Consider those who run small businesses or maintain a thriving freelance practice. In such cases, the individual recruited for sortition may be irreplaceable. Time away from work could force the business to shut down or force their clients to seek services elsewhere. Restarting a practice or business after two to four years of service might prove impossible. Meanwhile, athletes, surgeons, or others whose careers have a time clock might have their jobs protected yet find that their skills have deteriorated—or failed to keep up with the competition.
In such cases, however, the question is not whether a particular individual cannot serve but whether a substantive public perspective goes unrepresented. If sortition bodies failed to recruit a young athlete, successful commercial artist, or independent contractor, would the sortition have greater difficulty fulfilling its mission? Put another way, if nonparticipation comes principally from specialized segments of privileged social categories, the interests of those groups will likely find full expression through other means.
More serious is the risk that incentives and safeguards prove insufficient to bring into the sortition body the voice of disadvantaged groups. The toughest cases are individuals who have dependents for whom no one else can care adequately. A single parent with young children, or an only child with an elderly parent, might feel that no other relative or professional caregiver could serve as a substitute, and a need for round-the-clock attention makes it useless to move the family to the city where the sortition body convenes.
These cases are more serious because the individuals whom sortition might fail to include have something in common—an appreciation for the value of personal care. Political theorist Joan Tronto has argued for reconfiguring our politics to become a “caring democracy,” and excluding these voices might undermine such a project.21 Still, even if it is impossible to completely eliminate the underrepresentation of people with significant care responsibilities, there are policies that could mitigate the problem. The sortition assembly could provide extensive, appropriate caregiving services and support. Provisions for delay, even for a significant number of years, could allow people to adjust the timing of their participation in an assembly. One might even imagine ways in which some sortition chamber participants could mix attending sessions in person with various forms of remote, cyber participation.
Experimentation with sortition’s transitional forms may help address problems such as those we have revisited, including the integrity of sortition legislators and the effectiveness of their recruitment. One must recognize, however, that the transition problem and the end-state institutional form of sortition are not entirely distinct. That is, an experimentalist approach to creating democratic institutions means building the new institution over time and in ways that may not be foreseeable at the outset. The challenge for reformers is to figure out initial forms of sortition that can evolve into a fuller implementation through experimentation, rather than becoming a permanent obstacle to fuller implementation. We have shown that social context can affect how sortition works, but it can also create path dependencies for how sortition evolves.
This form of context dependency means that there probably exists no single optimal path for transitioning to a full sortition chamber. At the broadest level, the transition to sortition has different implications in societies with fundamentally different approaches to elections and the structure of government. For example, it matters whether the public elects a president or the legislature chooses its prime minister. In the latter case, it’s unclear which chamber in a bicameral model such as ours would make that all-important choice. Even the very idea of random selection has a different meaning in countries with the jury system, for which the transitional phase of convening “policy juries” has more resonance.
More fundamentally, sortition-based reforms could involve delicate institutional redesign for the wider system, rather than just grafting it directly into that system. If sortition has the capacity to inspire more public engagement on issues, what channels might need to widen to accommodate public input? Or sortition might spur the creation of a more robust public media in societies that lack such a system. Even routine practices, such as the statistical services provided by government agencies, might change if the sortition body has informational needs that require collecting and reporting basic data in new ways. Whatever path sortition takes, it will be important to track the changing nature of related public institutions and social practices.
At this time, we might not be able to see past the first step on the path to sortition. Even so, we see at least three promising starting points. One path would begin with consultative minipublics on special issues (such as election reforms), which would then expand gradually to address a greater variety of issues with greater authority or influence.22 A second approach would infuse sortition into otherwise elected or appointed bodies to build confidence in the role of lay citizens. In proportional representation systems, that could happen via permitting voters to choose sortition rather than candidates on their ballots.23 A third option launches wholesale sortition in low-stakes polities, such as student government, nongovernmental organizations, or even within government bodies.24 Lessons learned there could be critical to the more high-stakes transitions to sortition in political institutions.
The bottom line is that conjecture can only get one so far. To move from the concept of a legislature elected by lot to an actual institution will require experimentation, attention to contextual circumstances, and recalibration of the institutional setting in which sortition develops. In time, we expect sortition may fare well among its democratic alternatives and prove that even with all the complexities of the present century, the public can, indeed, govern itself.