In his recent blog post, “The Elected Legislator’s Burden,” Yoram Gat challenges one of the arguments of my essay, “Lot and Democratic Representation.” In that essay, I argue that the U.S. Senate (along with state Senates) should be abolished and replaced with a citizens’ chamber, with its members chosen by lottery. In short, I propose that we preserve bicameral legislatures, but with one chamber filled through election and the other by lot. I argue, however, that the citizens’ chamber should have fewer powers and responsibilities than the elective chamber. It should have the power to veto any legislation ratified by the elective chamber; it should also have the power to draw district boundaries for the elective chamber and to compel a floor vote in that chamber on any legislation introduced there.
Gat challenges my reluctance to grant the citizens’ chamber “full parliamentary powers – to set its own agenda, initiate legislation and draft its own legislative proposals.” He suggests that citizens chosen by lottery are capable of wielding these powers responsibly—or, at least, that there is every reason to expect that they will do so as responsibly as elected legislators. He lays out several arguments in support of this claim, and I will consider each in turn.
(1) His first argument, if I understand it correctly, is that the skills needed to wield a responsible veto are precisely the skills needed to draft and revise legislation. In the paper, I argued that citizens chosen by lot for one-year terms would generally lack the policy expertise of elected officials, and “would have virtually no experience assessing the likely consequences of different policy alternatives.” Gat argues exercising a responsible veto requires, precisely, that citizens assess the consequences of policy alternatives.
Here I think Gat is mistaken. In order to draft and revise legislation skillfully, a legislator must be able to choose, out of all possible policy alternatives, one that is well-suited (if not best-suited) to accomplish the relevant goal. She must therefore have an exhaustive understanding of the possible alternatives. She must also understand the “craft” of policy design—how to use incentives effectively, how to avoid exposing the law to obvious legal challenges, etc. And she must know how to ensure that the new law does not conflict with or frustrate existing law, etc. She must therefore know a great deal about the existing shape of the law.
But veto power can be responsibly exercised without all of this expertise. Imagine a group of citizens who get together to debate healthcare reform, and who decide after considerable reading and discussion that they will be satisfied only with a reform proposal that meets the following two objectives: (1) it gives all Americans access to affordable healthcare within a reasonable time frame, and (2) it controls costs by changing incentives for doctors, so that they are not rewarded simply for prescribing more medical treatments and procedures. Though these citizens lack the policy expertise they would need to draft a competent law, they are—in my view—more than capable of exercising a principled veto. And were they empowered to do so, their veto would help define the objectives that elected legislators would have to meet in framing a reform proposal.
Citizens who confined their deliberations strictly to the proper aims of healthcare reform would not, of course, be in good position to discriminate between the many possible policies that could be designed to achieve those aims. They would not be able to determine whether any particular proposal was in fact the best available. They would, however, even without a great deal of policy expertise, be able to recognize those proposals that are not in fact structured around the aims they endorse. They could therefore rule certain proposals out on principled grounds—and this would, in itself, be an important exercise of popular power.
In some cases, of course, citizens might articulate aims that are simply not feasible, or that would cost too much to be acceptable to them—in such cases, they would likely find reason, over time, to amend their list of aims. And of course, the more citizens knew about healthcare policy, the more discriminating their veto power would be, and the more control they could responsibly exercise over the shape of the law. My main point here is that it is possible for a citizen to lack the expertise required to write a good law, but to possess knowledge enough to exercise a responsible veto.
(2) Gat argues, secondly, that “there is no reason to assume that a few years’ experience as an elected legislator would be necessary and sufficient training for writing legislation.” This is certainly true. Elected officials often lack the expertise they would need to draft good laws (or even to preside intelligently over policy hearings, as late-night CSPAN viewers often discover to their chagrin). But there is good reason, I think, to expect that they will accumulate more expertise, on average, than citizens chosen by lot for relatively brief terms.
First, elected officials serve longer terms in office, and since incumbents enjoy substantial advantages at the polls, they often stay in office for a long time. Second and relatedly, elected legislators often retain committee appointments for many years, allowing them to develop expertise in specific policy areas. Third, elected legislators must at least be competent enough to run—or at least preside over—a successful campaign, which is no small or simple feat.
It could be argued, of course, that elected legislators in fact delegate policy-writing to skilled aides, and that citizens chosen by lot would do the same. Still, the task of choosing the right aides and supervising and directing them effectively requires, in itself, no small measure of accumulated experience. Citizens recently chosen for office, without any political background, might be easy marks for career policy specialists with their own agendas, and would not be around long enough to learn the ropes and correct their mistakes.
(3) Why, then, shouldn’t we extend citizens’ terms in office, or extend their training periods, to allow them to acquire enough expertise to handle “full parliamentary powers”? I am less certain of my conclusions here, but let me at least explain my inclination to resist this suggestion.
First, to ask citizens to leave their lives for a certain stretch of time, move to a new place (which may be far from friends, family, children’s schools, etc.), commit themselves to public service, and put their professional lives on hold, is to ask a great deal. I can imagine asking citizens to do this for a single legislative session. I can also imagine asking employers to grant them leave for one session without forfeiting their jobs or seniority. It is harder for me to imagine asking this—either of citizens or their employers—for much longer.
The more demanding it is to serve in a citizens’ chamber, the less likely citizens will be to accept the office. And this would, in my view, begin to undermine lottery’s democratic credentials. As I explain in the paper, it is important that allotted chambers be “descriptively” representative of the general population. Members of the citizens’ chamber should reflect the general demographic and economic characteristics of the population at large. If they do, they can claim to represent their constituents in a meaningful sense (the sense that John Adams invoked when he wrote that legislatures “should be an exact portrait, in miniature, of the people at large”). Part of the problem with elections is that those elected tend to be elites (rich, white, male). If citizens’ chambers demanded many years of citizens’ lives, then I worry that they would attract only a minority of citizens. If anything, then, I would be more inclined to shorten, rather than lengthen, citizens’ terms in office, to ensure that service in a citizens’ chamber was a duty that all citizens, from all backgrounds, could reasonably be asked to fulfill.
(4) Gat suggests, finally, that even if members of citizens’ chambers were not themselves competent enough to draft legislation, they could assign this responsibility to panels of experts who they selected for the task. They could thus avoid relying on elected legislators to write and revise laws.
I am not sure exactly how to understand Gat’s suggestion here. He might be suggesting that elected legislators be replaced altogether with panels of policy experts chosen by allotted chambers. If so, I think there are good democratic reasons to reject his proposal. As I argue in the paper, elections do serve an important democratic function—a function that lotteries cannot serve. Elections allow constituents to choose public officials who are formally accountable to them, in the sense of having to answer to them during election season. In this sense, elections give rise to what Philip Pettit has called “responsive representation,” which is an important element of democratic accountability. Legislators chosen by lottery for single terms are simply not accountable to constituents in the same way. This is why I have proposed that we combine elections and lotteries rather than simply replacing elections with lotteries.
Gat might, however, be suggesting that we preserve the bicameral structure of our legislatures but grant the allotted chamber full legislative powers, provided that they delegate the drafting and revision of laws to panels of experts. This is an interesting idea. It would not greatly expand the powers available to members of citizens’ chambers under my proposal. It would also further complicate the legislative process. But I would certainly be interested in seeing such a proposal developed and defended in more detail.