Fishkin: How to Fix California’s Democracy Crisis

Prof. James Fishkin has an op-ed piece in the New York Times:

One hundred years ago today, California voters added the ballot initiative to the State Constitution, allowing citizens to use petitions to bring proposed statutes and constitutional amendments for a public vote.

In the article Fishkin entwines two themes. On the one hand, according to Fishkin, multiple cycles of legislation via the initiative system have encumbered California with various laws that cannot be overturned by the legislature, and make California “virtually ungovernable”. He cites the two-thirds rule for raising taxes, mandatory funds allocation (40% to education), the “three strikes law” and term limits for legislators. (He also originally cited a two-thirds rule for passing the budget – this reference was removed from the article since last year Proposition 25 eliminated this rule in favor of passage by regular majority.)

The other theme is the troubles with the Proposition system itself – supposedly the cause for the passage of the problematic laws.

Direct democracy in California was born in the hopes of bringing the people into the governance process, but it has led to a kind of audience democracy. Voters have become consumers of television sound-bite campaigns and new-media messaging, not authors of the laws they give to themselves. It was supposed to take the role of money out of politics but it has, instead, created a vast appetite for advertising. Getting on the ballot costs millions of dollars to pay for professional signature gatherers because the threshold of signatures required is so high (5 percent of the number of voters who turned out in the last election for statutes, and 8 percent for constitutional amendments). So instead of the process being open to everyone, it is open mostly to those organized interests that can pay the entrance fee.

[…]

The public complains about the lack of transparency in initiatives, often wondering what interests are really financing a proposal or the opposition to it. It complains about the complexity of propositions, sometimes not being clear what a no vote or a yes vote really means. And it complains about the torrent of ads, often misleading, untrue or sensational. Lastly, voters complain about not really knowing what a proposal will cost and how it will be paid for.

Enter deliberative polling:

My colleagues and I heard all of these concerns when we gathered a scientific sample of more than 400 of the state’s registered voters in Torrance over the weekend of June 24-26, to discuss the ballot initiative and other elements of California governance. Our project, known as What’s Next California?, was the first statewide deliberative poll — a poll that gathers a scientific sample of respondents to answer questions both before and after they have had a chance to deliberate competing arguments and trade-offs. It provides a window on what voters think of direct democracy and what changes they would, and would not, support. Despite the evident problems, California voters have more confidence in the ballot initiative than they do in other elements of their state government. After spending a weekend immersing themselves in the issues and questioning competing experts about possible reforms, 65 percent of the sample expressed disappointment with California’s state government in general and 70 percent expressed disappointment in the Legislature, but only 37 percent were disappointed in the ballot initiative.

Interestingly, one of the commenters points out, similar results were measured by a regular poll.

They do think the [initiative] system needs reform, but in many cases not the reforms championed by policy elites. The popularity of proposals to involve the Legislature in the initiative process sank once voters in our poll discussed their implications. After deliberating, they did not want the Legislature to be able to place a counter-measure on the ballot or to amend an initiative that has passed, or even to remove an initiative from the ballot by enacting it into law. They held the Legislature in low regard (at an approval rate of only 14 percent). They viewed the ballot initiative as “the people’s process,” and they wanted the Legislature to keep its hands off it.

The role of deliberation in this case is questionable considering the low approval rate of the legislature. It seems quite unlikely that a reform proposal along those lines would be seen favorably by the voters – with or without the benefit of deliberation.

There was, however, strong support for requiring the names of the top five contributors for and against a measure to be published in the ballot pamphlet and for requiring ballot measures with new expenditures to indicate how they will be paid for. And there was majority support for lowering the threshold voting requirement in the Legislature for new taxes from two-thirds to 55 percent — a surprising willingness to reconsider the best-known aspect of Proposition 13. Regardless of party, the people wanted transparency and accountability and they wanted government to be able to make decisions.

Again, the regular poll cited above shows similar opinions, thus making those finding insufficient basis for the Fishkin’s claim that deliberative polls would produce better judgment than the initiative process as it exists today:

These are reforms that people support once they really think through their implications. A real reform of the initiative process would let the people’s considered judgments — after a process of deliberation, and not just yes or no — set the agenda, not influential special interests that have the money to collect the petitions.

Fishkin ends with what appears to be a vague proposal for reform:

Something like this happened in the first democracy, in ancient Athens, where a deliberating microcosm chosen by lot, the Council of 500, set the agenda for the votes by everyone in the assembly. If the ballot initiative process is to survive for another century, it must take into account the considered judgments of voters coming together to deliberate hard choices and not just cast a vote based on sound bites. If this succeeds it will help bring California much closer to the ideal that voters were striving for 100 years ago: legislation genuinely initiated by the people.

This proposal seems somewhat of a non-sequitur to the thrust of the preceding article. Did the deliberators in Fishkin’s poll get to set the agenda? If so, how? It seems that they got to choose between various items presented to them by the poll organizers or by the “competing experts”. And even if the modern-day Council of 500 gets to set the agenda, what about those problems with the initiative process that do not have to do with setting the agenda – the soundbites and ads? Leaving the final decision as a mass political activity leaves all those problems unattended.

Finally, what about that unpopular legislature – seeing that its approval rating is much lower than that of the initiative system, doesn’t it seem that the first order of business should be to deal with this institution?


Fishkin’s Center for Deliberative Democracy in Stanford links to a PBS Newhour documentary about the What’s Next California? deliberative poll:

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25 Responses

  1. Fishkin’s suggestion is in a similar spirit to the compromise Terry and myself arrived at in:

    https://equalitybylot.wordpress.com/2011/09/13/sortition-in-spain/#comment-1986

    and following comment, the principal difference being that our proposal adds the modern equivalent of the nomothetai to the boule and ecclesia (leaving the final decision to scrutiny by allotted chamber).

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  2. > this reference was removed from the article since last year Proposition 25 eliminated this rule in favor of passage by regular majority.

    Strange to remove it, because although it was eventually removed, it was apparently really bad when it existed.

    > Leaving the final decision as a mass political activity leaves all those problems unattended.

    That may be, but it appears to me what Fishkin is really trying here, is to really get this reform through by way of the existing direct democracy system. As Fishkin argues, the referendum system is really popular in itself. It would be exceedingly hard to get the system to abolish itself.

    Getting it to realize the problem with signature gathering and dodgy initiatives pretending to be something else than what they are, though, could be possible. I think Fishkin is just being pragmatic here.

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  3. > Strange to remove it, because although it was eventually removed, it was apparently really bad when it existed.

    One of Fishkin’s points appears to be that the system is not self-correcting and so the reversal of the two thirds rule is actually somewhat of a refutation of his stance. Because of its bearing on his claims, it is quite odd, I think, that Fishkin was not aware of the passage of Prop. 25 last year.

    I am not sure how bad the two-third rule really was when it existed – Fishkin takes for granted much that is far from clear. But the important issue – which Fishkin manages to miss completely – is that like the proposition system itself the two-thirds rule was an attempt to reduce the power of the legislature. The clear implication here is that the most urgent reform is that of the legislature, not of the proposition system.

    > As Fishkin argues, the referendum system is really popular in itself. It would be exceedingly hard to get the system to abolish itself.

    I agree. But then it seems obvious that the area where most gains can be made, and where popular support can be easily gathered, is in reforming the much less popular institution of the legislature. If Fishkin were really pragmatic wouldn’t he be proposing sortition in the legislature?

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  4. I think it’s easier to get people to accept sortition as a means to protect the popular institution of direct democracy, rather than as a replacement for the unpopular institution of an elected legislative.

    You’re the Californian, so correct me if I’m wrong, but I suspect getting rid of elections entirely would be shockingly radical to most people – and it certainly would be easy to paint as such by the people currently empowered by it.

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  5. I think people would be rightly suspicious of any attempt to add various nuances to the proposition system. Since the reform plan would be written by some elite, it would be an opportunity for that elite to game the system in its favor.

    As for reforming the legislature – I think you are right that a proposal for getting rid of elections altogether in one shot would be a shocking idea, and would be overwhelmingly rejected. Again, I think this is completely justified (Richard Ward’s protestations notwithstanding).

    A more moderate proposal, however – say appointing one chamber of the legislature using sortition, or 25% of the members of each chamber, or something along those lines – would, I think, in view of the low approval rates of the elected legislature, be met with some degree of openness. I would not presume to guess the chances of such a proposition passing, but I don’t think they are a-priori lower than those of a Fishkin-style proposal.

    Also, and maybe more importantly, the effects of floating a proposal to introduce sortition in the legislature would be hugely beneficial even if the proposal failed. It would expand the range of discussion in the right direction (I think you used the term “shift the Overton window”). The effect of floating Fishkin’s proposal (if it fails) is negligible at best, even if some of his arguments are valid.

    (BTW, as of July I moved back to Israel.)

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  6. Hi Yoram. Greetings from England, where I’m spending my birthday. Hadn’t heard you had moved to Israel. Two quick comments. First, I do think the 2/3 rule was pretty bad, at least in conjunction with one of the two major political parties losing its mind. The Democrats had 64% of the votes in the California legislature, and yet the Republicans could literally shut down the state government unless a rather crazy laundry list of right-wing demands were met. The two-party system is not always as dysfunctional as it is right now, so this might not be a generic feature of 2/3 rules for budgets, just an occasional risk.

    Second, I’ve long thought that one good way to introduce sortition was to entrust a randomly-selected body with some of the policing tasks for legislatures, given that they do such a horrible job of self-policing. The two most important tasks I have in mind are redistricting and ethics oversight. I would think there would be some popular support for the idea of a body of ordinary people who make and enforce the ethical rules on elected legislators.

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  7. Peter,

    My point was not that the 2/3 rule was a good thing. I am also not a big supporter of the proposition system. But it is pretty clear to me that the proposition system is not the root of California’s problems – it is a flawed response to the problems of the electoral system. Therefore, targeting the proposition system for reform rather than the electoral system can only be the result of a bias.

    Using sortition for selecting bodies with well circumscribed purview may be a good idea, but I would not make that my main goal or even my main interim goal. Again, as is the case with Fishkin’s proposal, the issue is that it is important to present sortition as a clear alternative to elections, not as some sort of a stop-gap or add-on. There is a risk that using sortition for specific, low-power roles will pigeon-hole it in people’s mind as being unsuitable for anything other than those roles.

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  8. It’s always risky and difficult to “go negative” in mass politics, and going negative would be necessary to reform the legislative even modestly. By comparison, the proposition system is popular, and adding a sortition tier to it would fix some of its problems, in such a way that it could be cast as strengthening it. (This would be a fair framing, too, in my opinion. It does really strengthen what I think people really like about the proposition system).

    Not all proposals succeed in moving the Overton window. If they fail too badly, the reaction to them may block further efforts instead. A good example is some recent ballot initiatives in the US to ban male circumcision – these were from such marginal groups, and failed so badly, that they probably hurt the wider movement questioning the practice rather than helping it.

    Failed initiatives can have a severe cost. Another example would be the movement for electoral reform in British Columbia (which was proposed by a citizen’s assembly, by the way): First time, it came very close to the supermajority required to implement the changes (60%), but the second time, it failed spectacularly even to gain a majority. I think this was in part from the voters viewing the system as a “sore loser” having lost once and insisting on getting another chance.

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  9. It is not clear to me why fixing the legislature is more of a negative message than fixing the initiative process.

    As for backlash, I agree that the proposal should not appear extremist, but in any case as far as I am concerned the main short-term objective is creating awareness, not acceptance. Acceptance can come later, but it will not happen until the awareness is there. My guess is that in the case of sortition, acceptance will inevitably follow awareness.

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  10. But what about the problem of false consciousness? Participants in the Good Society symposium http://cdd.stanford.edu/research argued that it was as important to demonstrate the efficacy of sortition.

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  11. > It is not clear to me why fixing the legislature is more of a negative message than fixing the initiative process.

    Think about the slogans you could use (this is ugly mass politics, but it’s presently what we have). Adding a sortition element to the initiative process could be framed as protecting it from the people who have abused it before with the help of money, lawyer-designed loopholes in proposals etc. This would be a pretty fair framing, actually.

    You could not say the same for the legislature. You can’t say “it’s basically a good system, but it needs to be strengthened against…” because a good system is precisely what people don’t think it is. They’re just too afraid of any potential alternatives to dare to change it.

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  12. Absolutely. Most people prefer evolution to revolution, that was the principal mistake of nineteenth-century historicists (and their revisionist successors, with all their talk of consciousness-raising).

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  13. Harald,

    I think your case is counter-intuitive. You are claiming that it is easier to push for a reform of a system that is perceived as working well (with some faults) than of a system that is perceived as being basically dis-functional. I find the opposite to be much more likely.

    > They’re just too afraid of any potential alternatives to dare to change it.

    I think most people are simply not aware of any reasonable alternatives. I think there would be general openness to experimenting with sortition once the initial unfamiliarity barrier is overcome.

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  14. > You are claiming that it is easier to push for a reform of a system that is perceived as working well (with some faults) than of a system that is perceived as being basically dis-functional.

    Not in general, maybe. But I think it’s easier to reform a popular system if it can be framed as strengthening it and protecting it. And it can.

    Also, about the legislature: What do the people actually say? That it is a fundamentally bad system? Not in my experience. They just think it’s occupied by the wrong people, people that are too petty instead of noble-minded – unlike how it supposedly used to be in the “old days” ( under the same system). They see it as a moral failure of individuals, not an institutional problem.

    Admitting that people (politicians or not) are not any more or less immoral in an absolute sense than they have ever been, would force them to confront some highly cherished traditions, e.g. that the Founding Fathers were terribly wise, honest and intelligent to institute elections.

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  15. Nicely put. An analogous situation in the UK is the ongoing call for reform of the House of Lords. Although it is an effective revising chamber it doesn’t fit with the narrative of elective democracy, so sortition has not been dismissed as a suitable alternative. The House of Commons, by contrast, consistently fails in its dual role of legislative chamber and holding the government to account, yet even attempts to tinker with the electoral system have been rejected by the public. As Harald puts it it’s just “occupied by the wrong people”. The best way to educate people is by concrete demonstration of how sortition works in practice.

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  16. I don’t see why it matters whether elections put the wrong people in office or corrupt normal people. I think it is likely both.

    I think it should be straightforward to develop a message – and the attending slogans – that would justify using sortition as a counter-balance for the negative impact of money, special interests, electioneering, etc. on elected officials. It doesn’t matter much, I think, what exactly the mechanism through which those bad influences work is.

    As for the cherished traditions according to which the Founding Fathers were saints – these will (unfortunately) continue living no matter what.

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  17. > I don’t see why it matters whether elections put the wrong people in office or corrupt normal people.

    I never said it did. The point is not about when politicians fall from grace. The problem is, as I said, that voters tend to see it as an individual, moral defect rather than something you can come to expect from the system. “The next candidate of the Democratic party won’t disappoint us like this one did – he’s a different type entirely!”

    Part of the reason direct democracy is not more widely used, I think, is that when it produces bad results, the blame cannot be deflected from the institution to individuals.

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  18. Agree — and that’s an important point, because that would no longer be possible in a sortition-based system. Although this would have the benefit of forcing people to grow up, it does reinforce the case for retaining an elective element — one of the reasons that I vacillate between elections and votation for setting the legislative agenda. If the former then voters would, over time, punish parties that introduced sub-optimal legislative proposals, even though those proposals passed the scrutiny of an allotted house. Whereas the latter cannot be held to account, the former can. If there are no politicians left to blame there is a danger of looking for other scapegoats.

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  19. > “The next candidate of the Democratic party won’t disappoint us like this one did – he’s a different type entirely!”

    I think the cycle of hope and disillusionment has run its course. While people may still point to certain politicians as being the immediate agents of corruption, there is certainly a general dissatisfaction with the system. What is missing is a credible alternative.

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  20. People in California, at least, seem to see a credible alternative in their traditional initiative process. I think it is better to build on their sentiments – because they are basically admirable – rather than to launch a competing proposal which would have to fight both sides.

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  21. I am not sure if the originators of the initiative process saw it as an alternative to the elitism of electoralism, but if so then they were mistaken, and I think the large majority of Californians – with the benefit of a hundred years of experience – have no such illusions. Initiatives, at most, can function as some sort of a restraining mechanism – specifically when applied in those ways that are considered by Fishkin as making California “virtually ungovernable”.

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  22. I agree with Yoram that introducing sortition into the California legislature would be both more desirable and more feasible than introducing it into the initiative process. Desirable, because it would be a much more fundamental change. Feasible, because as he pointed out, the legislature is much less popular than the initiative.

    However, I suspect that a better place to start would be by implementing allotted second chambers in a few cities first, and then maybe replacing one elected chamber in a smaller state with an allotted chamber, before trying to change the California legislature.

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  23. “Better place to start” in the sense that it is more feasible, or in the sense that the results would be better? I am not sure either is the case.

    Anyway, I think we are early enough in the process of promoting sortition that the specific application matters less than the general ideas and their dissemination. I think we should focus our efforts on making the public aware of the idea of sortition, allowing it to gain legitimacy as a credible democratic device and undermining the privileged position that elections have in public discourse as the one and only democratic political device. Promoting any specific application should be seen at this point, I think, as a means for promoting the idea rather than as a goal in itself.

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  24. Yes, but it’s easier to promote an idea is by demonstration rather than argument, so we need to look for opportunities that have some chance of being implemented. Once people see that sortition can work in practice, more attention will be paid to theoretical arguments. In practice the opportunities are likely to be either ad hoc or local in nature.

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  25. I agree. That’s why I’m thinking that it would be a lot easier to establish an allotted second chamber in one city, compared to replacing an existing branch in a state as large as California.

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