I’ve been rather quiet on the blog lately. I hope to change that in the weeks ahead. Rather than comment on some of the recent postings, I thought I’d raise a topic that I thought merited a post on its own.
One of the most common uses of sortition that has been proposed is to approve or reject legislation drafted by some other body–usually, an elected legislative body. The new People’s Senate Party in Canada, for example, endorses this proposal. In some respects, this makes the randomly-selected house (hereafter Representative House, or RH) into a substitute for a referendum. Instead of seeking approval for laws from the people as a whole, seek it from a randomly-selected sample.
I think there’s a lot of merit to this proposal, but I have a serious concern that I think merits addressing. Basically, I think that there are two types of legislation. On the one hand, there is “must-pass” legislation–stuff like the defense budget, or the debt ceiling. There’s an interesting literature on legislation like this. Take, for example, the work by Thomas Romer on referenda for school district budgets. Typically, the practice is that if such referenda are not approved, the district budget reverts to some insanely low level, one that no parent would want. School board officials are assumed to want to maximize the size of the budget. And so unsurprisingly, Romer argues, they propose the maximum possible budget that a majority will approve via referendum (i.e., the one that leaves the mediam voter indifferent between approval and rejection). And given how bad rejection is, this could be rather large.
The point is that when it comes to “must-pass” legislation, referenda are a rather weak constraint on elected legislators. I fear the same might be true for a RH.
Then there’s “optional” legislation, i.e., legislation that need not pass. Here it is true that a RH could make a real difference. But it’s important to note that it’s a negative difference. In effect, it’s a veto. And this is again consistent with the empirical literature on referenda. Basically, it’s much easier to defeat a referendum than to pass one (although both tasks can take a ton of money in a large polity like the state of California).
What I think all of this suggests is that if we want to feel comfortable with a RH in charge of up-or-down votes on legislation, we also have to feel comfortable with the flow of proposals that will reach them. If the RH never sees a bill that corrects a real problem, then it can’t really do anything. A RH in the U.S. would almost certainly pass a single-payer health care bill, but an elected legislature in the pay of the health insurance industry would never send such a bill to the RH.
Now there are several ways around this problem. One is to have the RH draft and approve legislation. Another is to have one RH draft, and another approve, legislation. Neither of these options leaves any room for the perceived advantages of elected decision-making bodies. (If you don’t think there are any, you won’t care). Yet another way would be to make it easier to get a proposal before a RH–maybe letting members of the general public make proposals. The trick here would be to do this in a manner that wouldn’t overwhelm the system with unlimited numbers of looney proposals.
So I guess I raise all this as a cautionary question. How comfortable should we be with an elected legislature with proposal power? And would we be less comfortable if a randomly-selected body had to draft all legislation itself? I know this topic has been touched on various times, but I think it’s worthy of detailed consideration in its own right.