How to design a democratic legislative system? (part 1 – activities)

I am new to this forum, and new to the study of sortition. I’m fascinated by the ideas and debates presented here, somewhat overwhelmed, and trying to formulate an organizing framework that can help me – and hopefully others – make sense of it all.

I’ve read with great interest the recent debates about Keith and Terry’s ideas in “Athenian Democracy Reincarnate,” and the recent exchange between Yoram and Alex about election vs. sortition. Rather than plunging into the debates, I’ve been asking myself “what are the basic questions that must be answered in order to design a democratic legislative system; what are the answers that people are presenting here; and what are the main points of agreement and disagreement?”

So far I can think of four highest-level questions for designing a legislative system:

  1. What criteria should define a “democratic” (and “good”) legislative system?
  2. What are the essential activities of the legislative process?
  3. What actors should carry out each activity, playing what roles?
  4. What processes should be used for each activity?

(Note: this is assuming a given structure of political units, and that’s a huge design issue in itself, but beyond my scope here)

I’m not going to start with criteria, because I’m afraid that the resulting discussion wouldn’t be useful. Instead, in this post I’m going to start with activities, then (hopefully) actors and roles in my next post, then processes, and then criteria.

What are (or should be) the essential activities of the legislative process?

At the highest level, it seems useful to break it down into three stages, like this:

  1. Choosing issues to write bills for
  2. Writing (and revising) bills
  3. Voting on bills

I suspect that most people would agree about stages 2 and 3, but not necessarily about stage 1. As far as I know, few legislative processes explicitly recognize a stage of choosing issues. Usually, choosing issues happens “implicitly,” as part of writing bills, and as part of choosing which proposed bills are worth voting on. Nevertheless, many decision making processes in other fields have a stage of defining problems and goals before formulating alternatives, and I think it could bring more clarity to the legislative process. And in this forum, Terry has proposed having a stage where a randomly sorted body decides what issues should be addressed by bills.

Choosing issues to write bills for

Of the three stages, this is the one that I feel the least clear about, mainly because it mostly isn’t even recognized. But certainly before choosing which issues to write bills about, someone has to propose a larger set of issues to choose from. I can also think of three other stages that might be helpful, based on ideas from planning processes, but this is highly speculative. The whole sequence of activities could look like this:

  1. Deciding overall values and goals for the polity
  2. Choosing and revising categories of issues (in the way that legislatures typically have legislative committees defined around categories of issues)
  3. Within each category, reviewing current legislation and its outcomes against values and goals
  4. Proposing “candidate” issues in each category
  5. Deciding which issues to write bills for

Writing (and refining) bills

Here is a possible way to categorize the activities within the “writing bills” stage:

  1. Setting objectives and criteria for bills (developing, reviewing, revising, accepting). Like “choosing issues,” this stage may not often be officially recognized in legislative processes, but it’s common in many types of planning and decision making.
  2. Designing alternative bills (developing, reviewing, revising, accepting). I’m suggesting a distinction between “designing” bills (formulating the ideas), and “writing” them (casting them in the proper legal language). Also, I’m using the term “alternative” bills because I suspect that it’s usually much better to have at least two alternative bills for an issue than to have only one.
  3. Writing bills (developing, reviewing, revising, accepting)

Voting on bills

It seems to me that the activities within the “voting” stage could usefully be broken down like this:

  1. Education – decision makers (whoever they are) learn about issues and bills. This is typically not recognized as an explicit stage of the legislative process, but I think it’s critically important, and regularly incorporated in processes like Deliberative Polls and Policy Juries.
  2. Advocacy – advocates (separate from decision makers) argue the case for and against bills (I learned about the distinction between advocacy and deliberation from Keith and Terry)
  3. Deliberation – decision makers deliberate together about bills, after hearing the arguments (it would certainly be possible to skip this stage, and have the decision makers vote with no deliberation, and I’ve noticed some debates about that here)
  4. Voting – decision makers vote on bills

The whole structure would look like this:

Table 1. The stages and activities of lawmaking

1.  Choosing issues to write bills for
1.1.  Choosing values and goals for the polity
1.2.  Choosing and revising categories of issues
1.3.  Reviewing current legislation and its outcomes against values and goals
1.4.  Proposing “candidate” issues in each category
1.5.  Deciding which issues to write bills for
2. Writing bills
2.1.  Setting objectives and criteria for bills (developing, reviewing, revising, accepting)
2.2.  “Designing” alternative bills (developing, reviewing, revising, accepting)
2.3.  Writing bills (developing, reviewing, revising, accepting)
3. Voting on bills
3.1.  Education about issues and bills (learning by the decision makers)
3.2.  Advocacy (by advocates, arguing for and against bills)
3.3.  Deliberation (among decision makers, after hearing arguments)
3.4.  Voting on bills

In my next post, I plan to add a second column to this table, laying out possible ideas (mainly from this forum) about which actors might be considered for each activity, and what roles they might play. Possible actors could include, for example, a general-purpose allotted chamber, single purpose allotted panels, an elected legislature, and the entire electorate, etc. And after that, I want to add a third column, with possible processes that could be used for each activity. But before doing that, I would love to hear some comments and ideas from people in this forum. Probably everyone who posts here knows more about sortition, and political systems in general, than I do, and I have a lot to learn from you. Hopefully, by asking lots of clarifying questions, I can not only learn, but contribute something as well.

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18 Responses

  1. Thanks David, that’s very helpful. I’m only puzzled by your claim that the “choosing issues to write bills for” stage isn’t normally recognised. In UK politics this is the primary function of the general election — political parties publish manifestos describing their legislative intentions if returned with a working majority and the assumption is that at least some of the manifesto pledges will be honoured in practice. Although in theory one votes for the person of the local candidate, in practice it’s the party ticket (and the associated legislative agenda) that is the prime factor. Voters opted for Labour in 1945 because they favoured welfare-state legislation, and MPs were frequently reminded that they only held office on account of the colour of the rosette pinned to their jacket. I’m not over-familiar with US politics, but imagine that similar distinctions are made between Democratic and Republican party candidates, even though US legislators have a lot more autonomy than UK legislators.

    Having said this, I agree that the connection between party manifesto and legislative bills is, at best, implicit, hence my argument for an e-petition system combined with votation. What I have difficulty in understanding is how a sortition-only solution at this stage would be viewed as democratic.

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  2. Glad to hear you think this is helpful!

    You wrote, “I’m only puzzled by your claim that the “choosing issues to write bills for” stage isn’t normally recognised. In UK politics this is the primary function of the general election — political parties publish manifestos describing their legislative intentions if returned with a working majority and the assumption is that at least some of the manifesto pledges will be honoured in practice. ”

    I’m glad that you pointed this out. The claim I made is simply not correct. What I wrote was colored by my experience in the US (and California), where party platforms are mainly part of the Presidential campaign, and where our state and municipal ballot initiative processes have no stage of considering issues before proposing bills.

    You also wrote, “What I have difficulty in understanding is how a sortition-only solution at this stage would be viewed as democratic.”

    I haven’t proposed a sortition-only solution — or any solutions at all. Instead, I’m trying to start by proposing, discussing and clarifying a useful way to categorize the stages and activities of lawmaking. In my next piece, I’m going to explore possible actors and roles for each activity, including allotted chambers, elected legislatures, civil society groups, etc.

    I would be very interested to hear from you — and anyone in this forum — about any changes you would suggest to this list of activities. To what extent do you think that this is clear, complete, correct, and (most important) useful?

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  3. David,

    All of these stages and activities could take place, but I think it should be clear that they could easily be intertwined, iterative and carried out by non-disjoint set of actors. Indeed, the standard a fully empowered legislative chamber (“a parliament”) is a group of people who are in charge of carrying out all of these functions (with the help of others, of course) simultaneously.

    There are very good reasons for such an arrangement. On a superficial level, there is the matter of efficiency. Understanding and expertise acquired during one activity (say, writing a bill) is very relevant for carrying out other activities (voting on the bill). The resources used to create such understanding and expertise would need to be duplicated if those who carried out one activity would be replaced by new people who need to gain understanding and expertise in order to carry out another activity.

    On a deeper level, however, there is the issue of motivation. Separation of activities between multiple sets of people would reduce the power of each group and would thus reduce the motivation of the members of each group to put in the effort required to carry out their job properly. That is, adding more people into the system pushes the decision making process into the realm of mass politics where political power is so diluted as to make ignorance and inattentiveness the rational choice. Beyond reducing the quality of expected results, this also opens the door for the entrance of various power brokers, leading to corruption.

    In short, a valid analytical separation of activities into components should not be mistaken for a good functional or procedural separation. There are good reasons to keep the decision making group small and its functions unified.

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  4. Yes I think it’s very comprehensive. As you point out, it’s a descriptive proposal that is agnostic as to how each stage should be implemented. I’m particularly attracted to the consecutive stages, as the gaps can be filled by debate in the general public and the media.

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  5. Pace Yoram, pluralists will be well aware of the danger of concentrating power in one small unified group, however well-motivated they may be.

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  6. Yoram,

    You wrote, “a valid analytical separation of activities into components should not be mistaken for a good functional or procedural separation.”

    I agree completely. What I would add is that a “good” (as in “useful”) analytical separation of activities can be a helpful tool for the task of designing a good functional or procedural separation. It’s like the distinction between “logical” (generic) and “physical” (implementation-specific) design that I learned a long time ago in software development.

    As Keith wrote, for now I am making no suggestions about who should carry out each activity. When I get write about actors and roles in my next piece, I plan to address the very useful points you raised about separation versus consolidation.

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  7. Dear David
    I think your post is a good step in trying to set a common frame for discussing who could take part in each step. So the first step of defining such steps is great ;-)
    Under 1 I guess that you would include “agenda-setting” functions, wouldn’t you?
    And perhaps under 3 I would make a bigger difference between deliberation/discussion on one hand and decision-making on the other, as this latter part can have various steps: voting by a commission, voting by a plenary, voting by another chamber, veto power by another chamber or official, ratification by the people and so on.

    Thanks!

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  8. Jorge,

    You wrote, “Under 1 I guess that you would include “agenda-setting” functions, wouldn’t you?”

    That’s an interesting question, because it depends what you mean by “agenda-setting.” I can think of four possible activities:
    1. deciding what issues should have bills written (that parts is step 1.5)
    2. deciding who should be given the task of drafting proposed bills (that part isn’t included, but maybe it should be – what do you think?)
    3. Deciding which alternative bills are worth deliberating and voting on (that would be “accepting” in stage 2.2.)
    4. deciding WHEN different bills should be discussed by advocates and decision makers, i.e. setting the agendas for particular sessions (that would be somewhere near the beginning of stage 3 – do you think this should be added to the list?)

    Or are there other aspects of “agenda setting” that should be included, that I haven’t mentioned?

    You also wrote, “perhaps under 3 I would make a bigger difference between deliberation/discussion on one hand and decision-making on the other, as this latter part can have various steps: voting by a commission, voting by a plenary, voting by another chamber, veto power by another chamber or official, ratification by the people and so on.”

    That’s interesting, and you’re certainly right that decision making can be broken down into a series of smaller-scale decisions. If you were to re-do that part of the list and make a bigger difference between deliberation and voting, how would you do it?

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  9. Thanks for throwing the ball back to me ;-)

    Under “agenda-setting” you can imagine many things, you’re right, but perhaps the part which is not fully captured is agenda-setting as deciding/framing the range of issues which have or have not to be looked at before even thinking of specific bills. Perhaps this would fall under 1.2 to 1.4.

    Under “voting for bills” I would perhaps make some subdivisions or options to reflect the different sub-steps the final phase of decision-making may have (voting, amending, confirming, vetoing, ratifying…)

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  10. I’m happy to throw the ball back to you, and to everyone here ;-) I’m fascinated by participatory design, and this is (among other things) one little experiment in it.

    You wrote “perhaps the part which is not fully captured is agenda-setting as deciding/framing the range of issues which have or have not to be looked at before even thinking of specific bills.”

    I’m trying to capture that in two parts of the list. At the end of stage 1 (“choosing issues to write bills for,”) there are decisions such as “we need some new legislation about these issues” – say, health care. And in activity 2.1 (“Setting objectives and criteria for bills”), there are decisions about the requirements that bills about a particular issue should meet – say, “Any health care legislation should provide affordable health care to all citizens, should fit within x budget constraints, etc.”.

    One of the trickiest parts of this is how to define what constitutes an “issue” (not to mention WHO gets to define this – that’s a question for the “actors and roles” piece I’m working on now).

    You also wrote, “Under “voting for bills” I would perhaps make some subdivisions or options to reflect the different sub-steps the final phase of decision-making may have (voting, amending, confirming, vetoing, ratifying…)”

    Now that I’ve read this, I think I’ll rename stage 2 to “Writing AND REFINING” bills, and rename stage 3 to “Voting on FINALIZED bills.” That way, all the amending activity goes into stage 2, and multiple votes on finalized bills (vetos and such) would would fit into stage 3.

    Thank you (and thank you Keith and Yoram, too) for your insightful comments. I’m really happy to have this chance to work out these ideas with all of you, and to learn from you.

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  11. […] a previous post, I proposed a set of activities that drew distinctions between choosing issues to address, deciding […]

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  12. Discussion of sortition tends to concentrate on formal matters. I would suggest that there is need to look at it in terms of trust and in a number of dimensions:
    1. Motivation. Accepting that all interest is in a very broad sense self-interest, one basic reason for trusting the deliberations of a statistically representative body is that they typically bear the consequences of the decisions they make. However, sortition will only meet this requirement if trust in other dimensions is warranted.
    2. Competence. There is a long list of ways in which people, though appropriately motivated, may be or be thought to be unlikely to make sound decisions: lack of capacity or of education, being blinded by prejudices such as racist sexist or religious views, ideological loyalties, limited experience, lazy thinking and erroneous beliefs.
    3. Sensibility. Even the well-motivated and competent may be do-gooders who are quite insensitive to what others value, as many a white sympathiser with black concerns fails to understand the emotional significance of much of what affects them.
    4. Cooperativeness. Most people do not like committee work or more generally the laborious processes of discussion it involves with “difficult” people, persistent misunderstandings, mutual suspicion and dislike. So they are suspicious of those who are willing to undertake such work and doubtful of the decisions that come out of it.
    Many strands in our culture encourage distrust of very many of our fellow citizens on all of these counts, and this sets up a vicious circle. It is plausible that a successful polity based on pervasive experience of sortition in the provision of public goods at all levels would produce a culture in which identification with public goods would counterbalance the sources of distrust. But our present societies are so divided and distrustful that it is hard to see sortition being accepted.
    My experience is that people prefer to have professional politicians make the decisions and then sack them when those decisions prove disappointing.

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  13. John wrote:
    “My experience is that people prefer to have professional politicians make the decisions and then sack them when those decisions prove disappointing.”

    But that is the only option they ever have (if that). I only know of one piece of empirical evidence on this…
    the Center on Policy Attitudes, associated with the University of Maryland, conducted a scientific poll on this question in 1999. When asked whether Congress or a representative sample of 500 Americans, given information and opportunities for discussion, would make better policy decisions, 66% said the random sample of Americans would do better, while only 15% picked Congress.

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  14. Terry,

    Thanks – this is a very interesting data point that I don’t think was mentioned here before and that is relevant to discussions here about similar polls. I’ll create a post about that.

    http://www.policyattitudes.org/questionnaire.html

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  15. Oops – I just found that I already did post a note about this study: Expecting more say.

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  16. Another interesting finding from the study:

    Q36. Please tell me if you agree or disagree with the following statement: The goal of Congress should be to make the decisions that the majority of Americans would make if they had the information and time to think things over that Congress has.

    Agree 85.4%, Disagree 12.0%, Don’t know/Refused 2.5%

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  17. I strongly suspect that many people (certainly in the US) have self-contradictory ideas about who should represent them – for example, some of those same people who said in the poll that they’d prefer to have randomly selected citizens deciding things might be very distrustful of an actual proposal to try sortition, for the reasons John cited.

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  18. Yes that’s right, much of the polling evidence that Terry and Yoram cite is on the level of “my mother-in-law/pet dog could do better than that lot”. But I think if pushed with some serious questions, many respondents would agree that all citizens are capable of informed judgment, and that judgment should be based on evidence rather than pre-formed partisan affiliations. If not then there would be widespread opposition to the trial jury system. However few people would cast themselves in the position of advocates or legal experts or (by analogy) president or secretary for xxx.

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