To avoid pathological outcomes

Sortition is proposed as a remedy to some pathologies in our present constitutional systems, but if not done well, it could introduce some pathologies of its own. Some of these have been discussed, but we need to focus for a moment on how it could go wrong, and what we could do to avoid that.

Sortition and pillage

Sortition is often offered as a way to avoid having those elected pillage the public fisc for their own benefit or that of their constituents, sometimes called patronage. Public choice theory examines how special interests invest more than most others to influence public decisions for their benefit, by both the selection of decisionmakers and pressure on them to favor those interests to retain office or advance in office. Once elected, officials become a special interest unto themselves, and public choice processes operate within government institutions as well as on elections.

Sortition is proposed as a way to reduce the influence of special interests on who become decisionmakers, and by having sortition-selected officials serve for only short periods of time, with no prospect of being retained in office, or advancing to other offices. But it also removes an important method of holding them accountable. What is to prevent officials selected by lot from simply seizing the public treasury and leaving the country with it, after passing a law that makes that legal?

The design of the U.S. Constitution was to avoid this kind of abuse by separating the kinds of decisions that could be made among different bodies: One house of Congress required to initiate appropriations, both houses and the President required to confirm such proposals, the Executive Branch to actually do the spending, and the Judicial Branch to decide disputes and charges of misconduct (although the Framers omitted needed provisions that would enable making many kinds of official abuses crimes). Such a framework seems unavoidable, at a minimum, even if election is replaced by sortition, entirely or in part.

An important component of the U.S. Constitution, less appreciated today, was the requirement for oaths of office, which according to the beliefs of the Founders, would subject officeholders to eternal damnation if they abused their authority. Enough of the early candidates for office shared that belief for the oath to be an effective constraint on their behavior, but of course it was never fully effective, and seems not to be any kind of constraint today. So how do we constrain narcissistic sociopaths or at least those with no fear of hell, especially in an urban world in which we raise new generations with the highest ambition of becoming successful drug dealers?

It is worth examining the way in which the original Athenian demarchy was eventually overthrown and not re-instituted. It was not immune to the ambitions of powerful factions, either while it was in place, or afterward. Plague and war were only two factors.

A critical element would seem to be to find ways to make building and keeping a public reputation more important than wealth or influence, both by preventing excessive and unbalanced concentrations of wealth and influence in institutions as well as in people, making reputation something wealth and influence can’t buy, and making wealth and influence dependent on good reputation. Trust must go to the trustworthy.

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15 Responses

  1. A thoughtful article. The building and maintenance of reputation (an essential component of res publica) cannot work in an exclusively sortition-based system, in that tenure will be, of necessity, very short (for the reasons given in your third paragraph). Reputation was very important for Athenian politicians (those who made legislative proposals) — political trials were only nominally about particular offences; in fact the jury was returning (or refusing) a vote of confidence in the overall reputation of the politician in question (Hansen provides a useful quote from Demosthenes to illustrate this). It’s hard to understand, in large-scale democracies, how reputation can be utilised as a check on partiality or venality without recourse to preference elections, so your article demonstrates the ongoing need for election as part of a mixed constitution, in which powers are clearly differentiated. A multiplicity of allotted bodies could not prevent the larceny imagined in your third paragraph and persons not seeking re-election would have no particularly motive to defend their reputation. In short, a sortition-only system presupposes a culture of republican virtue (perhaps this is the reason that Yoram argues that representation is impossible in a society where individuals privilege their particular wills over the general will). The Founders made no such assumptions, hence the agonistic gridlock designed into the US Constitution.

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  2. Jon,

    > What is to prevent officials selected by lot from simply seizing the public treasury and leaving the country with it, after passing a law that makes that legal?

    Indeed, what is to prevent elected officials from doing the same? Is it your contention that they forgo certain untold riches for the dubious pleasure of going through another electoral campaign at the end of which they might or might not get re-elected? And why would they want to be re-elected anyway, if not for the opportunity of abusing their position for personal profit?

    > The design of the U.S. Constitution was to avoid this kind of abuse by separating the kinds of decisions that could be made among different bodies […]

    So do you believe that unicameral, non-presidential systems are more prone to abuse?

    No – neither the electoral accountability story, nor the separation of powers story, despite being central parts of standard political theory, withstand either theoretical scrutiny or comparison with the facts.

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  3. >No – neither the electoral accountability story, nor the separation of powers story, despite being central parts of standard political theory, withstand either theoretical scrutiny or comparison with the facts.

    That really is a very strong claim (and a little arrogant from someone who cannot really claim to have studied the literature exhaustively), given the ubiquity of these accounts over several centuries, if not since the time of Aristotle. But I think the central argument of Jon’s piece was the potential dangers of an unchecked allotted system, rather than a defence of existing practice. It strikes me also as self-evidently true that any unicameral system (selected by any single principle) will be more prone to corruption than the division of power amongst a number of bodies, each selected by a different principle (the primary disadvantage of the latter being legislative gridlock). Our existing arrangements are flawed but that’s not a reason to replace them with something worse.

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  4. > It strikes me also as self-evidently true that any unicameral system (selected by any single principle) will be more prone to corruption than the division of power amongst a number of bodies, each selected by a different principle

    So, having been stricken by this self-evident truth, would it be too much to ask for any sort of evidence from reality? Such unicameral systems are quite common – surely you can present some data showing that corruption is much more prevalent in those systems than in bicameral, presidential systems.

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  5. I’m not a comparative political scientist, but there are good reasons to believe that the House of Lords and the fourth estate are the only remaining protections the British have against elective dictatorship. The Labour government did as much as possible to emasculate the former and all three major parties are now attempting to muzzle the latter. As a self-anointed expert in both political theory and “the facts”, no doubt you can provide us with evidence as to why the widely-shared delusion of the merits of constitutional mixed government is wrong.

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  6. Yoram, do I correctly infer that Keith is positing that you propose a sortitionally-selected, unicameral parliament without judicial oversight?

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  7. Sweden, Norway and Finland all have unicameral legislatures, and exceedingly low levels of “corruption” as usually defined.

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  8. David,

    Keith may be, and often is, positing all kind of things, related to reality of fictitious.

    I have no particular preference toward unicameralism. Division of political power through sharing roles or differentiation of roles has advantages and disadvantages. What is important is that all political bodies must be either representative (i.e.,, allotted) or tightly controlled by representative (i.e., allotted) bodies.

    So, for example, if by “judicial supervision” you mean a body staffed by lawyers with political authority (e.g., veto power over legislation), then yes, I consider this undemocratic and therefore unacceptable.

    On the other hand, a hypothetical bicameral system, with two symmetrical allotted legislature-initiating bodies and a third allotted body with veto power over legislation (Athenian nomothetai-like) is perfectly acceptable in principle (and may be desirable or not – it is really impossible to say a-priori).

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  9. If the selection principle is the same, it makes little difference whether those selected sit in one, two or three chambers. The principle of the separation of powers presupposes different selection mechanisms for each analytically-distinct power. And corruption comes in many different shapes and sizes: although Jon’s posting refers to an extreme example of personal corruption, we are both also concerned with the “Madisonian” corruption that occurs when the proposing and disposing functions are assumed by a “single body of men”. Proposing is, by definition, a partial (if not partisan) action, whereas disposing is the right of the generality — whether construed as the general will or the aggregated preferences of the majority. My understanding of Scandinavian politics is that it may well be light on personal corruption, but the unpredictable nature of PR frequently leads to rule by a faction that has not secured the backing of most citizens. That strikes me as a corrupt political system.

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  10. >I’m not a comparative political scientist, but there are good reasons to believe that the House of Lords and the fourth estate are the only remaining protections the British have against elective dictatorship.

    This is an aspect that is getting distressingly little notice in the current debate in Canada over the Senate, which many want to discard outright rather than reform.

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  11. >”What is to prevent officials selected by lot from simply seizing the public treasury and leaving the country with it, after passing a law that makes that legal?”

    In the (admittedly primitive) system I proposed, one thing the allotted members cannot legally do is legislate to pay themselves.
    Of _course_ there should be a separate body to decide on allotted members emoluments; has anyone has been silly enough to suggest that they should be allowed to write themselves cheques?
    By way of contrast, elected MPs do just that, just like dictators and military juntas.

    >”The design of the U.S. Constitution was to avoid this kind of abuse by separating . . .”

    And we have a spectacular example of how well this works at the moment!

    >”a little arrogant from someone who cannot really claim to have studied the literature exhaustively”

    There you are Yoram, the literature is all you need. It’s all the Law and the Prophets. Study it, parrot it, quote it out of context, and don’t waste your time thinking for yourself.
    Keith, I’d suggest it was the pot calling the kettle black, but that would be arrogant . . .

    >”there are good reasons to believe that the House of Lords and the fourth estate are the only remaining protections the British have against elective dictatorship.”

    Why not write a book setting out these good reasons, Keith? They’ll come as a revelation to a lot of people. The Lords and the Press did such a wonderful job of keeping the British out of the war in Iraq, and in preventing the Govt from bailing out the banks at the taxpayers’ expense.
    Which is not to say that a bicameral system is necessarily bad, or that we don’t need media. The British just happen to have pretty bad examples of both.

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  12. Campbell,

    No-one would dispute that the press and the upper house are less than effective guardians against elective dictatorship, but it’s all we have. In my book I devote a chapter to the role of the fourth estate as (in effect) Her Majesty’s Loyal Opposition, arguing that the role the press should be given formal constitutional recognition. I also argue that the House of Lords should be reconstituted as a house of expert advocates who would have a vital role in informing legislative debates. At the moment elected politicians from all three major parties are trying to emasculate the fourth estate; meanwhile the upper house is constrained by the lack of a formal role and mandate. It’s the political equivalent of the appendix and other such detritus from our biological past. But evolutionary spandrels can be put to good use, even if they were designed for other purposes.

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  13. It states in the second paragraph of the Constitution, only that the state representatives be CHOSEN by the State, but it doesn’t say HOW! It would be interesting to bring this issue up before the Supreme Court, and shake up the politions, that they could lose their Gravy train, alone with the media and the Lobbyists. Time for the people to take over America!

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  14. The Constitution later provides, Art. I Sec.4: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” Congress has exercised that power, so any reform in the direction of sortition would need an act of Congress.

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  15. >Congress has exercised that power, so any reform in the direction of sortition would need an act of Congress.

    All the more reason for avoiding confrontational rhetorical tropes such as “against elections”, “robbing the country”, etc. Progress will involve a compromise that provides an ongoing role for elected politicians so why choose incendiary language, especially if it requires the wholesale disenfranchisement of “the people”? It would be very easy for elected politicians to portray all this as a blueprint for a kleristocratic coup and yet another attempt at the “deeper revolution” outlined by Andre in his last post. Calls for a second revolution have always fallen on deaf ears in America, so why do you (jdlaughhead) think this would be any different?

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