It would be far better and far more democratic if laws are decided by legislative juries rather than by elected politicians.
By a legislative jury, which can also be called a legislative minipublic, I mean a representative random sample of the public that meets to make an informed decision about a proposed law. Such randomly sampled juries can be large enough to be statistically accurate representations of the public, numbering perhaps 800 or more citizens. Jurors can be paid to work full-time for as many days or weeks as needed to make an informed decision. As representative samples of the public engaged to take the time to make an informed decision, legislative juries can provide the democratic ideal of informed rule by the people.
Legislative juries would decide proposed laws by majority vote, using secret ballot, after a fair hearing on a level playing field with supporters and opponents of the proposed law having equal time to present their case to the jury.
It is essential that rule by the people be exercised in an informed manner, including with regard to deciding laws, because informed views are a far better basis for a decision than poorly informed and uninformed views.
It is not possible for all of the public to become well informed about all of the many laws that are proposed each year, not even if everyone were to devote their spare time to doing so. What is possible is for highly representative portions of the public (juries) to work full-time for the days or weeks needed to become well-informed about one proposed law, or a small number of proposed laws.
A fair hearing on a level playing field is necessary in order to treat supporters and opponents of proposed laws in a fair and even-handed way, and to ensure the jury’s decision is based on the informed judgement of the jurors, rather than being the result of a skewed and unfair playing field. A well-designed trial-like process is in my view the best approach for ensuring that legislative juries make informed decisions.
In order to have informed rule by the people in lawmaking, no law would go into effect without the informed consent of a jury. In order to have what are the best possible laws in the informed judgement of juries, juries need to be given a range of choice that as much as possible includes the proposed laws they would prefer to all of the possible alternatives.
For the Classical Greeks, democracy, which they invented,1 was largely about decisions being made by juries chosen from the citizens by lottery. In Athens such juries included the Council of 500 (Boule), the jury-courts and the jury-magistracies. The Athenian juries kept a wide range of decisions firmly in the hands of the citizens, and out of the hands of political and economic elites. A modern version of Athenian juries2 can do the same today, including with regard to deciding laws.
Before saying more about how juries can provide democratic lawmaking, it may be helpful to briefly explain why the ballot initiative falls far short of what is needed.
Democracy crowning the people, Athens, ca 337 BCE
Problems with the ballot initiative
Twenty-four of the states have the ballot initiative. This allows citizens to put proposed laws to a binding popular vote, if they are “qualified” for the ballot by meeting a signature requirement.
Many, including me, think the ballot initiative is far preferable to politicians having a complete monopoly on deciding laws.3 Nevertheless, it is deeply flawed and very undemocratic. It is highly unsuitable for ensuring laws are decided on an informed basis after a fair hearing on a level playing field, shuts out citizen groups of modest financial means and is heavily skewed in favor of moneyed interests and billionaires. And those who vote in initiatives are unrepresentative of the public.
Most successful signature drives are expensive professionally run affairs with paid signature collectors, something rich interests and billionaires can afford, but which modestly funded citizen groups cannot. Politics professor Richard Ellis: “If the initiative proponents have the money, professional signature companies can virtually guarantee almost any measure a place on the ballot, …”4 This is plutocracy (rule by the rich), not democracy.
Although grassroots groups can run a volunteer signature drive, the vast majority of these fail because few can field a sufficiently large, determined and reliable army of volunteer signature collectors.5 Ellis: “For every volunteer success story there are scores of failures. The initiative seas are strewn with the hulls of wrecked volunteer drives.”6 Even where they succeed, it is surely unfair and undemocratic for citizens of modest means to have to work for months gathering signatures, whereas a billionaire or corporate lobby can simply buy ballot access (by paying for a signature drive). Nor are volunteer signature drives free. Ellis: “the costs of recruiting, training and coordinating those volunteers can be substantial.”7
The initiative shuts out citizen groups that have neither enough money nor a sufficient army of volunteers, no matter how good their proposals might be.
If a measure (proposed law) gets on the ballot, running an effective initiative campaign can be very costly. For example, in California, on top of the $1.2 to $6 million that may have been spent meeting the signature requirement, sometimes tens of millions more is spent on the campaign for or against the measure. Billionaires and rich corporate lobbies can afford to spend what is needed, modestly funded public interest groups cannot. Rich interests that face opponents of moderate means can use their wealth to heavily skew the playing field by ensuring their side of the story is heard far more than the other. Ellis: “…the evidence shows that heavy and lopsided spending against a measure is frequently effective in defeating the measure.”8 To the extent that money decides the outcome, de facto rule resides with those who have the money, not with the people.
Initiative voters tend to be poorly informed about the measures they vote on. This is completely unsurprising, because voters only learn about measures voluntarily in their spare time, and their attention is diffused across the various items on the ballot. The problem can be especially bad for measures that attract little public interest, involve things that are not easily and readily understood, when one side greatly outspends the other, and when there are a lot of other items on the ballot.
The concept of “rational ignorance” suggests it is not rational for voters to spend their free time learning about matters on the ballot, because the likelihood of the one vote we each have changing the outcome is almost zero.
Laws are far too important to be decided on a poorly informed basis. A sea of ignorance is not a good basis for laws.
The corporate media can stack the deck against a ballot measure by ignoring or disparaging it, and in favor by providing lots of positive coverage. This can shift the nexus of decision-making from rule by the people to rule by the media giants.
Votes on a ballot measure can reflect the media choices the voters make and the media bubbles they are in, rather than their informed views after a fair hearing on a level playing field.
Those who vote in initiatives, like those who vote in elections in general, are unrepresentative of the public, with for example citizens under 40, the less affluent, and people of color being very much underrepresented. This is at odds with political equality, and with rule by the people, as opposed to rule by an unrepresentative portion of the people.
Let juries qualify and decide citizen-proposed laws
We need a method of citizen lawmaking that is far better and far more democratic than the ballot initiative. One that does not shut out citizens with good proposals because they do not have stacks of money, that puts them on a level playing field with the rich and powerful, that ensures their proposal receives a fair hearing on a level playing field, and is decided on an informed basis, with no portion of the public being underrepresented among those doing the deciding. This can be done through juries.
Instead of having to meet the signature requirement, citizens proposing a law would have the right to have it qualified by the vote of a “qualifying jury,” after a fair hearing on a level playing field. If a proposal is qualified, whether by jury or signature requirement, the citizens putting it forward would have the right to have it decided by a legislative jury rather than by popular vote.
Supporters and opponents of each proposed law would be given equal time to present their case to the jurors, at both the qualifying and legislative jury stages. Legislative juries might number 800 to 1,000 citizens in order to be a statistically reliable random sample of the people, and as such a good stand-in for the people as a whole, strongly tending to make the same decisions the whole people would, were it possible for all of the people to convene and spend days or weeks becoming well informed about the relevant facts and arguments.
Juries put public interest groups of modest means on a level playing field with big business interests and billionaires. Public interest groups appear before the jurors face-to-face, with no need to pay for a signature drive, nor for costly advertising to the entire electorate. Instead of being shut out by the high cost of using the initiative, all a public interest group needs are a few capable people to make their case at both the qualifying jury and legislative jury stage. Unlike in an initiative vote, moneyed interests cannot use their wealth to drown out the other side, as both sides get equal time before the jurors. Nor are citizen groups dependent on the media and people’s media choices and bubbles for a fair hearing for their proposal (because they make their case directly to the jurors without having to rely on intermediaries).
Juries work full-time and hear the respective cases of supporters and opponents of each proposed law in full and in person. No matter how many laws are proposed, each receives the full-time focused attention of one qualifying jury, and, if qualified, of one legislative jury. This focused full-time attention is well-suited for ensuring an informed decision. In sharp contrast, initiative voters only learn about proposals voluntarily in their spare time, frequently pay little or no attention, may well hear one side of the story more than the other, and their attention is diffused across the several or dozens of matters on the ballot.
The rational ignorance problem is gone, because the jurors are paid to work full-time for the days or weeks needed to reach an informed decision.
Unlike unrepresentative initiative voters, randomly sampled juries embody the political equality of citizens, with all portions of the public being represented in proportion to their number.
With juries, laws are decided by the informed judgement of highly representative cross-sections of the people, with proposed laws being considered on a fair and level playing field. This is a much better form of citizen lawmaking than the initiative’s poorly informed and unrepresentative voters, and its heavily stacked deck that shuts out public interest groups of modest means and heavily favors concentrated wealth and power.
The trial jury has always been an important part of the US legal system. No one has ever proposed that trials be decided by a popular vote of the general public rather than by jury. Such a proposal would be ridiculous, because it is at odds with trials being decided on an informed and fair basis. It is far better that trials are decided by jury than popular vote, because the jurors attend the trial, hear the evidence and arguments, and then deliberate with fellow jurors who have done the same. Similarly, in order to ensure proposed laws are decided on an informed and fair basis, it is necessary that they be decided by legislative juries rather than by popular vote.
Initiative votes happen once every two years in California and other initiative states. Qualifying and legislative juries could follow a similar schedule, convening once every two years to consider citizen-proposed laws.
Deciding the details of jury lawmaking
The procedures and arrangements for juries need to be well-designed to ensure informed decisions, a fair and democratic process on a level playing field and that the best possible laws capable of winning the informed support of a legislative jury are proposed to such juries. A commission chosen by jury by multi-winner ranked choice voting (multi-winner RCV) can be tasked with working out the best possible design, and then improving on that in light of how things work in practice and such better ideas as may be formulated. This “juries commission” could number perhaps four commissioners, and would be an advisory body, with all final decisions about citizen lawmaking being made by legislative juries. In this way the procedures and arrangements for juries can be decided in an informed and highly democratic way, independently from politicians, political parties and special interests.
The reason to choose the commission by jury is so that the commissioners will be chosen on an informed and democratic basis with all of those interested in seeking the office being on a level playing field.9 Part of the purpose of multi-winner RCV is so that the commissioners will represent a diverse range of views, and give legislative juries a range of proposals to choose from. Each of the commissioners would have the right to propose laws on jury lawmaking to legislative juries.
Meetings of the commission with juries could be presided over by a facilitator chosen by jury, or by a facilitator chosen by a chief facilitator chosen by jury.
An administrative commission chosen by jury can be entrusted with the neutral non-partisan administering of jury lawmaking, in accord with the laws decided by legislative juries.
Qualifying juries
The purpose of qualifying juries is to reduce the cost of jury lawmaking by screening out proposals that have no real chance of being enacted by a legislative jury, while at the same time not screening out any of those that do. In order to be much cheaper than legislative juries, qualifying juries would be much smaller, and might have briefer proceedings.
The exact details of jury lawmaking are up to legislative juries, based on proposals from the juries commission, and perhaps from other sources as well. Here is an example of how qualifying juries could work: The proposal first goes to a 12-member qualifying jury. If nine or more of them vote for it (after a fair hearing) it goes to a 1,000-member legislative jury for a final decision by majority vote. If nine or more of the 12 vote against it, it is rejected and goes no further. If the vote is less than nine either way, it goes to a 100-member qualifying jury. If 40% or more of the 100 vote for it, then it goes to a 1,000-member legislative jury, if not, it is rejected. (The idea here is, of course, that if nine or more of 12 jurors, or 40% or more of 100, vote in favour of a proposed law, then over 50% of 1,000 may well do so too.) Possibly, if some overwhelming portion of a 100-member jury, perhaps 80% or more of them, vote for a proposal, it would make sense for it to be enacted without going to a 1,000-member jury, as in such cases it might be almost certain to win at least 50% support from a 1,000-member jury.
Before going to a 12-member qualifying jury, proposed laws could first have to meet requirements similar to those that initiative proposals have to meet before a signature drive begins.
Condorcet voting for alternative proposals on the same topic
If alternative proposals on the same topic are put forward, they can each go to the same qualifying jury, and if qualified to the same legislative jury. The legislative jury would begin by deciding which of them, if any, are preferable to the status quo. If only one is judged preferable to the status quo, that is the one that goes into effect. If two, then which of the two goes into effect is decided by majority vote between those two.
If several (more than two) are judged preferable to the status quo, then a Condorect voting method can be used to find the Cordorcet winner (the proposal that is preferred to each of the others in one-to-one match-ups). Condorcet voting can be done in rounds with the one or two Condorcet losers in each round being eliminated until only one proposal is left. The reason to vote in rounds is to focus the attention of the jurors on the remaining proposals to help them make a more informed decision. In the unlikely event there is no Condorcet winner, then the closest proposal to a Condorcet winner wins, or, possibly, there is a call for new alternative proposals on the same topic to see if a Condorcet winner can be found.
Let commissions chosen by jury propose laws to juries
In addition to the juries commission, other commissions can also be chosen by jury by multi-winner RCV, with each of the several commissioners having the right to propose laws to qualifying juries, and, if qualified, to legislative juries for a final decision. Juries could choose commissioners for terms of perhaps two years. Such commissions can be called “law commissions.”
A law commission could have an open mandate, with freedom to set their own agenda and to propose any laws they believe would further the public good. There could also be law commissions mandated by jury to deal with some specific area of legislation, such as that regarding healthcare, environmental protections, policing, or higher taxes on the rich, and so on.
The annual budget of such commissions would be decided by jury.
Each year an “agenda jury” would convene, and would decide whether to establish any new law commissions and what their mandates would be. Once every two years, existing law commissions could be required to apply to that year’s agenda jury to continue their work and receive further funding.
In the case of an emergency requiring new legislation, such as a global pandemic, a new law commission could be quickly chosen by jury to propose laws to address the emergency. If a legislative or agenda jury were already in session it could have the power to declare an emergency and then choose the new commission. If not, an emergency could be declared by any jury-chosen law commission that is in operation, with a jury being quickly convened to decide whether there really was an emergency, and if so, to immediately choose the new commission.
Let politicians propose laws to juries
Elected politicians, in my proposal, would no longer have the power to put laws into effect without the informed consent of a jury. However, they could still play a useful role in lawmaking by being allowed to propose laws to juries.
If a state legislature or Congress passes a law, it would go to a qualifying jury, and, if qualified, to a legislative jury for a final decision.
As the best laws might well be proposed by a minority of those in a legislature, such minorities, after trying and failing to get the majority support of the legislature, would be able to propose their bill directly to a qualifying jury, and, if qualified, to a legislative jury for a final decision.
When a law proposed by a legislature or some of its members is qualified, the other members of the legislature can be given some time to propose alternative (conflicting) laws on the same topic. If, after being qualified, more than two such laws are judged better than the status quo by a legislative jury, then the one that goes into effect can be decided by Condorcet voting in the above-mentioned manner.
In this way, laws would be decided by the informed consent of the governed, not by politicians.
Let juries propose laws to juries
Advisory juries, as they can be called, could work out and propose laws to legislative juries.
There have been a number of juries convened to make legislative recommendations since the early 2000s. For example, the April 2017 Mongolian Deliberative Poll in which a jury of 669 Mongolians considered six proposed amendments to the country’s constitution. Lawrence Lessig, the Harvard law professor and democracy advocate, was an observer, and was greatly impressed by it. Lessig: “I left the country convinced that they had not only understood them [the proposed amendments], but that they had resolved them with wisdom.”10 Other examples include the 100-member Irish Citizens’ Assembly, the 2004 British Columbia Citizens’ Assembly on Electoral Reform and the 150-member French Citizens’ Convention on Climate.
These examples indicate how a randomly sampled jury could be used to propose laws to a legislative jury for a final decision. Of course, no deliberative poll or citizens’ assembly, or similar body, has been allowed to do that so far.
The said annual agenda jury could have the power to convene advisory juries on specific topics; for example, one on tax law, one on climate, another on drug prices, and so on, with those juries able to propose laws to legislative juries. The advisory juries would consider, deliberate on, and then propose any new laws they deemed conducive to the public good, and could choose their own advocates to present the case for their proposal to a legislative jury.
Advisory juries could be smaller than legislative juries, and the jurors could serve for longer periods of time.
What if no one is available to argue against a law?
If there is no public interest group or such willing and able to present the case against a proposed law before a qualifying or legislative jury, a jury-chosen judge or commissioner can choose someone to do so, based on who can do the best job. This position would be paid, with enough money to hire some assistants. Possibly this approach should always be used to decide who presents the case against a proposed law. The case in favor of a proposed law can be made by those proposing it, or by people chosen by them.
Juries, not politicians, should decide laws
The deciding of laws by popularly elected politicians is very problematic. It is contrary to rule by the people, the political equality of citizens and the need to ensure that laws are not based on the self-interest of politicians, political parties and concentrated wealth.
Nor do we the people have any need for politicians to decide laws. We are, through juries, perfectly capable of deciding them ourselves in an informed and highly democratic manner.
RULE BY THE PEOPLE. The right to rule resides with the people, not with politicians, political parties and their donors. For this reason, laws ought to be decided by the people, at least if this can be done in an informed and democratic manner, which it can be, through juries.
The power that politicians have to impose laws most of the people oppose, or would oppose were we to become well-informed about the relevant facts and arguments, is an undemocratic and oligarchic power blatantly contrary to rule by the people and the consent of the governed. The same is true of the power politicians have to forever prevent laws the people support, or would support were we to become well-informed about them.
The exclusion and disenfranchisement of the people from deciding laws, as if elected politicians were our rightful rulers, and our lords and masters, is blatantly contrary to rule by the people. We the people are rightfully our own rulers and our own lords and masters.
Abraham Lincoln praised “government of, by and for the people.” This aspirational statement has never been an accurate description of the country. Not even close. The only way to have government by the people in lawmaking is for laws to be decided by the people rather than by politicians and parties. The best way to ensure laws are decided for the benefit of the people rather than for the benefit of elites, is for laws to be decided by the people in an informed manner.
PLUTOCRACY. Big business and the billionaire class exercise a disproportionately large influence on lawmaking in the United States, and have largely captured the political system, with that capture being entrenched in place.
This capture, and its entrenchment in place, is made possible by electoral democracy, as the system of rule by popularly elected politicians is called. The problem is that running an effective popular election campaign costs a lot of money. This enables the corporations and the rich to disproportionately influence who is elected and what they do in office.11 The greater the capture, the more that laws tend to favor the corporations and the rich, giving them ever more money to buy politicians, parties and laws. In addition to this vicious circle, there is another. The preferred candidates and parties of the corporations and the rich have a huge electoral advantage over the candidates and parties those interests oppose, which gives them every interest in keeping the political system bought, as they benefit from that. And not just in keeping it bought, but in making it even more bought so that insurgent candidates they and Wall Street do not like, and things like the Green Party, have even less chance of winning an election.
Far from being democratic, rule by elected politicians tends towards plutocracy, and once plutocracy becomes entrenched the de facto disenfranchisement of the people is hard to reverse (because the elections, politicians and laws are bought), with democracy existing only as a façade, or in name only.
Randomly sampled juries are an extremely effective firewall against corporate capture of lawmaking.
Rich interests, billionaires and other concentrations of wealth and power have zero influence on who serves on juries, because juries are chosen by random selection. Nor can they influence what they do in office by contributing to their re-election campaign, because there is no re-election campaign. The jurors, after performing their public service, disband back into the people, and will only serve again if they are randomly selected to do so.
Although rich interests and party apparatchiks have no control over who serves on juries, they could still try to bribe jurors. Arrangements need to be in place to prevent this. First of all, just as with trial juries, any attempt to bribe a juror, and any contact with a juror outside the formal proceedings, would be a crime. A further barrier to such jury tampering is to have qualifying and legislative jurors vote by secret ballot, making it hard for would-be bribers to know if they got what they paid for. Nor is there any reason for the names of the jurors to be disclosed until after their decision, if ever, which is a further obstacle to would-be bribers (as they don’t know who the jurors are). In addition, qualifying and legislative juries serve only for short terms of service, creating a very narrow time frame for trying to identify and bribe them.
Juries also provide a firewall against other aspects of American plutocracy (in addition to the buying of elections and politicians). The vast majority of incumbent politicians are in the top several percent in terms of income and wealth, with some of them being extremely rich, such as Nancy Pelosi and Mitch McConnell. This is plutocratic. Randomly sampled juries fix this problem.
The corporate media giants greatly influence public opinion and the outcome of elections. Juries provide a very effective check and balance against this aspect of plutocracy by separating the deciding of laws from popular election results, and enabling jurors to reach an informed evidence-based decision independently from the media.
THE SELF-INTEREST OF POLITICIANS. A basic requirement for fair and democratic decision-making is that those who decide do not have conflicts of interest. For this reason, politicians need to be permanently stopped from deciding laws, because they have ubiquitous self-interests that very much conflict with the legitimate purposes of lawmaking.
Incumbent politicians and party establishments have a strong interest in concentrating and entrenching power in their own hands.
They have a strong interest in doing what the donor class that funds their elections wants, and in not offending them lest the financial spigot be closed, or funds be poured into defeating them in the next primary and general election. And also so that corporations and billionaires might reward them with lucrative jobs and other pay-offs.
They have a strong interest in election laws that favor themselves, and disadvantage their opponents. This includes, for example, being able to gerrymander electoral boundaries, voter suppression (of voters likely to vote against them), letting their financial backers buy elections for them, being free to rig and manipulate their own primaries, keeping plurality voting (which disadvantages independent and third party candidates), not having term limits, and so on.
They have a strong interest in government secrecy so they can’t be scrutinized and held to account.
They have a strong interest in a media landscape favorable to themselves. Republicans have an interest in things like Fox News, and Democrats in things like MSNBC. They may both have an interest in preventing things like the Fairness Doctrine, in marginalizing alternative media outlets that question their narratives, and in not having robust, well-funded, genuinely independent public media that does an excellent job of holding politicians to account and exposing falsehood.
They have an interest in laws that allow the imprisonment and prosecution of whistleblowers, so that people like Edward Snowden, Chelsea Manning, John Kiriakou, and also publishers such as Julian Assange, can be made into grim warnings to others who may wish to expose government crimes, deceit and misconduct.
They may, to preserve and increase their power and the profits of their corporate allies, have an interest in laws that allow the use of police state methods against dissent and political opposition, such as surveillance, COINTELPRO, police violence and militarization, indefinite detention without charge or trial, the criminalization of protest, driving people towards bankruptcy through costly legal proceedings against them (as was done to John Kiriakou, for example), and so on.
The same politicians who engage in the revolving door, insider trading, electoral fraud and other activities reasonably described as corrupt, decide the laws that apply to such practices.
Republican politicians have an interest in the mass incarceration of Black people in combination with prisoner and felony disenfranchisement, (because Blacks tend to vote Democrat).
It is absurd for laws to be decided by those who have such ubiquitous and blatant conflicts of interest. Instead, laws need to be decided independently from politicians, parties and the donor class. This can be done through juries in an informed and highly democratic way.
THE POLITICAL EQUALITY OF CITIZENS. Women have the right to be treated as equal citizens. As equal citizens and half the public, women deserve and have a right to an equal say in deciding laws. This is denied to women when politicians decide, because politicians are mostly men. This under-representation of women is unjust and unfair to women, discriminates against women, and treats women as second-class citizens who do not deserve an equal say.
Other huge swathes of the public are also very much underrepresented among the politicians in Congress and the state legislatures, including the bottom 90% in terms of income and wealth, citizens under 35, people of color and lesbians and gays. The 40% or so of Americans who are political independents are shut out, as are Greens and Libertarians, because nearly all incumbent politicians are partisans of one of the two main parties. As equal citizens, all portions of the public deserve and have a right to a say in deciding laws that is in proportion to their number. The deciding of laws by incumbent politicians is blatantly contrary to this.
Randomly sampled juries embody the political equality of citizens, because each citizen has the same chance to serve as any other, and all portions of the public are represented in proportion to their number.
John Adams famously says that a “representative assembly” “should be in miniature, an exact portrait of the people at large.” No US legislature, nor any other popularly elected legislature, has ever been anything of the kind. The way to get such a legislative body is to choose it by random selection.
RULE BY UNRELIABLE MIDDLEPERSONS. In electoral democracy, we the people are reduced to relying on middlepersons (politicians) to get the laws we want. But the middlepersons often do not do what they said in the campaign, often do what they said they would not, and do things they never mentioned. Once elected they are completely beyond the control of the people. Sometimes they are out and out con artists and liars who have no intention of doing what they said. Although it may be possible to vote them out in the next election that is very weak tea as by then the damage has been done, and whoever replaces them will also be completely beyond the control of the people, and may be as bad or even worse.
In many cases votes are cast for reasons other than the laws politicians say they will pass. For example, because of the party they belong to, or because they seem likable or not likable, trustworthy or untrustworthy, or because they are famous or got a lot of media coverage or prominent endorsements, or had a well-funded campaign.
Instead of such a problematic arrangement, we the people, the rightful rulers, ought to be able to decide the laws ourselves, without having to rely on unreliable middlepersons.
PACKAGE DEALS. In elections voters have to vote for one candidate, who offers them a package deal, some parts of which they may like and some parts of which they may not like. It is like going to the grocery store to get milk and potatoes, and being told you can only have them if you also buy pickled herring and prune juice. Instead of such a ridiculous arrangement, we the people should be able to decide exactly which laws we will have and won’t have, something we can do in an informed manner through juries, one law at a time.
THE LESSER EVIL. Voters often do not like either of the candidates, and vote for the one they think is the lesser evil. When voters have no option that they like, it is not much of a democracy. Instead of having to hope the lesser or greater evil will not do too much harm, we the people need to be able to decide the laws ourselves.
POORLY INFORMED VOTERS. Those who vote in elections are poorly informed about the platforms and the candidates.12 This is a further reason why popular election does not provide informed consent to the laws politicians pass.
UNREPRESENTATIVE VOTERS. Those who vote in general elections and primaries are unrepresentative of the people. This is a further reason why the deciding of laws by politicians is not an example of rule by the people.
UNDEMOCRATIC ELECTIONS. US elections are very undemocratic. The voters are poorly informed and unrepresentative. The playing field is heavily skewed by rich interests, the media giants and the establishments of the two main parties. And also, as FAIR explains, by the use of plurality voting. Such highly undemocratic elections do not bestow the consent of the people on the laws politicians decide.
But what if politicians could be elected in a far more democratic way? For the reasons I outline elsewhere, the best and most democratic option is for them to be elected by jury using democratic voting methods (such as Condorcet voting for single offices, and multi-winner RCV for multi-member electoral districts). In this approach politicians are chosen by informed and highly representative portions of the public, with all those interested in public office being placed on a fair and level playing field.13
Although electing politicians by jury would greatly advance democracy, it would still fall far short of the people deciding laws. The problem of unreliable middlepersons beyond the control of the people would continue. As would much of the conflict of interest problem (for example, even politicians chosen by jury would still have an interest in concentrating and entrenching power in their own hands, lining their own pockets, and minimizing accountability, and would be able to facilitate those things if they decide the laws). Nor would politicians chosen by jury be an exact portrait of the people. Nor could juries choosing politicians become informed about the full range of proposed laws that those politicians could put forward and vote on, some of which might not even be contemplated at the time of the election. The only way for laws to be decided by the informed rule and consent of the people is for them to be decided by jury one law at a time.
Conclusion
The power to decide laws needs to be transferred from politicians to juries, so that laws will be decided by the informed judgement of the people, after a fair hearing on a level playing field, independently from incumbent politicians, political parties and economic elites, and with no portion of the public being underrepresented among those who decide.14
In the 24 states that have the initiative, jury lawmaking could be enacted by initiative.
An initiative could be brought to give citizens proposing a law the right to have their proposed law qualified by the vote of a jury, rather than having to meet an onerous signature requirement, and the right to have a qualified proposal decided by the majority vote of a legislative jury, rather than by popular vote.
Another initiative could be brought to provide equivalent reforms to the veto referendum, giving citizens the right to qualify proposed vetoes by jury, and, if qualified, to have them decided by a legislative jury.
A third initiative could be brought to establish jury-chosen law commissions able to propose laws to legislative juries.
These initiatives would, if passed, greatly advance democracy and informed rule by the people.
In jurisdictions without the initiative, introducing jury lawmaking is likely to be much harder due to the exclusion of the people from deciding laws, and the interest those in power have in continuing that exclusion.
- I am not claiming the Greeks are the only people to have ever invented democracy.
- Greek democracy, like the early US Republic, excluded women and was a slave society. By a modern version of Athenian juries, I especially mean jury decision-making in a context of gender and racial equality, and the absence of slavery.
- Public support for the ballot initiative is high. For example, in California, “In recent PPIC [Public Policy Institute of Californian] Statewide Surveys, a strong majority of likely voters (72%) said it is a good thing that voters can make laws and change public policies by passing initiatives. Sixty percent of likely voters—including pluralities across parties—say that public policy decisions made through the initiative process are probably better than those made by the governor and state legislature.” Mark Baldassare, Dean Bonner, Sonja Petek, and Jui Shrestha, “The Initiative Process in California,” Public Policy Institute of California, October 7, 2013.
- Richard Ellis, “Signature Gathering in the Initiative Process: How Democratic Is It?,” 64 Montana Law Review (2003): 63.
- See ,for example, Ibid., 47-71.
- Ibid., 63.
- Ibid., 60.
- Ibid., 70.
- Regarding the selection of public officials by jury see Threlkeld: October 23, 2019; August 12, 2016; August 9, 2016; October 14, 2015; September 16, 2015; Spring 1997.
- Lawrence Lessig, They Don’t Represent Us: Reclaiming Our Democracy (New York, NY: HarperCollins Publishing, 2019), 176.
- Noam Chomsky: “Tom Ferguson’s stellar work has demonstrated, very conclusively, that for a long period, way back, U.S. elections have been pretty much bought. You can predict the outcome of a presidential or congressional election with remarkable precision by simply looking at campaign spending. That’s only one part of it. Lobbyists practically write legislation in congressional offices. In massive ways, the concentrated private capital, corporate sector, super wealth, intervene in our elections, massively, overwhelmingly, to the extent that the most elementary principles of democracy are undermined.”
- See, for example, the work of social scientist Michael X. Delli Carpini and law professor Ilya Somin.
- Regarding the selection of politicians by jury see Threlkeld: October 23, 2019; September 19, 2017; August 12, 2016; October 14, 2015.
- For more about how jury lawmaking could work see Threlkeld, September 19, 2017, and Summer 1998. See also Terrill Bouricius, April 30, 2013.