Representative and non-partisan legislators

The most obvious way to base a government on the will of the people is to require that all laws be passed by a majority vote of the citizenry. This was the form of government established by Athens over 2,500 years ago and the original meaning of the word democracy. The demands of such a system on its citizens are extreme, however. For such a democracy to function well, the majority of citizens must have the knowledge, ability, interest, and time required to carefully weigh each newly proposed law. The history of Athens suggests that this was sometimes too much to ask of the citizens of a classical Greek city-state. Given the scale and complexity of both the modern world and the modern legal system it seems altogether unreasonable now.

Happily, Athenian government also suggests a possible solution. While ultimate power lay in the hands of the citizens of Athens, some government officials were required. By and large, these officials were not elected. The Athenians considered elections of the sort that we have today to excessively favor the rich and powerful. Instead, they had a system for choosing officials in which wealth, power, popularity, and faction played no role, one that ensured that their chosen representatives would reflect the eligible population in every particular. Their method was simple. They used sortition, that is, they chose their elected officials at random.

The notion of selecting officials at random might seem radical, we certainly would not recommend it for filling a singular office such as the presidency, but there are many advantages to using such a system for large law-making bodies. The United States House of Representatives has 435 members. If each were chosen at random from the population the resulting legislature would be a replica of the nation in miniature. Half would be women, 13% would be black, 22% Catholic, 1% nurses, and so on. There would be no campaigns and therefore no need for political parties or fundraising. Gerrymandering would have no effect on the outcome and therefore would presumably cease. Representatives would not stand to benefit from convincing 51% of the population to hate the other 49%.

The advantages of achieving representation without elections should not be understated. Elected representatives are impaired by the realities of electoral politics. Partisan appeals, extreme viewpoints, and unreasonable promises are the most effective methods of turning out voters. These corrosive messages are communicated via advertising and other campaign activities that require massive sums of money donated by wealthy interests that typically have financial stakes in the actions of government. Many members of Congress spend more time calling donors to ask for money than they spend working on legislation. Consequently, the desires of their financial benefactors can never be far out of mind. Moreover, however wise, skilled, and experienced an elected representative is he must know that his future prospects as a politician depend on appearing, at least, to follow through on his campaign promises, awful though they may be. It is perhaps fortunate that it is so easy to accomplish little as a legislator and blame the opposing party.

Representatives elected by sortition would have no campaign promises to keep nor, due to their lifetime stipend, future employment to consider. They would reflect the populace much more fully than elected representatives, but they would differ in that, unlike the average person, they would have the time and resources to delve deeply into issues of governance and, having been chosen and specially empowered for the task, would feel a duty to do so. Still, some of them would need the assistance of highly educated professionals of the sort that currently constitute our legislative branch. If so, they could hire them.

The most commonly voiced objection to such a system is that the average person possesses inadequate skill, knowledge, or interest to be a legislator. To mitigate the latter concern, acceptance of the appointment should be voluntary, though we expect that some combination of a sense of duty, the importance and prestige of the job, and financial incentives would induce a majority of people to accept. New legislators would have a lot to learn, but they would have many years in which to master their new trade while on the job. Staggering the appointment of representatives would ensure that no more than twenty percent of the house would be novices at any one time. By the end of their term, these randomly chosen citizens would have an amount of experience comparable to getting both an undergraduate degree and a doctorate in being a lawmaker.

Nonetheless, legislators selected by sortition will have less experience and be less exceptional than current members of Congress. Most lawmakers have decades of experience in law and government, and it has been estimated that 20% of lawmakers have IQs higher than 99% of the population. Opponents of sortition generally argue that it is imperative to have these exceptional, experienced professionals running the government and that it is madness to even consider putting common people in charge. Students of history will recognize this as the same argument that was made in support of monarchy and aristocracy against democracies such as our own.

Indeed, it is difficult to see how a people too incompetent to govern by sortition could possibly succeed at representative democracy. If the common man is inadequate to the task of governing, even when given the resources of a legislator (including the ability to hire experienced and capable lawyers) and when devoting himself to that job exclusively, how can we believe in a government based on the will of the people at all? It is our experience that it is much easier for people of differing political leanings to come to an agreement on policy than on candidates. In the latter case it seems always possible to believe in the righteousness of your own pick and the depravity of the opposition. If the same people who now vote for representatives are so incapable of making good decisions, how are they to choose good legislators?

It seems to us that the only plausible answer is to argue that wisdom goes hand in hand with wealth. In our current political system candidates for public office require substantial sums of money. If we assume that prosperous businesses and persons are more competent than the population at large and that they will only support competent candidates then elections become a mechanism for allowing the common people to pick their favorite candidate among those approved by wiser, moneyed interests. Even should this be true, however, our proposal would not completely deprive wealth of its privelege since we only advocate selecting the lower chamber of bicameral legislatures by sortition. This choice is not made simply out of caution but with an eye to good design. Whatever the failings of a legislature selected by sortition, they ought to be rather distinct from those of an elected body. As was argued in the Federalist Papers, the series of articles published in 1787 in support of the newly drafted Constitution, requiring legislation to be passed by two bodies of rather different character seems a prudent precaution.

More broadly, we believe that the resemblance of a legislature selected by sortition to the populace at large should not concern us given that we already live in a democracy in which the same populace votes. It makes more sense, we believe, to focus on the ways in which a legislature selected at random would not resemble the populace. The two would differ in one crucial respect, namely that the former would have been chosen to be legislators. Thus, for example, we could worry about bribery or whether well-paid legislators with lifetime appointments will still care about the issues that mattered to them previously. It is because we consider bribery such a serious concern that we have proposed that all representatives chosen by sortition be paid, well, for life. Otherwise people with poor prospects following their service would be sorely tempted to trade favors for present or future personal gain. By ensuring gainful lifetime employment, however, we further remove selected individuals from the cares of their fellow men. To some degree this is desirable, as we wish legislators to be free from personal concerns to focus on the greater good, but we do not want them to forget what these concerns once were. It is our hope and belief that their legislation will reflect their continuing ties of affection to their place of origin and their lived experience.

The founders of the United States expected that the U.S. House of Representatives would consist for the most part of private citizens, not of professional politicians. In the Federalist papers they argued that one of the advantages of a having two legislative bodies is that the Senate, because of the manner in which Senators were elected and the length of their terms of office, would provide the experience and subtlety of professional politicians while the House would partake more of the common man and would therefore more truly embody the spirit of the people. In some sense then, using sortition to select the lower house of Congress would represent not a departure from but a return to the ideas of the founders.