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Wednesday, September 21, 2011

Fixing Direct Democracy

Zocalo Public Square asked a number of scholars the following question:  "What is the single best thing we can do to improve the initiative process?"  I'm not sure there is a quick fix, but here was my answer:

In democracies, it is both common and correct to say that “the people” should rule. But democracies differ in their understanding of who “the people” are–and how they are represented. In most democracies, elected leaders stand in for and represent “the people.” In direct democracies like California, by contrast, the polity is designed to let “the people” represent themselves with immediacy from time to time, reasserting their will over particular policy areas, disrupting elected leaders’ assumptions that they can always vindicate the voice of the populace with their democratic mandates from a prior Election Day.

It isn’t a surprise that “the people” are not always up to the task. Although there is no doubt that conventional representative democracy has its flaws, the “wisdom of the crowd” is just the flipside of “mob rule.” Under the conditions most citizens find themselves in modern mass society, they have neither the time nor the inclination to engage with the issues that find themselves on the ballot. Most do not deliberate with one another and most cannot get sufficiently informed about the policy debates. But it isn’t that citizens are incompetent. It is that we don’t design the institutions of direct democracy in a way to promote real deliberation and thoughtful decision-making.

All that could change with one simple fix.

Instead of asking nearly 40 million people what they think about a question of policy, ask a much smaller random subgroup of “the people” what they think. When we want criminal defendants judged by a jury of their peers, we don’t ask everyone to vote: we ask a cross-section of the whole—12 people—to take time out of their private lives and serve their governments to decide if an individual in their midst should lose his or her liberty or life. When we ask “the people” to decide policy in direct democracy, it should be done by a scientifically stratified random sample of 535 people that is empanelled into jury service for the task at hand.

As Tocqueville wrote, the “jury is both the most effective way of establishing the people’s rule and the most efficient way of teaching them how to rule.” It is time to think of our exercises of direct democracy like policy questions sent out to a jury of our peers. Under those conditions, it won’t be money or misleading campaigns that decide ballot questions: it will be the deliberation of lay citizens who have all the right incentives and institutions to think through important questions with a manageable group of their peers, who are similarly motivated to produce an authentic, informed, and issue-specific voice of “the people.”

Ethan J. Leib is author of Deliberative Democracy in America: A Proposal for a Popular Branch of Government. He was a professor of law at the University of California’s Hastings College of the Law from 2005 to 2011. He is now a professor of law at Fordham Law School in New York.

My latest academic treatment of popular democracy, forthcoming with Chris Elmendorf in the California Law Review, can be downloaded here.


Posted by Ethan Leib on September 21, 2011 at 09:58 AM in Ethan Leib, Law and Politics | Permalink


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I don't see much difference between your proposal and Akhil Amar's suggestion in the 1980s that legislators be selected by lottery. The problem with both proposals is the same: what makes you think that individuals selected by lottery will be any more representative, hard working, or able to sort through the difficult policy choices presented than individuals selected by election (i.e., legislators)? And at least the latter can claim to represent and be accountable to some portion of the electorate; the former, not at all.

Posted by: Norman Williams | Sep 21, 2011 11:23:13 AM

First, the presumption of the question is that California is keeping direct democracy: we are being asked how to make it better with one fix. So the comparison case is not what you say Akhil Amar argued for vis-a-vis the legislature in the 1980s but the system of direct democracy as it exists now. As the system exists now, we don't have good representation (direct democracy voters are whiter and richer than the population), there is no evidence that the voting population is particularly hard working (they use heuristics and ad campaigns to decide -- sometimes successfully and sometimes less so), and there is no evidence that voters are incentivized to sort through difficult policy choices (they are one vote of millions). My proposal aims to get better representation (scientific sampling is likely to get a better cross-section of the population) and tries to give a small number of voters the right incentives to put in the hard work to decide hard questions: small numbers and opportunities for real deliberation by the policy jury has some obvious advantages over mass democracy. And I doubt mass democracy is more democratic than a thoughtful jury system -- unless all democracy is is a collection of thoughtless votes.

Whether this "popular branch" ought to be elected is a reasonable question. But my basic assumption is that we already have plenty of elections for legislators. Adding layperson opinion to the mix on particular policy question seems like a useful supplement in a hybrid system where the people sometimes speak through representative elections and sometimes speak through representatives that are chosen in non-electoral ways, who have some independence from blunt accountability mechanisms and campaign finance.

Posted by: Ethan Leib | Sep 21, 2011 12:16:23 PM


All of the pathologies that you ascribe to the masses would apply just as much to your proposed "policy jury" and, depending on its particular composition, perhaps moreso (Would a union member really deliberate about a proposed union-busting measure? Would a rich businessman really care what others think about a proposed surtax on the wealthy to fund education?). In fact, the criminal jury system protects against these sorts of biases by requiring an extensive voir dire system to ensure unbiased decisionmakers; nothing in your proposal is comparable, and, if it does, I think most people would be troubled by a "policy jury" whose members are so uninformed about a public policy problem or possible solutions as to be neutral about the problems or its solutions. Perhaps, as Madison and Hamilton thought, direct democracy is dangerous, but it is surely preferable to a system of faux democracy masquerading in its name.

Posted by: Norman Williams | Sep 21, 2011 11:23:55 PM

I don't understand why it would be "faux democracy" to collect a random sample of citizens together, furnish them with real information about the potential consequences of a policy and its pros and cons, ask them to discuss it over a few days, and then have them vote on whether to adopt the policy. Of course, ideological, racial, and gender biases could still infiltrate the deliberative process. My guess is that those biases are more likely to be controlled in a thoughtfully designed jury system as compared with mass democracy which requires no reason-giving and which invites television campaign manipulation, preying on the population's worst fears and deep ignorance. I could be wrong. But the empirical evidence from Deliberative Polling convinces me that people can both learn and change their minds when they are brought together and incentivized to study an issue in a smaller group setting. Reasonable people can differ about what the experiments in Deliberative Polling and the Citizen's Assembly in BC show. I would keep the system as is rather than disband mass direct democracy altogether, if those were my two choices. So I have a populist streak. But I think my system is preferable to both of those extremes. If you'd like to continue to chat, I'm at ethan.leib@law.fordham.edu.

Posted by: Ethan Leib | Sep 22, 2011 8:48:32 AM

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