ELECTION LAW JOURNAL Volume 12, Number 4, 2013 Popular Deliberation # Mary Ann Liebert, Inc. DOI: 10.1089/elj.2013.0200

Deliberation by the People Themselves: Entry Points for the Public Voice

James Fishkin

ABSTRACT

Deliberative democracy by the people themselves is a distinctive form of democratic practice. It can be dis- tinguished from deliberative democracy practiced by elites or representatives as well as from other forms of democracy that do not emphasize deliberation. In this article I explore ways this kind of democracy can be real- ized and then inserted into our current democratic institutions. The idea is to explore possible entry points in our political system for deliberative democratic designs involving ordinary citizens. In doing so I draw on recent experiments with Deliberative Polls and other mini-publics. I focus on four entry points: a) the evaluation and/or selection of candidates in the nomination phase; b) the evaluation and/or formulation of ballot proposi- tions; c) public input into policy and legislation; and d) public input into processes of constitutional change.

n the last two decades there has been a dra- touchstone of democratic aspiration inspiring both I matic ‘‘deliberative turn’’ in democratic theory.1 theory and practical reforms.2 But ‘‘deliberative Even advocates of ‘‘participatory democracy’’ democracy’’ is a banner with followers of very dif- have admitted that deliberation has largely sup- ferent sorts.3 Some focus on the general idea of planted participation as the most commonly invoked deliberation with little specification of who is to

James Fishkin is a professor of international communication turn to deliberative democracy, see Lynn Sanders, ‘‘Against and political science at Stanford University in Stanford, CA. Deliberation,’’ Political Theory vol. 25, no. 3, (June 1997): This article was prepared for a conference on ‘‘The Law of 347–76. For a more recent statement that the Deliberative Poll- Deliberative Democracy’’ at New York University (NYU) ing model avoids her critique, see Lynn M. Sanders, ‘‘Making Law School on April 5–6, 2013. My thanks to all the conference Deliberation Cooler,’’ The Good Society, vol. 19, no. 1, participants as well as to Bruce Ackerman and Joey Fishkin for (2010): 41–47. helpful discussions, especially on the last sections. 2Carole Pateman, ‘‘Participatory Democracy Revisited’’ Per- 1This phrase was borrowed from: John Dryzek, Deliberative spectives on Politics, vol. 10, no. 1, (March 2012): 7–19. Democracy and Beyond (Oxford: Oxford University Press, 3For some collections that gather the most influential of 2000), James Bohman says that by raising ‘‘problems of justifi- these discussions regarding deliberative democracy from cation, institutionalization and empirical obstacles, deliberative various perspectives, see James Bohman and William democracy.has ‘come of age’ as a complete theory of democ- Rehg, eds., Deliberative Democracy: Essays on Reason racy rather than simply an ideal of legitimacy.’’ All of these and Politics (Cambridge: MIT Press, 2007); Jon Elster, ed., issues are being confronted and contested in what is now a Deliberative Democracy (Cambridge: Cambridge University large body of literature. See James Bohman, ‘‘The Coming of Press, 2008); and James S. Fishkin and Peter Laslett, eds., Age of Deliberative Democracy,’’ Journal of Political Philoso- Debating Deliberative Democracy (Malden: Blackwell Pub- phy vol. 6, no. 4, (1998): 400–425. For a systematic critic of the lishing, 2003).

490 DELIBERATION BY THE PEOPLE THEMSELVES 491 do the deliberating. Is it public officials? Is it repre- How different would public opinion—and sentatives?4 Is it the media?5 Is it the people them- voting—be if people weighed competing argu- selves?6 And if so, which people? Everyone? Most ments on the basis of good information? If they people? Some self-selected group? Or does it mat- considered different candidates, different parties, ter? There are also different accounts of criteria different ballot propositions, or different policies, that ought to be satisfied for the quality of deliber- all under good conditions for really thinking ation as well as different views about whether delib- about the trade-offs posed by those competing erators need to be making actual decisions7 or choices? The root of deliberation is weighing.10 whether they can deliberate by just expressing And the root idea of deliberative democracy is their considered judgments. I will sketch a particu- that the people should weigh the arguments, the lar approach to these issues here. competing reasons, offered by their fellow citizens What does a focus on ‘‘deliberative democracy’’ under good conditions for expressing and listening add to the evaluation and possible reform of dem- to them and considering them on the merits. A ocratic practices? It foregrounds issues that were democracy designed without successful attention to always a part of democratic theory, but which this kind of public will formation could easily be bring into view the problem of public will forma- reduced to a democracy of manipulated sound bites tion. Democracies ought to make decisions that and misled opinions. Even if the elections for candi- have some connection to ‘‘the will of the people.’’ dates, parties, or ballot measures are competitive and But what is the condition of our public will when the people have a choice, it may be no more thought- the public often has low levels of information,8 ful or authentic a choice than one between brands of limited attention spans and is the target of so soap or cigarettes. Our republic began with the aspi- many millions spent by the persuasion industry— rations of Madison, but our practices have moved on campaigns, elections, and issue advocacy?9 closer to those of Madison Avenue.

4The term ‘‘deliberative democracy’’ is often cited as being the government will make, or a process that will affect how coined by Joseph Bessette’s study of the Congress, in both future decisions will be made.’’ Amy Gutmann and Dennis theory and practice. See Joseph M. Bessette, ‘‘Deliberative Thompson, Why Deliberative Democracy? (Princeton: Prince- Democracy: The Majority Principle in Republican Govern- ton University Press, 2004), 5. By this generous definition, ment,’’ in Robert A. Goldwin and William Schambra, eds., most Deliberative Polls, and indeed other deliberative forums How Democratic is the Constitution? (Washington D.C.: mentioned in this article’s references, have been ‘‘binding.’’ American Enterprise Institute, 1980); and Joseph Bessette, 8For the implications of low information levels among the mass The Mild Voice of Reason (Chicago: University of Chicago public, see Michael Delli Carpini and Scott Keeter, What Amer- Press, 1994). In Bessette’s view, a deliberative democracy icans Know about Politics and Why it Matters (New Haven: is ‘‘one which would foster rule by the informed and reasoned Yale University Press, 1996); and Scott Althaus, Collective judgments of the citizenry,’’ yet the current system is one in Preferences in Democratic Politics: Opinion Surveys and the which ‘‘thecitizenry would reason, or deliberate, through (em- Will of the People (Cambridge: Cambridge University Press, phasis in original) their representatives.’’ (p. 1–2). In this 2003). context, Bessette is not applying the term to deliberations 9For an account of the corrupting role of money throughout by the people themselves, but rather to the deliberations our political process, see Lawrence Lessig, Republic, Lost of their representatives; who were thought to be more (New York: Hachette, 2011). For the impact of economic competent. inequality on the political process, see Larry M. Bartels, 5For an account focused on the role of the media that is some- Unequal Democracy: The Political Economy of the New times stimulating, sometimes limiting public deliberation, see Guilded Age (Princeton: Princeton University Press, 2008). Benjamin I. Page, Who Deliberates? (Chicago: University of For an argument based on earlier data suggesting that less Chicago Press, 1996). money is spent in U.S. politics than one might expect, see 6For an early proposal to identify deliberative democracy with James M. Snyder Jr., Stephen Ansolabehere, and John M. deliberations by the people themselves convened through ran- de Figueiredo, ‘‘Why is There So Little Money in U.S. Poli- dom sampling, see James S. Fishkin, Democracy and Deliber- tics?’’ Journal of Economic Perspectives, vol. 17, no. 1 ation: New Directions for Democratic Reform (New Haven: (2003): 105–130. Yale University Press, 1991). 10Origins of the word: ‘‘weigh’’: ‘‘late 14c., from L. deliberatio- 7Amy Gutmann and Dennis Thompson have championed the nem, from deliberare ‘weigh, consider well,’ from de- ‘entire- view that deliberation needs to be ‘‘binding,’’ interpreted ly’ + -liberare, altered (perhaps by influence of liberare broadly. In their view, a ‘‘characteristic of deliberative democ- ‘liberate’) from librare ‘to balance, weigh,’ from libra racy is that its process aims at producing a decision that is bind- ‘scale.’’’ Dictionary.com. ‘‘Deliberations.’’ Accessed August ing (emphasis in original) for some period of time. The 26, 2013. < http://dictionary.reference.com/browse/delibera participants.intend their discussion to influence a decision tions > . 492 FISHKIN

Deliberative democracy, as I will discuss it here, is egy of large scale deliberation on the model of Delib- an attempt to combine deliberation with another fun- erative Polling but scaled up to a large portion of the damental democratic value, political equality. We population.14 Bruce Ackerman and I have proposed must answer two questions: what and who? What ‘‘Deliberation Day’’ as a design for such a large sort of preferences are given expression by the dem- scale mass deliberation.15 So the question is how or ocratic process? Who expresses them? Deliberation whether either or both of these designs can be helps specify an answer to the first question. But inserted into our current constitutional order. how does that aspiration combine with answers to As a preface to this argument about the four the second? Whose deliberative preferences? entry points I will claim that there are four funda- In what we are calling deliberative democracy, mental conceptions of democracy. The entry points the views of citizens are given equal consideration. connect deliberative democracy to processes that They are counted equally. It is possible to have a embody each of the others. So I will talk about concern for deliberation but not political equality. entry points for deliberative democracy in competi- John Stuart Mill famously advocated ‘‘plural vot- tive democracy (elections of candidates), in partici- ing.’’ In wishing to give extra weight to the more edu- patory democracy (in this case primarily initiatives cated and thoughtful views he violated political and referenda) and in elite deliberations both about equality.11 With his concern for individuality at the policy and about constitutional change. individual level and the consideration of compet- ing arguments at the collective level (see his famous discussion of the ‘‘Congress of Opinions’’ for an FOUR CONCEPTIONS OF DEMOCRACY excellent account of how the deliberations of repre- sentatives could be connected to the public12)he There are many notions of democracy, but in my was clearly what we would now call an advocate view they boil down to a few competing democratic of deliberation. But with plural voting the more edu- principles and how they combine to form normative cated opinions could count more. conceptions of democracy. It is useful to think of On the account here, deliberative democracy some core component principles—political equal- requires an equal counting of everyone’s views. ity, (mass) participation, deliberation, and avoiding But this notion of ‘‘everyone’’ carries ambiguities. tyranny of the majority (which I will call non- Everyone who turns out? Literally everyone eligible tyranny). Three of these principles are internal to to vote? And of course there are the many familiar questions about non-citizens or various groups 11 denied full membership. My focus is not on those According to John Stuart Mill, ‘‘everyone ought to have a 13 voice—but that everyone ought to have an equal voice is a issues here. If we stipulate a population eligible totally different proposition.’’ See Chapter 8 of: Considerations to participate how do we include everyone in that on Representative Government (Amherst: Prometheus Books, 1991). population? One way is to somehow get everyone 12 to actually participate. A second way is to recruit On Mill’s account of an ideal parliament, it is a microcosm of the nation’s opinions ‘‘where every person in the country may via random sampling so that everyone is included count upon finding somebody who speaks his mind as well or via an equal chance of being invited. The aspiration better than he could speak it himself—not to friends and parti- is to offer a combination of political equality and sans exclusively, but in the face of opponents, to be tested by adverse controversy; where those whose opinion is over-ruled deliberation that represents the conclusions the pub- feel satisfied that it is heard, and set aside not by a mere act lic would arrive at if it deliberated under similarly of will, but for what are thought superior reasons, and commend good conditions. In that way it offers a practical themselves as such to the representatives of the majority of the nation.’’ Id. at 116. method for inserting public will formation under 13For the struggles over the extension of the franchise in the good conditions. This essay will explore some of United States, see Alexander Keyssar, The Right to Vote: The the ways this kind of process can be inserted into Contested History of Democracy in the United States (New York: Basic Books, 2000). our conventional political processes. Deliberative 14 For an overview of Deliberative Polling and its applications, democracy, like all forms of democracy, requires see James S. Fishkin, When the People Speak: Deliberative an institutional design. The two that I will focus Democracy and Public Consultation (Oxford: Oxford Univer- on here are the one just mentioned, the randomly sity Press, 2009). The account of the four democratic theories below draws on the presentation in that book. selected deliberative microcosm, or mini-public, in 15Bruce Ackerman and James S. Fishkin, Deliberation Day designs such as the ‘‘Deliberative Poll’’ and the strat- (New Haven: Yale University Press, 2004). DELIBERATION BY THE PEOPLE THEMSELVES 493

Table 1. Conceptions of Democracy

Principles Competitive Democracy Elite Deliberation Participatory Democracy Deliberative Democracy

Political equality + ? ++ Participation ? ? + ? Deliberation ? + ? + Non-tyranny ++ ?? + means a position is committed to the principle indicated; ? means the position is agnostic about that principle. the design of democratic institutions and one Each of these four conceptions of democracy (non-tyranny) is about the effects of democratic embraces a commitment to two of the principles decision, effects that have long worried critics of just mentioned. The position is usually agnostic democracy. If we consider these four principles about the other two (see Table 1). While there are essential components of a democratic theory, then obviously sixteen possible positions defined by the variations in commitment to them provide a acceptance or rejection of the four principles, I kind of rudimentary grammar that allows us to spec- have argued elsewhere that the useful positions ify the range of alternative normative theories or reduce to these four.17 Variations that aspire to conceptions of democracy. In other words, we can more than the four are either unworkable or merely get a handle on different conceptions of democracy utopian or empty (such as the rejection of all four according to whether or not they accept or reject principles). Those that aspire to less include elements these component principles. of one of these but are less ambitious than necessary. By political equality I mean, roughly, the equal The four positions have all been influential. In consideration of one’s views as these would be some cases, I modify a familiar position to make counted in an index of voting power. Does the it more defensible, in order to get the strongest ver- design of a decision process give each person a the- sion of each position. oretically equal chance of being the decisive voter? By Competitive Democracy I mean the notion of Or, to take an obvious example, do voters in Rhode democracy championed by Joseph Schumpeter and Island have far more voting power than voters in more recently by Richard Posner and others.18 On New York in selecting members of the Senate? this view democracy is not about collective will for- By participation I mean actions by voters or ordi- mation but just a ‘‘competitive struggle for the nary citizens intended to influence politics or pol- people’s vote’’ to use Schumpeter’s famous phrase. icy or to influence the dialogue about them. By Legal guarantees, particularly constitutional ones, deliberation, I mean the weighing of reasons are designed to protect against tyranny of the major- under good conditions in shared discussion about ity. Within that constraint, all we need are compet- what should be done. The good conditions specify itive elections. On Schumpeter’s view, it is a access to reasonably good information and to mythology left over from ill-defined ‘‘classical the- balanced discussion with others who are willing ories’’ of democracy to expect the will of the people to participate conscientiously. This summary is a to be meaningful. Electoral competition, without simplification but should do for now. By non- any constraints on whether candidates or parties tyranny, I mean the avoidance of a policy that can mislead or bamboozle the voters to win, is would impose severe deprivations when an alterna- tive policy could have been chosen that would not 16 have imposed severe deprivations on anyone. 16For more on non-tyranny as a principle of democratic theory, Obviously there are many interesting complexities see James S. Fishkin, Tyranny and Legitimacy: A Critique of about the definition of severe deprivations, but the Political Theories (Baltimore: Johns Hopkins University basic idea is that a democratic decision should not Press, 1979). 17See Fishkin, supra note 14, ‘‘Appendix: Why We Only Need impose very severe losses on some when an alter- Four Democratic Theories.’’ native policy would not have imposed such losses 18Joseph A. Schumpeter, Capitalism, Socialism and Democracy on anyone. The idea is to rule out only some of (New York: Harper and Row, 1942); and Richard Posner, Law, Pragmatism and Democracy (Cambridge: Harvard University the most egregious policy choices and leave the Press, 2003). See also Ian Shapiro, The State of Democratic rest for democratic decision. Theory (Princeton: Princeton University Press, 2003). 494 FISHKIN what matters on this view. While Schumpeter did not counting. While many proponents of Participatory even specify political equality in competitive elec- Democracy would also like deliberation, the essen- tions,19 I have included it here, on the grounds that tial components of the position require participa- it makes the position more defensible than would a tion, perhaps prized partly for its educative position that embraced competitive elections in rot- function (as Carole Pateman argued23) and equality ten boroughs (the constituencies that over-repre- in considering the views offered or expressed in that sented small populations in nineteenth century participation (even if that expression is by secret Britain). The question marks in Table 1 signal agnos- ballot). Advocates of Participatory Democracy ticism about the other two principles. Some variants might also advocate voter handbooks, as did the of this position avoid prizing participation, viewing it Progressives, or perhaps with new technology for as a threat to stability or to elite decision making. voter information such as voter advice applica- Better not to arouse the masses, on this argument, tions,24 but the foremost priority is that people as their passions might be dangerous and motivate should participate, whether or not they become factions adverse to the rights of others, threatening informed or discuss the issues.25 Part of the problem the position’s commitment to protect against tyranny with this position is that it is sometimes advocated of the majority. Because of collective action prob- based on a picture of small scale decision making lems and incentives for ‘‘rational ignorance’’ (to such as the New England town meeting, in use Anthony Downs’ famous phrase) little can be which discussion is facilitated, but then the position expected of ordinary citizens. This position makes is implemented in the social context of mass that minimalism a virtue.20 democracy—the California process of ballot initia- By Elite Deliberation I mean the notion of indirect tives, for example, where plebiscitary processes filtration championed by Madison in his design for the involving millions of voters are employed for con- U.S. Constitution. The constitutional convention, the stitutional change. ratifying conventions, the U.S. Senate were supposed to be small elite bodies that would consider the com- peting arguments. They would ‘‘refine and enlarge the 19 Robert Dahl criticizes the Schumpeter model for not specify- public views by passing them through the medium of ing anything about how inclusive the demos should be. Accord- a chosen body of citizens’’ as Madison said in ing to Schumpeter’s view, one could not criticize the U.S. for Federalist 10 in discussing the role of representa- much of its history for the exclusion of blacks; even the Soviet Union could have been democratic if it had democratically con- tives. Madison held that the public views of such a sulted the demos who were party members. Robert A. Dahl, deliberative body ‘‘might better serve justice and Democracy and its Critics (New Haven: Yale University the public good than would the views of the people Press, 1989), 121. 20See for example Posner, supra note 18,172–73. themselves if convened for the purpose.’’ A similar 21John Stuart Mill, supra note 11, 116. See also: Jurgen Haber- position of elite deliberation was given further mas, Between Facts and Norms: Contributions to a Discourse development in J.S. Mill’s ‘‘Congress of Opinions’’ Theory of Law and Democracy (Cambridge: MIT Press, 1996), Chapter 7. which was supposed to embody a microcosm of the 22 If the Athenians had only had a Senate: ‘‘Popular liberty nation’s views ‘‘where those whose opinion is over- might then have escaped the indelible reproach of decreeing ruled feel satisfied that it is heard, and set aside not to the same citizens the hemlock on one day and statues on by a mere act of will, but for what are thought supe- the next.’’ James Madison, ‘‘Federalist No. 63,’’ Independent Journal (March 1788). For the many uses of this event for rior reasons’’ (prefiguring Jurgen Habermas’s anti-democratic argument, see Jennifer Tolman Roberts, Athens famous notion about being convinced only by the on Trial (Princeton: Princeton University Press, 1994). 23 ‘‘forceless force of the better argument’’).21 This Carole Pateman, Participation and Democratic Theory (Cam- bridge: Cambridge University Press, 1976). position like the last one, avoids embracing mass 24For an assessment of these applications (whose use is bur- participation as a value. The passions or interests geoning, especially in certain European countries), see Stefaan that might motivate factions are best left un- Walgrave, Michiel Nuytemans and Koen Pepermans, ‘‘Voting aroused. The Founders after all, had lived through Aid Applications and the Effect of Statement Selection,’’ West European Politics, vol. 32, no. 6 (November 2009): Shays’ rebellion and had an image of unfiltered mass 1161–1180. opinion as dangerous. If only the Athenians had had 25For an overview, see David Magleby, Direct Legislation: Vot- a Senate, they might not have killed Socrates.22 ing on Ballot Propositions (Baltimore: Johns Hopkins Univer- sity Press, 1984). For the relative ineffectiveness of voter By Participatory Democracy, I mean an empha- handbooks and other efforts to get voters more informed, see sis on mass participation combined with equal 137–139. DELIBERATION BY THE PEOPLE THEMSELVES 495

A fourth position, which I call Deliberative One position might be ‘‘anything goes.’’ In a society Democracy, attempts to combine deliberation by valuing free expression, there are many ways in which the people themselves with an equal consideration citizens provide input to policymakers, representa- of the views that result. One method for implement- tives, and other elected officials as well as to each ing this twofold aspiration is the deliberative micro- other, via social media and the mass media. Why do cosm chosen by lot, a model whose essential idea we need any special institutional designs? goes back to Ancient Athens for institutions such Or, to put it another way, if we want to know what as the Council of 500, the nomethetai (legislative the people think, why not just ask them? But ask commissions), the graphe paranomon, and the citi- who? If we ask everyone, or just have open meet- zens’ jury. Modern instances of something like this ings or invite public comments, we get those espe- idea include the citizens’ assemblies in British Co- cially interested or motivated, those who feel lumbia and Ontario and the Deliberative Poll. strongly enough to put themselves forward. And Some cases of the Deliberative Poll have been such approaches are open to capture by organized involved in constitutional processes or have pro- groups who would like to impersonate public opin- vided input to them before national referenda in ion as a whole, or at least speak for it. Consider the countries such as Australia and Denmark.26 Obama administration’s experience with the Deliberative democracy by the people them- ‘‘Citizens’ Briefing Book’’ during the transition selves is often invoked but rarely tried. It is an and with its current ‘‘We the People’’ website. Dur- open but difficult to resolve empirical question ing two wars and the great recession the most whether, on those rare occasions or periods when urgent problems facing the country were thought there might be a ‘‘constitutional moment’’ the peo- to be legalizing marijuana and legalizing online ple are really actively engaged on a mass scale in gambling.27 And with the ‘‘We the People’’ site, considering competing arguments. Bruce Acker- there is a threshold that triggers an official Admin- man’s account of the American founding, Recon- istration response to the issue proposed. Some of the struction, and the New Deal, offers cases before recent issues that have met the ever-rising public the full development of modern public opinion poll- threshold for self-selected mobilization include ing. The accounts are primarily about political elites deporting the CNN commentator Piers Morgan for with stipulations about the broader debate in the his support of gun control and developing a ‘‘death mass public. While it is certainly plausible to star.’’ The former was likely mobilized by pro gun assume that these issues produced a national debate, groups while the latter seems to have been a mischie- we know from later public opinion research that vous prank designed to embarrass the Pentagon and even when there is a big national issue, most of the Administration (‘‘it is not the policy of this the public is not well informed and when they do administration to destroy planets’’ was the official engage, there is a great deal of partisan selectivi- response). If the goal is a public input that is both rep- ty—people talk to those they agree with and consult resentative and informed, self-selection cannot reli- websites and sources likely to confirm their views. ably be expected to produce either. Deliberation of a high quality, where there is really Further, as we attempted to clarify in our list of a balance of argumentation that gets effectively con- core values, participation and deliberation need to sidered, is rare in ordinary life. But from the evi- be distinguished. Methods for encouraging mass dence of mini-publics, ordinary citizens are participation need not do much for deliberation capable of participating in such dialogues, once they are engaged with the appropriate institutional 26For discussions of Deliberative Polling before both the Aus- design. tralian and Danish Referendums, see Fishkin supra note 14. For more on the Australian case, see: ‘‘Deliberative Polling.’’ The Center for Deliberative Democracy. Accessed August 26, CONSULTING THE PEOPLE 2013. < http://cdd.stanford.edu > . For more on the Danish case, see Kasper Moller Hansen, ‘‘Deliberative Democracy and Opinion Formation.’’ Accessed August 26, 2013, < http:// This potential poses the question of appropriate www.kaspermhansen.eu/Work/Hansen2004.pdf > . 27 entry points for deliberation by the people them- Anand Giridharadas, ‘‘Athens on the Net,’’ New York Times, September 12, 2009. Accessed August 26, 2013, < http:// selves. How are the people to be consulted? What www.nytimes.com/2009/09/13/weekinreview/13giridharadas do they do? To what purpose? .html?_r = 0 > . 496 FISHKIN

(turnout efforts do not encourage consideration of a) Random sampling trade-offs or competing arguments) and delibera- b) Sample size tion can be fostered in select groups, such as the c) Attitudinal as well as demographic representa- mini-publics, without achieving any large scale tiveness application. d) A design that avoids distortions of small-group The Deliberation Day scenario is unusual for pro- psychology posing to combine both values, mass participation, e) A design that embodies good conditions for con- and deliberation. A significant honorarium for par- sidering the issue ticipation would motivate large scale action. If most or virtually everyone were to participate then Random sampling the distortions from self-selection disappear. But No random sample with humans is perfect. But the there is still the problem that in ordinary life people social science issues are well understood and there are tend to communicate with those they agree with and best practices to get a reasonably good sample. With a consult information sources they find congenial. mini-public there is potentially a second stage of self- The question for institutional design is whether a selection. Assuming the first stage to be some kind of context can be created that will effectively motivate initial questionnaire or data gathering, the second people to consider other viewpoints and arguments. stage is the actual participation in the mini-public. It The Deliberative Poll design is intended to do that. is important to keep the response rate as high as pos- But how might that work for Deliberation Day? sible, particularly in the first stage, so that one can Once participants arrive, the design is very much evaluate the degree of representativeness of the sample like the Deliberative Poll—small-group discus- recruited to the second stage, the actual deliberations. sions, balanced briefing materials, questions agreed The representativeness of the mini-public can be on in the small groups directed to panels of compet- evaluated statistically, but the presumption of these ing experts or policymakers. The proposal also evaluations is that the method of recruitment was includes random assignment to local sites, in order random sampling. Hence every effort must be to provide for at least the sort of diversity that is made to limit non-response bias, or an apparently practical within a given geographical region (say ‘‘random’’ sample can really become essentially the metropolitan area of a city). self-selected. In the Deliberative Poll, there are usu- To the extent that Deliberation Day is success- ally extensive call-backs to those initially in the fully modeled on the Deliberative Poll, we can sample to ensure that they take the initial question- expect it to facilitate the public’s considered judg- naire and to encourage participation. Efforts to over- ments. But those judgments also have one great come special challenges for those selected in the advantage over those facilitated by the Deliberative sample, such as child care or the need to care for Poll. They would be widely shared on a mass scale. a sick relative, are also standard practice. In the If Deliberation Day took place in the climax of an first Deliberative Poll in the U.S., a woman who election, it could have a major effect on the election. had a small farm in Alabama could not fly to Austin, Hence this route connecting deliberative democracy Texas, for the weekend because there was no one to by the people themselves to the competitive democ- milk her cow. The project sent someone to do so and racy of elections is straightforward. But as noted, she came for the weekend. In addition, all the Deliberation Day is a very large scale proposal expenses and usually a significant honorarium are and at the moment it is hypothetical. The use of paid to enable everyone to participate regardless mini-publics such as the Deliberative Poll is an of income. All these efforts are focused on getting on-going practice and easily applicable to many those initially identified in the random sample to contexts. So in most of what follows I will focus turn up and to provide data making it possible to on mini-publics rather than the entire public. evaluate how successful the recruitment effort was The basic idea of a mini-public, whether the in creating a microcosm of the population. Deliberative Poll or some other design, is that it should be both representative and deliberative. Sample size However designs vary in important ways. I would propose some key considerations in evaluating via- The sample of deliberators needs to be large ble designs: enough that it is meaningful to evaluate their DELIBERATION BY THE PEOPLE THEMSELVES 497 opinions statistically. If the size is too small, an group processes. Based on jury studies, one line of apparent strong majority in favor of a proposal criticism is that deliberation will allow the more could actually be a strong majority against, merely advantaged to impose their views on everyone due to sampling error. As we will see, some delib- else. While a selection process for deliberative erative democracy efforts in election contexts suf- democracy might involve random sampling, once fer from this vulnerability. the participants get into the room, the more advan- taged will be able to dominate the deliberations Attitudinal and demographic representativeness and effectively impose their views on the others.28 A second line of criticism is also based on jury The idea of the mini-public is that it is a micro- like studies and posits a different, but not incompat- cosm of the people, a miniature version of the public ible small-group distortion. According to what Cass in both its demographics and attitudes. If the micro- Sunstein calls ‘‘the law of group polarization,’’ for cosm starts out as representative and then changes an issue that has a midpoint, if the pre-deliberation on the basis of arguments considered under good mean of the group is to the left of the midpoint, the conditions, then its considered judgments at the group will move further to the left with deliberation. end can plausibly be claimed to be those the public If the pre-deliberation mean of the group is to the would reach if it were engaged to consider the issue right of the midpoint, then the group will move fur- under similar good conditions. If the balance of ini- ther to the right with deliberation. He posits two tial opinion is very different then that difference by mechanisms, an ‘‘imbalance in the argument itself could explain any difference in eventual con- pool’’ and a ‘‘social comparison effect.’’ For exam- clusions. The representative claim of the mini- ple, if most people start on the right side of the issue public is two fold: it should be representative before they will tend to offer more arguments on that side deliberation of public opinion in the broader society producing most persuasive effect in that direction— as it actually is (as would any conventional poll) and a process he labels ‘‘going to extremes.’’29 As peo- representative after deliberation of public opinion in ple see how others are moving they will also see the broader society as it would be, if that population more pressure to converge, hence the role of the could engage in deliberation under similarly good social comparison effect. conditions. Of course a great deal depends on the Both of these distortions undermine the norma- account of good conditions. And some mini-publics tive claims of deliberation. The domination by the differ in their specific designs and the conditions for more advantaged is disturbing since it undermines deliberation participants engage in. But there must the claims of the process to political equality. be a basis for establishing the claim to representa- Instead of the resulting conclusions representing tiveness before deliberation in order to establish the considered judgments of everyone, the process the claim after. And without that claim to represen- has been effectively hijacked by the privileged tativeness, why should we pay attention to the con- who use it to impose their own views on everyone clusions of the participants? Both demographics and else. The polarization critique is also disturbing. If initial attitudes are important. The demographics there is a regular pattern of group psychology, a may affect their interests or the realizations of the ‘‘law of group polarization’’ that can predict the out- participants about their interests as they discuss comes regardless of the substance of the delibera- the issue. The attitudes include their values, view- tions, then it is hard to make the claim that the points on the issues, causal assumptions, and ideol- participants are really arriving at considered judg- ogies as well as their specific policy attitudes. Some ments on the merits. of these may change as people become more informed and consider competing arguments. But the claim of representativeness requires that the 28See Lynn Sanders, ‘‘Against Deliberation,’’ Political Theory, microcosm and the public begin in roughly the vol. 25, no. 3, (1997): 347–76; and Iris Marion Young, Inclusion same place. and Democracy (Oxford: Oxford University Press, 2002). 29Cass R. Sunstein, ‘‘The Law of Group Polarization,’’ Journal of Political Philosophy, vol. 10, no. 2, (2002): 175–95. See also Avoiding distortions Cass R. Sunstein, Going to Extremes: How Like Minds Unite and Divide (Oxford: Oxford University Press, 2009). For a Applications of deliberative democracy have list of key findings in support of his thesis, see specifically spawned a critical literature focused on small- the ‘‘Appendix: Findings of Group Polarization.’’ 498 FISHKIN

As it turns out, there are institutional designs for game’’) and the persuasion industry’s production of mini-publics that avoid these two distortions and it attack ads, impression management, and sound bites seems advisable for deliberative democracy propos- tested in focus groups. We have the entire apparatus als to take these two problems into account. that was developed to sell products applied to selling candidates. We have undergone an immense journey A design that embodies good conditions from the original vision of Publius of representatives for considering the issue ‘‘refining and enlarging the public views’’ to an adver- sarial vision of ‘‘say anything to win.’’ In sum we have The core idea of the mini-public is that a represen- gone from Madison to Madison Avenue. tative sample considers the issues under good condi- In this context, where might there be an entry tions and this offers a form of representation—a point for citizen input that might be thought to sat- representation of what the larger public would isfy our criteria for deliberative democracy? A think if it were to engage in the issues under simi- prime area is candidate evaluation and selection, larly good conditions. So much depends on the con- particularly in the nomination period. ditions and on whether they fulfill that aspiration. The Deliberative Poll was originally proposed as a The Deliberative Poll, for example, has briefing reform of the presidential selection system.30 Instead materials that have been vetted for balance and of Iowa and New Hampshire—unrepresentative states accuracy by an advisory committee representing with processes focused increasingly on wholesale different points of view; it has moderated small- rather than retail politics, launching the momentum group discussions; it has each group’s most impor- for all that follows—the idea was that a representative tant agreed questions answered by panels of com- and deliberative process representing voters from peting experts and policymakers in plenary around the country could question the candidates in sessions where all participants get to hear the depth and on the basis of real deliberation on the same answers; it has the final considered judgments issues. A partial version of this idea was realized in of the sample recorded in confidential question- the 1996 National Issues Convention on PBS in naires. The confidential questionnaires, without which a national random sample of voters questioned any push for consensus, limit the ‘‘social compari- presidential candidates with more than six hours of son effect.’’ The balanced briefing materials and national broadcast. However, the National Issues Con- the competing experts in the plenaries provide bal- vention evaluated the issues and not the candidates ance to the argument pool. The moderated discus- themselves and so the horserace coverage in most sions encourage everyone to participate and limit media did not engage the process.31 domination by the more advantaged. Information A more direct application of the idea occurred in questions in the questionnaires before and after pro- Greece in 2006 when one of the two major political vide evidence that the participants become signifi- parties used the Deliberative Poll to officially select cantly more informed. And extensive before and a candidate for mayor (for the town of Marousi, the after questionnaires allow evaluation of the extent large Athens suburb which hosted the Olympics). In to which the microcosm is representative in atti- the Greek case, the Deliberative Poll was not just a tudes as well as demographics (since they permits recommendation but the official party selection of comparison of participants with non-participants the candidate. While further experiments along who take the initial survey but who do not attend). these lines were planned by PASOK party leader This design is, of course, not the only possible and later Prime Minister George Papandreou,32 the design, but it is one that permits a mini-public to ful- fill the criteria listed above.

30James S. Fishkin, ‘‘The Case for a National Caucus,’’ The At- CONNECTING DELIBERATIVE TO lantic (August 1988); and Fishkin, supra note 6. 31 COMPETITIVE DEMOCRACY See Maxwell McCombs and Amy Reynolds, eds., The Poll with a Human Face: The National Issues Convention Experi- ment in Political Communication (Mahwah: Lawrence Erl- We have a largely Schumpeterian system of cam- baum Associates, 1999). 32 paigns and elections in which the incentives and George M. Papandreou, ‘‘Picking Candidates by the Numbers,’’ International Herald Tribune, June 2006. Accessed opportunities for citizen deliberation are minimized. August 26, 2013, < http://cdd.stanford.edu/press/2006/iht- Our campaigns harness mobilization (the ‘‘ground picking.pdf > . DELIBERATION BY THE PEOPLE THEMSELVES 499

Greek crisis cut these efforts short. Given that the would have become far more informed. Of course whole idea of the deliberative microcosm chosen the forces and methods of the persuasion industry by lot goes back to ancient Athens, this modern pro- would be employed to distract. But the design has ject charts an immense journey from Athens to some careful provisions to ensure a high degree of Athens, from the ancient Council of 500 (which thoughtful engagement with the issues. If this hap- set the agenda for voting in the Assembly) to mod- pened soon before a national election, it would suc- ern candidate selection (setting the agenda for com- cessfully instill a high measure of deliberation into petitive elections). competitive democracy. In the U.S., even without the power of official nomination the demonstration effect of a national Deliberative Poll evaluating candidates in a serious CONNECTING DELIBERATIVE way on the issues could do a great deal to reform the TO PARTICIPATORY DEMOCRACY so-called ‘‘invisible primary’’ now largely domi- nated by fundraising and media jockeying. If Iowa In nearly half of the American states, the public and New Hampshire can influence all that follows, has the opportunity to vote on initiatives put forward a national deliberation before Iowa and New Hamp- by the people themselves. But the process of agenda shire can influence the beginning by occurring setting for those initiatives is not a deliberative one. before the beginning. This is the sort of informal In fact, it is largely a matter of paid signature collec- reform that would not take legislation but only tors who accost voters at supermarkets and other resources and political will. public places and gather signatures for dimly under- A more ambitious effort to employ deliberative stood proposals. In California, which has just com- democracy in competitive elections would arise by pleted more than a century of experience with the inserting the deliberations on a mass scale into the initiative, the signature collecting is itself a barrier general election. For many years well-intentioned to many public interest propositions getting on the reform efforts have fostered voter handbooks, self- ballot. Measures with constitutional implications selected information meetings, candidate debates, require signatures equal to 8% of the votes cast in and, most recently, voter advice software to help the last gubernatorial election, amounting to milli- voters connect their policy preferences and their ons of dollars just to get something on the ballot.34 candidate choices.33 Bruce Ackerman and I have Usually well-funded special interests are willing to proposed a scheme for a more ambitious interven- fund propositions that will serve their purposes. But tion. We call it Deliberation Day. All voters are public interest proposals have a harder time getting invited and compensated to participate in a one on the agenda. day discussion on a national holiday (we propose Imagine a random sample deliberating and pro- to borrow and move Presidents’ Day) with small- posing an initiative. In the case of the citizens’ group discussions and questions to party representa- assemblies in British Columbia and Ontario, tives organized roughly on the model of a scaled up those samples actually deliberated an entire year version of the Deliberative Poll. in order to generate a proposal from scratch on The idea of deliberative democracy realizing electoral reform. In the case of the British both political equality and deliberation can be Columbia Citizens’ Assembly the proposed elec- embodied in a random sample, in which each citizen toral reform actually received 57% of the vote but has an equal chance of being selected and, alterna- fell short of the required 60% threshold, even tively, in a design with everyone (or most everyone) though there were virtually no resources for a actually participating. The former is a representa- campaign on behalf of the measure. In theory tion of what the people would think under stipulated good conditions for their thinking about it. The lat- ter would make the deliberative opinions of the 33 See for example Stefaan Walgrave, Peter van Aelst, and masses especially consequential because actual Michiel Nutemans, ‘‘Do the Vote Test: The Electoral Effects public opinion would have become more delibera- of a Popular Vote Advice Application at the 2004 Belgian Elec- tive. Candidates and partisans would know that tions,’’ Acta Politica, vol. 43, (2008): 50–70. 34Proposition 31, which had constitutional implications cost 2.8 after Deliberation Day the public would have really million dollars in 2012. See < http://ballotpedia.org/wiki/index engaged the competing sides of the issues and .php/California_ballot_initiative_petition_signature_costs > . 500 FISHKIN the formulation of an initiative by a good micro- microcosm. Just as the Council of 500 set the cosm provides an entry point for citizen delibera- agenda for everyone’s vote in the Assembly39 tion to take back the agenda of direct the Deliberative Poll attempted to set the agenda democracy.35 Even if citizens, in the course of for everyone’s vote in California. If fully realized ordinary life, have little reason to think in depth an institution such as the Deliberative Initiative about initiative proposals, if they have one voice would return the agenda-setting function to the in a few hundred in a microcosm (the actual citi- public. zens’ assembly was somewhat smaller—160), There are more modest connections than agenda- they have every reason to pay attention because setting that could be devised between a mini-public they can plausibly view their individual views as and direct democracy. The Citizens’ Initiative consequential. One might imagine a further elab- Review in Oregon employs a ‘‘citizens’ jury’’ oration of this approach to establish an institution model to provide evaluations of the proposals that in which a random sample was convened periodi- have already been selected to go on the ballot. cally with the power to recommend or actually These recommendations go into the voter’s pam- place a proposal on the ballot. phlet distributed to all voters. It is worth pausing The What’s Next California Deliberative Poll to look in detail at the Citizens’ Initiative Review was a trial run at such an effort. A statewide random as a test case for designing and applying a deliber- sample of 412 deliberated for a long weekend in ative microcosm to the problem of advising voters Torrance in 2011 to evaluate 30 possible proposals in elections. that could go on the ballot. Possible reforms covered The Citizens’ Initiative Review has a noble aspi- four areas: the initiative process itself, state/local ration: providing representative and thoughtful relations (particularly vexed in California given voter advice to other voters with a clear recommen- the long term effects of Proposition 13), the struc- dation about whether a proposition deserves sup- ture of the legislature and tax/spend issues. A port. However, there are some design elements sample that was demonstrably representative in atti- that are problematic in light of the criteria offered tudes and demographics deliberated on all thirty earlier. First, random sampling: while the Citizens’ proposals, in many cases with dramatic changes of Initiative Review claims random sampling as a basis opinion.36 Six of the proposals that started high for selection, in actuality it employs a design that and went even higher formed the core of what quickly approximates self-selection. The initial became Proposition 31.37 However, the coalition of civic and public interest groups that put together Proposition 31 also added other provisions that drew opposition from the Democratic Party and from labor and environmental groups. In particular they added a provision for ‘‘Community Strategic 35For a detailed assessment of the British Columbia (BC) Citi- zens’ Assembly, see Mark E. Warren and Hilary Pearse, eds., Action Plans’’ that critics thought could be used to Designing Deliberative Democracy: The British Columbia Citi- evade environmental and labor standards. Our data zens’ Assembly (Cambridge: Cambridge University Press, show that support for the proposals from the Delib- 2008). 36 erative Poll remained high and, presumably, if the See ‘‘What’s Next California: A Statewide Deliberative Poll for California’s Future.’’ Report Prepared by the Center for Proposition had been limited to those provisions, Deliberative Democracy at Stanford University (October it would have had a reasonable prospect of passage. 2011). Accessed August 26, 2013, < http://cdd.stanford.edu/ In any case, this experience has suggested a path for polls/california/2011/final/nextca-final-report.pdf > . 37See James S. Fishkin, comment on Deliberative Democracy, what I call the Deliberative Initiative—the idea that ‘‘What the People Want—When They Think About It,’’ SF an institution might be created to regularly convene Gate Blog, May 22, 2012, < http://blog.sfgate.com/jfishkin/ 38 2012/05/22/what-the-people-want-when-they-think-about-it > . and vet proposals to go on the ballot. Every two 38 years, the highest rated one(s) could be put to a pub- See James S. Fishkin, comment on Deliberative Democracy, ‘‘The Deliberative Initiative: Returning Direct Democracy to lic vote without the necessity of signature gathering. the People,’’ SF Gate Blog, February 1, 2012, < http://blog The path to such a reform is through the initiative .sfgate.com/jfishkin/2012/02/01/the-deliberative-initiative- process itself. returning-direct-democracy-to-the-people > . 39See Chapter 10 of Mogens Herman Hansen, The Athenian Such an agenda setting function is reminis- Democracy in the Age of Demosthenes (Oxford: Blackwell cent of the earliest use of the deliberating Publishing, 1991). DELIBERATION BY THE PEOPLE THEMSELVES 501 mailing of 10,000 questionnaires yielded only 350 have found that 25 is too many to have a real discus- candidate participants.40 sion) and the N would be large enough to meaning- The initial 10,000 were presumably a random fully evaluate the results quantitatively. sample. However, the 350 who self-selected from Thirdly, for attitudinal and demographic repre- that large pool were not. How do the 350 compare sentativeness, the first point to note about the to the rest of the 10,000 in their attitudes on the Citizens’ Initiative Review is that the small sample issue? We have no way of knowing anything size means that representativeness cannot be mean- about how the views of the 9,650 compared to the ingfully evaluated quantitatively. But a related and 350. A tiny percentage decided to return the ques- key point is that the design does not include any atti- tionnaire. What motivated them? Were they activ- tudinal data. We only know demographics. Out of ists or people who felt strongly about the issue or the initial 10,000, how do the 350 compare in about politics in general? We have no way of eval- their views? And how do the 24 who are drawn uating the amount of selection bias. With a response from the 350 to fill demographic quotas compare rate of 3.5% this process is much like a public call in in their viewpoints on the issue to the 350, and a community of 10,000 for a town hall meeting with more importantly to the initial 10,000 who were a 350 people showing up. Obviously, such a process is random sample? The design gives us no information dominated by those who are motivated to put them- about such questions. But it is worth noting that selves forward. The fact that demographic quotas there must be some reason the 350 volunteered. were employed from this small pool of 350 to Their views can certainly be expected to be atypical, reduce the number to 24 does not change the fact but we do not know precisely how. Of course their that the 350 from which they were drawn had to starting viewpoints may well have a big effect on self-select and we do not have any way of evaluat- where they end up. ing their attitudinal representativeness.41 Fourthly, small-group distortions can be expected A similar point can be made about the Citizens’ Ini- based on Sunstein’s work with juries and jury-like tiative Review on our second criterion for mini- publics—sample size. Why does it matter that a sam- ple is 24 rather than 300 or 400 (or even 160 as in the citizens’ assembly)? A first issue is sampling error. 40The selection method as described in the official report is as With a sample of 24, even if it were a perfect random follows: sample, the so-called ‘‘margin of error’’ or the confi- One of the key goals of the Citizens’ Initiative Review is dence intervals would render many results meaning- to be demographically reflective of the state’s voting less within standard assumptions. For example, the population. Potential panelists were first identified through a random sampling of 10,000 voters from the Citizens’ Initiative Review evaluated Proposition 74 statewide voter registration list. Healthy Democracy Ore- and published results saying that 13 members sup- gon mailed questionnaires to these 10,000 voters. ported the Proposition and 11 opposed. So this result Approximately 350 (3.5%) completed questionnaires means 54% supported and 46% opposed. But the mar- were returned. Two panels of Twenty four voters were then selected from this pool for the two Reviews held gin of error in this case would be plus or minus about in August 2010. The final panelists were carefully 20 points! So the 54% could be as high as 74% or as selected to be a fair reflection of Oregon’s voting popu- low as 34%. And the 46% could be as high as 66% and lation based on the demographics of age, gender, ethnic- ity, location of residence, educational attainment, party as low as 26%. Hence any conclusion that there is a affiliation and likelihood of voting. modest majority in favor of this measure, after delib- erationissimplywipedoutbysamplingerror.One ‘‘Citizens’ Initiative Review of Ballot Measure 74—Final Report.’’ Healthy Democracy Oregon. (August 16–20, 2010). simply needs a larger sample to protect against these Accessed August 26, 2013, < http://cirarchive.org/media/ situations, which will be common with controversial attachments/documents/M74_Final_Report.pdf > . subjects. Even a large majority in favor could not be 41A similar argument could be made about the method of distinguished from a large majority against, within recruitment in the BC Citizens Assembly. See my review, forth- coming in Perspectives on Politics, of Mark E. Warren and standard assumptions. This problem could easily be Hilary Pearse, eds., Designing Deliberative Democracy: The solved by having numerous small groups instead of British Columbia Citizens Assembly (Cambridge: Cambridge just one. So if the random sample consisted in say University Press, 2008), and Patrick Fournier, Henk van der Kolk, R. Kenneth Carty, Andre Blais, and Jonathan Rose 25 or 30 small groups of 15 to 18, the quality of the When Citizens Decide: Lessons from Citizens Assemblies on small-group discussions would be improved (we Electoral Reform (Oxford: Oxford University Press, 2011). 502 FISHKIN processes. The shared pressure for a verdict (or at town meetings, but knew they would be peopled worst, agreement on a majority verdict and a by lobbyists and organized interests. They consid- minority statement) can be expected to enhance ered focus groups but knew they were too small to the social comparison effect. And the process does be representative. So they conducted Deliberative not appear to have firm elements that would guaran- Polls. tee no imbalances in the argument pool. The Averaged over eight Deliberative Polls, the per- Citizens’ Initiative Review is modeled on the centage of the public willing to pay a bit more on citizens’ jury and thus largely fits the jury-like monthly utility bills for the support of renewable model of Sunstein’s studies. While this is an empirical energy rose from 52 to 84%. There was a similar question, there are no initial attitudinal data collected, increase in support for conservation or ‘‘demand so the vulnerability to his pattern is by analogy to the side management.’’ Based on these results, the Pub- jury,notbasedondatawehaveavailable. lic Utility Commission approved a series of inte- Fifthly, proponents of the Citizens’ Initiative grated resource plans that involved substantial Review would argue that it does embody good con- investments in both wind power and conservation ditions for considering the issue. But because no (as well as investments in natural gas which was data are collected on the initial viewpoints of the also strongly supported in the Deliberative Polls). participants, we cannot tell if we are getting a sam- The cumulative effect of these decisions by the Pub- ple of open minded citizens or zealous partisans. lic Utility Commission and then related decisions Overall, the Citizens’ Initiative Review is open to by the legislature on a renewable energy portfolio serious critique about its vulnerability to sampling (supported by the same data) led to Texas moving error, non-response error, representativeness, and from last among the 50 states in the amount of the small-group distortions of domination and wind power in 1996 to first by 2007 when it sur- polarization. While it is impressive that the effort passed California. So the Texas utility cases provide has been institutionalized in the context of actual an example where deliberative democracy became elections, these design features need to be carefully an explicit input to policymaking by relevant public assessed in any discussion of future applications. officials (the Public Utility Commission and the legislature).42 Rather than self-selected open meetings or public CONNECTING DELIBERATIVE comment processes, the use of a deliberative micro- DEMOCRACY TO ELITE DELIBERATION cosm chosen by random sampling can provide data FOR POLICY that represent what the public would think, if it had a comparable opportunity to think about the issues, There are many forms of public consultation and get its questions answered and weigh the trade-offs. public comment sponsored by entities that engage In ordinary life most people are not effectively in elite deliberation. These processes are often cap- engaged to do this. Indeed there is a sense in tured by interest groups that mobilize to create an which it would be irrational for them to do so as impression of widespread public support. So-called they each have only one vote in millions and ‘‘town hall’’ meetings may actually end up peopled hence only a tiny part in any decision. But for by lobbyists or interests intensely mobilized to show those selected there is more of a reasonable basis up, often with the intention of creating an impres- for extensive participation as they have one voice sion of public support. In this welter of activity, in hundreds in the random sample (and in small there are sometimes opportunities for an entry group discussions, one voice in a dozen or so). In point for deliberative democratic designs to provide cases around the world we do see them effectively informed and representative public input on deci- taking up this opportunity once they see that they sions by public officials. In 1996 the state of have good reasons for becoming seriously engaged. Texas required regulated utilities to consult the pub- lic about ‘‘Integrated Resource Planning’’ for how they would provide electricity in their service terri- 42 tories. The companies considered conventional See Fishkin, supra note 14, 123–24. See for more detail: ‘‘Deliberative Polling: Energy Choices.’’ The Center for Delib- polls but knew the public would not be informed erative Democracy. Accessed August 26, 2013, < http:// about the trade-offs. They considered self-selected cdd.stanford.edu/polls/energy >. DELIBERATION BY THE PEOPLE THEMSELVES 503

CONNECTING DELIBERATIVE and well-financed effort at public persuasion and DEMOCRACY TO CONSTITUTIONAL mobilization can affect relevant elites and constitu- CHANGE tional interpretation over an extended period.49 She offers this account as a positive not a normative the- Consider another form of elite deliberation, that ory. However, it means that the mobilization of which takes place on constitutional issues. This interest groups funding persuasion campaigns has may happen through constitutional interpretation made constitutional interpretation another battle- by the courts or through legislation of ‘‘landmark ground for competitive democracy. But as such it statutes’’ that become crucial parts of a new consti- has no real claim to higher lawmaking. Indeed, tutional moment.43 These processes invoke and in the efforts to persuade and change the constitution some way draw on public opinion. offer no limits on strategies that deceive, manipu- There is widespread, but not universal, agree- late, or mislead the public. Mobilized groups can ment that we need to reconceptualize constitutional change the ‘‘constitutional culture’’ and persuade change in the U.S. in some way beyond the formal us that it is our culture that we take ownership of. limitations set out by Article V. Whether the idea But what are the ground rules for such persuasion is Ackerman’s ‘‘constitutional moments,’’ Kramer’s if this is to be part of a higher lawmaking process? Madisonian variant of ‘‘popular constitutional- We have only to recall the ‘‘war on terror’’ and the ism,’’44 Siegel’s ‘‘constitutional culture,’’45 or Bal- misleading claims that got the United States and kin and Levinson’s ‘‘partisan entrenchment,’’46 others into the Iraq war to realize that in some con- there is a widely shared view both that Article V stitutional areas deception and persuasion cam- does not explain how our constitution actually paigns may produce changes in constitutional changes nor how it should change.47 As Levinson rights—changes that are still being contested. argues, the difficulty of passing amendments within These changes can result from the interpretations Article V traps us in an eighteenth century design of the courts or the passage of legislation that that is difficult to adapt to the modern era, or that, like the Electoral College, leads us to recurrent democratic anomalies.48 There are two questions: how does the constitu- 43In Bruce Ackerman’s view, these landmark statutes take on tion actually change and are there reforms that constitutional status. See Bruce Ackerman, We the People: Vol- ume 3 The Civil Rights Revolution (forthcoming), (Cambridge: might improve the process of constitutional change Harvard University Press, 2014); see also William Eskridge and from the standpoint of democratic theory? The John Ferejohn, A Republic of Statutes (New Haven: Yale Uni- premise of the argument I will sketch here is that versity Press, 2010). 44Larry D. Kramer, By the People Themselves: Popular Consti- deliberative democracy should play a role in the tutionalism and Judicial Review (Oxford: Oxford University process of constitutional change and that we should Press, 2004). The Madisonian presuppositions are clearest in think about possible reforms that would heighten ‘‘The Interest of the Man: James Madison, Popular Constitu- the sense in which the public’s considered judg- tionalism, and the Theory of Deliberative Democracy,’’ Valpar- aiso University Law Review, vol. 41, no. 2, (2006): 697–753. ments are incorporated into the processes of consti- 45Reva B. Siegel, ‘‘Constitutional Culture, Social Movement tutional change. Without representative and Conflict and Constitutional Change: The Case of the de facto thoughtful public will formation, the changes do ERA,’’ California Law Review, vol. 94, (2006): 1323–1417. 46Jack M. Balkin and Sanford Levinson, ‘‘The Processes of not reflect the will of the people. Building on Acker- Constitutional Change: From Partisan Entrenchment to the man’s work, I regard constitutional changes as call- National Surveillance State,’’ Fordham Law Review, vol. 75, ing for a ‘‘higher lawmaking’’ and it is deliberative no. 2, (2006): 101–145. 47See Akhil Amar for the view that it is only the ‘‘conventional’’ democracy that can best provide the normative interpretation of Article V that is limited to the formal amend- claim that the people have really thought about ment process. He offers an alternative ‘‘popular sovereignty’’ the question and weighed the reasons for and interpretation that points to majoritarian deliberation by the against a proposal. What makes the higher lawmak- people as a mode of amendment. See Akhil Reed Amar, ‘‘The Consent of the Governed: Constitutional Amendment ing higher? Ideally it is deliberative democracy. But Outside Article V,’’ Columbia Law Review vol. 94, (1994): 457. how to incorporate deliberative democracy into 48Sanford Levinson, Our Undemocratic Constitution (Oxford: actual processes is far from clear in our system. Oxford University Press 2006). 49Reva B. Siegel, ‘‘Dead or Alive: Originalism as Popular Con- As Siegel shows convincingly in the case of the stitutionalism in Heller,’’ Harvard Law Review, vol. 122, NRA and the Second Amendment, a concerted (2008): 191–245. 504 FISHKIN eventually takes on the quasi-constitutional status of informal process of constitutional change that ‘‘landmark statutes.’’ Ackerman describes as creating landmark legisla- Whether it is the courts or the legislature, the tion or new interpretations by the courts. At each informal invocation of public opinion could be step, there could be a role for organized and repre- improved by processes that offer a systematic pro- sentative public input, to clarify the public’s consid- cedure for public consultation. Instead of impres- ered judgments. Ackerman describes a ‘‘signaling’’ sions from intense voices who mobilize, why not function when one of the country’s key institutions, use scientific processes that are both representative the House or the Senate or the court or the presi- and informed? I should emphasize that the idea is dency, tries to inaugurate serious change and chart not to hand over constitutional interpretation or a way forward. A commission clarifying some com- legislation to polling. First of all conventional peting options and then assessing representative and polls represent top of the head opinion, often just informed opinion through a systematic deliberation an impression of sound bites and headlines. So by the people would allow the public to take owner- while non-deliberative opinion from random sam- ship of the new initiative. A second stage, the ‘‘pro- ples is an improvement over the opinions posal’’ stage could equally benefit from such input. expressed by mobilized groups, from the stand- At this stage the idea is that potential landmark stat- point of being representative, it is not a voice utes get clarified for national debate and perhaps that by itself deserves any special hearing. Deliber- passage. A third stage, a ‘‘triggering election’’ can ative opinion that is representative and informed create the widespread perception of a mandate. can be represented by the considered views of a But a mandate for what? At that point, if changes mini-public, in a method such as Deliberative Poll- are to last the scope of the mandate could be tested ing or a citizens’ assembly. But absent anything by informed public opinion. A fourth stage, which approaching Deliberation Day the rest of the pub- Ackerman calls ‘‘mobilized elaboration’’ enlarges lic will not be similarly engaged. The route from a the scope into an enduring constitutional legacy deliberative mini public to constitutional change through landmark statutes and judicial super prece- should be more advisory and indirect if it is pro- dents. All of this activity can be enriched by the vide a credible input. voice of the people gathered in a representative We can think of a deliberative mini-public or and thoughtful way on the difficult issues that microcosm serving different functions. First, it provi- pose trade-offs.52 des a route to responsible advocacy. It shows where I mention Ackerman’s theory because it is devel- the public would go if it considered the issue in depth oped in depth and shows several promising entry on the basis of good information. Its considered judg- points for deliberative democracy. An even more ments can be invoked in debates and can be used to ambitious entry point would be to test the triggering make the case for a major change. Second, it can be election with an institution like Deliberation Day. invoked by courts or the legislature, once it is credi- Such an effort to engage the public in widespread bly a part of the public dialogue. Imagine, for exam- deliberation could give the higher lawmaking effort ple, a presidential or congressional commission that greatly extended life and energy. Or it could lay grapples with a key issue, clarifies some key trade- down the markers that the new arguments should offs and policy options, and then, instead of just hold- not cross. In any case, it would bring the people ing public hearings or conducting conventional polls, into the processes of popular constitutionalism in convenes a national Deliberative Poll, or a series of a way that moved beyond anecdote and impression. regional Deliberative Polls.50 Those results if striking enough can be invoked by the courts. Note that courts invoked the Carter/Baker Commission on voter iden- 50For a recent proposal in this spirit, including a series of tification (ID) even though it may well have been ‘‘shadow conventions’’ modeled on the Deliberative Poll to more a matter of bipartisan bargaining.51 Instead of explore possible constitutional revision, see testimony of Law- rence Lessig, Senate Judiciary Committee Hearing on ‘‘Taking just some policy elites why not engage the people, Back Our Democracy: Responding to Citizens United and the but in a representative and thoughtful way? Rise of Super PACs.’’ Subcommittee on the Constitution, Such a commission-sponsored deliberation by Civil Rights and Human Rights. (July 24, 2012), 15–18. 51See Heather K. Gerken, The Democracy Index (Princeton: the people themselves can provide public input Princeton University Press, 2009), 43. into the dialogue between the branches during the 52See Ackerman, supra note 43. DELIBERATION BY THE PEOPLE THEMSELVES 505

In my view, the popular constitutionalism move- ment, perhaps set even higher than the current ment needs both a normative theory and an institu- ones.54 As we know from the current Article V pro- tional specification of how the people are brought cess, supermajorities make it very hard to get into the process. Without such a theory and specifi- changes passed. By themselves they are not a guar- cation, manipulation can serve as well as delibera- antee of deliberation, only a way of privileging the tion and mere interest group mobilization can status quo over alternatives to it.55 substitute itself for the public voice. Popular consti- Leib’s proposal would give the final say to a ran- tutionalism would risk becoming populist constitu- dom sample of deliberators. In this respect it is like tionalism. the ancient institution of the Athenian legislative commissions or nomethetai, that had the final say on legislation in fourth century Athens.56 While SPECULATING ON NEW INSTITUTIONS this proposal has many attractions from the stand- point of deliberative democracy, it has the limita- In addition to informal triggering mechanisms or tion, as with all mini-publics, that those not in the the possibility that a deliberative mini-public might random sample do not participate. They are repre- be convened by a commission, we can think of new sented in a sense by the microcosm. However, for formal institutions in which the convening of ran- something as consequential as constitutional domly selected microcosms, or even the convening change, it might be argued that we want broad par- of a Deliberation Day type process would be part of ticipation to signal mass consent. a method for constitutional change. Such arrange- The interest in getting some sort of mass consent ments would require an Article V constitutional through participation fuels the many uses of referen- amendment and hence should not be considered dums for constitutional change, either at the state immediate possibilities. Nevertheless, it is clarify- level in the U.S., or in various international con- ing for political and legal theory to consider texts. However, the referendum is not a deliberative improved constitutional designs that might incorpo- democratic mechanism. Mass participation is rarely rate significant elements of deliberative democracy. deliberative. There is the rational ignorance prob- Ethan Leib has such a proposal for a ‘‘popular lem: if I have one vote in millions why should I branch’’ both at the state level and the national level. pay attention to the details of arguments for and Leib envisions ‘‘civic juries’’ like Deliberative Polls: against? Hence the potential for conflict between the ideals of deliberation and mass participation.57 Composed of stratified random samples of 525 If participation in a referendum were to be inter- eligible—though not necessarily registered— preted as a kind of mass consent, it is not likely to voters, debating in groups of approximately be deliberative or thoughtful consent. fifteen, the popular branch would take the The Ackerman-Fishkin proposal for Deliberation form of small civic juries occasionally meet- Day in national elections can apply to referendums ing in plenary sessions to get their ‘‘charges.’’ Such juries would debate political policies at assemblies convened for such purposes and 53Ethan Leib, Deliberative Democracy in America: A Proposal would be modeled on Fishkin’s Deliberative for a Popular Branch (University Park: Penn State University Press, 2004), 12–13. Polls, administered with the degree of care 54Id., 72–73 for consideration of a possible 3/4 or 4/5th super- that Fishkin takes to make his Deliberative majority requirement for constitutional change. 55 Polls representative, unbiased and inform- There is, however, a tradition of thought connecting superma- . jority requirements to deliberation. John C. Calhoun’s theory of ed In this paradigm, the popular branch ‘‘concurrent majorities’’ (a system permitting minority vetoes) would have the authority to enact law, while is a prominent example. For a discussion and critique, see the legislative and executive branches would James S. Fishkin, supra note 6, 39–40. For a more general framework accounting for the implications of supermajority help with setting the agendas and tailoring requirements, see Douglas W. Rae, ‘‘The Limits of Consensual the findings of the deliberative body into Decision,’’ American Political Science Review, vol. 69, no. 4, coherent written statutes.53 (December 1975): 1270–94. 56Hansen, supra note 39, 164–69. 57More precisely, I argue that there is a three-way conflict, or This popular branch would also engage in constitu- trilemma, between mass participation, deliberation, and politi- tional changes, but with a supermajority require- cal equality. See James S. Fishkin, supra note 14, 32–64. 506 FISHKIN to provide a more thoughtful process.58 This engage in higher lawmaking that could successfully approach would incentivize participation through- and formally change the constitution. A second prob- out the nation in small-group discussion processes lem is that if a constitutional process is engaged, it modeled on the Deliberative Poll. It would apply needs to be limited to the issue selected. The prospect the sort of deliberation we find in Deliberative of a ‘‘runaway convention’’ poses the risk of killing Polls to the entire population. In that sense it any reform effort. So our first issue is the capacity responds to the problem of how to involve the rest to change too little, the second issue is the potential of the public, beyond the microcosm, in thought- to change too much. A third issue is whether a process fully considering the constitutional change.59 could achieve the ideal of embodying all three of our Christopher Zurn’s proposal takes this approach: key democratic principles: deliberation, political equality, and mass participation. As we have I propose, speculatively, to combine Leib’s approached the issue here, the combination of deliber- civic juries with Ackerman and Fishkin’s ation and political equality constitute deliberative deliberation day into a new type of process democracy. But if a process could also embody for constitutional amendment. The basic idea mass participation, it could plausibly be interpreted is that we can use randomly selected juries as achieving mass collective consent because the for certifying amendment proposals for the whole population would be involved or have the effec- ballot and require national deliberation days tive opportunity to be involved. The people would for the ratification or rejection of those amend- have been convened thoughtfully together and come ment proposals.60 to actually approve a constitutional change. There are other practical issues that such a pro- As with the citizens’ assemblies in Canada and in posal needs to confront. Where do the proposals my Deliberative Initiative proposal, piloted in Cali- come from? Even a deliberative assembly convened fornia, Zurn would use a deliberating microcosm to to generate proposals needs to have a source for generate a proposal and then a referendum to them, or a charge from current institutions. The cit- approve. But by borrowing the apparatus Ackerman izens’ assemblies in British Columbia and Ontario and I propose in Deliberation Day, Zurn’s approach were convened by an act of Parliament and thus lim- offers the potential of making the referendum delib- ited to the proposed topic. erative in significant ways. Millions would be Consider this variation. Suppose there were a incentivized to engage in an entire day of small- new amendment procedure whereby: group discussions and plenary sessions roughly on a) the legislative process, without special superma- the model of the Deliberative Poll. jority requirements, could lead the Congress and I believe Zurn’s proposal merits serious discussion. the president to approve a draft constitutional One line of criticism is the sort that applies to all con- amendment; venings of a convention-like process that could change the constitution. The concern is the ‘‘runaway conven- tion.’’ How are we to put strict limits on the topics 58See Bruce Ackerman and James S. Fishkin, supra note 15, considered? The United States’ own original constitu- 112–115. 59 tional convention was a kind of runaway convention in See Colon-Rios for another variation, in which a deliberating sample can submit a question to a binding referendum, but that it was originally supposed to only consider without the deliberation day proposal to spread the deliberation amendments to the Articles of Confederation. beyond the microcosm. See Joel I. Colon-Rios, ‘‘The Counter- To stimulate dialogue about institutional variations majoritarian Difficulty and the Road not Taken,’’ Victoria Uni- versity of Wellington Legal Research Papers, vol. 3, no. 20, that would incorporate deliberation in formal constitu- (2013): 29–30. For a variation in which the Deliberative Poll- tional change, let’s consider another version. What like institution constitutes a ‘‘citizen’s court,’’ see Eric Ghosh, problems might such a newly designed amendment ‘‘Deliberative Democracy and the Countermajoritarian Diffi- process attempt to solve? First, we have a constitution culty: Considering Constitutional Juries,’’ Oxford Journal of Legal Studies, vol. 30, no. 2 (2010): 327–359. The proposal is which is currently one of the most difficult in the on pp. 345–359. world to amend in a formal way. As Sanford Levinson 60Christopher F. Zurn, Deliberative Democracy and the Institu- has argued we are in an eighteenth century ‘‘iron tions of Judicial Review (Cambridge: Cambridge University 61 Press, 2007), 336. cage.’’ So the first problem is making it possible 61See Sanford Levinson, Our Undemocratic Constitution for the deliberative sense of the community to actually (Oxford: Oxford University Press, 2008), 165. DELIBERATION BY THE PEOPLE THEMSELVES 507 b) that amendment would be considered by a citizens’ one is given the opportunity. The aspiration would assembly designed along the lines of a Deliberative be to engage the electorate on a mass basis in dis- Poll, and if the proposal were approved by a major- cussing the pros and cons of the proposal in alternat- ity in the citizens’ assembly then it would ing small groups and plenary sessions on the model c) be taken to a national vote convened at the time of of the Deliberative Poll. If this succeeded it would the next presidential election, accompanied by a achieve political equality (through an equal count- DeliberationDayprocessfocusedontheprosand ing of votes and equal participation),62 deliberation cons of the proposed constitutional amendment. (through the many, many small-group discussions throughout the country) and mass participation. It This proposal would be based on the assumption would be the voice of the people duly considered. that the Congress is capable of generating some pub- In all these contexts—constitutional change, policy lic interest proposals as topics for constitutional change, legislative change, the reform of direct amendment provided that the current 2/3rds require- democracy—the question is whether it is theoretically ment in the Congress were shelved. If there were a defensible and practically realizable to insert the delib- process that offered some realistic prospect of suc- erative voice of the public. Doing so would make real cess there could be more proposals and a few might a process of collective will formation in which the get through a simple majority process in both houses, public expresses its will based on reasons, after con- once the supermajority requirements (both in the Con- sidering competing arguments. Do we want a democ- gress and in the states) were waived. Hence there is racy in which political and policy elites mostly reason to think this proposal satisfies the first require- manipulate public opinion to electoral advantage and ment. It would lead to some proposals actually being then invoke it afterwards as a mandate?63 Or do we approved through a deliberative process. want a democracy in which the public will meaning- Second, the citizens’ assembly, convened on the fully results from deliberation, at least for some deci- model of the Deliberative Poll, would be charged sions of consequence? The rediscovery of Athenian with an up or down decision on the proposal. It notions of the deliberative microcosm chosen by lot would be like the nomethetai exceptthatitwould or random sampling has provided a practical route not make the final decision. Rather, it would trigger to democratic reform in the modern era. If we employ the next stage. Its recommendations would be widely it we can supplement existing practices of Schumpe- reported and a positive view of the measure would pro- terian competitive democracy, plebiscitary direct vide heuristics or cues to voters who participate in the democracy and elite deliberation with a public voice third stage. Because its mandate is an up or down deci- really worth listening to. sion, it offers no prospect of a runaway convention. Third, the decision of the citizens’ assembly would be the trigger for convening a national Delib- eration Day focused on the proposed constitutional Address correspondence to: amendment. As we noted at the outset, one way to James Fishkin satisfy political equality is to take a random sample. Department of Communication Another way is not to sample but to engage every- Stanford University one. By paying a significant incentive for a day’s 450 Serra Mall, Bldg. 120 work of citizenship we would hope to voluntarily Stanford, CA 94305 engage the mass citizenry in a context where every- E-mail: [email protected]

62For the purpose of simplicity, I am considering this as a national popular vote. In theory, the vote could be state by state with passage by only a percentage of the states, but in con- sideration of the goal of achieving political equality on a national basis, this version is simpler and closer to the ideal. 63For a penetrating account of the plasticity with which ‘‘man- dates’’ can be invoked from elections, see Robert A. Dahl, ‘‘The Pseudo-democratization of the American Presidency,’’ The Tanner Lectures on Human Values. (April 11–12, 1988). Accessed August 26, 2013, < http://tannerlectures.utah.edu/ _documents/a-to-z/d/dahl89.pdf > .