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