Government by Jury

Stephen H. Unger

July 8, 2013

There aren't very many things that people all over the political spectrum agree about, but there is almost universal dissatisfaction with the performance of almost every branch of American government, at every level, state, local, and federal [Litvan].

There are many criticisms of our political system, involving such matters as campaign finance, gerrymandering of election districts, the plurality voting system, the electoral college, and more. Probably each of us has a favorite complaint. There are efforts being made to address these problems (I have written about almost all of them). Sadly, none of these problems are on the verge of solution--several are getting worse.

Rather than trying to solve all the detailed problems of our current system, let's consider a really drastic change that conceivably might change the whole picture for the better. There are a few historical examples that might point us in the right direction.

Town meetings

From the seventeenth century thru the present day, most New England towns approve budgets, pass local ordinances, and make decisions on basic local governmental policies at annual town meetings [MMA]. All citizens are entitled to participate, voicing their views at the meetings and voting. This is a very direct form of democracy.

Town meetings are not involved in day-to-day affairs. They deal with such matters as taxation and zoning rules. A small (usually 3-5 member) board of selectmen, elected by the town meeting, act as the executive body of the town government. This is generally a part time job. One important function of this board is to hire people to manage the sanitation department, police force, etc.

This basic form of democracy existed in the Basque Country of Spain in the middle ages [Wikipedia-Basque], and also has been used in parts of Switzerland for a thousand years [Swissinfo].

Direct democracy in the form of town meetings has been demonstrated to be effective in the governance of towns with populations of a few thousand. It would not be practical for a nation, state, or even a large city.

It is interesting that a logical extension of the town meeting idea to deal with large populations was developed two thousand years before the advent of the American town meeting!

The Greek solution

Perhaps the best known early practitioners of democracy were the Athenian Greeks, circa 450, BC. The population was about 200,000 citizens and about 115,000 slaves. They used a 2-chamber system, analogous to our senate and house of representatives. All male citizens who completed their required two years of military service were eligible to participate in the assembly, the larger body. Assembly meetings took place forty or more times annually in a large outdoor stadium holding about 6000 people. Participants received a modest fee to facilitate attendance by non-wealthy people. It voted on major issues.

The assembly was too large for arguments about the details of proposed legislation, or for the kinds of negotiations necessary to resolve disagreements on important matters. A smaller body was necessary for these purposes. Here is where the second chamber, the council, came in.

Instead of having elections to choose council representatives, the Athenians opted for randomly selecting the approximately 500 members from amongst the male citizens [Long]. The council managed the assembly agenda, elected certain officials, played a key role in public finances, and drafted proposed legislation to go before the assembly.

This form of government worked very well for about a century, during which Athens prospered in many ways. A contemporary use of random selection for important tasks is the trial by jury.

Juries

It is not hard to find legitimate criticisms of our judicial system. E.g., the term, "equal justice for all" is a bad joke when one considers the relative treatment in courtrooms of wealthy people, supported by top of-the-line attorneys, backed up by unlimited investigative resources, and poor people, usually represented by overworked and under-qualified public defenders. More specifically, jury verdicts in both criminal and civil cases are sometimes criticized.

The straw-man for those attacking the jury system, particularly with regard to how it handles liability suits, is the famous "hot coffee" case [Lectric]. It is a favorite weapon of those who would like to eliminate the courts as a means for private individuals to deter corporations from exposing them to harm. In this case, an elderly woman suffered severe injury in the form of third degree burns from spillage of a cup of super-heated McDonald's coffee. The company declined to pay medical expenses. There were over 700 prior instances of complaints by McDonald's customers about coffee-caused burns. The jury verdict, calling for punitive damages of $2.7 million (reduced by the judge to $480,000), is actually a fine example of a jury doing what it is supposed to do.

More generally, reports from people who have served on juries, and studies by scholars, indicate that the great majority of jurors are very conscientious, take their responsibilities very seriously, and usually work together effectively to arrive at sensible verdicts [Pinaire].

Sortition versus election

Let's see how these ideas might be used to form a government based on sortition, the selection of decision makers by lottery [Wikipedia-Sortition]. This notion is being discussed by several different groups [equalitybylot][Wikipedia-Demarchy][Bergstrom].

Here is a tentative proposal. Choose the members of the national legislature by lot from among the citizens. Those selected would serve for a single 4-year term, the first of which as "apprentice observers", with a third of the members replaced annually. The legislature would appoint the chief executive, as is done in countries such as Great Britain that have parliamentary type governments.

At first, this might seem to be a crazy idea--but maybe not. Picking four or five hundred people at random to serve as legislators would ensure that virtually any identifiable category of people, e.g., race, religion, gender, national origin, region of the country, occupation, income bracket, would be represented, roughly in proportion to their numbers in the general population. There are additional advantages.

Would such a group be sufficiently competent to deal with the complex problems faced by modern governments? A more appropriate question is, "how well might such a group be expected to perform in comparison with those currently in Congress?" As indicated at the start of this essay, the bar is not very high. In order to be elected under our present system one must have access to large sums of money, and one must be skilled at self-promotion. Even a superficial survey of the membership of the House and Senate would indicate that meeting these requirements has little to do with legislative competence and still less with integrity. Few would argue that the US Congress adequately represents the views of the American people. On the other hand, I believe that the kind of conscientious, intelligent behavior generally exhibited by American juries would serve very well in a legislative body. And the diversity of a randomly chosen group would ensure that a broad range of views would be represented.

Apart from issues of competence, many, probably most, politicians today are largely driven by selfish or egotistical motives. Furthermore, unless they are very wealthy (many of them are) they must spend substantial amounts of time and energy raising funds for the next election, and are generally subservient to various pressure groups.

All these factors would change for legislators in the proposed scheme. They could focus their attention completely on the tasks of lawmaking, and appointment of various high government officials. No need to scramble for campaign funds, or to put on performances to impress voters. They would have to answer only to their own consciences--no arm twisting party bosses.

The details about how such a system might be implemented are important and interesting. Let's look at some of them.

Should everybody be required serve if chosen?

The first question is whether participation in the sortition should be compulsory--analogous to jury duty, or to a military draft. One might argue that it makes no sense to put the vitally important task of making a nations laws in the hands of people who have no desire or interest in assuming such responsibility. But our jury system seems to work quite well, despite a strong element of coercion to serve. Putting power in the hands of people who do not seek it might not be such a bad idea. The best answer might be to require this service, but to be flexible enough to allow those with very strong objections to get off the hook.

Clearly there are many reasons why people might, at some particular time, not wish to move to the nation's capital, and have the normal course of their social and working lives interrupted. To take some extreme examples, consider what such a interruption might mean to a major league pitcher at the peak of his career. Or to a scientist at a critical stage of some research project. Or to a mother of a newborn and a 2-year old child. Allowing exemptions from the lottery at particular times, for good cause, seems reasonable.

Who should be eligible?

Obviously we don't want children to run the country. So there must be a lower limit on candidates' ages. Setting it as low as 21 might not be a bad idea as a few dozen young people would, in addition to giving representation to that part of the population, inject some extra energy into the mix.

Specifying the other end of the age spectrum poses a more difficult problem. There is no fixed age at which people's mental and physical powers become inadequate for the kind of work done by legislators. In recognition of this, there are no fixed retirement ages in many fields such as university teaching. There is no fixed age at which judges, including US Supreme Court Justices, are required to retire. While it may not be the best solution, it might be acceptable to allow people to decide for themselves when to withdraw from the legislature lottery process.

What about educational qualifications? While it is desirable to have a legislature that includes people of all kinds, it would probably be wise to try to limit the number of incompetents in the legislature. The simplest way to do this would be via an educational requirement, e.g., an undergraduate college degree. However, many very intelligent, competent people, for various reasons, do not acquire college degrees. There may be better solutions, but a reasonable compromise might be to require a high school diploma or its equivalent.

Salary

Many people would consider a four-year stint as a legislator to be a welcome break. To others it would be very inconvenient, and financially problematic. Having to relocate could have severe consequences for careers, businesses, children's education. The temporary exemptions mentioned above would take care of many situations. Now consider cases where money is the issue.

Since the whole point of the random selection process is to make the legislature a true cross section of the population, there must be a way to make participation feasible for people in all income categories. There should, of course, be compensation for travel and relocation costs. What about salaries? The goal ought to be to compensate legislators in such a way that none suffer significant financial hardship.

One idea is to make each person's salary equal to his or her average income from wages and salary over the past several years (perhaps with some upper limit).

Another approach would be to make the salary for every member equal to an amount corresponding to the median US individual income (currently about $50,000 per annum)--or perhaps twice that amount to compensate for the disruption. Nobody would suffer too much, since those in the higher income brackets are likely to have some income from capital. It would be an unusual situation in that, for a change, the poorest people would be getting the best deal.

Implementing sortition

If the government is to be in the hands of randomly selected people, then it is very important that the selection process be truly random and not subject to manipulation. One question is whether to partition the country into election districts and select people from every district, or to do all the selections in one place from a pool consisting of all eligible people. E.g., imagine a large pot containing slips of paper with the social security numbers of all eligible citizens. After the pot is suitably agitated to mix up the contents, each member of a group of 7-year old children reaches in and pulls out one slip. This could be done on a local or national basis.

I would oppose any scheme based on sophisticated technology, as this would surely be vulnerable to clever trickery. Even straightforward, simple schemes along, the lines of my half serious proposal above must be devised and executed with great care. Controlling seemingly random choices in various ways is an important part of the skill set of every serious stage magician.

What about referendums?

Another item in the tool kit of democracy is the referendum, in which citizens vote directly on laws or other propositions. This provides a check on the legislature and gets the public directly involved in government. But there are problems with this very directly democratic process.

Simply having people vote yes or no on a proposal can produce results detrimental to those voting, if not executed properly. Often what, at a glance, seems to be a simple matter, is actually far more complex, with consequences not anticipated by those who haven't thought the matter thru.

The basic problem is that it is not difficult to stampede people into voting for or against some proposal if they haven't participated in, or at least heard, discussions of the pros and cons. It is common for well funded special interests to spend heavily to influence referendum outcomes.

Furthermore, a particular dramatic event can lead to emotionally based results that are later regretted. There are examples in history where such events were staged or fabricated.

The wording of a referendum is also important, particularly when voters are not adequately exposed to arguments from all sides. While not necessarily a full solution, one way to help ensure that unwise measures do not slip thru via the referendum route is to require that such measures be approved in two consecutive elections, spaced apart by some minimum time interval--say two months. Of course, while reducing the likelihood a of bad measure getting thru, this also delays, and might block altogether, the passage of a good measure.

Some miscellaneous points

Its worth reiterating that, with no election campaigns to worry about, legislators would be less beholden to moneyed interests. The whole thorny problem of campaign finance goes away with the campaigns. Lobbyists, whose leverage usually comes primarily from their access to money would be less powerful. But, while the influence of money would be significantly reduced, it would by no means be eliminated.

People with wealth and income thousands of times greater than that of the average citizen, would still wield great power. Legislators could be corrupted, not only by surreptitious payments in unmarked bills, but by an unlimited number of more subtle forms of bribery. These could include, for example, cushy jobs for family members, and opportunities for sure-win investments. Nevertheless, eliminating the need for campaign funds would go a long way toward reducing the corrupting power of money.

The role of political parties would change. No nomination process, no election campaigns to organize and run. Party bosses would have little leverage over those who owe their offices to lady luck. Parties would most likely become organizations of people with similar political views, that would address themselves to the general public, and also try to influence those in office. Legislators might become key party leaders.

Legislators in the new system would have paid assistants, as is the case today for members of congress. It would be likely that such assistants would serve, consecutively, more than one legislator, as their experience would be valued.

Is this a useless fantasy?

Apart from the fact that randomly chosen government decision makers played a successful role a long time ago, it is an idea that could be tested now on a small scale. Along the lines of New England town meetings, random selection of legislators could be implemented for local governments. If successful in some small towns, it could be implemented for larger municipalities, then counties, etc.

Regarding the vitally important question of whether a cross section of ordinary Americans would be competent to grapple with the complexities involved in devising complex legislation and evaluating alternative proposals for dealing with various problems, its hard to see how they could do worse than the average legislator now in office. Note the suggestion that newly selected legislators would spend a year as non-voting observers, learning the job. Legislators would also have access to experts with varying views, and their assistants could prepare drafts of bills and give advice. Free from the need to spend time on fundraising and political games, they would be able to devote their energy completely to legislative work.

Addendum 7/18/13

I have been persuaded by some readers that asking people to serve as legislators for 4 years is too demanding. Something like two months might be reasonable. This, of course means that there would have to be many more selections, and at frequent intervals. While this has the disadvantage of giving people less learning time, it has the advantage of involving more people and would further promote diversity.

One approach would be to have a single legislature, with half of its members replaced every month (obviously some other interval might be chosen). This would provide continuity, while holding the period of service for each member at two months.

Or, rather than having a single legislative body, we might have have a number of smaller groups with specialized functions. Some groups would hold public hearings to investigate the possible need for legislation on some subject, some would draft alternative legislation on an issue, others would vote to approve bills, and still others would appoint people to executive or judicial positions. Such groups could be formed as needed.

The sortition process could be used in more than one way. In addition to selecting people directly to legislate, it might be used to select people to serve on nominating or electing committees to choose other people for positions involving some expertise. (Such a method is currently used by The Internet Engineering Task Force http://www.ietf.org).

Regarding the selection process, it was pointed out that juries are usually very carefully screened both by judges and the attorneys on both sides, so that the final juries are not actually a randomly chosen group. However, this applies to petit juries. Prospective grand jury members are generally not subject to any major screening efforts. They may, however, consist of a disproportionate number of people who have volunteered for the job, which also detracts from randomness.

While legislators should have reasonable budgets enabling them to hire assistants of their choice, they should also have access to civil servants with experience and expertise in the legislative process. It would be a good idea (even under the current system) to revive the Office of Technology Assessment, which advised the congress very well in the period 1972-1995.

For their perceptive comments and suggestions that led to the above thoughts, I thank Bruce Eggum, Bob Hinden, Phil Pennock, Barry Rafkind, Clay Shentrup, and Warren D. Smith. Of course they may not agree with all, or perhaps any, of the above points.

References

Theodore C. Bergstrom, Hal R. Varian, "Government by Jury", November 6, 1984

Kleroterians, "Equality by Lot", Kleroterians

Lectric, "The Actual Facts About - The Mcdonalds' Coffee Case", The 'Lectric Law Library, 1996

Laura Litvan, "Congress Rating as Institution Hits Low, Gallup Says", Bloomberg.com, Jun 13, 2013

Roderick T. Long, "The Athenian Constitution: Government by Jury and Referendum", Formulations, Autumn 1996

MMA "A Citizen's Guide to Town Meeting", Maine Municipal Association

Brian Pinaire, "The American Jury System--a book review", June 2004

Swissinfo, "Where democracy springs eternal", May 15, 2006

Wikipedia-Basque, "Basque Country", Wikipedia

Wikipedia-Demarchy, "Demarchy", Wikipedia

Wikipedia-Sortition, "Sortition", Wikipedia

Comments are welcomed and can be sent to me at unger(at)cs(dot)columbia(dot)edu

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