Way back when Not News became a blog, I posted a brief blurb about Ethan Lieb’s proposal for a fourth branch of government, the popular branch, in which citizen juries would have an opportunity to pass legislation or help establish community standards. As I did more digging into ideas related to deliberative democracy, I decided to buy Lieb’s book, so I figured I’d follow up on that blurb with a more complete description of Lieb’s idea, along with a few of my concerns based on my usual Deweyan perspective.
I would sum up the proposal as follows. Different groups within society would have the ability to submit measures to the popular branch for consideration. Citizens may gather petitions for a bill on a single topic that does not exceed eight pages in length. The existing legislative branch can submit an issue for consideration by a meeting of the popular branch. Also, the judiciary branch can request that a jury offer an opinion on contemporary community standards or beliefs when those standards are implicated in a particular case. Proposals that garner enough support will be presented to a citizen’s jury of 525 members drawn randomly from the population and who will be required to serve or else face potential fines or community service requirements. This process will be overseen by a government agency selected by party officials and direct election by the voters. The agency will be responsible for making sure that proposals are properly drafted and that the popular assemblies are properly selected.
Members of the popular branch will receive briefing materials and will also have the chance to receive testimony from experts. Stakeholders in the issue in question will have means of submitting information to be included in the briefing materials. This process will also be overseen by the agency responsible for the operations of the popular branch. The members will meet in small groups moderated by federal judges who have received special psychological training to prepare them for the role. All deliberations will be made public, but the identities of the members will be kept secret. (This will require the disguising of voices and faces if the proceedings are to be televised, as are current meetings of the legislative branch.) If a supermajority of members vote to approve the proposal, it will become law (in the case of a citizen’s initiative or a legislatively-sponsored referendum). The law will still be subject to judicial review to ensure compliance with the constitution, and the executive and legislative branches will have means at their disposal to veto these laws if they deem it necessary. Leib imagines that there would be a considerable price to pay for such a veto in the absence of especially strong justification.
I think this is a really interesting idea, and I think it has potential. My chief concern is whether the citizen juries would be able to gather enough information to make a good judgment. The danger here is that popular participation without popular knowledge does not necessarily result in popular control. If we accept Dewey’s notion of intelligent action, then if we do not anticipate the consequences of our actions, we do not really grasp the meaning of what we are doing. We will not be able to shape future conditions to our liking. Such shaping would seem to be the purpose of the members of the popular branch, and without sufficient knowledge they cannot fulfill this function. Bad policy is one potential consequence of this failure (and some may argue that “bad� policy results are in the eyes of the beholder.) More worrisome would be the potential loss of legitimacy for the popular branch, especially since adding legitimacy is one of Leib’s chief goals in making his proposal.
If the popular branch approves a proposal without grasping how it will affect society, what will happen when the unexpected results occur? Will the members of the jury that passed the proposal feel anger at themselves for not having anticipated the future? Will they blame the experts and stakeholders who contributed to their briefing materials and moderated their panels, and therefore lose faith in the actions of the popular branch? Will other members of the public, who would have access to the deliberations and would therefore know what the popular branch intended to happen, have a similar loss of faith when they see the mistakes that were made? These failures might also give the executive and legislative branches more substantial political cover to overturn laws passed by the popular branch, and make them more reluctant to submit questions for the branch’s consideration.
Like I said, there’s an interesting idea here, and at the very least it serves as an idea of what kind of society we could be working toward. At the moment I’m thinking of the other pieces of the puzzle that would need to be in place for this one to work.