Cover image for Deliberative Democracy in America: A Proposal for a Popular Branch of Government By Ethan J. Leib

Deliberative Democracy in America

A Proposal for a Popular Branch of Government

Ethan J. Leib


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Deliberative Democracy in America

A Proposal for a Popular Branch of Government

Ethan J. Leib

“Leib makes a bold foray into the realm of Constitutional design that adds sorely needed suggestions for fundamental institutional change into debates about deliberative democracy. With uncommon insight and creativity, he draws upon practical innovations in local deliberation such as citizen juries and deliberative polls to construct a proposal for an entirely new branch of government that would inject direct popular deliberation into law-making. His book is highly profitable and provocative for anyone interested in the deeply democratic reform of American government.”


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We are taught in civics class that the Constitution provides for three basic branches of government: executive, judicial, and legislative. While the President and Congress as elected by popular vote are representative, can they really reflect accurately the will and sentiment of the populace? Or do money and power dominate everyday politics to the detriment of true self-governance? Is there a way to put "We the people" back into government? Ethan Leib thinks there is and offers this blueprint for a fourth branch of government as a way of giving the people a voice of their own.

While drawing on the rich theoretical literature about deliberative democracy, Leib concentrates on designing an institutional scheme for embedding deliberation in the practice of American democratic government. At the heart of his scheme is a process for the adjudication of issues of public policy by assemblies of randomly selected citizens convened to debate and vote on the issues, resulting in the enactment of laws subject both to judicial review and to possible veto by the executive and legislative branches. The "popular" branch would fulfill a purpose similar to the ballot initiative and referendum but avoid the shortcomings associated with those forms of direct democracy. Leib takes special pains to show how this new branch would be integrated with the already existing governmental and political institutions of our society, including administrative agencies and political parties, and would thus complement rather than supplant them.

“Leib makes a bold foray into the realm of Constitutional design that adds sorely needed suggestions for fundamental institutional change into debates about deliberative democracy. With uncommon insight and creativity, he draws upon practical innovations in local deliberation such as citizen juries and deliberative polls to construct a proposal for an entirely new branch of government that would inject direct popular deliberation into law-making. His book is highly profitable and provocative for anyone interested in the deeply democratic reform of American government.”
“Most contemporary work in political theory that relates to deliberative democracy has become far too abstract. Ethan Leib goes to the heart of the matter by asking how deliberative democracy can really work under existing conditions. In doing this, he has written an important book for anyone concerned about the future of democracy.”
“The analysis of existing institutions and Leib’s solution cast a great deal of light on our present problems and what seems to me the failure of those institutions to work in a deliberative, let alone democratic, way. I am enjoying reading the book and learning from it.”
“Although readers may find it difficult to accept Leib’s proposal, the book offers a wealth of information about the development of deliberative democratic theory, an important contribution.”

Ethan J. Leib is Assistant Professor of Law at University of California, Hastings College of the Law.




1. Getting Right Down to the Business of Design

2. Arguing for Arguing

3. Defending the Separation of Powers: The Failures of the Progressives

4. Checking and Balancing

5. Considering Possible Objections

6. Learning from the Jury Analogy

7. Setting the Agenda in Civil Society

Conclusion, or Just the Beginning




There is a lot of talk in political theory these days. And among the most talked about topics is talking itself: theories of deliberative democracy are colonizing the entire discipline. Hundreds of books have been written to map the territory staked out by the various theories, each making an effort to find an uninhabited little island where some new theoretical development can get under way. The central principle of deliberative democracy can be summarized as follows: "At the heart of the deliberative conception of democracy is the view that collective decision-making is to proceed deliberatively—by citizens advancing proposals and defending them with considerations that others, who are themselves free and equal, can acknowledge as reasons" (Cohen and Sabel 1997, 327).

However, what started as a theoretical enterprise to justify certain kinds of reasons and decision-making processes has now also captured the attention of institutional designers. Democrats who appreciate the value of deliberation in democratic decision-making routinely conjure technocratic tools to invigorate deliberation in democracy under the theoretically well established view that deliberation contributes to legitimacy. Since J&uumlrgen Habermas (1996) promulgated the view that communicative power coming from the subjects of a regime may be one of the only sources for the legitimation of state power, communication and deliberation have become the focus of democrats interested in finding ways for the voice of the people to be heard more loudly, providing a forum for the rulers to heed the informed views of the ruled. Accordingly, this book exercises institutional imagination; it offers a reform proposal to begin the conversation about how we can better design our political institutions to conform to the aspirations of deliberative democracy, since the literature has been much more voluminous in theory than in practice. But let us take one step back before moving forward.<P>

What Is the Ill for Which Deliberation Is the Cure?<P>

While deliberation is the medicine many theorists and some general practitioners are willing to prescribe, the diagnosis of the current regime's sickness is sometimes elusive. And if we don't know the disease and its etiology, the cure and its own side effects and pathologies are really secondary. Lucky for us, the problem is usually rather inviting to deliberative democrats: our democracy is not deliberative enough. But we must say a bit more.<P>

There are a number of basic problems with our version of republican democracy that come to mind rather easily if we keep an ideal of popular sovereignty in view. Generally, voters select among candidates with a bundle of policy commitments that cannot be disentangled; federal lawmaking in accordance with Article I, section 7, of the United States Constitution leaves most bills losing steam prior to passage; the committee system is vulnerable to manipulation; divided government often renders legislatures impotent; and the policies that are enacted are often selected by lawmakers for less than kosher reasons (pork-barreling, rent-seeking, log-rolling, etc.). When voters take matters into their own hands through the initiative or referendum, they act out of ignorance or self-interest (rational or not), under the influence of mass media campaigns that are often aimed to misinform; and poor turnouts cast a further shadow of suspicion over electoral results (especially when the poor and minorities are underrepresented or undercounted). Unfortunately, many democratic theorists are willing to accept these losses because they imagine that our democracy is pretty good anyway; indeed, even voters who suffer the failures of democracy accept this trade-off, simply because to them it isn't worth the effort to become more involved or informed. Or perhaps because they do not believe it would do any good.Yet it remains unclear how we can all stay sanguine about our version of democracy when its built-in limitations are so manifold and obvious. Participatory democrats—those who favor greater levels of political participation—tend to justify their preferences by noting that broadened participation may ameliorate some of the defects associated with mass democracy: citizens can pool information and ideas, bring local knowledge to the table, establish greater levels of equality and political opportunity, and the like. But it is important to remember that these democrats do not take the power inequalities to be the primary problem: instead they would target for reform the process failures that foster and facilitate them.

To be sure, some efforts in structural reform have the aforementioned problems in view when they set their sights on a new vision for American democracy. Campaign finance reform proposals are, perhaps, salient examples of recent energies directed to alter the system of democracy as we know it. Many bright ideas have been proffered in service of the basic insight that if we get money out of politics, we can get a politics that is both more legitimate and less steered by the rich. The distortion of money can make democracy a joke; the masses serve as the marionettes of money managers and make decisions that cannot help but help the capitalists, who are very good at convincing others that their fate is wholly tied to the strength of the economy and, in turn, the strength of the capitalists. We all know who pulls the strings.

Proposals for consultation regimes, where policymakers and bureaucrats confer with the electorate to tailor their rulemaking to the needs of their constituency, are another common palliative for the sorts of problems described earlier. Policy planners often prescribe that administrators speak directly with the people in a nonthreatening environment to heed their concerns and maybe even change policy accordingly. Of course, those consulted are often self-selected repeat players who are rarely heeded.

There are even those who espouse a completely different decision-procedure for our (by and large) two-party majoritarian voting system. Whether it is a proposal for proportional representation, cumulative voting, or the proliferation of parties, there is no dearth of suggestions that American democracy could be made stronger by revamping political life as we know it.

On a smaller scale, the call for more local and accountable government is yet another version of a cure for the ills of mass democracy. Proponents of local government worry that citizens do not have enough input into decision-making processes and have little control over how their interests are represented. They also imagine that community concerns are more likely to be considered if the community can govern more consistently with its own values.

Each of these proposed republican reforms of government (and of course a republican form of government is guaranteed by Article IV of the United States Constitution) has a diagnosis that allows us—in the felicitous phrase of Jon Elster (1998, 10)—to argue for arguing, to make an argument for why deliberation is well suited to the task of ameliorating the condition of mass democracy. The condition can be summed up by noting that our democracy suffers a <i>legitimacy deficit</i>: citizens are so remote from decision-making that the decisions rendered in their name cannot be fairly imputed to them and their authorship. If this is indeed the problem, deliberative democracy may, after all, be a viable solution that encourages institutional redesign from within the general framework we already have in place.

<P>Let's Get the Show on the Road<P>

This book starts by getting right down to the business of design. It proposes a fourth branch of government to make laws using randomly selected civic juries, wholly displacing the referendum and initiative systems as they exist today. I make my assumptions clear: where political autonomy is measured by the degree to which people can be said to be the authors of their own laws, deliberation by ordinary citizens helps the republican project of self-authorship. I also take for granted that face-to-face democracy has benefits that teledemocracy can never provide. I may be a Luddite, but I am fairly sure cyberspace isn't yet the place for democracy so long as there is a digital divide or a delay in perceiving the emotions a face can convey.

I argue that the system of checks and balances remains unbalanced and that representative government is not well suited to the task of popular sovereignty. The people need a voice of their own, but referendums have failed to provide a reliable one. A fourth branch—not the media or the administrative agencies—is needed to get the people to speak in topically specified ways that are not distorted by money, expertise, or naked power. Deliberation is a value because it is a response to the distortions, but neither the legislature nor the judiciary is sufficiently deliberative to be the trustee of deliberative democracy. So we need a deliberative branch—what I call the <i>popular</i> branch—to do this work. The first chapter makes this argument, while also giving a summary of how to operationalize it.<P>

Here are some of the operations: There is a commission responsible for its administration, which has representatives from each of the parties as well as independents. There are ways for the legislatures, the judiciaries, and the people themselves to try to get a question onto the popular agenda. And while the design is intended for the national political arena, there are corollary possibilities for any state or city system.

There is compulsory service, required to get a proper representative sample deliberating; since each deliberative assembly of the branch could only accommodate 525 people, it is necessary to make sure the people are not subject to the voluntary response problem. I propose a decision procedure (a supermajority requirement) and an implementation stage, where the branch's activities get absorbed into the separation of powers. These details help ensure that the popular branch, when it utters its decision, is actually reflective of a popular <i>will</i>, not merely a public opinion.

Chapter 1 also offers more details for the design. It explains how participants are to be selected (random stratified sampling); how we can be assured of citizen competence (empirical work); how we can moderate the pathologies of deliberative environments (a design problem to be tackled with efforts in education and moderation); how we can design ground rules for what people are allowed to say (no gag rules); whom we can put in the room to make sure discussion is well informed and civil (federal judges or volunteers from the League of Women Voters); and who gets to be considered stakeholders (virtually everyone). Many of the details here are elaborations of James Fishkin's work with Deliberative Polling, and I make the connections between the popular branch and Deliberative Polling explicit (as well as exploring my deviations therefrom).

The second chapter is a theoretical one, explaining the model of deliberative democracy I use to support my proposal. It assumes certain legitimacy deficits in current republican democracy that deliberation is well suited to address. It takes the legitimacy problem developed from a respect for popular sovereignty as much more basic than the problems associated with power inequalities; it is more interested in procedures than in ensuring fundamental rights. The argument here leaves to other branches the protection against the tyranny of the majority. Instead, the focus here is upon garnering a majority informed and representative enough to heed in the first place.<P>

Since much of the institutionalization of the popular branch, however, hinges on how the separation of powers would function in this possible polity, the third and fourth chapters are devoted to this issue. Participatory democrats rarely give any attention to how popular deliberation can be institutionalized; and when they institutionalize it, they invariably displace so many other governmental functions that the resulting regime is unrecognizable. Either they take the practices of deliberative democracy as they see them or propose unrealistic reforms. Deliberative assemblies cannot do everything, but they also cannot merely be in civil society without having a binding effect on the state: they need to be institutionalized as mechanisms of the state and be able to issue binding statements of popular will. Chapters 3 and 4 are poised to address the most difficult design question: how can a "popular" branch be integrated and coordinated with the representative presidentialist system we have now? The reform proposal offered here is not meant to be wholly revolutionary and displace all governmental units; nevertheless, it is meant to provide a forum for revolutionary politics where higher lawmaking is possible (even if most of the time the polity is satisfied with ordinary politics).

In Chapter 3 I start thinking through Arendt's objections to Jefferson's council system and the family resemblance of my proposal with his. I consider what my proposal might do to the two-party system. I make my way through similar ideas that the Progressives tried, offering the lack of attention to integration and the separation of powers as one reason for their failure. By arguing that the failure to institutionalize deliberative assemblies was sure to lead to their irrelevance, I lay the groundwork for Chapter 4.<P>

Chapter 4 offers the actual integration exercise. I take two policy proposals through the popular system, showing what the branch would look like in action. I discuss each traditional branch's relationship to and authority over the popular branch—and how the legislative, executive, or judiciary branches could try to mobilize it. Ultimately, after making my way through the legislature, the executive, and the judiciary, I tackle the question of judicial review of the work of the popular branch. Only then do I revisit the question of the party system and its potential integration into the branch's activities.<P>

Chapters 5 and 6 are meant to deflect the suspicions that the first four chapters are sure to raise. They address such questions as: Why do I require a two-thirds "supermajority" to enact a law at the assemblies? Why isn't half enough? Are juries so reliable that we should depend upon them in the <i>legislative</i> process? What of the use of the jury analogy altogether? Isn't there empirical evidence that controverts Fishkin, showing incompetence and inefficiency in actual practices of deliberation? Don't these deliberative assemblies, in a sense, force people to be free? Isn't the use of coercion offensive to liberal republicans? Couldn't deliberative assemblies be corrupted, just like any easily targeted small group of decision-makers? Shouldn't citizens have access to the goings-on of all deliberative assemblies and understand how the members of the jury arrive at their decisions? Doesn't the "value of publicity" demand the transparency of the procedure? Wouldn't excessive secrecy shroud its legitimacy? While these questions seem rather specific, many of the details of the proposal—especially details like compulsory service—require explicit rejoinders. Chapter 6, on the jury and compulsory service, is an original contribution because so many theorists in the public policy literature pay too little attention to the voluntary response problem associated with most consultation regimes. Even institutional designers sensitive to the value of deliberation underestimate the need to have a truly representative sample culled for deliberation—representing even those who often prefer not to speak or volunteer their time for civic affairs.<P>

Finally, Chapter 7, the conclusion of the design project, explores what role civil society (that is, nongovernmental associations) may play in setting the agenda for the deliberative publics. It explores how nondeliberative bodies will have to compete for opportunities to have their issues heard by a deliberative body such as the popular branch and makes an effort to show why civil society must and how civil society can take the agenda-setting function away from complete elite control.<P>

After discussing some theoretical work on the role of civil society in a deliberative democracy, I offer a number of ways that citizens in civil society (those not selected for popular activities on a given subject) could gain practical access to the political public sphere (the popular branch). I offer a mild version of interest-group pluralism, where civil associations would garner signatures to get issues before the branch. I suggest that civil associations might get themselves on Yea/Nay committees organized to help present arguments to the deliberators in plenary sessions. I recommend a version of Bruce Ackerman's (1993) "Patriot Proposal," where every citizen would get fifty points to allocate funds to the civil associations of his or her choice. Concurrently, civil associations would be trying to win citizen points in and for media campaigns to influence the Yea/Nay committees. If successful, the committees would include their arguments in the pamphlet of materials the deliberators ultimately receive. I also suggest that candidates may run on a platform of sending something to the popular branch (which they do in states that make substantial use of the direct democracy procedures of the initiative and referendum), another way the general electorate could control the agenda of the popular branch.<P>

The epilogue very briefly sketches how activists interested in establishing a popular branch might help facilitate its birth (and the rebirth of democracy). Obviously, a national constitutional amendment would probably be necessary for the version offered in the book to take effect. But the scope and jurisdiction of the proposal need not reform the entire country all at once: states and municipalities could first engage in a little "democratic experimentalism," in the phrase of Dorf and Sabel (1998), before the country adopted a national version of the proposal.<P>

Let us proceed to the proposal itself. I hope to demonstrate that my popular branch would not only ameliorate legitimacy deficits, but also (if only obliquely) help mitigate the problems associated with money in politics, political alienation, political ignorance, legislative deadlock from the current separation of powers, and the pathologies of individualism in mass democracy. While I don't spend a lot of time explaining how the proposal forwards each of these advantages, I hope the reader will be able to keep these potentialities in view when considering the viability and desirability of the proposal.