A Citizen Legislature

Stretching our thinking about how we govern ourselves

by Ernest Callenbach & Michael Phillips

One of the articles in Living Business (IC#11)
Autumn 1985, Page 57
Copyright (c)1985, 1997 by Context Institute | To order this issue ...

Ernest Callenbach (author of Ecotopia, Ecotopia Emerging, and The Ecotopian Encyclopedia) and Michael Phillips (author of The Seven Laws Of Money, Honest Business, and Simple Living Investments) have done us all a great service by seriously exploring the possibility of a truly representative legislature. Whether the idea appeals to you or appalls you, it is bound to stretch your thinking about how we govern ourselves. Their book, on which this article is based, is available on the web at http://www.well.com/user/mp/citleg.html.

THE FOUNDERS' IDEAL:
THE LEGISLATURE AS A TRANSCRIPT OF THE PEOPLE

At the birth of the American republic, as James Madison noted, members of the constitutional convention "wished for vigor in the government, but wished that vigorous authority to flow immediately from the legitimate source of all authority. The government ought to possess not only, first, the force, but secondly, the mind or sense of the people at large. The legislature ought to be the most exact transcript of the whole society."

This concept of a popular legislature has a deep and lasting appeal. It offers a durable standard by which to judge the composition (and the actions) of any legislature in a country which professes to live by democratic principles.

Under the conditions of mass industrial societies, however, supposedly representative bodies have diverged strikingly from this ideal. Accepting such a situation as permanent is both too pessimistic and a betrayal of democratic ideals. The voice of the people ought not to be one small and financially disadvantaged voice in the national political dialogue. It should be heard in its natural majesty - clearly, forcefully, continually and automatically.

In this article, and more extensively in our book, we propose a simple, straightforward means to achieve this, within the American system of constitutional checks and balances, specifically in the House of Representatives. Grasping this possibility requires us to dare to conceive, with the founders, that a people may indeed be directly self- governing.

THE PRESENT ELECTORAL SYSTEM
IS UNREPRESENTATIVE AND PROMOTES CORRUPTION

Our present legislatures certainly cannot be described in terms of a "transcript of the whole society"; by that test they are hopelessly unrepresentative. Women, to take the most striking disparity first, constitute 51% of the adult population but comprise only 4.8% of the present House of Representatives. Blacks, 12% of the population, comprise only 4.5% of the House; Spanish-speaking persons, 6% of the population, are similarly underrepresented with 2.5% of the House. About half of the electorate, which does not vote, cannot readily be considered to be represented at all. Our House is comprised almost entirely of white, well-to-do males - an enormous disproportion of them lawyers (46% in 1983, though lawyers make up only a tiny fraction of our population).

Likewise, the influence of campaign contributions in our national politics has become all-pervasive in recent years, as Elizabeth Drew showed in her book Politics and Money: The New Road to Corruption (New York: Macmillan, 1983). Legislators are not visibly for sale, in the old nineteenth-century way, though they do hold fund-raising events at which it is made clear that they are open to the influence of money. But a kind of arms race for contributions has arisen, leading to what Rep. Jim Leach (R., Iowa) calls "a breakdown in citizen access." Or, in the fine distinction Rep. Tony Coelho (D., Calif.) attempted to make to Drew, "We don't sell legislation, we sell the opportunity to be heard."

THE DEMOCRACY OF ATHENS OFFERS A BETTER MODEL:
SELECTION BY LOTTERY

It happens that there is an easy and even inexpensive way to choose representatives for a legislative body so that they would in fact be a "transcript" of the whole society: sortition, or selection by lottery, which was used by the Athenians to choose representatives for two centuries. The time has come to examine this type of direct representation as a possible way to bring the whole people's voice to Washington.

To put this possibility into a historical perspective, let us first consider the Athenian precedent. Their boule or council had 500 members chosen by lottery from the ten "tribes" of Athens to serve one-year terms. It had judicial functions in addition to being, as representative of the periodic assembly of all citizens, generally responsible for the fiscal well-being of Athens.

The boule system prevailed for about as long as the American republic has, and lost its power only through the growth of a class of specialized officials serving long terms: in modern parlance, a bureaucracy.

Just as the Athenian boule existed in conjunction with the citizen assembly, we may imagine a new direct- representation house of Congress existing in conjunction with a Senate chosen by traditional electoral means. The new body we propose to call the Representative House.

The machinery for choosing the 435 members of the new House by sortition would be simple, inexpensive, and easy to make tamper-proof. Each county in the country already maintains a jury commission to provide lists of potential jurors to its courts. Originally such lists were drawn from the registry of voters, but in recent years potential juror lists have also included names from additional sources less likely to be biased toward the white and middle-class: driver-license lists, telephone directories, and so on. Combining all these county lists into one master national list would thus provide a virtually complete roster of eligible persons. (Just as certain categories of persons are excluded from juries and the present House, some would be excluded from service in the Representative House: those under age, convicted felons, institutionalized persons, non-citizen residents.)

The connection with the jury system is more than mere convenience. Our attachment to judgment by a jury of our peers goes far back in British history, and the jury process remains a solemn and respected one. The gravity of their responsibility bears heavily upon jurors, as anyone who has served on a jury can attest, and jury deliberations are normally thorough, cautious, and serious. We believe that persons chosen for a direct-representation legislature would have similar attitudes and carry out their responsibilities toward proposed legislation much as jurors carry out theirs toward alleged crimes.

A CROSS-SECTION OF THE PEOPLE WOULD BE SELECTED

A Representative House would be astonishingly different from its predecessors. Upon entering the House chamber you would see at work a body whose members comprise more than 50% women and some 12% blacks, 6% Hispanics, and 1% persons of other races. Because of their dress and manner, your overwhelming impression would be of middle- and working-class people. About a quarter of the body would be blue-collar workers, some of them accustomed to the rigors of debate in community meetings and union halls. You might try to pick out, scattered around the chamber, the-ten percent who had been unemployed when their number came up: laid-off laborers, seamstresses, cooks, teamsters, seamen, secretaries, clerks. You might find it easier to spot the two doctors or dentists, the one school administrator, the two accountants, and the one real estate agent whom by chance would be in the body most years.

THE REPRESENTATIVE HOUSE WOULD BE
AT LEAST AS COMPETENT AS THE PRESENT HOUSE

The objection may be raised that a Representative House would not be competent to deal with the complex issues of modern government. This objection reflects the feeling, which is widespread although it may not be founded in reality, that our rulers are (or at any rate should be) "better than us" - a feeling which is a major factor in the acquiescence of citizens in their own disempowerment. When we examine this objection concretely, however, it loses much substance. The election process as practiced in our media age rewards candidates who have congenial TV images, have a convincing verbal delivery, and are adept at sensing transient public emotional moods. These qualities do not necessarily correlate with either intelligence or responsible political leadership. Nor is there any convincing evidence that our present representatives are superior in wisdom, judgment, compassion, and sense of responsibility to 435 people chosen by sortition from the citizenry at large. The latter would certainly have, among themselves, a livelier and more realistic sense of the life of the country and its pressing problems, and they would have a more varied collective experience to draw upon.

Many features of the existing legislative process would doubtless remain in a Representative House. The drafting of laws would continue to be done by employees of the executive branch, legislative analysts, business lobbyists, and citizen organizations, working with Congressional staff members. The Congressional research staff would continue to produce analytic studies, hearings would provide expert testimony, and so on. A Representative House might avail itself routinely of analyses similar to those which describe and evaluate the effects of initiative measures in the voter booklets of some states.

Much is made of the complexity of the Congressional workload, but it appears that only about 150 bills a year receive real debate. Since at present considerably more than half of a Congressmember's time and energy (and that of his or her staff) is devoted to re-election efforts and fund-raising, members tend to become dependent on staff for orientation and recommendations about bills. While Representative House members would still need expert staffs, their entire attention would be on the legislative process.

Actual bills would probably look rather different, and they would probably be fewer in number. As Irving Younger has argued, it is actually scandalous that Congress passed 3,359 laws from 1970-79, and he proposed several standards which might also appeal to a citizen House. The first is: "Congress may not vote on a bill unless a majority of the legislators present have read it." The second is: "No law may be passed that is so complex that it cannot be understood by a person of reasonable intelligence exercising reasonable diligence."

PRACTICAL IMPLEMENTATION IS POSSIBLE
BEGINNING ON THE STATE LEVEL

Despite the novelty of the direct-representation idea at present, and the surprise that it naturally occasions when people first encounter it, we believe that like women's suffrage, legalized abortion, no-smoking sections in planes and restaurants, or mandatory recycling of cans and bottles it can gradually gain credibility - especially through trials on the local level, where the above issues first gained acceptance. The related idea of rotating leadership is already being used by many voluntary groups and coalitions. The first political use of sortition may come in various city and county boards. Even though it may not be seriously considered for a major legislative body for many years, experiments of this kind will gradually familiarize people with the principle.

As it happens, there are 23 states that currently have an initiative process and could fairly readily vote to introduce a sortition process into the selection of their lower-house representatives. There is one legislature in the country where the adoption of sortition would produce less abrupt change than in other places. The lower house of the Oregon legislature presently has 23% women members, and only 18% lawyers. Another state that is a possible candidate for early experimentation with direct representation is Massachusetts. It currently has an initiative process, a large lower house (160 members) and a long history of town meeting democracy on a local level.

We expect that, when it comes, the arrival of direct representation on the political agenda will set off a lengthy and fierce political struggle. It is, however, an idea that, once understood, will refuse to go away. Resistance to the sortition idea comes generally, in the last analysis, from an attachment to hierarchy and a lack of trust in the people themselves. But to endorse sortition as a means of representing the people does not require believing that the people are perfect. Any town meeting, like any elected body, has a rich mixture of people. In the tradition of the town meeting, this full human mixture met in a common place and dealt with one another, achieving the kind of agreements necessary to hold a society together in an acceptably just order. This democratic process has its irritations, its limits, its ironies. But it is, as Winston Churchill remarked, still the best system of governance humankind has yet devised, and there seems no reason why it should not be enjoyed by representatives who are truly representative.

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