Random Assemblies for Lawmaking? Prospects and Limits*

• Author: James S. Fishkin
• Published date: 01 September 2018
• Date: 01 September 2018
• DOI: http://doi.org/10.1177/0032329218789889
• Subject Matter: Special Issue Articles

https://doi.org/10.1177/0032329218789889

Politics & Society

2018, Vol. 46(3) 359 –379

© The Author(s) 2018

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DOI: 10.1177/0032329218789889

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Special Issue Article

Random Assemblies for

Lawmaking? Prospects

and Limits*

James S. Fishkin

Stanford University

Abstract

A randomly selected microcosm of the people can usefully play an official role in

the lawmaking process. However, there are serious issues to be confronted if such

a random sample were to take on the role of a full-scale, full-time second chamber.

Some skeptical considerations are detailed. There are also advantages to short

convenings of such a sample to take on some of the roles of a second chamber.

This article provides a response to the skeptical considerations. Precedents from

ancient Athens show how such short-term convenings of a deliberating microcosm

can be positioned before, during, or after other elements of the lawmaking process.

The article draws on experience from Deliberative Polling to show how this is both

practical and productive for the lawmaking process.

Keywords

Athens, corruption, Deliberative Polling, elections, minipublics, nomothetai,

representative democracy, sortition

Corresponding Author:

James S. Fishkin, Center for Deliberative Democracy, Department of Communication, 450 Serra Mall,

Bldg. 120, Stanford, CA 94305-2050, USA.

Email: jfishkin@stanford.edu

*This special issue of Politics & Society titled “Legislature by Lot: Transformative Designs for Deliberative

Governance” features a preface, an introductory anchor essay and postscript, and six articles that

were presented as part of a workshop held at the University of Wisconsin–Madison, September 2017,

organized by John Gastil and Erik Olin Wright.

789889PASXXX10.1177/0032329218789889Politics & SocietyFishkin

research-article2018

360 Politics & Society 46(3)

After more than two decades of successful experimentation with deliberating micro-

cosms or minipublics, the question naturally arises, How might they be institutional-

ized in the lawmaking process?1 One key focus is the possibility of some sort of second

chamber or legislative body. From the standpoint of deliberative democracy, a second

chamber could provide an additional venue for deliberation about legislative propos-

als, either before or after the operation of the first chamber. The second chamber might

have limited authority to delay a proposal for reconsideration, as in the British House

of Lords, or it might be a coequal part of the legislative branch, such as the US Senate,

with slightly different responsibilities in certain issue domains. Would it be useful to

select the members of a second chamber by lot (random sampling) of the citizenry?

I will organize these reflections as follows. (1) First I will argue for a deliberative

body of randomly selected citizens as a supplement to our lawmaking process. Such

a deliberative body might connect with the legislative process among elected repre-

sentatives or with an alternative lawmaking process such as direct democracy. In

either case, it could have an institutional role in the lawmaking process. (2) I then

raise skeptical considerations. There are issues to be confronted about the challenges

facing citizen deliberation, particularly for a second (or third) chamber that would

meet on a continuing basis and look much like a legislature. (3) I will argue that

instead of a full-fledged legislature selected by lot, there are advantages to delibera-

tive convenings for a short period on the model of a Deliberative Poll. Such conven-

ings might better serve the desired functions for a second chamber, particularly if

their role were institutionalized. I believe the short convenings would respond best to

the skeptical considerations while also delivering a deliberative input into lawmak-

ing. (4) I will draw inspiration from institutions in ancient Athens, particularly in the

fourth century BCE, to suggest appropriate institutional designs, some of which will

precede the key lawmaking process and some of which will follow it. I will refer to

the former as prefilter designs and the latter as postfilter designs. In either case, the

deliberative body does not do the actual lawmaking but rather filters the agenda (in

the prefilter cases) or it provides final approval (in the postfilter cases). (5) I will

sketch three scenarios, two of them prefilter and one postfilter. These three scenarios

do not begin to exhaust the range of institutional designs, but they illustrate what

might be done.

Four Forms of Democracy: Finding a Place for

Deliberative Lawmaking

There are many notions of democracy, but in my view they boil down to a few compet-

ing democratic principles and how they combine to form what we will call four forms

of democracy, four conceptions of democratic practice. In actual institutional designs

none of these forms of democracy is self-sufficient. They coexist and connect with

other institutions, usually exemplifying other forms of democratic practice (as well as

other modes of decision making such as judicial decisions or administrative pro-

cesses). But we will focus here on explicitly democratic elements and on how these

four forms of democracy can work alone or in combination to provide a satisfactory