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Larry Lessig's Testimony at Taking Back Democracy Hearing

Larry Lessig's Testimony at Taking Back Democracy Hearing

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Published by: BoldProgressives on Aug 29, 2012
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11/19/2014

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 A 
 
P
ROPOSAL TO
C
ONVENE A 
S
ERIES OF 
“C
ITIZEN
C
ONVENTIONS
 FO
P
ROPOSING
 A 
MENDMENTS TO THE
C
ONSTITUTION
S
UBMISSION OF 
L
 AWRENCE
L
ESSIG
OY 
L.
 
URMAN
P
ROFESSOR OF 
L
 AW AND
L
EADERSHIP
H
 ARVARD
L
 A
S
CHOOL
S
ENATE
 J
UDICIARY 
C
OMMITTEE
,S
UBCOMMITTEE ON THE
C
ONSTITUTION
,
 
C
IVIL
IGHTS AND
H
UMAN
IGHTS
H
EARING ON
“T
 AKING
B
 ACK 
O
UR 
D
EMOCRACY 
:
 
ESPONDING TO
 ITIZENS 
 NITED 
  AND THE 
ISE OF 
S
UPER 
PAC
S
.” J
UL
24,
 
2012
 As I have argued in my submission to this Committee today,the challenge for this Congress is both to identify the right reformsthat our Constitution needs, and to do so in a manner that mightearn the confidence of a skeptical public. Any process controlledexclusively by Congress, or its delegates, would not, in my view,earn that confidence. Too cynical are we to believe that a processthis Congress itself controls is one that could rightly reform thisCongress.Instead, I would propose that Congress build upon a procedurethat Professor James Fishkin of Stanford has developed — “delib-erative polling” — to convene a series of 
citizen conventions 
, toidentify the amendments, if any, that this Congress should con-sider. These “citizen conventions” would have no legal authority.But if conducted well, they could provide critical persuasiveauthority to a skeptical public about what reforms are needed.
 
“Deliberative polling” ties the
representativeness 
of well-conducted polls with an opportunity for participants to
deliberate 
inan informed environment about the questions at issue. A represen-tative sample of the relevant public is identified and then gatheredin a single place to deliberate, both in small groups and as a whole. The participants are given carefully balanced materials that presentthe issues in a way that they understand and can deliberate about. And the process produces a mature and stable view about the issuespresented. More than twenty such polls have been conducted inthe United States and abroad, on topics ranging from the future of the European Union to technical questions about utility regulationin Texas.
1
 In this context, I would propose that “citizen conventions” beconstituted as a kind of deliberative poll. Three hundred citizens,perhaps from specific regions of the nation, would be randomly selected. They would be given materials that fairly describe the na-ture of the perceived problem, and then gather in a single locationto deliberate about that problem, and a range of proposed solu-tions. These conventions would be advisory to Congress, or per-haps to this Committee, but they would be framed by rules to as-sure that they are constituted properly. Those rules should conform to the following principles:1.
Delegates should be selected randomly and proportionately.
Forthese conventions to earn the trust of the American people,they must be constituted outside of the ordinary process of politics. Congress should not populate these conventions,either itself or through its delegates. Professional politiciansshould not populate these conventions, either themselves,or through the people they help to elect. Instead, like a jury,a random and proportionate selection of citizens should begathered to deliberate about the reforms that are necessary.
2
1
See http://bit.ly/LHuME5.
 
2.
To assure that a random selection could afford to participate, the law must secure to the delegates certain privileges.
Delegatesshould be paid from the Treasury at a rate that equals 150%of their current income,
2
capped at some reasonable level;their expenses to attend the convention, including addi-tional home-care expenses, should be provided as well; thelaw should secure protection for the jobs those delegatesmust leave, by compensating employers to save the jobs of the delegates. These privileges need to be generous enoughto make it possible for a random selection to participate.But like the draft to serve in the military, the excuses forbeing exempted from this service should be few and strictly policed.3.
These citizen conventions should be conducted as a “deliberative  poll.” 
 The procedures for constituting these conventionsshould form them on the model of Fishkin’s “deliberativepolling.” That system requires a careful process for selectingthe material that the delegates will be exposed to, and toassure the delegates come to understand the substance of the materials, and given a chance to deliberate about them. This process can be open, and observed by the general pub-lic. But the delegates themselves should be sequesteredfrom other individuals during the deliberation. The only source of influence that should be permitted is the influ-ence of one delegate on another.4.
The results of these citizen conventions should be transmitted toCongress, and Congress should vote on whether to adopt the  proposals agreed upon.
For the process to be meaningful,delegates must believe their work will have consequence. The rules should therefore require that Congress to debatethe proposals that were agreed upon by the citizen conven-tions, and in a roll call vote, adopt them or not through aresolution. The process should be completed by July, 2014,to give the political process time to digest the results. The vote on the resolution should be conducted before thatelection.
3
2
The disruption of service, especially for modest earners, justifies a premium forservice.

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