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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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A PROPOSAL TO CONVENE A SERIES OF “CITIZEN CONVENTIONS” FOR PROPOSING AMENDMENTS TO THE CONSTITUTION SUBMISSION OF LAWRENCE LESSIG ROY L.

FURMAN PROFESSOR OF LAW AND LEADERSHIP HARVARD LAW SCHOOL SENATE JUDICIARY COMMITTEE, SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS AND HUMAN RIGHTS HEARING ON “TAKING BACK OUR DEMOCRACY: RESPONDING TO CITIZENS UNITED
AND THE RISE OF SUPER PACS.”

JULY 24, 2012
As I have argued in my submission to this Committee today, the challenge for this Congress is both to identify the right reforms that our Constitution needs, and to do so in a manner that might earn the confidence of a skeptical public. Any process controlled exclusively by Congress, or its delegates, would not, in my view, earn that confidence. Too cynical are we to believe that a process this Congress itself controls is one that could rightly reform this Congress. Instead, I would propose that Congress build upon a procedure that Professor James Fishkin of Stanford has developed — “deliberative polling” — to convene a series of citizen conventions, to identify the amendments, if any, that this Congress should consider. These “citizen conventions” would have no legal authority. But if conducted well, they could provide critical persuasive authority to a skeptical public about what reforms are needed.

“Deliberative polling” ties the representativeness of wellconducted polls with an opportunity for participants to deliberate in an informed environment about the questions at issue. A representative sample of the relevant public is identified and then gathered in a single place to deliberate, both in small groups and as a whole. The participants are given carefully balanced materials that present the issues in a way that they understand and can deliberate about. And the process produces a mature and stable view about the issues presented. More than twenty such polls have been conducted in the United States and abroad, on topics ranging from the future of the European Union to technical questions about utility regulation in Texas.1 In this context, I would propose that “citizen conventions” be constituted 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 nature of the perceived problem, and then gather in a single location to deliberate about that problem, and a range of proposed solutions. These conventions would be advisory to Congress, or perhaps to this Committee, but they would be framed by rules to assure that they are constituted properly. Those rules should conform to the following principles: 1. Delegates should be selected randomly and proportionately. For these 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 politicians should 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 be gathered to deliberate about the reforms that are necessary.

1

See http://bit.ly/LHuME5.

2

2. To assure that a random selection could afford to participate, the law must secure to the delegates certain privileges. Delegates should 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 additional home-care expenses, should be provided as well; the law should secure protection for the jobs those delegates must leave, by compensating employers to save the jobs of the delegates. These privileges need to be generous enough to make it possible for a random selection to participate. But like the draft to serve in the military, the excuses for being 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 conventions should form them on the model of Fishkin’s “deliberative polling.” That system requires a careful process for selecting the material that the delegates will be exposed to, and to assure 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 public. But the delegates themselves should be sequestered from other individuals during the deliberation. The only source of influence that should be permitted is the influence of one delegate on another. 4. The results of these citizen conventions should be transmitted to Congress, 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 debate the proposals that were agreed upon by the citizen conventions, and in a roll call vote, adopt them or not through a resolution. 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 that election.

2

The disruption of service, especially for modest earners, justifies a premium for service.

3

There is precedent both across the world and within our own tradition for this mode of sortition to decide important policy questions.3 Our judicial system in some states gives just a dozen citizens the power to determine the life of a convicted murderer. Our tradition also secures, through the grand jury, citizens participating in the decision whether to prosecute or not. Likewise, Canada to this day has a process by which citizens are randomly selected to serve on “citizen assemblies” to advise the government about policy proposals. And Iceland has just completed an extraordinarily ambitious process by which citizens participated to enable the drafting of Iceland’s first constitution. Such processes work well when citizens are given the information they need to understand the problem, and an opportunity to deliberate about alternative solutions. They work better than the ways in which we currently elicit views from citizens — through polling, or focus groups, or even elections — because in those cases, there is no guarantee the citizen knows anything. But with sortition properly conducted, the citizens are given a chance to understand the issue before they give their views about how best to respond. In the face of the extraordinary lack of confidence that Americans have in their government, it is critical that Congress think creatively about ways to rekindle participation and confidence. Such creativity will often generate new ideas. It will sometimes remind us of the value in old ideas. Turning to the People to resolve fundamental questions of governance is as old in our Republic as the Republic itself. Indeed, as Professor Akhil Amar reminds us,4 ours was the first constitution of a nation in the history of man to be adopted by ratification by the people in convention. This Congress should feed that tradition, by giving “the People” another meaningful and informed way to participate in this, the most urgent problem this government faces: Restoring the faith of the governed in their government.

3

See Oliver Dowlen, Sorted: Civic Lotteries and the Future of Public Participation (2008), http://www.masslbp.com/publications.php.
4

America’s Constitution (2005).

4

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