The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Reforming Democracy

A new symposium outlines several ideas for improving our democratic system. All are worth considering. But none are likely to be as good as expanding opportunities for people to "vote with their feet."


Over the last few years, it has become increasingly clear that American democracy has a variety of serious flaws. Widespread public ignorance and partisan bias reduce the quality of decision-making. Growing polarization poisons public discourse and leads partisans to tolerate bad behavior by their own leaders in order to avoid giving an edge to the hated opposition. Interest group lobbies wield outsized power at the expense of the general public. And this list could easily be extended. Recently, the Newark Star Ledger held a symposium in which five leading scholars offered proposals to improve the functioning of American democracy. All are well worth considering. But, overall, I am not convinced any of them are likely to lead to major progress, and none hold as much promise as expanding opportunities for people to "vote with their feet" by limiting and decentralizing government power.

Political theorists Hélène Landemore (Yale) and Alexander Guerrero (Rutgers) argue for expanding the role of "sortition": delegating decision-making authority to small groups of randomly selected members of the general public (as is currently the case with juries). In theory, this could combine popular participation in government with greater knowledge and better deliberation than is possible in the current election process, where most voters have very little knowledge of the issues, and make little effort to consider opposing views in in an unbiased way. But I am skeptical that sortition can actually deliver on its promises, for reasons I summarized here, and more fully in Chapter 7 of my book Democracy and Political Ignorance:

Unfortunately, sortition is not nearly as good a solution to the problem of political ignorance as it might initially seem. Unless the participants study for an extremely long time, they are unlikely to become knowledgeable about more than a small fraction of the many issues addressed by the modern state. Currently, government spending accounts for almost 40% GDP, and the government also regulates a bewildering array of activities.

This problem might be alleviated by by having each body selected by sortition address only a narrow range of issues. But then there would be serious problems of coordination between them. Moreover, groups addressing one area of policy might neglect important trade-offs between that issue and others….

Another possible way to make the participants better-informed would be to have them serve for long periods of time, perhaps even years on end. But in that scenario, the participants would gradually become a kind of professional governing class and would no longer be just randomly selected ordinary people.

Juries in the civil and criminal justice systems often have difficulty understanding the points at issue in cases with broad policy implications or complex scientific evidence. These problems are likely to be even more severe if we use jury-like mechanisms to address a much wider range of policy issues.

Sortition systems are also vulnerable to manipulation in a variety of ways. The government could potentially skew the selection procedure in order to ensure that more of its supporters get selected. If, as in most proposals, the participants are expected to hear presentations about policy issues and engage in deliberation about them, there are many ways to bias the choice of presenters and the selection and framing of issues….

Even in the absence of such biases, sortition systems will face difficult trade-offs between representativeness and minimizing incentives for rational ignorance. If the group selected is small, rational ignorance is unlikely to be a problem, since each vote will have a high chance of decisiveness. But a small, randomly selected group can easily be unrepresentative…

I offered some additional criticisms of Landemore's relatively optimistic take on democracy in this article, which addresses her important book Democratic Reason.

Prominent constitutional law scholar Sanford Levinson (University of Texas) argues for making it easier to amend the Constitution, including by adopting a system of regular constitutional conventions (perhaps every 25 years), as exists in several states for revising their state constitutions. I agree with Levinson's view that the Constitution is too difficult to amend. But I would not want to make amendment too easy, either, as is the case in California and some other states, where the state constitution can be amended by a mere majority vote in a referendum. More importantly, I am less optimistic than he is that a new constitutional convention will result in an improved constitution rather than one that becomes worse than before. The same factors—ignorance, bias, polarization—that reduce the quality of ordinary political decisions, can easily infect the amendment process, especially if it becomes too easy to adopt amendments.

Derrick Darby (University of Michigan) advocates an unconditional basic income (UBI), which—as the name implies—would guarantee every American a minimal income, without any preconditions for eligibility. UBI has attracted a lot of support in recent years, including even from some libertarians, who contend that it is a superior alternative to the current welfare system. I remain skeptical, for reasons well summarized by economist Bryan Caplan. But even if UBI is a good way to combat poverty, I see little reason to believe that it would improve the quality of democratic decision-making.

Georgetown political philosopher Jason Brennan, author of the important book Against Democracy (which I reviewed here), argues for replacing our current system of "first past the post" elections with proportional representation. As he explains, PR would lead to a multiparty system in which voters would have a wider range of options than are available in the current two-party system. That, in turn, would reduce polarization by forcing supporters of opposing parties to cooperate more, as no one party would be able to dictate policy on its own. I have some sympathy with this idea, as do many others who believe both major parties have very serious flaws.

But it is important to recognize its limitations. PR systems have not prevented dangerous illiberal parties on both the right and the left from wielding a great deal of clout in various European countries, and in Israel. In some respects, PR may even make it easier for such parties to become influential, as they can make themselves vital coalition partners for more mainstream parties. In addition, a multiparty system might actually exacerbate the problem of political ignorance, by increasing the number of parties informed voters need to keep track of. It is much harder to assess five, six, or eight parties (and their potential coalitions) than two.

On balance, I think a PR system for the United States might be worth the risk. But it is not an easy call. Moreover, as Brennan recognizes, it will be extremely difficult to enact, given the near-certain opposition of the Democrats and Republicans.

All five contributions to the Star Ledger symposium are thoughtful, and well-worth reading (as are the accompanying critiques by three political scientists). But I continue to believe that the best way to mitigate the shortcomings of democracy is not by trying to reform how we vote at the ballot box, but by increasing opportunities for people to "vote with their feet" by choosing which jurisdictions they wish to live under, and making decisions in the private sector. Foot voting gives people much stronger incentives to make well-informed choices than ballot box voting does. And it also expands political freedom by enabling people to make choices that actually make a difference. We can expand foot voting opportunities by limiting and decentralizing government power, thereby increasing the range of issues left to state and local governments and to the private sector, where foot voting is feasible. There is also much we can do to reduce obstacles to mobility that artificially constrain foot voting, especially for the poor and disadvantaged.

In the near future, we are unlikely to expand foot voting as much as I would ideally like. But incremental increases in foot voting opportunities are both more feasible and more likely to work than any other reform proposals for democracy that I have seen so far.