Legal Commentary

About 4 years ago, I went back and forth here and on Balkinization with Heather Gerken (Yale) and Chris Elmendorf (UC Davis) about Canada's innovative approach to electoral reform: the Citizens' Assembly.  Canada gathered together a group of lay citizens to deliberate about a new electoral system for British Columbia.  But the BC Citizens' Assembly has a two-tier system: whatever the lay citizens decide after their year of deliberations has to be submitted to the voters for referendum approval.  In 2005, the voters rejected the electoral reform proposed by the Citizens' Assembly: it needed a supermajority of 60% to pass but achieved only a 57% approval vote.  Most recently, in a new referendum on the Citizens' Assembly proposal, only 38% of the voters agreed with the result the deliberative body preferred.  Some analysis of the new vote in BC can be found here and here.

In 2005, I emphasized that these two-tiered reform systems (deliberative bodies then mass democracy) are quite counterproductive because they invite back in at the second stage all the pathologies of mass democracy that you are precisely seeking to avoid by handing over decision-making power to the deliberative body.  Of course, the advantage of the two-tiered system is making sure lay citizens who have no direct political accountability and may not be representative are constrained in some way.  But Canada's experience tells us that this probably ain't the way to do it (and California's new Prop 11 Citizens' Redistricting Commission, for all its faults, isn't following Canada's lead here).  It seems that citizens will take their cues from partisans with their own interests rather than from their fellow citizens who spent the time trying to perfect their election system.

Still, a two-tiered method might work if the citizens are at the back-end making the actual policy and the agenda-setters themselves have political accountability and representation going for them.  Stay tuned for more on that, since Chris and I are working on such a design.