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Allotted chambers as defenders of democracy

2021; Wiley; Volume: 29; Issue: 3 Linguagem: Inglês

10.1111/1467-8675.12580

1467-8675

Peter Stone, Anthoula Malkopoulou,

Populism, Right-Wing Movements

In this paper, we identify a problem—the problem of which actors should serve as defenders of democracy—and propose a solution to that problem—the creation of randomly selected citizen bodies, or allotted chambers (hereafter ACs).1 Having in place institutions that are tasked with democratic self-defense, is, we argue, a critically important pillar of democratic government, but its importance has often been neglected. This neglect is exacerbated by the evasive nature of the task that these democratic defense institutions are called to perform. Part of the problem is that the task of democratic self-defense is often mistakenly conceived as an ad hoc response to an occasional problem, rather than a routine task to which democracies should devote regular attention. Once the task of democratic self-defense is properly specified, the advantages of assigning this task to ACs, rather than courts or legislatures, become evident. Section 2 of this paper explores the task of democratic self-defense in more detail. Section 3 offers reasons for questioning the assignment of this task to existing institutions within democracies, notably legislatures or courts. Section 4 lays out the contributions that sortition—the random assignment of public responsibilities—can make to democratic self-defense. In Section 5, we sketch a proposal for an AC that could be tasked with democratic self-defense. Such a body would avoid the problems identified in Section 3 with assigning this task to either legislatures or courts. We offer three versions of this proposal—a weak, a moderate, and a strong version—and provide a tentative endorsement for the moderate model. The paper concludes by noting that the current crisis facing democracy has both generated an opening for institutional innovation and increased awareness of the necessity for democratic self-defense. It is important, we argue, that democracies make the most of this opening; doing so, we add, requires a clear understanding of the problem and a well thought-out vision of the solution. Democracy today seems under threat. Never a perfect regime, democracy has now determinedly exposed its vulnerabilities. It has allowed the emergence in parliament or even in government of politicians who propagate an antidemocratic or illiberal vision of politics. These range from neo-Nazi extremists such as the Golden Dawn in Greece, through populist nativists such as US President Donald Trump or Hungary's Victor Orban, to electoral authoritarians such as Turkey's President Erdogan. A common pattern seems to emerge where such politicians claim to embody the people in some unfiltered way, target vulnerable minorities, deny the existence of legitimate opposition, and seek to undermine institutions that check their ability to act. Often, they also manipulate elections and seek to deny their opponents any realistic opportunity to remove them from power. In short, they seek to undermine the foundations of liberal democracy, using any mechanisms that liberal democracy makes available to them (Müller, 2016b; Urbinati, 2019). All of these have made many people recognize the importance of the task of democratic self-defense. Democratic institutions, it is argued, must be insulated against the damage that such parties and politicians can inflict upon them. This includes a concerted effort to prevent institutional retrogression, to protect vulnerable minorities from direct harm, and to block the proliferation of a culture of hate and authoritarianism. In other words, the aim of democratic self-defense is to uphold and strengthen the liberal and constitutional foundations of democratic government. In this context, liberal constitutionalism is assumed to be the condition that makes a well-functioning democracy possible. But although some consensus exists about what is to be defended—namely, liberal constitutional democracy—there is little agreement as yet about how best to go about defending it. How are we to prevent the rise of future Orbans, and what can we do about the Orbans we have? The task of democratic self-defense is considerably larger and more complicated than many people think. For one thing, it is difficult to determine which parties constitute a threat to democracy, and when this threat is acute enough to require state action. For example, it may be easier to agree on measures against parties overtly seeking to undermine democracy (e.g., Golden Dawn in Greece, the National Democratic Party of Germany, the Justice and Development Party in Turkey), but less so against parties that challenge democratic norms in less extreme ways (e.g., the National Rally in France, the Sweden Democrats, the Polish Law and Justice Party, etc.). Moreover, the depth of the challenge a party apparently poses to democracy could change over time. (Could anyone have predicted the storming of the US Capitol by armed followers of Donald Trump?) In addition, populist acts that challenge the legitimacy of liberal democratic institutions can be performed even by parties that are indisputably not extremist or populist per se, and are perceived to be closer to the mainstream; authoritarian populism, in this sense, is not a political party's intrinsic identity but a sort of illegitimate “move” in the democratic game (Müller, 2016b). In other words, the nature of democracy's challenge today, perpetrated by parties that do not oppose democracy directly and claim to play by the book even as they simultaneously alter or interpret rules in a semiauthoritarian fashion, makes the task of identifying democratic threats and legitimizing initiatives against them highly contentious. For another, a lot of the debate around how to deal with “dangerous” parties focuses upon direct action against them. Far too frequently, democratic self-defense is conflated with “militant democracy,” the principle of preemptively blocking the realm of actions for democracy's challengers (Loewenstein, 1937). Preemptive action may include party bans, media control, or restrictions of political liberties. This approach has been heralded by many contemporary scholars (Müller, 2016a; Kirshner, 2014) but is also increasingly under attack (e.g., Invernizzi Accetti & Zuckerman, 2017; Malkopoulou & Norman, 2018). Alternative modes of defending democracy may rely on practices other than identifying and excluding dangerous political actors. Instead, they may aim at insulating democratic procedures from any type of abuse, regardless of its political characteristics. This may involve enforcing strict criminal sanctions for political violence or restricting the scope of parliamentary immunity (Malkopoulou & Norman, 2018). Another possibility is to implement social and cultural policies, directed toward civil society and the public at large (Malkopoulou & Norman, 2018). Such mechanisms would aim at promoting democratic values—for example, by embedding antifascist principles in school curricula, training law enforcement officers in anti-discrimination practices, and raising public awareness on human rights issues. Strategies of this kind are aimed less at neutralizing extremist or antidemocratic parties than at preventing their emergence in the first place. This set of policies is far removed from the militant democratic recipe of rights restrictions, avoid controversial restrictions on basic rights and freedoms,2 and should in fact alert us to the variety and incommensurability of the possible tasks associated with democratic self-defense. Our aim in this paper is not to argue for or against any particular model of democratic self-defense. What we want is to draw attention to the contingency of all these possibilities. As a result, the defenders of democracy should have significant room for maneuver to introduce appropriate measures. A body tasked with defending liberal democratic principles is in our mind a type of legislative body, like an upper house, bound by a specific constitutional mandate: to identify relevant challenges to constitutional democracy (i.e., challenges to both the democratic institutions and the rights of citizens) and decide on measures that would counteract them. The type of measures required—whether they be restrictions based on existing laws, the drafting of new laws, broader policy reforms, or something else—would be up to the body itself, subject to the political limitations imposed upon it (e.g., by the constitution). We do not envisage that such a body should necessarily take over all functions of democratic self-defense from existing institutions, but that it work in coordination with legislatures and courts to fill in the gaps that these institutions may create. Ultimately, our goal is to underline that the question of how to deal with antidemocratic parties is a political question. To illustrate this, consider how restrictions on authoritarian populist parties may be preferred more often by center-right parties, whereas center-left parties may be more likely to support measures that emphasize social and political inclusion as a policy of limiting the vulnerabilities that cause populist resentment. Choosing among repressive or inclusive measures is an ideologically loaded matter that must be contested by political agents. The choice of one or the other avenue of democratic self-defense is a matter of public policy and, as such, it requires political debate and the weighing of different ideological and strategic perspectives that predominate in a particular polity at a particular time. In other words, dealing with antidemocratic movements is inextricably a matter of political judgment. However, this contestation should not necessarily take place along party lines. It is crucial in our mind to exclude partisan criteria from the perspectives that should affect this type of decisions, lest the objective of defending democracy become corrupted or replaced by electoral objectives. We come back to this point later, when we compare the democratic self-defense potential of legislatures and ACs; for now, it is worth keeping in mind that filtering out partisanship does not require depoliticizing the question. Before moving to the next section, it is worth pausing to consider what, in our mind, democratic self-defense is not. Democratic self-defense is not a synonym for emergency powers. Oftentimes the task of blocking an authoritarian government or party is conceived as a task to be performed only in crises or emergencies (Kirshner, 2014; Loewenstein, 1937, pp. 431–432; see also the militant constitutions of Germany and Turkey cited in Thiel, 2009 as well as the Venice Commission Guidelines cited in Müller, 2016a). Time and again such emergency judgments have led to a constitutional overreaching, up to and including coup d’états in the name of “security” or even “democracy.” The same logic animates militant democratic measures because they authorize a situational repression of rights that are otherwise generously protected. Even when emergency powers are constitutionally granted, the precise actions they authorize are often unclear, and so they often raise important questions of legitimacy and concentration of power. As a result, efforts must be made to avoid them. Conversely, there is more to be gained by thinking of democratic self-defense as a regular regime of self-care. A continuous maintaining of a polity's democratic health is more reliable and legitimate than curing a potentially lethal infection in an exceptional manner. Democracies, then, have good reason to take the task of democratic self-defense seriously. In doing so, they should regard it as a regular part of democratic self-maintenance, not an emergency measure born out of exceptional crisis situations. The question, then, becomes which institution(s) should be entrusted with this critically important task. In other words, which institution should serve as the principal defender of democracy?3 In some ways, of course, this question is a false one. As the previous section has shown, democratic self-defense is many-sided and complex, and there are many tasks (e.g., passing social policies that weaken popular discontent, charging violent extremists with criminal activity) that readily fall within the job descriptions of existing institutions (e.g., legislatures, courts). There need not be a single institution charged with doing everything. Besides, concentrating all these powers into one single institution may constitute a breach of the principle of separation of powers. Still, there are good reasons to charge one political institution with the primary execution of this task (and both to specify and to delimit its powers). The most important of these reasons is the need to avoid free riding. Democratic self-defense measures can prove costly, and not just in terms of material resources. Prosecutors, for example, who charge political parties with illegal activity, and media regulators charged with preventing hate speech by these parties, can predictably face pushback from those parties and their supporters or sympathizers. Take, for example, the vocal critique against Greek judges for not prosecuting Golden Dawn politicians earlier despite extensive reports of their involvement in criminal wrongdoings (Psarras, 2015, p. 11). Moreover, legislators, judges, and civil servants all have many responsibilities on their plate. When faced with the need to defend democracy, it is all too easy to find reasons not to pursue the matter, and leave this task to others. There are good reasons, then, for democracies to entrust primary responsibility for democratic self-defense to one specific institution. What sort of institution can most productively deal with this task? The free-riding argument suggests that existing institutions, such as courts or legislatures, are not well suited to this task. Both have many other responsibilities, and so the temptation to focus attention on more pressing matters will prove very hard to resist. Who has time to worry about democratic self-defense, after all, when the budget must be negotiated and passed before the fiscal year ends? Similar worries apply to courts, unless a democracy entrusted the task to one particular court (e.g., a constitutional court). But there are deeper reasons to question the wisdom of making either legislatures or courts the centerpiece of democratic self-defense. Put briefly, while courts are too apolitical for the task at hand, legislatures face the opposite constraint: they are too political. To understand this, it is necessary to examine more carefully the nature of the task of defending democracy outlined in the previous section. Perhaps the most important part of this task is that it inevitably seems to encompass a wide variety of measures to which democracies can resort as a way to guard democracy against internal dangers. These may comprise short- and long-term actions that can be legal, political, cultural, and social—for example, boosting the legal framework that protects vulnerable minorities, adjusting electoral rules, introducing antifascist content in school curricula, or implementing long-haul socioeconomic policies. The menu of initiatives for safeguarding and protecting democracy must remain wide, as there is not one solution that fits all the cases. Many conditions play a role, not least the severity of the threat in question, the historical record of similar threats and responses to them, or the socio-economic context of each particular case. If we accept that there is no specific and predefined content for the task of democratic self-defense to be performed, we must recognize the importance of identifying the right institution that will select, define, and perform the content of this task. It is this fact that explains why courts are not appropriate instruments of democratic self-defense. True, courts may prove capable, at least under the right circumstances, of enforcing the political rights of citizens against antidemocratic encroachments—by moving to stop legal or extralegal obstacles to universal suffrage or discrimination against minorities, for example. In countries with militant democratic constitutions, the decision to ban antidemocratic parties is usually made by constitutional courts. Such tasks are well within their mandate, which is to interpret the law in a manner consistent with the democratic system. But when action is needed to protect the system that exceeds this mandate, we cannot empower courts to do so. The reason why courts are ill-advised to stray outside of the mandate they traditionally enjoy in liberal democratic theory is the peculiar nature of democratic self-defense. Such defense is a strongly political task. It cannot be confined to the implementation and interpretation of clearly specified laws. And this makes it seem like an inappropriate task for judges—or bureaucrats and civil servants, for that matter.4 Indeed, courts have no flexibility to operate outside existing legislation (which, for many, is essentially the source of their institutional legitimacy). Their action cannot encompass the use of non-juridical instruments, such as introducing new laws, antifascist education, or social programs. They can, for example, not introduce compulsory training for police officers on how to identify and stop behavior that victimizes minority groups. Likewise, they cannot boost funding for degraded areas, where immigrants and nationals compete most directly for housing and jobs. Precisely because of its political nature, democratic self-defense requires some sort of democratic credentials to count as legitimate. As they possess judicial—not legislative—power, courts do not enjoy (and do not have to enjoy) credibility as policymakers or legislators.5 At the same time, because the task of democratic self-defense may be compromised by ordinary partisan politics, it also seems inappropriate to assign the task to legislatures. (The same considerations apply to executives, but we will focus upon legislatures here.) The reason for this is that elected legislatures are generally composed of professional politicians, usually working together through parties. As such, they are major participants in the game of political competition. This makes it difficult to entrust them with any task that involves making and enforcing the rules of political competition. They inevitably face temptations to make and enforce these rules in self-serving ways—to stack the competition in their favor. We do not mean here that partisans are inherently self-serving, but that the expectation that they set aside their electoral interest and even act against it in purchase of a more collectivistic goal is too high and unrealistic. Take, for example, the decision to condition party funding or electoral eligibility on formally committing to democratic principles, or a decision to exclude a party from coalition talks, or even the decision to ban racist party-led events such as Golden Dawn's soup kitchens “only for Greeks.” All and any of these decisions would affect the level playing field of political competition, and is therefore likely to involve electoral benefits for other parties. Democratic self-defense will often require tasks of just this sort. The performance of democratic self-defense will influence the field upon which political actors such as parties compete. This is clearest in the case of party bans, which simply remove certain actors from the competition entirely, but less extreme measures can have similar effects. The temptation to fix the rules of the political game will always be there, and its potential consequences are dangerous enough to the political process even when nondangerous parties dominate the political process.6 This is clearest in the case of militant democracy measures—party bans, prohibitions on parties’ electoral participation, limitations on free speech for extremist parties, etc. To entrust such powers to elected legislatures is to provide elected officials with tools for hampering their political rivals as they see fit. It would be naïve to expect elected officials to navigate such an obvious conflict of interest consistently. Things get even worse if a dangerous (antidemocratic, extremist) party somehow obtained a working legislative majority. Such parties routinely move to eliminate other agents in the political system capable of resisting their agenda—courts, legislatures, regulatory agencies, the media. They also move to tilt the political playing field to their advantage—ideally, enough to prevent them from ever losing another election again. This is a trademark move of authoritarian populist parties, which recognize no legitimate opposition (Müller, 2016b), and it has been employed to devastating effect in Poland, Hungary, Turkey, and other places unfortunate enough to see authoritarian populist forces take control of the political process.7 Nothing in what we say here should be construed as a general indictment against elected legislatures, which generally have very respectable democratic credentials. Our argument instead is that legislatures are poor agents to entrust with tasks regulating the sphere of political competition. This is because elected legislators have a direct stake in that sphere and how it is constructed; they therefore face strong temptations to warp the sphere in ways that benefit themselves. This is why, for example, gerrymandering occurs, and why the solution to gerrymandering so often seem to involve taking the drawing of legislative district lines out of the hands of legislatures.8 This is not to say that legislatures will automatically abuse any authority to regulate political competition granted to them; it is simply to say that they have a standing temptation to abuse this authority, and that it would therefore be better to entrust as much of this authority as possible to agents lacking this temptation. There are, of course, elected political officials who are expected to be “above politics,” that is, nonpartisan. Many countries—for example, Germany, Ireland, Italy, Israel—rely on a figurehead President, elected either directly or indirectly, often by supermajorities and with a norm of choosing nonpartisan figures or nonactive politicians valued for their ability to credibly speak for the democratic order as a whole. These symbolic leaders usually have limited powers but play an important civic role. That role could conceivably be extended to include democratic defense. Such presidents could, for example, act directly by influencing coalition formation to disadvantage dubious parties or by verbally denouncing undemocratic behavior. Or they could be empowered to act indirectly, through a nominated assembly entrusted with powers of investigation, impeachment, and censure of public officials, as in the case of Taiwan's Control Yuan (Caldwell, 2019). In either case, the actions of such a presumably ‘neutral’ institution would amount to a soft and preemptive type of intervention for the sake of democracy. Despite the obvious benefit of having some such kind of control mechanism in place, we see several problems with such elected but politically neutral defenders of democracy. First and foremost, such institutions are easy to capture by majoritarian forces hostile to democracy. This does not even require antidemocrats themselves to ascend to such positions; it suffices to have their sympathizers or strategic partners in these roles, especially as new fringe parties often become kingmakers in an already polarized political arena.9 Strategic objectives and party loyalties may divide rather than unite intentions to go after suspicious cases, or simply distract from the principal goal of defending democracy. Second, the nonpartisan nature of certain elected offices and their limited powers go hand in hand. Any effort to give, for example, a figurehead president real abilities to intervene in political battles would increase the interest political actors take in that office. Given all this, how can the task of democratic self-defense—a task that is both necessarily political and beyond the normal realm of partisan politics—best be performed? Taking into account the limitations of, on one hand, courts and legislatures and, on the other, super-majoritarian heads of state as agents of democratic self-defense, it is worth exploring other options. A specially designed AC is, we will argue, one such option. Sortition—the random assignment of public responsibilities—has undergone a major revival of interest in the democratic world—a veritable renaissance, in fact, at both theoretical and practical levels (Stone, 2013). Proponents of sortition view randomly selected decision-making bodies, or ACs, as a crucial part of the cure for the ailing state of democracy in the world today. Numerous proposals have been made as to how ACs could be incorporated into modern democratic politics (e.g., Abizadeh, 2020; Barnett & Carty, 2008; Buchstein & Hein, 2009; Callenbach & Phillips, 2008; Guerrero, 2014; Leib, 2004; Sutherland, 2008; Zakaras, 2010). Some have gone so far as to imagine ACs either replacing election entirely (e.g., Bouricius, 2018a, 2018b; Hennig, 2017) or at least supplanting it as our primary democratic selection method (e.g., Landemore, 2020; Van Reybrouck, 2016). Moreover, these proposals have not remained confined to the realm of speculation, with several countries employing ACs to address controversial political problems. (For a review of recent experiments, see Farrell & Stone, 2020.) In this section, we offer a proposal very much in line with this growing trend. We propose a chamber of randomly-selected citizens charged with overseeing a state's democratic self-defense. This AC would become the principle democratic defender. In what follows, we consider the potential advantages of such an AC over legislatures and courts, the primary alternative sites for democratic defense. We will demonstrate that a properly designed AC could avoid the primary disadvantages associated with these two alternatives. On the one hand, entrusting democratic self-defense to an AC does not generate the risks posed by entrusting this task to an elected legislature. ACs deny political parties, and other organized interests who may wish to stack the political deck, an opportunity to manipulate the political process for self-serving purposes. By entrusting such tasks to ACs, a democracy can take advantage of the negative10 effect of sortition—its ability to select on the basis of no reasons (Stone, 2011). Due to this effect, ACs are guaranteed not to be filled on the basis of bad reasons. The partisan temptation to stack the political deck in favor of one party or interest is a quintessential example of a bad reason for selecting political actors.11 This is the reason why Delannoi et al. (2013) favor entrusting ACs with tasks relating to the regulation of political competition—the drawing of legislative district lines, for example, or the creation and enforcement of legislative ethics or campaign finance rules. Even those theorists who are generally skeptical toward sortition recognize the benefits of using randomly selected bodies in areas—such as choice of voting system—which influence the political landscape, as democratic self-defense measures do (Landa & Pevnick, 2020, p. 23).12 There is thus a natural connection between tasks of this nature and ACs. Democratic self-defense will often necessitate the performance of such tasks. It is, for example, typical to introduce majoritarian elements or high thresholds in an electoral system in order to make it harder for radical parties to gain representation. Many other policy initiatives, related for instance to the design or amendment of party funding rules, also directly affect the terms of political competition. One could object here that an AC could also become a place that replicates the partisan antagonism typical of legislative chambers. As modern political parties are not simply elite bodies, unlike their early counterparts, ACs would invariably contain members from various political parties, in rough proportion to the presence of those parties in the general population. Wouldn't this fact render ACs partisan agents in the same way as elected legislatures? We do not believe so, for two reasons. First, an AC would give a proportionate voice to weakly partisan citizens and to independents, in addition to rabid partisans. The former two groups, needless to say, are massively underrepresented in elected bodies. This fact can be counted upon to moderate any partisanship. Like compulsory voting, sortition brings out the less committed and more moderate type of citizens.13 This is advantageous for a body that claims suprapartisan credibility. Second, and even more important, is the fact that ordinary party members can be counted upon to think and act quite differently from elected officials. The latter make careers out of politics. This gives them a much stronger incentive to ensure that their party wins at any cost than citizens who simply agree with the party's positions. Moreover, ordinary party members do not necessarily agree with the “party line” on all issues, and even when they do agree, they can be more prone to listen to other views and to compromise. This is one of the reasons that some authors (e.g., Fiorina et al., 2010) argue that the “red-blue” divide in the United States is overblown, with elite attitudes far more polarized than the views of ordinary citizens.14 All these are consistent with the contemporary experience with sortition; it helps to explain, for example, why deliberative opinion polls in a deeply conservative state like Texas could strongly endorse the expansion of wind power (Fishkin, 2018, p. 113). Of course, ACs will also predictably contain members of extremist parties as well, assuming those parties are large enough to be dangerous. Will no