Freeman

RULES OVER RULERS

Can We Correct Democracy?

JUNE 04, 2013 by TOM W. BELL

Suppose you and your friends want to throw an ice cream party, but you can afford only one flavor. Each of you has a different favorite, so you disagree about which flavor of ice cream to buy. No amount of voting can discover the one best flavor of ice cream for your party; you simply cannot please everybody.

Democracy evidently does not have all the answers. Yet you and your friends would readily agree to reject some flavors of ice cream. Nobody wants to party with dirt-flavored ice cream, for instance. 

The lesson: Democracy works best at correcting mistakes. 

 

Surge Protectors for Democratic Power?

Winston Churchill aptly described democracy as “the worst form of government except all those other forms that have been tried from time to time.”  Note well Churchill’s phrasing: that have been tried. Could a new kind of government correct the failings of democracy?

Many sing the praises of democracy, but few trust it to govern well. Even self-proclaimed democracies limit the power of the vote, filtering it through representational mechanisms and setting aside certain rights as beyond simple majority rule. For those limits on democracy, wise people sigh in relief.

Even its most ardent fans admit that democracy in its purest form—a broad franchise giving direct control of all government operations—offers a poor way of running things. Giving total and direct control of the government to the majority of voters can work, if at all, only in the smallest and most intimate of groups. It cannot work at the scale of a city, much less a state.

Yet democracy has the great virtue of giving voters some say in their government. Even as it invites some excesses, it offers hope of preventing others. How can we safely tap the power of democracy without blowing out the fuses that keep government within safe bounds?

 

Corrective Democracy

A corrective democracy allows voters to do only one thing: Strike down a specified rule. Voters would get a fair shot at any law, regulation, ordinance, or order that offends them. If it failed the corrective vote, the rule would get removed from the books. Think of it as the electoral equivalent of jury nullification.

Corrective democracy qualifies as a type of “disapproval voting,” the general name applied to systems that allow only votes against certain choices. Disapproval voting has seen use in a number of contexts, most famously on reality game shows where participants can vote each other off but also, and more conventionally, in recall elections and no-confidence votes. (Disapproval voting has not evidently attracted much formal study, however, or been put to the broad political use advocated here.)

A corrective democracy could not be used to create a government agency or program; creating new institutions would require the passage of new laws. Corrective democracy thus comes with a powerful built-in limitation. Even if the lazy and vicious outnumbered the industrious and virtuous—a tragic but unlikely situation—they could not use a corrective democracy to give themselves bread and circuses.

 

A Broad Franchise with Narrow Powers

The narrow powers afforded by a corrective democracy make it safer to adopt a very broad franchise. Many supposedly advanced democracies deny the vote to ex-felons, a policy that can leave as much as 10 percent of the population of some minority communities unable to vote. Yet who better than an ex-felon to know whether the criminal justice system lives up to its name?

A corrective democracy could let ex-felons vote without worrying that they would, say, elect a pro-felony politician. Indeed, even felons still serving time could vote. Nobody need worry that a few criminals would vote away the protections popular with more law-abiding folk. How likely is it, after all, that bad guys would outvote everyone else on the question of, say, striking a ban on burglary? Not even many burglars would vote for that proposition; even people who sometimes break the law generally enjoy its protection.

 

Playing with the Variables

If you’ve made it this far, you probably see the promise of corrective voting but have some questions about the details. Those would and should vary according to circumstances. Allow me to describe one implementation, however, to give you a feel for some of the variables in play.

As already mentioned, corrective voting could safely support a broad franchise—broader than most self-proclaimed democracies allow. In addition to ex-felons, for instance, children might be afforded a vote in matters affecting their rights. And what about a State’s non-citizen residents? They can easily find their rights at risk and are not likely to outnumber citizens in votes concerning politically popular immigration controls.

What percentage of the vote would be required to get rid of a challenged law, regulation, ordinance, or order? Different polities might choose different percentages. Simple fairness suggests, however, that a rule should not stand if more than 50 percent of eligible voters disapprove of it.

Even on that simple-majority standard, it would not prove especially easy to get rid of unpopular rules. Every “no” voter has to take the trouble to cast a ballot, after all, whereas just staying home effectively counts as a “yes” vote. The rules on the book thus get a presumption of validity; the burden of changing them falls on challengers.

It is thus unlikely that fundamental rights, such as freedom of expression or religion, would fall prey to a corrective vote. Nonetheless, worries on that front could be assuaged by protecting certain rights with supermajority requirements or completely exempting them from popular challenges. Here as elsewhere, implementation might vary from place to place and from time to time, but the point remains that fundamental rights need not face undue risk of repeal.

How to provide open access to corrective democracy without wasting time on futile votes? Let anyone call an election on any rule, but make losers pay the costs. Apart from perhaps requiring that challengers post bond, this system would let anyone target any law, regulation, ordinance, or order. Elections in a corrective democracy could thus arise directly from voters themselves, the popular will unmediated by party politics, electoral commissions, or arcane devices like the Electoral College.

 

Not a Scepter but a Sword

Corrective democracy offers democracy, corrected. Because it operates only to trim back government excesses, corrective democracy runs little risk of degenerating into mob rule. It thus gives voters a more direct say in their government without giving them direct access to power. 

Corrective democracy is not a lesser form of democracy, however. To the contrary, it affords a safe means to broaden the voting franchise and open up public access to the initiative process. Corrective democracy does not solve every problem of governance—somebody still has to write the rules, for instance—but it does improve on current political mechanisms. Corrective democracy turns voting from a blunt scepter for wielding political power into a sharp sword for defending individual rights.

Disclaimer:  These are the personal views of Tom W. Bell and not those of any employer, client, or advisee.

ASSOCIATED ISSUE

July/August 2013

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TOM W. BELL

Tom W. Bell is a professor at Chapman University School of Law.

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