Accountability and Legitimacy

Accountability and Politicians

Accountability is another concern some people have about sortition. Accountability is the major selling point for elections, which are generally assumed to be an essential tool of representative democracy. Accountability refers to a principal holding an agent to account. In a representative system, the principal is the public (or perhaps a particular representative’s constituency), and the agent is either an individual representative, the entire legislative branch, or the entire government. In this political context, I will focus on two sorts of accountability: corruption or ethics accountability on the one hand, and policy or representational accountability on the other.

Any system of representation, whether using election or lottery, needs corruption accountability procedures, which can detect, punish, and preferably prevent bribery and the like. Policy accountability is far more convoluted, however. This deals with misdirection of policy away from the interests of a constituency or the general population. It is generally presumed that democracy requires procedures for removing even honest public officials through periodic elections as a means of assuring policy accountability. For those offices filled by random selection, this accountability tool is entirely absent. Voters wouldn’t be able to remove a representative, and there is no obvious way to hold an entire citizens’ assembly to account for bad decisions. The belief is that without the punishment of threat of removal,¹ there is no accountability, and members of a randomly selected mini-public are free to run wild. As I will explain below, elections in the real world fail to provide meaningful accountability. After addressing the myth of accountability under an electoral system, I will examine the concept of accountability under sortition.

Can Elections Actually Hold Politicians Accountable?

Jane Mansbridge of Harvard, who became president of the American Political Science Association in 2012 and authored the book Beyond Adversary Democracy, points out two approaches to accountability (Mansbridge 1983). The first is the “sanction” model of accountability, where the threat of retaliation at the ballot box keeps the politicians in line or holds them to account. This could theoretically have some effectiveness in countries with multi-party proportional representation, where voters have a choice of parties with somewhat similar platforms. Politicians might worry that failing their core constituency, or getting bad press, may prompt some voters to switch parties, and depending on countless other variables, could result in their losing an opportunity to be part of a governing coalition.

However, such sanctioning is all but nonexistent in the United States, with its plurality voting, two-party system. In the US, very few incumbents ever face viable challengers in their party primary. Indeed, a series of studies by FairVote: the Center for Voting and Democracy determined that in most election cycles, an incumbent member of Congress is more likely to die in office than be defeated in a primary. While voters holding their politicians to account in primaries almost never happen, big money interests and party insiders sometimes do extract loyalty through the threat of funding a primary challenger. As an example, in 2025 Elon Musk threatened some Republican members of Congress with the possibility of recruiting and pouring millions of dollars into a campaign to support a primary challenger if the incumbent veered from Musk’s policy preferences.

In the overwhelming majority of general election contests (after the primary), incumbents are re-elected by landslide margins in safe-seat districts. As Todd Donovan and Shaun Bowler point out in their book Reforming the Republic: Democratic Institutions for the New America, echoing the trend in primaries, “Turnover in the House, as with the Supreme Court, is largely driven by incumbent deaths and retirements, rather than competitive elections” (Donovan and Bowler 2004, 46). The notion that nearly every incumbent has reliably served their constituents’ true interests and behaved in fully ethical ways, and thus doesn’t deserve any accountability punishment, is ludicrous.

To explain the re-election rate well above 90 percent, it is cliché among media pundits to assert that “while voters say they dislike Congress as a whole, they like their own representative”. Polling indicates that this isn’t true. In 2014 polls of likely voters, seventy-two percent said that most members of Congress should be defeated in the next election. But stunningly, only twenty-nine percent thought that their own member deserved re-election (Rasmussen Poll 2014c). In 2024 surveys, the percentage who thought their own representative should be re-elected only reached thirty-six percent (Rasmussen Poll 2024a). This disconnect between re-election rates and voter satisfaction with their own representative can be harmonized by recognizing that although most voters think their own representative is bad, they think that the candidate from the other major party is even worse.

With only two major parties and the dearth of public awareness of their representative’s behavior (due to rational ignorance), election sanctions are an astonishingly ineffective accountability tool. Mansbridge further points out that “the close races with little incumbency that are necessary to make the sanctions model work may also drive away the most public-spirited agents” (Mansbridge 2009, 23). The re-election of Representative Charles Rangel in 2010, with 80 percent of the vote, while under the cloud of confirmed serious ethics violations, showcased the non-efficacy of the elective sanction model of accountability for corruption. He went on to win re-election in 2012 and 2014, before retiring. In a polarized partisan environment, researchers have confirmed a common perception that voters readily forgive corruption and ethical failings among politicians within their partisan “tribe”, and only care about accountability among politicians not in their tribe. This tendency may be less pronounced, but it still holds in jurisdictions using multi-party proportional representation.

Electoral accountability is an inherently retrospective tool. As I wrote in Chapter 2, it can be viewed as similar to driving while using only the rear-view mirror, since the only sanction that constituents can muster is removing the errant politician after the fact. But the threat of sanctions is forward-facing. However, the fact that elected representatives deal with a vast range of distinct issues makes this accountability tool incredibly problematic for their constituents to use as a means of guiding their representative’s policy behavior. If my representative votes as I wish on some issues, but contrary to my wishes on other issues, what should I do in the next election? What if the only viable opponent facing my current representative is likely to vote contrary to my wishes on more issues? How can I use the election process to hold my representative to account? How can I use the blunt weapon of the threat of removal to guide my representative? In some extreme cases, independent or third-party candidates may surface, and “spoil” the re-election chances of the current representative in the case of plurality winner election rules. The incumbent has been punished, but this can result in even worse representation for the aggrieved constituents.

The second sort of accountability Mansbridge discusses is the selection of representatives who naturally, without external incentives, seek to represent the interests of constituents because they are congruous with their own. Accountability, with regard to policy, rather than corruption, is only an issue when the interests and beliefs of the representatives are different from those of the population they represent. The fact that unaccountability is a widely discussed problem in modern electoral democracies is evidence that elected representatives do not accurately represent the population. Joel Parker puts it this way: “It may be that we tend to think of accountability almost exclusively in terms of electoral sanctions, not because elections are particularly effective at controlling the actions of representatives, but because our reliance on elections makes the presence of sanctions that much more necessary” (Parker 2011, 182–183).

Many electoral systems around the world have corruption-prone features that stymie accountability. These include campaign finance procedures and legislators enacting and enforcing ethics rules self-referentially. While such procedures could be changed to eliminate these particular avenues for corruption, there are more fundamental traits of electoral systems that make accountability by sanction unworkable.

Legislator accountability is generally about acts of commission, rather than acts of omission. Casting a bad vote or taking a bribe could theoretically make a politician subject to removal (though it is stunningly rare for such punishment to actually occur). However, as discussed in Chapter 3 in the section on setting the agenda, politicians often avoid certain issues altogether, and this act of omission can be far more consequential and harmful to society than the votes they take. The danger of climate change is a damning example. NASA scientists gave urgent warnings to Congressional committees in the 1980s that greenhouse gases were already affecting the climate and that by the first half of the twenty-first century, the impact would become devastating. The needed response of transitioning away from fossil fuels was deemed too harmful electorally for those politicians,² so it took decades for this vital issue to finally get onto the political agenda (when the magnitude of response needed had been multiplied). The fear of short-term electoral “accountability” from taking any action trumped the scientific evidence of global devastation.

Electoral accountability is premised on the assumption that the constituents know what their representatives have done. First, it must be noted that many of the most significant actions (and, as discussed above, inactions) politicians take are agreed to in secret, behind closed doors. It is the deals, rather than the roll call votes, that often matter most. But even just considering their voting records, hardly any constituents know how their representatives vote on any given issue. This means it is lobbyists who actually reward or punish a politician with money or publicity. Careful research has confirmed that voters are unlikely to make accurate assessments of representatives, even when resources and financial incentives are provided (Huber, Hill, and Lenz 2012). Gregory Huber, lead author of a study of four thousand citizens participating in a series of exercises assessing how people incorporate information in evaluating incumbent politicians, told a reporter, “Our results suggest severe limitations in humans’ ability to accurately and impartially judge the performance of politicians. This is a worrisome finding for democratic accountability because it creates a breeding ground for politicians to manipulate their electorate” (Cambridge University Press 2012).

Professor Alexander Guerrero at the University of Pennsylvania has written about the problem of holding elected representatives accountable. After discussing the various impediments to fair elections (money, voter registration hurdles, gerrymandering and the like), he observes:

Even if these problems were addressed, they would succeed only in making elections fair. But meaningful accountability requires not just open and fair elections; it also requires that we are capable of engaging in informed monitoring and evaluation of the decisions of our representatives. And we are not capable of this. Not because we are stupid, but because we are ignorant: ignorant about what our representatives are doing, ignorant about the details of complex political issues, and ignorant about whether what our representative is doing is good for us or for the world. Our ignorance means that representatives can talk a good game, and maybe even try to do a few things that benefit the majority of us, but the basic information asymmetries at the heart of the representative system ensure that, for many issues—defense manufacturing and spending, policy that affects the insurance and pharmaceutical industries, agribusiness policy and regulation, energy policy, regulation of financial services and products—what we get is what the relevant business industries want. In the presence of widespread citizen ignorance and the absence of meaningful accountability, powerful interests will effectively capture representatives, ensuring that the only viable candidates—the only people who can get and stay in political power—are those who will act in ways that are congenial to the interests of the powerful. (Guerrero 2015)

Political scientists have shown that American voters generally can’t accurately assign blame when things go wrong. The electoral retribution following the New Jersey shore shark attacks and the Great Depression, which I discussed in Chapter 2, are examples of this. Political scientists and party leaders know that a bad economy will tend to hurt the re-election prospects of an incumbent president, even if the fault lies with Congress, Wall Street, or beyond any politician’s control. It’s like punishing the cat for urine on the carpet left by the dog. The apocryphal assumption that elections are an effective and appropriate tool for guiding lawmakers prevents consideration of alternatives like sortition.

This problem is compounded by the fact that partisans often seek to intentionally misinform voters about factual matters. As Professor Russell Muirhead of Dartmouth College notes, electoral partisanship

is embedded in a politics of power and domination. In practice, partisans are a part that seeks to rule the whole. Partisanship is thus a peaceful cousin to civil war: It is a legally sanctioned mode of acquiring power and preventing one’s adversaries from doing the same. Often, one side wins because it has managed—by election, by manipulation of fact, by deception, by craft—to claim the levers of power.

In large-scale elections, voters must rely on second-hand information, since very few have significant first-hand knowledge of their representatives’ actions (or, as discussed above, willful inactions). Voters either rely on partisan labels, some “single-issue” policy concern, or rudimentary assessments of a candidate’s character (as presented through carefully designed propaganda techniques) in deciding how to vote. Gabriel Lenz, author of Follow the Leader? How Voters Respond to Politicians’ Policies and Performance, examined a large number of voter surveys from the US, Great Britain, and the Netherlands from the 1940s to the present and found that policy considerations are simply not a major determinant for how most people select candidates. Lenz summed up his findings, saying, “Unfortunately for democracy, the results are not reassuring”. Most voters can’t match candidates with the policies they espouse. “It’s not that voters are dumb or stupid”, Lenz observes. “It’s just that they have better things to do with their lives” (Lenz 2012). As I discussed in some detail in Chapter 7, the workaround of hoping that voters could offload the burden of becoming informed onto surrogates, such as special interest advocacy organizations and special interest lobbyists, who do pay attention and study legislators, has also been shown to be ineffective (Broockman, Kaufman, and Lenz 2024).

While most politicians’ policy work is invisible to constituents, a handful of issues do garner substantial media coverage and may indeed cause legislators to worry about how voters will react. Most of these high-visibility issues are selected by politicians for their campaign value. Different parties seek to highlight different issues, and those that do rise to the top are often more symbolic than substantive. Politicians also seek to frame them so that, in typical polarized safe-district elections, both major party candidates can “deliver” by voting the way their base thinks they should. Occasionally, the reality on the ground forces an issue, which was not tailor-made, nor pre-selected by politicians for campaign purposes, into public awareness. But these represent a tiny fraction of legislators’ workload.

Even if electoral accountability could work, it has a severe dark side. Harking back to Edmund Burke’s independent agent vs. delegate dichotomy discussed in Chapter 6, in some cases the lack of accountability by election may actually free a representative to act in the true interests of the public, even if the polls don’t favor the policy. To any extent that sanction accountability (the fear of losing the next election as a consequence of behavior) is effective, it would be a double-edged sword with both positive and negative consequences for the constituents and society at large. Politicians may pander or promote short-term policies that are popular (thus beneficial for re-election), yet they know will harm the public in the long run. Legislators often pass new laws in response to threats that are dominating the news, even when they know the legislation is costly and certain to be ineffective. A huge portion—trillions of dollars worth—of Congressional and Presidential actions following the 9/11 attacks probably fit this description. What’s more, the representatives’ “accountability” to the public pressure to “do something” generated increased opportunities to shoehorn in corrupt action, such as rewarding campaign donations from weapons manufacturers.

Accountability and Legitimacy Under Sortition

The concept of accountability for corruption can be applied at the level of the individual member of an elected or lottery-selected law-making body. But the very concept of representational (policy) accountability for an individual member (as it is applied to an individual elected representative³) is simply not applicable to a system of sortition. A mini-public as a whole is representative of the population as a whole. No individual member has any distinct constituency. It can be argued that the term “a representative” (the singular) isn’t even an appropriate term for a member of a mini-public. Elected representatives who deviate from the interests of their constituents can theoretically risk removal. Under a sortition system of randomly selected mini-publics, since no member has a constituency to be accountable to, each member is expected to vote in whatever way he or she thinks best, based on the information presented. In terms of policy accountability, it is necessarily the body as a whole, rather than any individual member, that is the appropriate level for scrutiny.

Random selection maximizes the sort of “natural” or congruent accountability described by Mansbridge as the alternative to sanction-based accountability. This is because the members are a microcosm of the public. Using John Adams’s maxim again: the mini-public is “in miniature an exact portrait of the people at large. It should think, feel, reason and act like them” (Adams 1776). If presented with a draft law, any statistically representative group, or the population as a whole (if all citizens could somehow be engaged in the same deliberation) would be likely to vote in a similar way.⁴

The political theorists Cristina Lafont and Nadia Urbinati have argued that a sortition body can either be genuinely like the population, mirroring their preferences in a populist way, or become well-informed, serving as a technocratic filter for the poor judgment of the less-informed public, but that these two concepts are “mutually incompatible”. A sortition body cannot have the same preferences as the people, and also have better preferences. “Both claims cannot be simultaneously true. Lottocrats must choose between these technocratic and populist claims” (Lafont and Urbinati 2024, 163). Lafont deems decisive mini-publics as an illegitimate “shortcut” generating decisions to which the public is expected to “blindly defer”.

This objection to the sortition “shortcut” is rather silly. The fully compatible goals are to have an accurately representative sample of the population, who share the same values and interests, and to have such representative groups become adequately informed so as to make the same decisions that the population as a whole would make if they could somehow all become well-informed, hear opposing perspectives and analysis, and deliberate, without distorting personal power agendas—representative and informed. Since it is impossible for all citizens to participate in deliberation on all policy matters, large communities must use some sort of shortcut. The only question is which shortcut is most democratic and delivers the best results, with the least corruption.

Lafont argues that concordance between policy decisions and the uninformed preferences of the public is essential for mini-publics to have legitimacy. Tying representatives to the uninformed opinions of the general population, as described in polls,⁵ as Lafont does, contradicts the independence and judgment that theorists from Edmund Burke onwards regarded as essential. Being accountable to uniformed public opinion is foolishness. As sortition researcher PierreÉtienne Vandamme wrote about citizens’ assemblies (CAs):

it is worth pointing again to the classical trade-off between accountability and independence. It is often the independence of CAs from electoral promises and public pressure that is invoked to justify their epistemic added value. Yet, if they cannot deviate from public opinion without sanction, these epistemic benefits (including the possibility to leave room for the interests of foreigners and future generations) might be jeopardized. (Vandamme 2023, 41–42)

However, sortition bodies should give an account of their thinking. Another sortition researcher, Shao Ming Lee, notes, “In this way, they are not a ‘shortcut’ bypassing the public, rather, they at the very least attempt to explain their decisions and convince the public of their choices” (Lee 2024, 4).

Lafont excuses decisions made by elected representatives as being reasonable deference rather than “blind deference” merely because there is some hypothetical ability of a citizen to “control” the politician via the election process. The impossibility of this in reality has been a major theme of this book. Many scholars have also dismissed Lafont’s “blind deference” argument, explaining why deference to laws passed by a mini-public would deserve more trusted deference (rather than blind). ⁶ Indeed, the resistance to corruption, partisan campaign or hidden agendas, and elite domination are all reasons decisions by mini-publics deserve greater deference than decisions of an elite set of representatives who sought power, and were able to pass through the expensive, elite electoral filtering process.

As a thought experiment, imagine two voters who had identical policy preferences. In this example, let’s say they were pro-union, anti-immigrant (viewing it as a ploy by business owners to bring in low-wage workers to suppress wages). They were both pro-life (anti-abortion) and viewed climate change as a crucial issue requiring urgent action. There was no political party or candidate that agreed with them on all of these issues. Perhaps one of them had a parent who always stressed how much the union improved their life, and convinced that voter to vote for the pro-union party on the left. The other voter saw a frightening advertisement about dangerous immigrants and decided to vote for the party on the right. Neither had taken the time to become well-informed. Even though their policy preferences and interests were identical, unpredictable circumstances prompted them to vote in opposite ways.

For most of the hundreds of public policy issues decided every week, voters have no preference, or only a sketchy one. If interrogated closely, both of these hypothetical voters might say that they recognize that their policy preferences are not deeply thought through and are unsure how their few identifiable policy preferences align with candidate platforms. Their considered preferences, once better informed, might evolve, or even flip. They might much prefer that people like them (without hidden agendas), were given the time, resources and motivation to really dig into each of these issues (and others that haven’t occurred to them) in order to make a truly informed decision on each. “I don’t want my off-the-top-of-the-head answer on some opinion poll to be controlling. That is not accountability”. We should want our representatives to be willing to make the best, even if unpopular, decision.

To add an additional layer of policy accountability, we may want to add a double check in the case of close votes in a mini-public. If the majority threshold of a jury vote is less than the acceptable confidence level for the sample size, in order to provide accountability and assurance of representativeness, a second jury could be called (perhaps a larger one) to see if they come to the same conclusion. Another possible avenue for accountability is to have a system allowing a petition route to demand a second jury to confirm a decision. The signature threshold and details of how this might work are challenging, since people wouldn’t want every policy decision “re-litigated”. To prevent trivial or too frequent political court cases in ancient Athens, a plaintiff (accuser) who was bringing a political case to the large randomly selected court needed to win at least one-fifth of the vote of the jury, or they would have to pay a massive fine of 1,000 drachmas and a restriction on their rights.

Corruption Accountability

With less power (dealing with far fewer issues and no re-election longevity), sortition representatives would have less opportunity for corruption. The power that accrues to a politician who is a committee chair with lots of seniority and repeated re-election campaigns is a recipe for corruption. Such concentration of power maximizes both the push and pull of corruption. It prompts interests to seek to establish a corrupt relationship, and multiplies the power-holders’ opportunities for corruption. However, although far less prone to corruption, a decision by a mini-public could still be the result of corruption.

The prevention of corruption was one of the primary purposes of the lottery system in classical Athens, as well as the Renaissance Italian city republics. Athens had a system for rendering of accounts, scrutinizing the performance and financial honesty of all of its randomly selected magistrates and councilors at the conclusion of their service by randomly selected panels of inspectors. In a modern context, the same anti-bribery provisions that protect against jury tampering can be applied to sortition bodies. The threat of prosecution for wrongdoing should also remain. All mini-public members might also be told that an “undercover” person might pretend to try to bribe them, and if they report it, they would get a reward (and if not, they might be prosecuted).

It would be important to protect against pay-offs to former mini-public members in cash, job offers, or other perks from groups interested in the legislation the representative had worked on. Since policy accountability at the level of the individual member is inappropriate for a statistically representative body, the record of votes by individuals is also problematic. Jury-like secret balloting is probably desirable, so as to avoid corruption by after-the-fact special interest rewards. Likewise, while the release of transcripts of deliberation may be appropriate as an aspect of “giving account” (discussed below), the identity of the individual speakers should also be withheld to fend off corruption.

If, however, a sortition system is poorly designed (by replicating some of the corrupting aspects of existing elected legislatures), both policy accountability and corruption accountability could be hampered. Simply substituting selection by election with selection by lot is not enough. If a law-making body (selected by lot) dealt with a wide range of issues, and had a long term of office, it is likely that internal power hierarchies would develop, vote trading, and other untoward practices would arise.⁷ The longer a given group is in power, the less they would be typical of, or be representative of, the population from which they had been drawn, and the more likely corruption would develop. This is one reason I advocate separating out the preparation process for proposals (where more extended experience is particularly helpful) from the final decision-making function, which ideally should be conducted by short-duration juries that deal with a single issue, in order to prevent vote trading and developing a sense of power and entitlement typical of elected legislators. Rotation, as practiced in Athens and many other jurisdictions, is a key component for avoiding all kinds of corruption and unrepresentativeness. Short-duration decision-making legislative juries also have the beneficial tendency to “regress to the mean”. That is, while one random jury may be a bit less representative than average, any unrepresentative decisions would tend to be modified by subsequent random bodies. This process of reconsideration of past bad decisions is enhanced, compared to long-duration legislators (whether elected or allotted), simply because there is no pride of authorship causing representatives to cling to failed policies long after their merit has been disproved. With constant rotation and new mini-publics, sortition is a self-correcting system. A bad decision by one jury will likely be reversed by a subsequent jury. Unlike politicians who often double down on their previous (bad) decisions, each jury is fresh, without the politicians’ motivation to save face by insisting that their earlier decision was right.

Accountability of the group as a whole is also improved by providing separate review and rule-making bodies. There is always a risk of corruption when a group with power defines its own rules—such as Congress setting its own election laws, ethics enforcement procedures, etc. The principle of separating powers, which has widely been recognized as a cornerstone for protection against undue concentration of power, leading to tyranny, should be applied to rule-making for legislative bodies as well. In a nutshell, the person or entity that defines the choices or decision-making process should not be the same as the one making the final decision.

In Federalist No. 10, Madison wrote: “No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. With equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time” (Madison 1787b).

This basic principle of separating tasks was noted by the seventeenth-century political philosopher and supporter of Cromwell, James Harrington. In his magnum opus describing a Utopian constitution, Commonwealth of Oceana (which also incorporated some sortition within its design), Harrington wrote:

[Two children] have a cake yet undivided, which was given between them: that each of them therefore might have that which is due. “Divide”, says one to the other, “and I will choose; or let me divide, and you shall choose”. If this be but once agreed upon, it is enough; for the divident, dividing unequally, loses, in regard that the other takes the better half. Wherefore she divides equally, and so both have right. (Harrington [1656] 2003)

Through the separation of tasks, the children provide accountability to each other. This anti-corruption accountability feature is one of the reasons undergirding my multi-body sortition design. Elections almost universally fail to provide actual accountability, while well-designed sortition has accountability built in by harmonizing the nature and diversity of the decision-makers with the nature and diversity of the population.

“Accountability” can also refer to decision-makers giving an account, in other words, explaining why the decision was made, and seeking to convince the populace. As Mansbridge explains, this was the original meaning, with the “sanction” model (arising from elections) now taking its place. In addition to the “giving account” body explaining the reasoning behind a decision, Mansbridge also discusses peer accountability between and among the members (Mansbridge 2019). The experience of countless court juries (for centuries) and around a thousand citizens’ assemblies (in recent decades) has shown that members of such randomly selected bodies almost universally take their role seriously and have a feeling of accountability and responsibility.

This feeling of responsibility often extends beyond the group involved in the deliberation. Although each member may vote according to their own individual interest, the collective result reflects the community’s interest. Interestingly, however, surveys of mini-public participants reveal that many members decide on their own to take a broader perspective about their interests. As one researcher noted:

Indeed, if the French Citizens’ Convention is any indication, where a substantial majority of 65% of the mini-public said they did not speak for themselves only, then it is not utopian to think of lottocratic citizen representation as genuinely representative. Norms can always develop amongst citizen representatives that they are not deliberating only on their own behalf. In any case, it seems rather strange that electing someone is seen as the only way in which decision-makers can be seen as actually representative. Another counter is that by virtue of being ordinary, citizens are representative even if they may not be aware of it or actively trying to represent a constituency. (Lee 2024, 4–5)

In summation, a sortitional democracy needs well-designed anti-corruption procedures, but has a huge head start over elective systems. This is due to multiple reasons. Frequent rotation prevents the accrual of power. The absence of campaign fundraising reduces opportunities for de facto bribery. Anti-jury-tampering laws can prevent secret lobbyist influence and assure a diversity of expert testimony. Allotted members are not typically involved due to motivations to seek personal power and status, as is typical of politicians. Independent mini-publics can adopt the anti-corruption procedures, in contrast to elected members adopting rules for themselves. Finally, the broad, diverse representativeness of juries results in the sort of natural or congruent accountability discussed by Mansbridge. This natural accountability results in citizens’ assemblies often discovering far more common ground than elected politicians. This likely reflects their divergent motivations. Jurors seek to figure out what is the best policy, while politicians have powerful incentives to vilify and defeat opponents in preparation for the next election. The willingness and ability to work together to find common ground is a sort of accountability that a sortition body can provide that competitive politicians typically cannot. The imagined accountability from the sanction of losing re-election is pale in comparison.

Legitimacy

But can a democracy based on sortition, instead of election, have political legitimacy? Before examining that specific question, I want to briefly examine the underpinnings of the whole concept of political legitimacy. “Legitimacy” is an ambiguous concept, revolving around whether the population gives deference to their government, willingly following its laws. For countless centuries, governmental legitimacy was primarily based on inheritance or divine authority. Only in brief moments of revolt or overthrow did the question of which ruler was legitimate even arise.

Max Weber, writing in the early twentieth century, proposed that legitimacy could derive from this sort of tradition, or from a legal-procedural foundation, or from charisma, centered in “the leader” (Weber [1922] 1978). Legitimacy that originates in a legal proceduralism, such as an election, can transition to charismatic legitimacy, and over time, to traditional legitimacy.⁸ Some critics of Donald Trump, following his re-election to the presidency, saw his exceptional “only I can fix it” charisma—among his followers—as a potential path to authoritarianism. People can disagree about what is, or is not, legitimate. The rise of “strongman” legitimacy across the globe reflects the decline in legitimacy of the electoral system. Many who have turned to one-man rule (seeing it as the only alternative to a failing electoral system) might be supportive of sortition instead, if they knew about it.

The Enlightenment philosopher, Thomas Hobbes, advanced the concept of the social contract (Hobbes [1651] 1996). He argued that a ruler has legitimacy because of the tacit consent of those governed. As long as a population does not rise in revolt, the ruler is presumed to have legitimacy. Without central authority and laws, he believed that the state of nature would be a war of “every man against every man”. In short, people consent to rulers—giving up some “rights”—to gain protection, because the alternative would be far worse.

John Locke sought to revise this notion by adding a moral aspect and seeking more explicit consent as a basis of legitimacy. I touched on this concept in Chapter 5, when discussing the history of the framing of the new American republic. As Thomas Jefferson enshrined in the Declaration of Independence, the view passed down to us today is that governments derive their just powers from the consent of the governed.

But David Hume, writing in 1742, rejected the entire idea of a social contract based on consent, since most people have no realistic means of rejecting the implied social contract. The notion that voting is “giving consent” is a fallacy. It is applied even when voting against the candidates who win. The reasoning goes that mere participation in the election implies consent with the rulers who end up winning. In countries with proportional representation, a majority of those who voted may disdain the coalition that ends up forming the government, typically formed through secret deal-making. In many elections, a majority of those who participate do so for the purpose of opposing a feared candidate, rather than to support (or consent to) some other candidate. This consent fallacy is akin to arguing that the prisoner has consented to his own execution by choosing the least painful means of execution offered. Those who don’t cast ballots at all in elections are also often deemed by the establishment to be granting tacit consent (satisfaction) through their inaction. If we combine those who voted against the winning candidates and those who did not vote at all (even if we count those who voted for a winner they dislike that they consider a lesser of two evils, as having consented), in nearly all US elections, the majority in fact did not consent to the chosen rulers. Yet, Bernard Manin believed that the mythology of consent through elections effectively blocked any consideration of sortition at the founding of the American and French republics (Manin 2002).

Political theorists have proposed a variety of criteria for “just powers” of a government (as legitimacy is termed in the US Declaration of Independence). Some modern scholars have pinned legitimacy to legal, rational and procedural foundations. But the legitimacy of an existing government is generally taken for granted, simply because people are born into it, so it feels natural and inevitable within their social context. Thus, the legitimacy of monarchs or theocrats may nominally come from god, and an authoritarian may derive legitimacy from charismatic stardom, and a supposedly democratic ruling elite may point to elections as the basis for their legitimacy. However, legitimacy crises can emerge when regimes stop feeling “normal”—whether due to economic troubles, scandals, or cultural shifts.

Thomas Fossen has suggested that the whole notion of establishing a list of moral criteria that grant political legitimacy misses the point. He has advocated a “pragmatist” approach, examining how ordinary people make everyday judgments on how they will interact with a regime, which either affirms or rejects its legitimacy. We might argue about whether a system deserves legitimacy, but that does not determine whether it has legitimacy in the eyes of the population (Fossen 2021, 2022).

Politicians in many countries have embraced advisory citizens’ assemblies as a useful tool for engaging citizens and shoring up their own legitimacy as rulers who consult the people. However, in the event of a movement toward empowered sortitional bodies as a replacement for elected decision-makers, they can be expected to close ranks in opposition. While direct popular enactment through initiative and referendum is possible, the “peeling strategy” I will discuss in the final chapter may be a useful transitional step.

However, it is not only establishment politicians who oppose empowered sortition bodies. Theorists, such as Lafont, insist that mini-publics lack legitimacy because the deliberation on any particular issue is largely confined to a sample, rather than spread widely through society, and seem to have a phantasmagoric misunderstanding of what public policy making actually is. On one given day, a citizen may have a vast number of government issues being decided on their behalf: municipal wastewater rates; deficits in road infrastructure funds; corporate accelerated depreciation, etc. Do most voters have preferences? Do they want to actively “have a say”, or spend time engaging in deliberation on these issues? Will they know what their elected representatives have done? Will they successfully use the next election to hold their representatives to account if the voters’ off-the-cuff preferences (if they exist) on this one particular day are not adopted?

Some contemporary scholars, like Margaret Levi, emphasize “trustworthy governance” as a source of legitimacy (Levi 2018). This includes not just effectiveness, but also fair procedures, honest administration, and genuine protection of citizen rights. When people view government as trustworthy, they’re more likely to comply voluntarily with its directives. Among the competing theories of legitimacy is David Estlund’s epistemic proceduralism. He uses the court jury as an example. The procedure, if conducted fairly, with agonistic opposing arguments and an impartial jury, etc., is a procedure that, though fallible, has a good chance of making “correct” decisions. Accepting its decisions (instead of resorting to vigilantism, for example) is morally legitimate, even though some decisions may be “wrong” either just in my opinion or as a matter of absolute fact (epistemically). Once we accept that the procedure is both fair and likely to make good decisions, we can accept all such decisions as legitimately made (Estlund 2008).

Lafont’s spinoff on consent argues that concordance between government policy decisions and the uninformed public opinion about those policies is decisive. If a government frequently makes decisions that are different from how people would respond in a public opinion poll, she deems that government as lacking legitimacy. However, after just a moment of thought, hardly anyone would agree that a democracy should simply mirror the off-the-cuff opinions registered in opinion surveys. So, Lafont’s “concordance” requirement would itself likely be rejected in an opinion survey. Political theorist Eric Shoemaker offers compelling arguments about the logical inconsistencies of Lafont’s notion of democratic legitimacy (Shoemaker 2024b).

Habermasian deliberative democracy theorists like Lafont want citizens to widely engage in deliberation, rather than just in mini-publics (Lafont 2015). But this is impossible simply due to the scale and breadth of policy issues needing decisions. Democracy requires delegation in large societies. What’s more, such mass deliberation is not desired by those same people, who have other things to do with their time. However, rather than referring decisions to “elites”, as some theorists propose (Hibbing and Theiss-Morse 2002, 238), the option of referring to fellow citizens like themselves who take turns and study the facts can avoid the corruption and hidden agendas of egotist politicians, and the special interests they so often serve.

Ultimately, theories of legitimacy are less impactful than the simple fact of whether the population, by and large, accepts the authority of government. That may be under an electoral regime, sortition, under a king, a theocrat or fascist dictator. Perhaps legitimacy should be evaluated by some particular criteria, but in the real world, it is just a reflection of popular acceptance or rejection of the status quo based on feelings and understandings that most people never examine. This is why a referendum is widely accepted as the standard legitimacy-granting and removing procedure. These voters don’t need to be “well informed”, since the core question at hand is how they feel about the form of government. It is commonly believed that legitimacy requires either longevity or such an act of authorization.⁹

When a government falls or loses legitimacy, how a new government, or form of government, can win legitimacy depends on the details of the situation. The transfer of authority from one system of government that is losing legitimacy to a new system is an under-studied question. Sortitional democracy doesn’t have the advantage of long familiarity, and thus must earn democratic legitimacy through performance and trustworthy procedures viewed as fair. A necessary first step is for people to have some awareness of sortition—having seen it perform well in some prior circumstance. The court jury is the primary example, but a plethora of citizens’ assemblies and non-governmental sortitional democracies seem necessary to pave the way to general legitimacy.