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January|February 2004
The Big Kozinski By Emily Bazelon
Righting the Ship of Democracy By Bruce Ackerman and James Fishkin
Smooth Sailing By Richard Posner
The Wrong Tack By Arthur Lupia

Smooth Sailing

Democracy doesn't need Deliberation Day. If spending a day talking about the issues were a worthwhile activity, you wouldn't have to pay voters to do it.

By Richard Posner

The proposal by Professors Ackerman and Fishkin for a Deliberation Day, on which citizens lured by federal financial incentives would engage in collective deliberation over issues and candidates in the forthcoming national election, seems to me to misunderstand what modern political democracy is and should be.

The remote inspiration for Deliberation Day is Athenian democracy, in which the citizenry as a whole was both the legislature and the principal court, and the appointment of most executive officials by lot prevented a distinct governing class from emerging (or at least impeded its emergence). It was a genuine and in many respects progressive and attractive system of self-rule, but one utterly irrelevant to a vast and complex modern polity such as the United States or, for that matter, a small and complex polity such as Belgium.

Modern democracy, for reasons of efficiency and feasibility, is representative democracy, which involves a division between rulers and ruled. The rulers are officials who are drawn from—to be realistic—a governing class consisting of ambitious, determined, and charismatic seekers of power, and the role of the citizenry is to vote candidates for officialdom in and out of office on the basis of their perceived leadership qualities and policy preferences. The system exploits the division of labor and resembles the economic market, in which sellers and consumers constitute distinct classes. In the marketplace, the slogan "consumer sovereignty" signifies that the essentially negative power of the consumer—the power not to buy a particular product, a power to choose though not to create—constrains the behavior of sellers despite the vast gulf of knowledge and incentives that separates sellers and consumers. The same relationship exists between politicians and voters.

There is no Deliberation Day on which consumers engage in collective deliberation over competing brands of toasters or about whether to use microwave ovens instead. Consumers economize on their time by responding to alternative sales pitches and using their experience of particular sellers and products to guide their evaluation of the pitches. It is the same in the political marketplace. Voters are guided by their reactions to the presentation of issues and candidates in political campaigns and by their experience of living under particular officials and particular policies.

As we recently learned in the California recall election, the wrath of a disappointed electorate can be mighty. And so can the power of an alienated, "turned-off" electorate. The fact that only about half of all eligible voters (and often even fewer) actually bother to vote in most political elections is commonly taken as a failure of democracy. Not at all. The decision not to vote may reflect equal satisfaction with the candidates, equal dissatisfaction, or rational indifference between them. It is as important that citizens not be forced to vote as it is that the barriers to new parties and to insurgents like Arnold Schwarzenegger be kept low so that our two-party system does not degenerate into duopoly.

Under democracy, presidents and other political big shots have to listen to their underlings, who might otherwise rally public opinion against them. Some of the greatest errors and atrocities of nondemocratic regimes are committed because no one dares to stand up against the tyrant, who becomes progressively isolated from the criticism and feedback that would enable him to correct his course.

Despite the undoubted mediocrity of many of our politicians and the ignorance and apathy of many of our citizens, our system of representative democracy has served us well. Has there been, all things considered, a more successful nation in world history than the United States?

I AM UNCLEAR ABOUT WHAT COLLECTIVE DELIBERATION WOULD ADD to our political system, but I am pretty clear about what it would subtract. It would subtract from the time that people have for their other pursuits—personal, familial, and commercial. Most people work fewer than 250 days a year after the deduction of weekends, holidays, vacations, and sick leave. Adding another national holiday would represent a small but not trivial reduction in the amount of productive work.

Unlike Hannah Arendt, and perhaps Ackerman and Fishkin as well, I do not believe that private concerns are petty and that people are fully human only when they are deliberating about the "common good." I do not even think such deliberations are productive of much except sound and fury. Widespread deliberation by citizens at large on issues of politics would mainly just reduce the civility of our politics by raising the temperature of public debate, making our politics more ideological and therefore more divisive.

It is one of the glories of a two-party system that by focusing the parties' attention on the swing voter, the system tends to draw the parties together ideologically, since the swing voters are the least likely to be drawn to ideological extremes. Multiparty systems tend, in contrast, to spawn ideological parties, because in such systems a minority party organized around an ideology can achieve influence or even dominance. It seems to me that the last thing we need in order to solve the problems of our country is ideological strife.

I will be called cynical for doubting the value of political debate among ordinary citizens, for casting them in the role of passive onlookers of a struggle among ambitious politicians, and for questioning the possibility of meaningful reform of policy. I am merely being realistic. Reform does not well out of deliberation, but reflects passions and interests. Abolitionism, the suffrage movement, the civil rights movement, the opposition to the war in Vietnam, the rise of free-market ideology, welfare reform, and the gay-rights movement were not the product of discussion among voters debating on the model of the academic seminar (the implicit model, naturally, of academic reflection on the political process by the proponents of deliberative democracy, academics all). They were the product of moral and political entrepreneurs tapping into wells of discontent among minorities and eventually getting the attention of the politicians.

People are intelligent and engaged about issues that concern them directly and that do not require abstract analysis to understand. The more local and concrete the issue, the more meaningful deliberation by average citizens is; the more remote and abstract, the less meaningful such deliberation is. People know when they are hurting, and the knowledge motivates and engages them in political struggle. They have no interest in debate. That interest resides in the articulate class. Rights are seized; they are not bestowed by average citizens enticed into deliberative conclaves weeks before a national election.

I have difficulty suppressing the uncharitable thought that there may be an element of bad faith in the deliberative-democracy movement generally (I do not mean in Ackerman and Fishkin particularly). I think that what motivates many deliberative democrats is not a love of democracy or a faith in the people, but a desire to change specific political outcomes, which they believe they could do through argument, if only anyone could be persuaded to listen, because they are masters of argumentation. I infer this secret agenda from the fact that most proponents of deliberative democracy advocate aggressive judicial review, which removes many issues from democratic control; are coy about indicating what policies they dislike but would accept; and are uncommonly fond of subjecting U.S. citizens to control by international organizations of questionable, and often of no, democratic pedigree. I sense a power grab by the articulate class whose comparative advantage is—deliberation.

Richard Posner is a judge on the U.S. Court of Appeals for the Seventh Circuit and a senior lecturer at the University of Chicago Law School. He is the author most recently of Law, Pragmatism, and Democracy.

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