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EU Sortition and legitimacy D

November 17, 2017


We stated that our goal in this section was to determine whether an EU sortition assembly passes theoretical muster on two questions of legitimacy, to wit, accountability and societal uptake. Like Olsen and Trenz (2014), we have found that the EU context is the site of significant differences as compared with a national, monolingual setting and that further attention must be paid to questions of the EP’s baseline legitimacy and the fragmentary state of the EU public and media sphere. At the same time, we have gone beyond those authors in exploring how these questions interact with a continuous mini-public like the proposed sortition assembly as opposed to more conventional deliberative forums.

As to the question of accountability, we found that it is unlikely that transitive relations of “democratic election” legitimacy obtain between the EP and the sortition assembly. Hence, the sortition assembly cannot “piggyback” on the former for such legitimacy or principal-agent accountability. As concerns the question of societal uptake, we deemed the question as presently formulated constitutively incomplete in the sense that empirical work on media and public uptake of transnational European deliberative forums gives mixed indications. At the very least for this second question, considerably more empirical work is in order such that the EU sortition assembly’s net-positive deliberative contribution is in question.

Accordingly, we hold that Gastil and Wright (forthcoming)’s sortition assembly proposal opens a way forward on answering numerous normative and empirical questions in the deliberative democracy literature[1]. Nonetheless and for all its merits, that proposal faces important challenges upon transposition into the EU context. In light of the foregoing concerns, we ultimately find that the burden of proof for a transnational European deliberative forum like the EU sortition assembly shifts to its proponents.

[1] For an inventory of such questions, see Geissel and Gherghina (2016): 87-88.


EU Sortition and legitimacy C

November 16, 2017

Societal uptake:

Another problem with which any deliberative forum must wrestle is that of the link between the micro- and macro-deliberative spheres (Parkinson 2006; Olsen and Trenz 2014; Lafont 2015; Fung 2015; Olsen and Trenz 2016; Felicetti et al. 2016), a difficulty to which an EU sortition assembly is no exception. In other words, we must ask to what extent the deliberative forum’s arguments, reasons and conclusions are diffused to and taken up by the maxi-public either by way of the media or through informal channels such as everyday discussion. What shape does this process of will-formation take precisely in the EU context?

In general, Olsen and Trenz (2014) deem dissemination of deliberative forum proceedings more difficult in the transnational European political setting than in the national political setting. Reasons therefor range from issues of salience and concurrent newsworthy events to “the structural weaknesses and fragmentation of the general public at the level of mass political communication” (Olsen and Trenz 2014: 128). This leads us to formulate two conditions if a transnational European deliberative forum is to stimulate popular will-formation. At one level, the forum must achieve salience (or “visibility” following Rummens 2016) within both the media and the maxi-public. At another level, it must overcome the structural fragmentation of the European public and media sphere[1].

Before considering whether an EU sortition assembly meets these challenges, it is worth recalling Olsen and Trenz (2014)’s conclusions on the extent to which EuroPolis met them. In short, the authors consider the event to have had mixed results. In terms of public and media salience, the 2009 transnational deliberative poll failed to garner significant attention due to the concurrent EP elections. More importantly, this ran against expectations that the timing of EP elections would boost the poll’s salience or visibility as it was linked, to some extent, with a decision-making event. In terms of public and media fragmentation, press conferences aimed at mobilizing Brussels-based EU correspondents were only partially successful and did not properly account for the fact that member-state-based correspondents typically more influence on how EU events are reported. Moreover, member-state-based correspondents proved still more difficult to mobilize given the lack of centralized media resources and systematic member-state strategies (e.g. “decentralised press conferences or press releases in several languages” (Olsen and Trenz 2014: 129). This leaves intact the still further problem of accounting for “the cultural and system specificity of public deliberation cultures” (ibid.). In the end, the combination of these factors sapped EuroPolis’ capacity for popular will-formation.

If these factors prima facie challenge any transnational European deliberative forum, it remains to be seen whether a sortition assembly better meets and overcomes these challenges and what specific solutions it may offer to the micro-macro link. Given that the assembly will set its own agenda, one proposal made by Olsen and Trenz should be set aside, namely, selecting on the forum’s behalf topical issues with an eye to future EP or member-state elections (Olsen and Trenz 2014: 127). Another proposal put forward by Follesdal and Hix (2006) suggests increasing democratic contestation and politicization of the EU and EP agendas. In other words, if EU politics and the EP are not personalized in the same way as national politics nor demonstrate clear partisan lines and stakes (Schmitt 2005), then one solution consists in increasing democratic contestation for leadership positions and partisan contestation over policy.

Yet it is unclear whether an EU sortition assembly would play a direct role in increasing contestation and politicization. Certainly, a sortition assembly might allow the EP to emphasize partisan lines and to give voice to interests (as suggested in Gastil and Wright forthcoming: 26-27) and might thereby promote personalization of EP politics as necessary for media narrative structures (Parkinson 2006: Ch. 5). That said, the sortition assembly itself would eschew politicization and personalization and might thereby produce no net gain in politicization and  personalization and, consequently, in visibility for EU and EP politics. Additionally, it remains to be seen whether a net gain in politicization and personalization would aid in disseminating the arguments, reasons and conclusions from the assembly’s deliberation. Indeed, Parkinson (2006) suggests that a gain in visibility can come at the cost of such dissemination.

Regardless of the success or failure of the foregoing proposals, a third route may still be open to the EU sortition assembly for securing greater visibility and that by dint of its institutionalization. More precisely, if the assembly forms one part of the EU decision-making apparatus with the EP and the Council of Ministers, the former may be guaranteed salience and visibility through both its share of the decision-making power and its institutional linkage with the latter already benefiting from salience and visibility. Put differently, institutional design alone may help the assembly meet a variant of the accountability dilemma: either (contestable) decision-making power and institutional pairing ensure salience and visibility or a lack of decision-making power and institutional pairing undermine salience and visibility but are less contestable.

Were we to grant such visibility on the basis of the assembly’s institutionalization, it would remain an open empirical question whether the public and media spheres’ structure would cover its deliberation (as opposed to EP debates or Council decisions) and what extent of net-positive dissemination the latter themselves receive outside of the “Brussels bubble” in member-state media and maxi-publics (see Michailidou and Trenz 2013). In short, an EU sortition assembly seems, at best, to come out even on societal uptake and, at worst, either to find itself relegated to invisibility behind the EP and Council or to prove no less opaque to the public in its workings than the former.

[1] On certain of these weaknesses, see Kymlicka (2002): 313-315.

EU Sortition and legitimacy B

November 15, 2017


When considering sortition assembly design, Gastil and Wright deem an accountability mechanism vital in ensuring the deliberative quality within the assembly. Their discussion of accountability is, however, limited to discussion of mechanisms by which a sortition assembly member could be censured or removed from office, whether by an oversight committee or other (Gastil and Wright forthcoming: 14-15, 24-25). Yet it is unclear whether such a mechanism suffices to secure sortition assembly members’ accountability to the public. Indeed, if the sortition assembly is to exercise decision-making power, a more forceful notion of authorization and accountability will likely be in order (Parkinson 2006: Ch. 1). How might Gastil and Wright secure such a notion?

One possibility might lie in indirect authorization and accountability through the assembly’s connection to its democratically elected counterpart. By this we mean that, if the democratically elected counterpart benefits from direct authorization and accountability through electoral mechanisms and direct relations exist between the democratically elected counterpart and the sortition assembly (whether through the reconciliation process, joint hearings or intra-legislative checks and balances, cf. Gastil and Wright forthcoming: 24), the electorate may exercise limited control over the sortition assembly by way of its democratically elected counterpart. In this way, the sortition assembly might benefit indirectly from the counterpart’s authorization and accountability as agent to the electorate’s principal.

Notably, this would allow the sortition assembly to avoid both horns of the salience-accountability dilemma: either the mini-public has decision-making power and, hence, salience but violates accountability or the mini-public has no decision-making power and lacks salience but does not violate accountability[1]. Finally, this would have the further advantage of preserving the sortition assembly from electoral accountability mechanisms. That said, two worries make themselves felt. First, one may rightfully wonder whether accountability is “transitive” in the way outlined above. Second, if accountability is transitive, the sortition assembly will only be indirectly accountable on the condition that the democratically elected counterpart is accountable. For this, a closer look at the authorization and accountability bonds between the EU sortition assembly and its counterpart, the EP, is in order.

On this question, Olsen and Trenz (2014) suggest two interrelated difficulties. On one hand, one should ask with whether EP elections qua “second-order election”[2] manage to secure legitimacy. On the other, one should inquire to what principal EP members qua agent are to be held accountable if there is no EU constituency or demos as such. As the authors find some both reason for optimism and pessimism in the second and its relation to “representativeness” (see Fiket et al. 2014; Olsen and Trenz 2016), we shall here focus on the first.

If the term “second-order election” connotes a range of features, Reif and Schmitt (1980) have two general features in mind. Causally, EP elections are second-order in the sense that 1.) they reflect member-state rather than transnational political cleavages, 2.) the state of member-state politics at a given time drives the make-up of its EP delegation, and 3.) the state of EP politics at a given time is merely a second-order composite of first-order member-state elections. Practically, EP elections are second-order in the sense that European voters perceive them as being of less importance, with lower stakes, than (first-order) national elections. Hence, EP elections are derivative of member-state politics, secondary to national elections and, in the end, mere second-order national elections.

While we lack the space to follow developments in the “first-order” / “second-order” paradigm, this paradigm retains considerable currency in the empirical and theoretical literature. Reif (1997) suggests that the EP, despite having acquired further powers in the interval, is less than a “full grown parliament” (120). At the institutional level, this observation finds further purchase in Mårtensson (2007) for whom the unelected Council of Ministers and the elected EP, when viewed through the lens of a bicameral legislature, evince features of a strong “inversely asymmetrical bicameralism” (290) wherein the upper house (the Council) holds more power than the lower house (the EP), despite a recent shift in favour of the latter. At the participatory level, the above observation may be borne out by EP election turnout levels which both fall from year to year and are consistently lower than those for national elections (Schmitt 2005; Stockemer 2012). The precise list of factors driving participation is, however, subject to disagreement, with candidate factors ranging from general political interest (Söderlund et al. 2011) to compulsory voting laws (Schmitt 2005, Söderlund et al. 2011), concurrent first-order elections (Schmitt 2005) or, pace part of the second-order election thesis, satisfaction with the EU (Stockemer 2012)[3].

Regardless of the driving factors, if one accepts the broad outlines of the “second-order election” thesis, it remains to be seen how the thesis’ conclusions impact the EP’s democratic legitimacy and accountability. On this count, opinions are divided. Part of the problem owes to the precise interpretation of legitimacy at issue. Comparatively, the elected EP enjoys more “democratic election” legitimacy, and hence principal-agent accountability, than the unelected Council of Ministers (Mårtensson 2007). If, by contrast, legitimacy is understood as as the translation of voter preferences into political outcomes but voter preferences in EP elections are a function of domestic rather than European issues, the EP may accrue either positive or negative “preference translation” legitimacy. Whereas as one might see the priority of domestic issues as the lack of a democratic sanction against EP and EU legitimacy (Schmitt 2005; Follesdal and Hix 2006), this priority could also be interpreted as a sanction of the democratic lack against EP and EU legitimacy (cf. Stockemer 2012: 28. One could further maintain of this sanction that it reflects the need for more traditional forms of liberal-democratic criteria of legitimacy (i.e. efficiency and performance, political control, a sense of identity) as opposed to substitute forms of legitimacy (i.e. transparency, entrenchment and constraints, deliberativeness) (Lord and Beetham 2001). Moreover, if general political interest plays a key role in determining who votes in second-order election even more so than in first-order elections and general political interest typically marks the most politically active, the most favourably disposed towards the EU or even “the usual suspects”, this skews the representativeness component of “democratic election” legitimacy.

In a word, the case for overall EP legitimacy is a mixed affair at best. In the best of cases, the EP enjoys mitigated “democratic election” legitimacy such that doubts persist as to whether interaction with the EP is accountable enough for the sortition assembly itself to enjoy indirect accountability. In the worst of cases, the EP enjoys no “democratic election” legitimacy such that, by default, there is no accountability to which transitivity might pertain. All in all, it is unclear whether indirect accountability help Gastil and Wright to avoid the horns of the accountability dilemma sketched above.

[1] for one version of this, cf. Parkinson 2006: Ch. 1 and 4.

[2] Reif and Schmitt (1980), cited in Olsen and Trenz (2014).

[3] At the same time, Stockemer (2012) concedes that this thesis is right about the first-half of the story, namely, EP elections’ being perceived as less important.

EU Sortition and legitimacy A

November 14, 2017

EU sortition and legitimacy

If we accept that enhanced legitimacy is a major driving force behind deliberative innovations (Fung 2015, Curato and Böker 2016), then it follows that any proposed innovations should be scrutinized to determine whether they live up to the legitimacy norms driving their creation. By combining the “deliberation-making”[1] capacities of a mini-public with the decision-making powers of an elected legislative assembly, it would seem that Gastil and Wright (forthcoming)’s proposed sortition assembly secures a “hybrid legitimacy”[2]. By this we mean that linking the sortition assembly (for all intents and purposes, a continuous mini-public) directly with the decision-making body as one half of the legislative power ordinarily enables their proposal to meet critiques addressed from either of two sides.

Of the one-time deliberation-making mini-public, the following critiques will be familiar to readers: societal uptake or publicity (Parkinson 2006; Karpowitz and Raphael 2014; Escobar and Elstub 2017; Rummens 2016); political uptake (Parkinson 2006; Caluwaerts and Reuchamps 2016). Of the one-time decision-making mini-public, various authors have targeted such concerns as: accountability (Parkinson 2006; Karpowitz and Raphael 2014); redundancy (Lafont 2015). Then there are those issues which concern both forms: equality (Karpowitz and Raphael 2014); motivations, biases and frames (Parkinson 2006; Morrell 2014; Calvert and Warren 2014) representativeness (Parkinson 2006; Lafont 2015); capture by interests (Parkinson 2006); fragmentation of political stakes (Pourtois 2013). If we allow that Gastil and Wright’s proposal prima facie meets or holds off these different critiques, it represents a striking contribution to the field of democratic innovations beyond mini-public design.

With that status comes, however, the need for scrutiny, such that the proposed sortition assembly must first pass theoretical muster. Rather than advance a general critique of legitimacy (be it through the lens of legitimacy/legitimation/legality (Parkinson 2006), supply/demand (Niemeyer 2014) or input/throughput/output (Suiter and Reuchamps 2016)), we shall instead focus on the potential role of a sortition assembly within the European Union (EU) and its “democracy deficit”. Indeed, it remains an open question whether the EU context does not necessitate the creation of alternative normative criteria beyond deliberative mini-publics standards (Vink 2007). For present purposes, we hold that Gastil and Wright (forthcoming)’s proposal is that put forward in their opening chapter: with the European Parliament and the Council of Ministers, “a sortition chamber with 250 members would provide a popular counterpoint” (29)[3]. This proposal in place, we shall push back thereon by signalling, in this section, two potential issues for legitimacy in the form of accountability and societal uptake.

It should be mentioned that the basis for this section is Olsen and Trenz (2014)’s study of the 2009 transnational deliberative poll EuroPolis, a study which concludes by underscoring the limits of deliberation-making mini-publics within a European context. To their credit, with the incorporation of decision-making powers, Gastil and Wright (forthcoming) may overcome those limits and help incite the needed “transformation of political culture and media in Europe” (Olsen and Trenz 2014: 131) which the generalization of mini-publics presupposes but is unable to supply in response to the lack of a micro-macro link.

Yet not all doubts dissipate with the change in stakes. Accordingly, it will first be necessary to extend Olsen and Trenz (2014)’s concerns in order to see whether these concerns find similar purchase in the proposed sortition assembly as in the deliberative poll. More specifically, this section will press Gastil and Wright (forthcoming) on the following questions: whether pairing a sortition assembly with the European Parliament (EP) enables the former to “piggyback” on the latter’s principal-agent representation and accountability; whether being paired with the EP and having EU-level decision-making power ensures the sortition assembly the kind of transnational visibility necessary for societal uptake in the media and “maxi-public” (Suiter and Reuchamps 2016). We shall ultimately conclude that questions of accountability and societal uptake are of enough concern to shift the burden of proof to EU sortition assembly proponents.

[1] Niemeyer (2014), cited in Curato and Böker (2016).

[2] This is a term which we owe to Talpin (2016). Whereas the latter broaches the question of whether constitutional deliberative democracy and deliberative constitution-making can attain, within one deliberative forum, epistemic, common-sense, democratic and representative legitimacy, we leave the constitutional setting out and focus instead on combining deliberation- and decision-making within one and the same deliberative forum.

[3] In fairness, the authors set out several proposals of which the above is but one. Namely, they ask whether it might not be foreseeable to create a sortition assembly in countries with either weak or healthy democratic institutions and looking to reform those institutions (Gastil and Wright forthcoming: 28-29).


November 10, 2017

As the Christmas markets were again upon them and the medieval squares, she asked herself the perennial question, what became of painted house, wooden windmill and rustic cabin with the new year. Tempted though she was to picture the market’s houses, windmills and cabins reemerging as a village lost beneath the pines or perhaps instead a market-town spreading over hill and dale, she knew this to be untrue, for all inevitably found their home in an unmarked warehouse, folded in and collapsing on themselves.

Fr. 782

October 31, 2017

There is reason to worry that the systemic turn in deliberative democratic theory brings with it the inherent risk of “cooking the books”. Certainly, no single site of deliberation is capable of instantiating all the qualities of good deliberation nor should the deliberative division of labor be done away with. This does not, however, obviate the temptation to paper over weakly deliberative first-order sites with second-order systemic considerations in which a great many possibilities are conceivable. Nor is it clear that the shift from general deliberative system to an actual deliberative system is more likely to result in determinate judgment as to the system’s overall deliberative quality.

EU sortition assembly and legitimacy 8

August 11, 2017

This initial presentation affords us a better grasp on both the need for these four systemic legitimacy criteria and their interdependent realization. Should these criteria exist together between forum and macro-political sphere, they ensure the flow of deliberation between forum and sphere, sphere and forum. Should one or more be missing, that flow of claims and counterclaims between forum and sphere, sphere and forum may be interrupted. Moreover, their strong interrelation suggests a capacity for symbiosis or pathology: more criteria overall is mutually reinforcing; fewer criteria overall is mutually undermining. In any case, supposing that threshold levels of publicity, political uptake, transparency and accountability are reached, most would rightly accept the forum’s relations to the macropolitical sphere and hence its conclusions as appropriately legitimate for that level. Furthermore, the greater or lesser coincidence of personal, interpersonal, institutional and systemic legitimacy within one and the same forum would secure it a greater level of overall legitimacy, of which the factor are recapitulated in the table below.

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