Democratic Practice: Filter vs. Mirror

James Fishkin, the global guru of deliberative democracy, is a professor of Political Science at Stanford University. This excerpt is from Fishkin’s most recent book, “When the People Speak: Deliberative Democracy and Public Consultation.”

PALO ALTO—In the fifth and fourth centuries BC, Athenian citizens chosen by lot would gather together for a day, and sometimes much longer, to make important public decisions. There were citizen juries of 500 or more, whose purview was far broader than that of law courts in the modern era. In addition, there were other distinctive institutions. Legislative commissions chosen by lot (nomothetai) would make the final decisions on legislation by the fourth century. There was a special procedure (the graphe paranomon) in which someone who made an illegal or irresponsible proposal in the Assembly could be brought to trial before a randomly chosen jury of 500 delib- erators. Anticipation of such a possible trial made people more careful about what they might say in the Assembly. And most importantly, the Council of 500 was randomly chosen and met for the entire year, setting the agenda for meetings of the Assembly and alternating in groups of fifty for periods of more than a month to take administrative responsibility for much of the government.

The Athenian practices were unique in combining two key elements—deliberation and random sampling. That combination provided a distinctive solution to the problem social scale poses to deliberative democracy (a term we are reserving for the combination of political equality and deliberation). In a deliberative democracy everyone’s views are considered equally under good conditions for the participants to arrive at their views. The process is deliberative in that it provides informative and mutually respectful discussion in which people consider the issue on its merits. The process is democratic in that it requires the equal counting of everyone’s views as we will see below.

Of course, a great deal will depend on what we mean by “good conditions” for the participants to arrive at their views. But for the moment notice how this aspiration to combine deliberation with political equality is affected by the problem of social scale.

While ordinary citizens are subject to the incentives for rational ignorance, those chosen in the microcosm face an entirely different situation—once they are chosen. They are all part of a smaller group whose members do, individually, have influence. Each participant in what we call a Deliberative Poll has the influence of one person’s voice in a small group of fifteen or so and one person’s responses in a few hundred in the final questionnaire or balloting. Once selected, the corrosive calculations of rational ignorance no longer apply to members of the microcosm. Within the microcosm, democracy is reframed on a human scale where individual voices can seem important enough to effectively motivate individual effort.

One might think that ancient Athens presented a different situation, one that was free of this problem of social scale. It is often discussed as a city-state where everyone could gather together in the Assembly. But depending on the period and on some competing calculations, the citizenry ranged from 30,000 to 60,000. And the Pnyx, the hill where the Assembly met, could only hold between 6,000 and 8,000 (the latter after it was enlarged). Hence, ancient Athens had the same fundamental problem. Everyone could not gather together to discuss the issues and each person’s share of direct democracy would be vanishingly small.

But direct democracy in the Assembly, open to all citizens, was only one way to involve the public. Random sampling or the process of selection by lot, which was conducted from a citizen list of willing participants with a machine called a Kleroterion, offered a form of representative democracy that provided strong incentives for ordinary citizens to pay attention once selected. Just as an individual citizen in modern times may have only the faintest reason to follow the details of a jury trial if one is not a juror, but great reason to pay attention if one has been selected to be a juror, the individuals empanelled by lottery had every reason to focus on the merits of the issues presented.

One difference is that with ancient juries or groups of deliberators of several hundred, the whole microcosm was large enough to be representative of the total population of citizens. Modern juries of twelve, whose sampling is interfered with on many grounds (peremptory challenges, advice of jury consultants, etc.), cannot make comparable claims of representativeness. They are too small and there are too many strategic decisions involved in their selection in our adversary legal system.

Ancient Athenian democracy should not be idealized. Notoriously, a citizens’ jury chosen by lottery or random sampling convicted Socrates and set the cause of democracy back almost two and half millennia (although modern investigations have shown how he probably manipulated, indeed goaded, them into such a verdict). And the one-day deliberations of most Athenian institutions, unlike the Council of 500, lacked any small group or face-to-face discussion as 500 people or so would sit in an amphitheater and hear opposing arguments.

There were also obvious limitations in the application of random sampling. Only those who put themselves forward (“those who were willing”) were on the list in the first place. In addition, the definition of citizenship, determining those who were eligible, was extremely limited. Females, slaves, and metics (resident aliens) were all left out. Still, the Athenians had an idea that provided deliberative democracy for its citizenry on a human scale. And it was a scale that was not limited in size to the city-state.

These Athenian practices were distinctive for combining two key ideas—random sampling and deliberation. Both have since lost their prominence in the design of democratic institutions (although random sampling has been embedded in our unofficial political life through conventional public opinion polling). And the idea of combining random sampling with deliberation was largely lost throughout the history of democratic practice. Interest in the combination is a recent phenomenon, part of the revival of interest in deliberative democracy. Let us situate this combination in the range of possible strategies for public consultation. Then we will turn to further clarification of the values and democratic theories at issue in these different practices.

CONSULTING THE PUBLIC | Who speaks for the people? There are many democratic mechanisms for giving voice to public opinion. Let us explore a range of them from the standpoint of achieving the values of deliberation and political equality.

In our democratic experience thus far, the design (and possible reform) of democratic processes has confronted a recurring choice between institutions, on the one hand, that express what the public actually thinks but usually under debilitated conditions for it to think about the issues in question, as contrasted with institutions, on the other hand, that express more deliberative public opinion—what the public would think about an issue if it were to experience better conditions for thinking about it. The hard choice, in other words, is between debilitated but actual opinion, on the one hand, and deliberative but counterfactual opinion, on the other. One sort of institution offers a snapshot of public opinion as it is, even though the people are usually not thinking very much. The public is usually not very informed, engaged, or attentive.

Another sort of institution (at its best) gives expression to what the public would think about an issue if it were more informed, engaged, and attentive—even though this more thoughtful opinion is usually counterfactual in that it is not actually widely shared. The only way out of this dilemma would be to somehow create more informed, engaged, and attentive public opinion that was also generally shared by the entire mass public. Later, we will consider this challenging possibility.

Deliberative or “refined” public opinion (I take the term “refined” from Madison’s famous phrase in Federalist No. 10 referring to representatives serving to “refine and enlarge the public views”) can be thought of as opinion, after it has been tested by the consideration of competing arguments and information conscientiously offered by others who hold contrasting views. I will refer to opinion as “raw” when it has not been subjected to such a process. A basic distinction among democratic institutions is between institutions designed to express refined public opinion and those that would merely reflect opinion in its raw form.

Raw public opinion is routinely voiced by all the established institutions of mass democracy—initiatives, referenda, public opinion polls, focus groups. Moves to more direct consultation in the United States, say, through direct election of senators rather than the original indirect method, were also moves in the direction of more mass democracy in that they gave more weight to raw public opinion.

The transformation of the Electoral College into a vote aggregation mechanism, as opposed to the original vision (which was that, state by state, it should function as a deliberative body) is a similar move in the direction of mass democracy empowering raw public opinion. In the same way, the dramatic increase in the use of the direct primary for presidential candidate selection, particularly after the McGovern-Fraser reforms in the 1970s, has been a move toward more mass democracy.

In the United States, the national party conventions were once institutions of elite deliberation, engaged in multiple ballots for candidate selection and serious discussion of party platforms and issues facing the country. Now they are media extravaganzas, staged for their effects on mass public opinion with candidate selection having been determined beforehand by mass democracy—through direct primaries.

Our most common encounter with refined public opinion is through representative institutions that seek, as Madison said, to “refine and enlarge the public views by passing them through the medium of a chosen body of citizens.” At their best, such institutions are sensitive not just to what constituents actually think, but also to what they would think if they were better informed.

This distinction between two forms of public opinion, raw and refined, corresponds roughly, but does not overlap perfectly, with the seemingly parallel distinction between direct and representative democracy. For example, one of the most influential institutions of mass democracy, an institution that depicts the current state of public opinion as it is, with all its limitations, is the public opinion poll. While polls are closely aligned with direct democracy (and were originally offered by George Gallup as a proxy for direct democracy—even to the point that they were first called “sampling referenda”) polls employ statistical samples to stand for, or represent, the rest of the public. The members of such a “representative” sample are selected by a random scientific process rather than by an election. But they are still “representative” of the mass public; they are a small body that stands for the rest, the much larger electorate of mass society.

One way of stating the dilemma of institutional design is that we face a forced choice between forms of opinion that are debilitated but actual or those that are more deliberative but (usually) counterfactual. Actual opinion will be debilitated for the four reasons noted earlier. But actual opinion has more weight in real political processes than a representation of what people would think—even if the latter has some recommending force.

Corresponding to each of these notions of public opinion, there is a common image of how democratic institutions work. The American Founders relied on the metaphor of the filter. Representative institutions were supposed to refine public opinion through deliberation. Opponents of elite filtering, beginning with the Anti-Federalists, relied on a different notion of representation. Representatives were to come as close as possible to serving as a “mirror” of the public and its actual opinions. The “filter” creates counterfactual but deliberative representations of public opinion. The “mirror” offers a picture of public opinion just as it is, even if it is debilitated or inattentive. The conflicting images suggest a hard choice between the reflective opinion of the filter and the reflected opinion of the mirror.

THE FILTER AND THE MIRROR | American democracy is a palimpsest of political possibilities. As with a painting layered over previous ones, images from an earlier vision sometimes show through. But those bits and pieces of the earlier pic- ture are hard for most Americans to make sense of. Why do we have an Electoral College? Why is the Senate so much smaller than the House? Why do we privilege the idea of a “convention”—for constitution making and ratification, and even in our national party nominating processes?

In fact, the earlier vision has coherence and sometimes is foregrounded by events that make it shine through the layers of more recent reforms. The Senate was originally designed to be an indirectly elected and small deliberative body. Too large a body would produce only the “confusions of a multitude” (Federalist No. 55). The Electoral College was originally intended as a deliberative body (for each state) in which the Electors would be free to choose the most qualified candidate.

The preferred mode of decision on constitutional matters was the “convention”—the constitutional convention and the ratifying conventions for each state. Later party practices picked up this notion of the convention as a deliberative body in the rise of the national party conventions. However, those conventions are usually not much more like a deliberative body than the Electoral College in its current form. Their outcomes are fully as predictable once the delegates (or the electors) are selected. Bringing power to the people, laudable as that may be, takes effective decision-making away from elite deliberative bodies. Our long-standing patterns of democratic reform dramatize the conflict between elite deliberation and mass participation.

As Madison reported on his own position in his notes on the Constitutional Convention, he was “an advocate for the policy of refining the popular appointments by successive filtrations.” Famously, he argued in Federalist No. 10, that the effect of representation was “to refine and enlarge the public views by passing them through the medium of a chosen body of citizens....Under such a regulation it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, if convened for the purpose.” Running throughout Madison’s thinking is the distinction between “refined” public opinion, the considered judgments that can result from the deliberations of a small representative body, on the one hand, and the “temporary errors and delusions” of public opinion that may be found outside this deliberative process, on the other. It is only through the deliberations of a small face-to-face representative body that one can arrive at the “the cool and deliberate sense of the community” (Federalist No. 63). This was a principal motivation for the Senate, which was intended to resist the passions and interests that might divert the public into majority tyranny.

The founders were sensitive to the social conditions that would make deliberation possible. For example, large meetings of citizens were thought to be dangerous because they were too large to be deliberative, no matter how thoughtful or virtuous the citizenry might be. As Madison said in Federalist No. 55, “had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.” A key desideratum in the Founders’ project of constitutional design was the creation of conditions where the formulation and expression of deliberative public opinion would be possible.

The filter can be thought of as the process of deliberation through which representatives, in face-to-face discussion, may come to considered judgments about public issues. For our purposes, we can specify a working notion of deliberation: face-to-face discussion by which participants conscientiously raise, and respond to, competing arguments so as to arrive at considered judgments about the solutions to public problems. The danger is that if the social context involves too many people, or if the motivations of the participants are distracted by the kinds of passions or interests that would motivate factions, then deliberative democracy will not be possible. It is clear that from the Founders’ perspective, the social conditions we are familiar with in mass or referendum democracy would be far from appropriate for deliberation.

REFLECTING THE PEOPLE AS THEY ARE | As Jack Rakove has noted, the one widely shared desideratum in the American notion of representation at the time of the founding was that a representative assembly should, to use John Adams’s phrase, be “in miniature an exact portrait of the people at large.”

In the hands of the Anti-Federalists, this notion became a basis for objecting to the apparent elitism of the filtering metaphor because only the educated upper classes were expected to do the refining in small elite assemblies. The mirror notion of representation was an expression of fairness and equality. As the “Federal Farmer” put it: “A fair and equal representation is that in which the interests, feelings, opinions and views of the people are collected, in such manner as they would be were the people all assembled.”

As Melancton Smith, who opposed the Constitution at the New York ratification convention, argued, representatives “should be a true picture of the people, possess a knowledge of their circumstances and their wants, sympathize in all their distresses, and be disposed to seek their true interests.” In line with the mirror theory of representation, Anti-Federalists sought frequent elections, term limits, and any measures that would increase the closeness of resemblance between representatives and those they represented.

“The people all assembled” is exactly the kind of gathering the Federalists believed would give only an inferior rendering of the public good. Recall Madison’s claim that a small representative group would give a better account of the public good than would the “people themselves if convened for the purpose” (Federalist No. 10). The mirror is a picture of public opinion as it is; the deliberative filter provides a counterfactual picture of public opinion as it would be, were it “refined and enlarged.”

The Framers were clearly haunted by the possibility that factions aroused by passions or interests adverse to the rights of others could do bad things. The image they feared seems to be some combination of the Athenian mob and Shays’s rebellion. Part of the case for deliberative public opinion is that the “cool and deliberate sense of the community” (Federalist No. 63) would be insulated from the passions and interests that might motivate factions. The founders believed that public opinion, when filtered by deliberative processes, would more likely serve the public good and avoid mob-like behavior of the kind that threatens tyranny of the majority (see section below on “Avoiding Tyranny of the Majority”).

DELIBERATIVE VERSUS MASS DEMOCRACY: AN EARLY SKIRMISH | From the standpoint of the founders, the problem of the conflict between the two forms of public opinion—and the institutions that would express them—was soon dramatized by the Rhode Island referendum, the only effort to consult the people directly about the ratification of the Constitution. Rhode Island was a hotbed of paper money and, from the Federalist standpoint, irresponsible government and fiscal mismanagement. An Anti-Federalist stronghold, “Rogue Island” lived up to the Founders’ image of a place where the passions of the public, unfiltered by deliberation, might lead to dangerous results.

The Anti-Federalists sparked a thoroughgoing debate over the proper method of consulting the people—one that dramatized the long conflict that followed between mass and deliberative institutions. Referendum advocates held that “submitting it to every Individual Freeholder of the state was the only Mode in which the true Sentiments of the people could be collected.” However, the Federalists objected that a referendum would not provide a discussion of the issues in which the arguments could really be joined. The referendum was objected to, in other words, on the grounds that it would produce defective deliberation. By holding the referendum in town meetings scattered throughout the state, different arguments would be offered in each place, and there would not be any shared sense of how the arguments offered in one place might be answered in another.

“The sea-port towns cannot hear and examine the arguments of their brethren in the country on this subject, nor can they in return be possessed of our views thereof ...each separate interest will act under an impression of private and local motives only, uninformed of those reasons and arguments which might lead to measures of common utility and public good.”

Federalists held that only in a convention could representatives of the entire state meet together, voice their concerns, and have them answered by those with different views so as to arrive at some collective solution for the common good. The very idea of the convention as a basis for ratification was an important innovation motivated by the need for deliberation. Direct consultation of the mass public might reflect public opinion, but it would not provide for the kind of coherent and balanced consideration of the issues required for deliberation.

Federalists also noted another defect—lack of information:

“[E]very individual Freeman ought to investigate these great questions to some good degree in order to decide on this Constitution: the time therefore to be spent in this business would prove a great tax on the freemen to be assembled in Town-meetings, which must be kept open not only three days but three months or more, in preparation as the people at large have more or less information.”

While representatives chosen for a convention might acquire the appropriate information in a reasonable time, it would take an extraordinary amount of time to similarly prepare the “people at large.”

Of course, what happened in the end is that the referendum was held; it was boycotted by the Federalists; and the Constitution was voted down. Rhode Island, under threat of embargo and even of dismemberment (Connecticut threatening to invade from one side and Massachusetts from the other) capitulated and held the required state convention to eventually approve the Constitution.

This incident was an early American salvo in a long war of competing conceptions of democracy. In the long run, the Federalist emphasis on deliberation and discussion may well have lost out to a form of democracy, embodied in referenda and other institutions of mass democracy that mirror public opinion as it is, with all its defects.

Of course, democratic institutions typically will offer a mix of deliberative and mass democracy, a mix of the filter and the mirror, but over the last two centuries of democratic experience in America (and indeed in most developed democracies) the balance has shifted toward far greater mass influence in the mix—far greater deference toward raw public opinion (as opposed to refined or more deliberative views).

In the United States, consider what has happened to the Electoral College (intended as a place for deliberating electors), the election of senators (once conducted by state legislatures), the presidential nomination system (once dominated by party elites), the development and transformation of the national party conventions (now preordained in their results), the rise of referenda (where plebiscitary institutions supplant elite decisions) and the pervasiveness of public opinion polling. Many aspects of Madisonian “filtration” have disappeared in a system that increasingly “mirrors” public opinion constrained by rational ignorance. In these and many other ways, there has been a steadily increasing role for the “reflected” public opinion of the mirror rather than the “reflective” public opinion of the filter.

The same dilemma faced by the Federalists and Anti-Federalists at the birth of the US Constitution has resonances with current efforts to build a new constitutional structure for the European Union (EU). Just as only one state voted directly by referendum on the US Constitution, Rhode Island, turning it down, only one state voted directly by referendum on the Lisbon Treaty, Ireland, and also turned it down.

The impasse has not been resolved at this writing but it shows the fundamental dilemma: elite deliberation continues to be widely viewed as undemocratic (hence the EU’s famous “democratic deficit”) while direct mass consultation connects with “top of the head” opinion that may well be uninformed. High gas prices very likely had more to do with the EU treaty being defeated than the merits of the proposed reform. In recent years, constitutional change or reform of the EU oscillates between elite processes (a “convention” which gave birth to a failed new “constitution”) and defeat by referenda, whether in Denmark, France, the Netherlands, or Ireland.

Whether the issue is constitutional change or public policy, combining political equality and deliberation continues to pose the problem: how to obtain the consent of the people under conditions when the people can also be informed about what they are consenting to.