Power to the (Randomly Selected) People

Why the Massachusetts Governor’s Council Should be Chosen by Lot

We tend to equate democracy with elections. As I wrote in my last post, however, the Massachusetts Governor’s Council undercuts this assumption. The Council’s accountability-focused function requires political independence and a broad public mandate—but its low-profile elections support neither virtue.

This week, I want to offer a solution: We should abolish elections for the Governor’s Council. In their place, my proposal is to choose Councilors by random selection, also known as sortition. Sortition would yield a Council of everyday citizens, not politicians—an appropriate change for a supervisory body whose job is to keep watch over the Governor.

To be clear, my goal is not to advocate replacing all elections with sortition. On the contrary, a lotteried Council would only work in tandem with other offices whose respective functions demand election or appointment. The Governor should face the electorate every four years, and judicial appointment helps ensure an expert and independent judiciary. My guiding principle is that a well-designed democracy should match each office’s form to its function. For the Council, that means a change to sortition.

The Challenge of Fitting Form to Function

As I argued last time, low-profile elections primarily reward two traits that each undermine the Council’s role in our democracy: incumbency and partisanship. This incentive structure could work for other government offices, but it is especially ill-suited to a body charged with holding other politicians accountable in decisions concerning the impartial administration of justice.

Existing proposals to address this problem generally aim to do so by fixing the Council’s elections; vesting its powers in a body with more public awareness; or having another elected official appoint Councilors in place of elections. But as I wrote last week, each of these ideas suffers from substantial drawbacks. Whether we elect officials to perform the Council’s duties or have the Legislature appoint it, one key problem remains: the decision-makers will be political actors with little public input and substantial potential for pressure from other politicians (or even, as one former Councilor put it during a panel we spoke on together, for “horse trading”).   

Luckily, there is another selection mechanism available for the Governor’s Council—one that would increase both representation and independence, all while removing the Council from electoral politics. That process is called “sortition,” which essentially means random selection. In contrast to election or appointment, sortition would give the people direct voice on the Council by choosing Councilors at random from the whole population. Councilors would be everyday citizens, not politicians—and while many government officials should be politicians to meet their own function, the Council’s accountability function makes non-politicians a more ideal fit.

Sortition-based bodies have a long history, as well as a growing movement in contemporary democracies. Ancient Athens, for example, used sortition to ensure democratic voice alongside the political leadership granted by elections. One of its sortition-based bodies held the power to set agendas for the city’s legislature, in which all citizens could participate.

More recently, sortition-based “Citizens’ Assemblies” have generated policy proposals on climate preparedness in Colorado and Ireland, end-of-life policy in France,  and human genome editing in Australia. They often reach “hidden consensus” on difficult issues and strengthen participants’ faith in democracy—but their modern role has mostly been advisory, rather than decisive. The Governor’s Council could be America’s first Citizen’s Assembly with power to decide matters of state-level governance.

Designing a Sortition-Based Governor’s Council

Massachusetts already uses sortition for one public office—juries—and a sortition-based Council would look much the same. As with juries, the Council would be filled through random selection, subject to certain guardrails. The randomly-selected Councilors would innately tend to reflect the Commonwealth’s diversity—in race, gender, politics, and many other metrics—while the guardrails would codify certain representational rules. (One such rule, for example, would guarantee that each of the Council’s geographic districts gets one and only one seat.)

Once chosen, a sortition-based Council would operate much as it does now: It would meet weekly to deliberate on gubernatorial nominations, its members would represent geographic districts, and the state would compensate Councilors for their service.

The only structural difference introduced by a sortition-based Council would be the use of sortition itself. At the start of each term, a new set of names would be drawn from the pool of eligible citizens. This could happen all at once—with the whole Council turning over every six months, for example—or in staggered terms, perhaps replacing 2 of the 8 members at more frequent intervals. Service could be mandatory with specific exceptions, or selected individuals could have the right of refusal. All Councilors would leave the Council after their term, at which point a new name would be pulled from the pool. Council elections would cease altogether.  

The benefits of this change to the Council’s function would be numerous:

• Representation: Councilors selected at random from across Massachusetts would more effectively reflect the full spectrum of public opinion, beyond the specific point of view cultivated by careers in politics or law.

• Independence: As non-politicians, Councilors would be much less likely to view the Governor or nominated judges as colleagues, potential allies, or threats. They would similarly face less pressure to conform their decisions to the desires of political parties or elected officials with high public profiles.

• No stubborn bad apples: Councilors who do their job poorly would leave after their term, just like everyone else. Without uncompetitive elections, it would no longer be nearly impossible to replace an incumbent, regardless of his performance.

• Beneficial anonymity: A sortition-based Council would continue to work largely unwatched by the public—but that lack of attention would no longer degrade its representation of public opinion or threaten its independence. The Council’s form, in other words, would fit its public function.

Addressing the Downsides: Designing for Complementary Pluralism

There is at least one possible downside to a sortition-based Council: the loss of political experience and institutional knowledge. As discussed in my last post, Council elections do not really reward legal expertise, but they do reward incumbency. In positive terms, this means that today’s Councilors are often career public servants with hard-earned expertise in the workings of government. To illustrate the tradeoff: we might expect an elected Councilor with ten years of service to know quite a bit about the legal community from which judges are chosen (although this will not always be the case). That expectation would be downright unreasonable for a Council of citizens chosen at random.

The good news is that we don’t need the Council to offer this virtue: other government bodies already provide expertise in every decision the Council considers. The Governor, for example, chooses her judicial nominations from a list provided by a body of experts called the Judicial Nominating Commission. While Commission members are also appointed by the Governor, she must follow strict guidelines in doing so; their job is to screen candidates for the qualities of excellent judging. The Governor, in turn, provides political expertise in choosing nominees with the skills and disposition to serve the public faithfully.

The key point is that a switch to sortition for the Council will not remove political expertise from the equation. Instead, sortition would add independence and public voice to the process in which other actors already supply the needed expertise. Together with the elected Governor and appointed Judicial Nominating Commission, a sortition-based Council would demonstrate the benefits of a pluralistic government, in which diverse and complementary structures combine to serve the public more effectively together. The Framers codified this model of complementary pluralism in the three branches of government, which use different designs (legislative elections, judicial appointment, etc.) but serve a common purpose. We should likewise design all our political institutions—including the Governor’s Council—to complement each other and strengthen democracy.  

Charting the Path to Reform

The Massachusetts Governor’s Council needs renovation, and sortition would get the job done better than any idea to fix its elections. That said, my proposal would face a long and difficult path to enactment. The Massachusetts Constitution mandates Council elections—meaning that reform would require a Constitutional amendment. The timeline for such a process would take years at its quickest, and its success would require popular approval at the ballot box. Referenda tend to be costly, and voters approach them with high levels of skepticism.

If that referendum succeeded, the resulting change would certainly improve the Governor’s Council. Whether doing so merits amending the state Constitution is another day’s question. If nothing else, the process could bring needed attention to the Council—just not likely enough to make its elections competitive.