Jury-Rigging Democracy

“The best argument against democracy,” Winston Churchill reportedly said, “is a five-minute conversation with the average voter.” Watching native-born Americans belly flop on a citizenship test suggests Churchill wasn’t far wrong.

But what about a week-long conversation? Worse? Actually, no.

An intriguing model of citizen participation in Oregon suggests that prolonged conversations with voters—or, conversations among voters—can dramatically improve democracy. The model is based on the jury: the panel of disinterested voters, operating under strict rules of procedure, presented with arguments and evidence, and left to apply their judgment to a case.

What an independent, nonpartisan Oregon group called Healthy Democracy has begun doing, with the sanction of state government, is to submit pending ballot measures to quasi-jury trials and then publish the results in the voters’ pamphlet. What’s so intriguing is that Oregon voters are starting to pay special heed to the one-page verdicts of these mock trials. In fact, before long, such juries could hold more sway than millions of dollars in campaign cash.

Oregon’s Citizens’ Initiative Reviews (CIRs) are perhaps the brightest light in the constellation of reforms to the initiative process that I’ve been mapping in this set of articles. And paradoxically, they do nothing to stem the tide of Big Money (after all, SCOTUS won’t let us). Instead, they just aim to make money matter less.

Citizens’ Initiative Review

Despite all the cynicism and distrust that surrounds the G-word, most northwesterners still believe in juries. They may believe juries are imperfect, but they do not believe them to be corrupt. As Toby Nixon, former Republican state legislator and current city councilor in Kirkland, Washington, says, “We trust juries to make life-and-death decisions for us. Why wouldn’t we trust a grand jury to advise us on ballot measures?” Nixon is part of a bipartisan group called Responsible Choices that is raising funds to bring the Oregon initiative jury process to Washington in 2015.

CIRs are panels of 20 voters who are statistically representative of their state. The panels each spend a week studying a single ballot measure and making recommendations, following a carefully balanced, professionally moderated process of deliberation. Healthy Democracy subjected two ballot measures to the process in 2010. A rigorous review by Professor John Gastil of the University of Washington and his colleagues found that the Oregon process was strongly influential among those undecided voters who read carefully the CIR statements in the voters’ pamphlet. An electorate more familiar with CIR could make them decisive, Gastil’s team concluded.

In 2012, Healthy Democracy ran juries that reviewed two more ballot measures: Measure 82, proposing to allow nontribal casinos, and Measure 85, proposing to divert corporate income tax refunds, or “kickers,” to K-12 education. The same researchers evaluated the process, giving it high marks for civility, factual accuracy, respectful consideration of different values and viewpoints, and evenhanded moderators. Jury members agreed.

Voters Are Listening

More important, voters in Oregon are learning about the CIR over time. By election day in 2010, some 42 percent of voters said they had heard of CIR; by election day in 2012, that number had grown to 51 percent. Two-thirds of those who read the CIR statements in the 2012 voters’ pamphlet found them helpful in making up their minds, a big increase over 2010. As important, voters trusted the CIR statements more than anything else in the voters’ pamphlet.

Healthy Democracy is a modest little organization: a small nonprofit with some charitable dollars, 20 citizens for a week, a one page consensus statement. No TV ads. No door hangers. No viral videos. No robocalls. No campaign swings. Just a single page in the voters’ pamphlet for each ballot measure. Yet more than half of voters were aware of it in 2012. Many of them read it. Most of those used it to help make up their minds. They read it carefully and actually trusted it.

Gastil’s findings are bad news for the media outlets campaigns spend money on. They show that already, in a close race or a race with many undecided voters, a citizen jury could change the outcome. As familiarity with CIR rises, that influence will only grow, which means that conventional big-money campaigning will be less effective. The cost of winning a measure disfavored by a citizen jury will rise dramatically.

In 2014, Oregon’s CIR reviewed both a GMO-labeling measure and a Washington-style open primary rule, recommending “no” votes on both proposals. The slow rise of the CIR in Oregon has not yet stopped the money war over GMO-labeling from becoming the most expensive in state history, but that’s no surprise, considering the precedents in Washington and California. What remains to be seen—on election night and especially in the evaluators’ study on this year’s CIR—is whether this is the year that CIR breaks through from democracy-wonk novelty to initiative kingmaker.

Jury Rig

CIRs are a way to rig our direct democracy with the power of juries, a new twist on the term “jury rig.” On a sailing ship with a broken mast, a jury rig is a makeshift way to hoist a sail, assembled from whatever poles, ropes, and spare sheets of cloth are available. It’s used to limp along until you can get to port.

Beyond citizen juries, states might consider other jury rigs to make Big Money matter less. For example, University of Washington law professor Hugh Spitzer recommends publishing constitutionality analyses in voters’ pamphlets. State courts throw out many ballot measures, so perhaps states could give voters a way to guess the likelihood of that happening: by passing measures under the eyes of bipartisan panels of former judges.

Oregon and Washington already publish fiscal impact statements on initiatives, but they are usually so limited in scope as to be worthless. Deeper study by bipartisan panels of experts might give voters better information. Finally, could states improve their voters’ pamphlets in general, expanding how much space pro- and con- campaigns get, for example? Or hiring top journalists to write the explanatory sections? Perhaps they could even emulate nonprofit projects like Seattle CityClub’s Living Voters’ Guide, a fact-checked forum for online political discussion and learning.

Such ideas are worth consideration and experimentation. Citizen juries, meanwhile, deserve immediate adoption: ideally, with public funding and prominent placement in voters’ pamphlets. They also deserve much heavier coverage by the news media. They are the single best option we currently have for jury-rigging our democracy.

A decade may pass before a new jurisprudence takes root in the US Supreme Court around money in politics. But perhaps we can rig our initiative process with citizen juries, better legal and economic information, and improved voter guides. Perhaps we can lash onto these changes and others as well: measures against fraud in the signature gathering process, fuller disclosure rules for political spending, and requirements that corporate boards go on the record with their initiative gifts.

Perhaps together, these reforms can carry us along until SCOTUS lets us fix the broken mast of our direct democracy, by simply banning Big Money once and for all. And perhaps long before that, most of us will recognize that, whatever Churchill may have said, the best argument for democracy is a week-long conversation among informed voters.