Written by Alex Kovner
We can broadly classify the justifications for sortition into two categories: (a) positive justifications that focus on the virtues of sortition irrespective of other mechanisms, and (b) negative justifications that focus on how sortition can mitigate or eliminate undesirable features of electoral democracy. Positive justifications can be emotionally appealing and often come packaged with uplifting slogans; popular books such as Hélène Landemore’s Open Democracy and James Fishkin’s When the People Speak come to mind.
While these books lay the foundation for citizen participation in democracy, they do not directly address the failure modes that have led to the democratic crisis that we face now, although the title of Fishkin’s forthcoming book, Can Deliberation Cure the Ills of Democracy, would suggest a transition to negative justification. Democracy has been rocked back on its heels not by any widespread lack of belief in either citizen participation or electoral representation, but by constitutional mechanisms that have not changed since the 19th century (and barely worked even then). One example facing the U.K. today is the absurd situation in which the Labour party has a 174-vote majority in the House of Commons despite winning only 34% of the vote. More insulting is the fact that the party holds the keys to the kingdom for a full five years on such a shaky foundation, even as its popularity has declined.
Such pathologies are easy to find. The Electoral College in the U.S. has rightly attracted opprobrium, as has the badly malapportioned Senate. But even parliamentary systems with proportional representation have experienced political crises, as historically stable countries such as Germany, Sweden, and (most recently) Norway have seen governments collapse. We can add to that the increasing use of “lawfare” strategies, such as the recent disqualification of so-called “far right” candidates in France and Romania.
Following the “negative” approach to sortition, it makes sense to examine and categorize these failure modes to see what relief sortition might offer. This won’t be an exhaustive list by any means, but rather an examination of the most dangerous in recent memory. One way to see this problem is to look at democracy not as a political theorist but rather strategically, as someone who has no concern for democratic norms.
And what would such a person look for? I can think of two types of situations that might attract their attention: choke points and high-leverage situations. Choke points are places within a system that are essential for the system to function, but which are prone to obstruction, whether deliberate or accidental. High-leverage situations occur when a single decision results in drastic downstream consequences, often with flawed decision rules. These situations appeal to sociopaths because, in the first case they allow for “hostage taking” in which an agent in the system can threaten dire consequences if her demands are not met, and in the second case they offer outsized rewards for a relatively small investment of resources.
Choke points are a prominent feature of most legislatures. The U.S. Congress is full of them, with the Senate’s 60 vote supermajority requirement. Indeed, any bicameral legislature has a natural obstruction by having to pass bills through two bodies. Germany until recently made it extremely difficult to run spending deficits; only the Trump administration’s abandonment of America’s historic role in European defense induced a change to this provision. Even then, the German spending provision was only modified, not eliminated. Examples abound, each legislature has rules that allow amendments and delays that can be used strategically to achieve purposes that may be unrelated to the bill itself.
The most obvious high-leverage points are personnel selection. These could be elected officials, particularly for executive branch offices or judges. But it also includes appointments to lesser political offices, senior civil service positions, and judges, which often occur without the kind of media scrutiny that moves voters. Traditionally these decisions are concentrated in the hands of prime ministers and heads of state, but increasingly they are assigned to so-called “independent” commissions such as the UK’s Judicial Appointments Commission. Both of these methods have problems from a democratic point of view: trusting a single elected official can lead to authoritarianism, and lacks proportionality at the very least, whereas unelected commissions are more professional but far removed from the democratic will and can be vulnerable to institutional capture.
Overall, this paints a picture that should be familiar to political observers today. Considerable action takes place in both the executive and judicial branches, while the legislative branch stagnates. Ironically, one reason for increased legislative dysfunction may actually be increased transparency. As Sarah Binder has argued,[1] Congress would function better with more secrecy. In fact, the legislature is the only branch that conducts its deliberations in direct public view. This in turn makes compromise extremely difficult, as every interest group collects ammunition for the next election whenever a lawmaker strays from the party line.
The legislature is nominally the most powerful branch of government, but it has a collective action problem. Modern changes in the information space have made this problem worse, to the point where legislatures routinely give away their own powers without a fight. Amid President Trump’s recent aggressive imposition of tariffs, very little attention has been paid to the fact that the Constitution gives exclusive authority over tariffs to Congress.
What can sortition do to help solve this problem? First, sortition advocates should be less concerned with abstract notions of participatory legitimacy in the style of Rousseau. Such notions are not at the root of our democratic crisis, lack of democratic capacity is. Second, we need to address three big dangers: the tendency of the judiciary and the civil service (i.e. the “deep state”) towards institutional capture, the danger of populist cults-of-personality in the executive, and the profound lack of agency in the legislative branch due to the collective action problem.
Sortition can only make a dent in these trends if it is used far more frequently, and with greater flexibility. Paolo Spada and Tiago C. Peixoto make three suggestions in their JoS article.[2] First, use smaller minipublics more often, and integrate them systemically rather than calling them on a case-by-case basis. Second, focus less on broad representativeness and instead focus on viewpoint inclusion. This directly targets the problem of institutional capture. Third (and taking a cue from neo-republican theory), focus on non-domination rather than representativeness. This directly addresses the problems we face, as increasingly weak legislatures open up a space for domination by monolithic movements in the other branches.
The social and performative nature of many citizen assemblies is also a problem. Spada and Peixoto quote a study by Jacquet (2017) that lists six explanations for non-participation: “…concentration on the private sphere, internal political inefficacy, public meeting avoidance, scheduling conflicts, political alienation, and the perceived lack of impact of minipublics on the political system” (Spada and Peixoto, 2025, p. 147). Using a less performative deliberative style along the lines of a jury should increase participation. Another important factor is to make assemblies legally binding rather than merely advisory, something that should be more palatable if there are many assemblies deciding smaller matters. If sortition advocates take a problem-solving rather than an ideological approach, sortition can help restore our democratic capacity.
[1] https://www.csmonitor.com/USA/Politics/2014/1103/How-to-fix-Congress-Do-more-work-behind-closed-doors
[2] Spada, P. & Peixoto, T.C. (2025) The limits of representativeness in citizens’ assemblies: A critical analysis of democratic minipublics, Journal of Sortition, 1, No. 1, pp, 137-159.
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