Independent institutions require independent legitimacy: A new case for sortition

There are two types of recurring news items which have stuck in my mind recently. Institutions attacked for doing their job well, and institutions doing their job poorly after a barrage of attacks for doing their job well. Public broadcasters, central banks, labor boards and courts are among the main targets, and many who thought themselves the sharpest critics of these institutions find themselves backed into a corner having to defend them. Though the US are perhaps unique in filling out their entire bingo card here, these problems are widespread – every country whose politics I follow has seen party politics encroach on its independent institutions.

This shouldn’t surprise us, tough. Parliaments appear to be built to produce wild swings in politics: With only marginal turnout fluctuations, two governments can succeed one another while sharing exactly no voters. That this hasn’t created greater instability all along should startle us: If change isn’t on the ballot, what’s the point of any of it?

Yet, continuity and stability are good in their own right: Organizations, and businesses in particular, want few things more intently than the ability to make plans which aren’t upended by every election, and most people want few things less than be made to think about politics and would rather be left alone. So, while a lack of political upheaval may imply a number of dire causes from captured politics to stagnation, it also has genuine value, and even naturally tumultuous parliamentary systems have bent over backwards to make exactly to make that happen, because there is a genuine need for it.

This good has come at the cost of elite entrenchment and stagnation. Yet, who can blame parliaments? (We can still, don’t worry.) They rebelled against their nature to supply direly needed stability, cost be damned. Now, we’re left the contradictory evils of instability and stagnation as attempts to entrench institutions as separate from party politics are coming apart. All the while, party politics, whose need to ritually come together to affirm commitment to institutions both official and unofficial has left their flanks bare, open for attacks both justified and hysterical by those who recognize that uniformity as a weakness. Now, when institutions ritually return for parliamentary assent, they strategically undermined, not legitimated. But this weakness comes at the worst possible time, when institutions need to act and adapt to provide stability.

This leaves us at an impasse: As independent institutions are losing legitimacy because they are part of an outmoded order, they need precisely the legitimacy they are bleeding in order to move with changing times, and the stability they ought to provide is missed more dearly precisely because of the constant upheaval (further undermining independent legitimacy). The defence of institutions is a losing proposition, and what is defended is becoming worth less with each crisis. I am not calling to surrender, but to see a fighting retreat for what it is. However, a fighting retreat must be fought to give space to regroup, or it is simply a slow defeat.

As I see it, arrangements are broken when they force a trade-off between independence and democratic control, read, legitimation. By tying institutions that are supposed to be independent to parliamentary party politics, parliaments are pushed to erode their productive differences, and institutions are nonetheless left with the tinge of partisanship. Institutions do not require independence or democratic oversight, they require both. Independent institutions require independent legitimacy.

Parliaments may not fit the task, but democracy is indispensable. Thankfully, a representative democratic body without the volatility of party politics is possible, through sortition, the creation of a deliberative body by random selection from the population. Where parliaments are representative in the sense that parties are tasked to represent constituents, and task members to represent them in turn, an assembly created through sortition is representative in the statistical sense, differing primarily from the population at large in that it is small enough to deliberate without mediation.

Representing the population, the assembly can bestow legitimacy upon institutions and protect them from interference, while providing oversight at the same time. Bad faith attacks may thrive in a fast-paced political and media environment, but would stand far less of a chance against the scrutiny of a body with the time, resources, and responsibility to interrogate them seriously. Scandals and failures could be investigated on the terms which the institution is meant to be held to, not just in party-political or headline-grabbing ways. And, for the vast majority of the time, institutions would be under some scrutiny, rather than none.

More insulated and accountable at once, institutions could be far more forceful and adaptive in pursuing their tasks, and free to operate far closer to reality, instead of conducting a political balancing act to retain perceived neutrality. Indeed, success may produce a virtuous circle which further increases their agency and legitimacy.

The tasks of many institutions are incredibly hard. Even a merely adequate performance is exceedingly valuable, and just as difficult. Needing to appear neutral when realities are anything but, or needing to act strongly without the legitimacy to do so, makes these tasks impossible. We cannot stay adrift as the maelstrom of hyperpolitics and culture wars consumes everything. We need solid land and independent institutions, and we need them now.