Welcome, fellow civic assembly enthusiasts, to part two of our strategy sesh.

In part one we considered advocacy strategies for involving working with politicians. When deployed with persistence and savvy, the work-with-em approach can clearly make assemblies happen. Unsurprisingly, almost all are advisory, as political leaders seldom relish sharing authority. Still, these rabbles reliably demonstrate civic capacity, and some produce proposals with genuine policy impact.

And their cultural impact? That’s the subject of part three’s exploration of working ahead of politicians.

But the preposition of the day is around.

Ballot initiatives

A couple dozen countries and about half of US states can pass laws without elected leaders’ approval using citizen-initiated ballot measures. With enough signatures on a petition, initiatives can bring a policy proposal directly to voters. In effect, citizens work around politicians to enact law.

Deliberation advocates argue ballot measures share many flaws with popular elections. In either form, mass votes set the table for wealthy political influencers, polarizing campaigns, and shallow deliberation at best. But if we want to pry open the door to significant power transfers from politicians to everyday citizens, ballot initiatives may comprise our best collective foot.

Michigan got a toe in. A 2018 initiative established the Michigan Independent Citizens Redistricting Commission. Wielding Swarmwise techniques, a “Voters not Politicians” slogan, and a tiny budget, these Michiganders mustered impressively broad enthusiasm for rather wonky process reform. Not a full civic assembly, the commission uses stratified sortition to ensure representative partisan balance. More importantly for our purposes, it endows everyday citizens with formal authority (to draw voting districts) without asking politicians’ permission.

Today Hope for Democracy (full disclosure: I volunteer) is promoting the idea of using state constitutional initiatives to advance its SCALE model (State Civic Assemblies Legally Empowered), which would give citizens considerably broader authority. SCALE would empower independent annual statewide civic assemblies to craft legislation. The state’s elected legislature would get a chance to enact the bill directly, but if they opted out, the rabble could send the matter to voters as a ballot measure, skipping the signature gathering phase. Via initiative, voters could directly establish assemblies that are institutional, recurring, capture-resistant, well-provisioned, self-improving, and fully fanged.

I oughtn’t try to predict mini-public outcomes, but my hunch is that if such an initiative were successful, most assemblies would end up working with politicians quite extensively. Collaborating with electeds and civil servants would speed their bills’ enactment and set a clearer path to enforcement. Working around politicians may be necessary for assemblies to grow civic teeth, but it need not mean those teeth are permanently bared.

Not long ago I was peddling the idea of using state ballot initiatives to institute periodic state constitutional conventions with participants chosen by lot. I still love the idea but now doubt its time has come. Enthusiasm for civic assemblies can’t yet trump convention resistance. Even at the state level, constitutional conventions frighten many Americans, and opposition is well-funded. When a 2022 ballot measure asked Alaskan voters if they wanted a convention, “no” outspent “yes” eighty to one!

Over a dozen states periodically pose these convention questions to voters, but none has voted yes since Rhode Island in 1986. Before then, US states convened some 233 constitutional conventions; our first decade without a state convention was followed by three more. True, voters have never considered a sortition convention, but today’s voters don’t seem ready to trust any convention with amendment proposal power.

A few successful SCALE implementations could make those constitutional convention aspirations much more tractable. Once folks see sortition bodies proposing statutes for ballot ratification, the idea of similar bodies proposing amendments will seem less scary. And the more states establish sortition conventions as the way to change constitutions, the greater the possibility of trying it out on a national stage. I’ve heard no more credible route to an era of flourishing democracy reform in America, and it all starts with the power of ballot initiatives..

Of course, initiative strategies have their limitations. The process is long and slow and demanding. Promising efforts are often shut down by clerical failings or harsh rulings on subject limitations. Worse, most places don’t have them. Statutory ballot initiative power is rare; constitutional initiative power – which is needed to institute civic muscle that legislatures can’t easily numb – is rarer.

But we gotta use ‘em where we have ‘em. Working with politicians has proven rabbles’ wisdom; working around politicians can prove rabbles’ strength.

Courts

Ballot initiatives provide the best paved byway around politicians for instituting new forms of civic power. There are other routes.

Working via the courts is, at least in concept, a way around politicians by going even deeper into the establishment. At present this route offers dim promise. At the statutory level, today’s courts interpret code developed by and for elected leaders; the law of the land is pretty well surrounded by the moat of the vote.

At the constitutional level, advocates could, I suppose, hunt for implied civic rights of representation, participation, or even deliberation. But the odds are even weaker than the argument. Judge-made law, like politician-made law, won’t deliver citizen-made law. The role of the court could certainly grow if future conventions enumerate more civic rights, but until then we should concentrate our court energy on protecting ballot initiative gains.

Contested Legitimacy

Some revolution-minded advocates espouse wresting political power from its current holders by dint of moral, rather than legal, authority. They argue for convening assemblies with little or no endorsement from establishment powers, and then claiming that they've formed a more legitimate government.

This camp includes constitutional convention advocates who argue the people should not be bound by the amendment rules laid out in minimal detail in Article V of the US Constitution. They point to enlightenment reasoning to suggest the people can call a convention at any time – with or without congressional support. They point to the Declaration of Independence’s argument that the people can abolish their government and institute a new one when it isn’t serving the ends of life, liberty, and pursuit of happiness. They point to the 1787 Constitutional Convention, which had no legal authority to draft a convention.

Variants of this approach appear at many scales and contexts, from autonomous zones in city parks to nation-building in the wake of international upheaval. Most share the same core small-R republican logic: the people get to make – and change – the rules.

I broadly endorse the moral argument. But I’ve yet to see a proposed usage with any real chance of working. To succeed in ushering in a new model of democracy by contesting a sovereign government, you need two main things: deep public disgust for the old frame and deep public embrace of the new one. (Also: a solid ton of contingency planning).

Public disgust with political elections abounds, but we have much work to do before Americans embrace civic assemblies as the truer source of democratic legitimacy.

More on the work ahead in part 3.