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Conference Report–“Constitutional Responses to the Crisis of Representation and Oligarchic Democracy”

Elliot Bulmer and Ellen Hubbard, International IDEA

On 30-31 May 2017, the International Institute for Democracy and Electoral Assistance (Int. IDEA) hosted a Workshop on ‘Constitutional Responses to the Crisis of Representation and Oligarchic Democracy’ (CR2OD), held at the Hague Institute for Global Justice.

The workshop was part of a wider International IDEA project examining the apparent crisis of representation in established and consolidating democracies during this ‘new gilded age’ of rising inequalities of wealth. Participants addressed the issue that although modern liberal democracies have constitutions and free popular elections, these democratic institutions over time have become dominated by a wealthy, elite class. This can produce a hybrid regime-type, which for the purposes of this workshop was defined as ‘oligarchic democracy’.

Defining the Problem and Refining Concepts

The first session was an open discussion to refine the definition of this term and to more effectively operationalize the problem of oligarchy. This discussion led to a clear differentiation between the concepts of ‘oligarchy’ and ‘elitism’. Referencing Vilfredo Pareto and Robert Michels, it was accepted that all societies have some sort of elite, and that a pure equality of political power, or of economic outcome, would be impossible and probably undesirable. The problem addressed in this project is not elitism as such (e.g. status and power derived from education or expertise), but the specific power of concentrated wealth. This characterization of the problem sets this project apart from those engaged in processes focused on political participation, which may have an anti-elitist, but not necessarily anti-oligarchic, slant.

Presentation of Papers

The following papers were presented:

Dr. Devin Joshi (Singapore Management University) and Dr. Jason Maloy (University of Louisiana, Lafayette)

‘Popular vs. Elite Democracies: A Class Based Approach to Conceptualizing and Operationalizing Political Regimes’.

In contrast to a traditional analysis comparing democratic with non-democratic regimes, this paper examined the measures used by political scientists in quantifying oligarchic democracy with the goal of capturing variations within accepted democracies. It sought to answer the question of whether formal systems of government affect the ability of oligarchic elites to control the conduct and output of policy-making processes. Their analysis suggested that the degree of populism or elitism in a democracy could be assessed in terms of the legislative structure (unicameralism vs. bicameralism), electoral access (universal suffrage, automatic voter registration, compulsory voting), and electoral representation (plurality elections vs. proportional representation).

Dr. Zoran Oklopcic (Carleton University, Ottawa)

‘The Practice of Constitutional Theory and the Poverty of Anti-Oligarchic Imagination’.

Oklopcic argued that there was a need to engage with an apathetic population whose scope of political imagination was stunted. An anti-oligarchic approach to constitutional studies would require us to identify ‘what is the scandal?’ What is the cause – or what should be the cause – of our outrage against existing distributions of wealth and power. He highlighted that constitutional change, being indirect, invisible and long term, is a difficult issue on which to build mass excitement.  There is a need to act not only on the level of constitutional design, but also of cultural and intellectual formation – offering concrete, tangible, non-trivial, recognizable solutions that can appeal to mass audiences and can generate passionate and enthusiastic mobilization in support of these solutions.

Amanda Maher (PhD candidate, University of Chicago)

Inequality, Corruption and the Virtue of Popular Ingratitude’.

This paper sought to reintroduce the concepts of ‘the few’ and ‘the many’ into the constitutional framework. Arguing within a civic republican framework drawing heavily on Machiavelli, Maher asserted that in light of the impossibility of separating wealth from politics, we need to abandon (or at least reformulate) the idea of political equality. Recognizing that the few and the many have radically unequal powers is the first step to combatting this distribution of power. Only a sense of the many as the many, a plebian consciousness, can equip non-elites to act in defence of their interests as an order – that is, to seek universal solutions through political actions  rather than individually looking up to patrons from amongst the elite to provide for their material wants on a philanthropic basis. Institutionally, this plebian identity could be expressed through a class-based constitution in which non-elites are able to manifest their shared interest in freedom as non-domination through a tribunate body.

Dr. Salvador Santino Regilme (University of Leiden)

‘Constitutional Discourses in Oligarchic Democracies: Neo-Liberal Rights and Socio-Economic Rights’.

Oligarchic democracies emerge through ideological processes, in which hegemonic neoliberal constitutional discourses are promulgated by elites, who legitimize their hold on power through constitutional interpretation – both in terms of judicial interpretation and the wider currency of constitutional ideas. In order to counter this, it is necessary to expand the public sphere and to unify non-neoliberal discourses under the banner of socio-economic rights to empower states to address material injustices.

Chris Roberts (JSD candidate, New York University School of Law)

National Human Rights Institutions as Democratic Supplement’.

This paper argued that the current mode of thinking about democracy in terms of representative or participatory processes is insufficient, and that we need a richer conceptualization of democracy in which public interest litigation could be seen as a democratic mechanism, occupying an area of democratic space alongside traditionally political processes. Recognising the limitations of the judiciary as a forum for such contestation, Roberts recommended the establishment of National Human Rights Institutions, combining ‘quasi-legislative’ (policy proposing) and ‘quasi-judicial’ (investigatory) powers and proposed some specific constitutional design options in terms of the role, composition and powers of such bodies.

Dr. Samuel Bagg (Duke University)

’Basic Income against Oligarchic Democracy’.

This paper presented Unconditional Basic Income as a response to oligarchic democracy. Turning aside from questions of representation or political process, Bagg asserted that outcomes – the distribution of wealth within society – was the underlying issue of oligarchic democracy. Rather than tinkering with political mechanisms, it would be better, he argued, to address the issue at its root by committing the state to an unconditional redistribution of incomes. The advantage of this approach is that it would be a clean solution with few ‘capture points’ for elite control or manipulation. Drawing on James Ferguson’s ‘Give a Man a Fish’, Bagg argued that UBI would address the actual core problem of poverty, not merely mask its symptoms. The specifically anti-oligarchic dimension of the case for UBI (as opposed merely to a poverty-reduction argument) was that increasing people’s scope for discretionary spending would increase their ability not only to engage in political life but also to shape the wider cultural and social environment through participation in market mechanisms.

Daniel Hind (Author, Journalist, Publisher and Activist)

‘Restoring the Assembly: Equality in Speech and Democratic Power’.

This paper explored the Athenian idea of isegoria – the equality in public speech, and equal right to address the sovereign assembly, which characterized democratic Athens. Modern constitutions break from classical republican states in that they, following James Madison, totally exclude the citizens in their collective capacity from the exercise of power. The Athenian assembly, which united both apex communicative institution and the sovereign decision-making body, has no exact counterpart in contemporary democracies. The absence of the communicative element is particularly harmful to democracy, since the communicative primacy of both state-run and private market-driven media give the few a much enhanced ability to shape the discourse in comparison to non-elites. Hind proposed a ‘communicative assembly’, in which each citizen would be given a sum of money to be used to advance public speech – giving people the material means to push back against oligarchic speech.

Camila Vergara (PhD candidate, Columbia University)

‘On Constitutionalising Popular Power’.

This paper advocated the creation of new constitutional systems informed by the work of Machivelli (on the Tribunate) and Condorcet (on Primary Assemblies). Having discussed these thinkers and their constitutional remedies for the problem of oligarchic power, the paper set out a proposal for popular institutions which would give non-elites a determinative voice in politics through: (1) a network of local primary assemblies, following Condorcet, in which direct citizen participation would take place; and (2) a national-level tribunate institution, following Machiavelli, in which randomly selected citizens – armed with impeachment powers – would be responsible for monitoring and controlling elites.

Dr. Joel Colón-Ríos (Victoria University of Wellington)

‘Primary assemblies and democratic renewal’.

This paper argued for a resurrection of the notion of the imperative mandate in primary assemblies. After examining the approaches of Jean Jacques Rousseau and Emmanuel Sieyès to primary assemblies and the imperative mandate, the paper discussed the process that led to the abolition of the imperative mandate in 18th century France and the place of primary assemblies. The paper then explored the views of Villeneuve and Condorcet on the citizen/representative relation and the deliberative nature of primary assemblies. Finally, the paper considered the relevance of primary assemblies and the imperative mandate in contemporary constitutional states by presenting three models: (1) the pyramidal model; (2) the periodic-horizontal model; and (3) the popularly initiated-horizontal model – with the third of these being recommended from a democratic and practical perspective.

Dr. Oliver Dowlen (Sciences Po)

‘Anti-Oligarchic Applications of the Random Recruitment of Citizens for Public Office: Practical Lessons from History and Theory’.

This paper examined the use of the lottery (sortition) as a mechanism to strengthen the political process. Dowlen addressed the question of why sortition was historically used, and invited the workshop participants to reflect more systematically on the advantages and disadvantages of its use. Sortition was presented as a ‘blind break’ – an anti-power decision-making mechanism that is arational, amoral and unpredictable, and which cannot be influenced. The conditions before the blind break (who gets into the pool from which candidates are selected) and the conditions after the blind break (what powers they have, how they are held accountable, etc.) are, however, subject to purposeful choice. In other words, the value of the lot is not its ability to select a random sample of the people (as some theorists of participatory democracy value it), but rather its ability to ensure that any selection from the pool of nominees is a ‘blind’ selection. Sortition can therefore only be used in combination with other mechanisms. One proposal put forward in the paper was to establish Citizen Parliamentary Groups (CPGs) which would shadow elected members of Parliament and would have supervisory and investigatory powers.

Dr. Rocío Annunziata (University of Buenos Aires)

‘Participatory Responses to Participatory Democracy: Scaling Up and Scaling Down Participation in Latin America’.

This paper provided a critique of participatory budgeting, as practiced in Latin America, as a response to oligarchy. Participatory budgeting institutions typically deal only with hyper-local issues, such that broader issues and inequalities are lost in a plethora of particularistic and fragmentary demands. Scaling down participation to the local level limits the ability of participants to make connections across geographical space and hinders the formation of cross-cutting coalitions of common interest. In contrast, the National Conference model of participation, as conducted in Brazil, offers higher quality and more egalitarian participation to be applied to more systemic, structural problems.

Discussion and Conclusions

Oligarchic democracy could be approached as (1) a distributional problem, (2) a representative problem, (3) a corruption problem, or (4) as a sociological problem.

First, the distributional problem is that policy favors the rich. According to this view, the problem of oligarchy not in itself that the rich rule, but that they rule in their own interest, advancing policies that, while perpetuating their wealth and power, fail to satisfactorily address the needs of the majority. The tentative solution to oligarchy seen in this way is not necessarily to deprive the rich of power, but to bind them, constitutionally or otherwise, into pursuing policies that serve the public good rather than their own interest. You could have a parliament of millionaires, but provided they are delivering the goods – for the benefit of ordinary people – then that is nothing objectionable.

Secondly, oligarchy can be perceived as a representational problem. The fact that the rich are over-represented in politics and in the decision-making processes, and that the non-rich are under-represented, is, according to this view, itself a cause for concern. A parliament of millionaires, even if they do track the public good, is less legitimate than a parliament that reflects the class structure of the population more accurately. The tentative solution to this conception of oligarchy is to strengthen representative or participatory processes in such a way as to increase the voice of the non-rich and diminish the voice of the rich, regardless of the policy implications that this might have.

Thirdly, oligarchy can be seen as a corruption problem. What makes oligarchy objectionable is neither the simple fact that policies serve the rich, nor the simple fact that the rich are over-represented, but the combination of these two: namely, that the rich, at the nexus of state power and economic power, corrupt and distort policy for their own benefit. A tentative solution to this aspect of the problem is to prohibit a revolving door of contacts and other conflicts of interest, constrain political donations and campaign expenditures, and place restrictions on lobbying.

Fourth, oligarchy can be seen as a sociological problem. Oligarchy is not simply a matter of who holds power in the state and how they exercise that power, but also is concerned with the wider sociological influence and disproportionate voice of the rich, who are able to shape the ideas and perceptions of the masses. A tentative solution this aspect of the problem may include greater emphasis on public education, or the strengthening of citizens’ media access through a body such as a ‘virtual communicative assembly’.

Having set out these various aspects of the problem, and based on the arguments and insights offered in the presentations, the participants debated a range of innovative proposals to constitutionally combat oligarchy in modern democracies. These were arranged in two categories: those which would require a revolutionary change to existing models of representative democracy, and those which could be achievable in contemporary constitutions, or indeed might already exist in nascent form.

Next steps

International IDEA will produce a Workshop Report setting out some of the themes, questions and tentative conclusions arising from the Workshop. This will lead in the coming year (2018) to another research phase, during which the potential of existing or practicable institutions, such as Citizens’ Assemblies or Fourth Branch ‘watchdog’ institutions, to contribute to anti-oligarchic ends will be explored in more detail. We also intend to build a network of scholars, practitioners, activists and others, who are interested in anti-oligarchic constitutionalism and who would like to participate in this project, whether by contributing a substantial piece of original research or by contributing a blog post to our website (www.constitutionnet.org).

For more information contact Dr. W. Elliot Bulmer, International IDEA (e.bulmer@idea.int).

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Published on June 16, 2017
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