Proprosing a constitutional reform

Thursday was Constitution Day in Denmark. I went to a celebratory get-together organized by the party's Hvidovre branch, and spent some quality time sitting on a lawn in the sun, eating brunch and listening to live jazz. Very nice.

The main (and only) speaker was our local MP Morten Helveg Petersen, who for about a decade now has been calling for a rewrite of the constitution. Not, if I understand him correctly, because that there is anything directly wrong with our current one, but more because its language and organization is antiquated. It is hard to understand in general for people who don't know what it means already – it defines our form of government as being "limited monarchial" and says "the King" whenever it means "the government". Its enumeration of human rights and political liberties is rather sketchy compared to what our neighbouring countries have. It creates no end of trouble each time the EU wants a broader jurisdiction. And so forth.

Isn't that all exciting? I guess not, and therein lies a problem. I have nothing against most of the revisions Morten wants to make, but – I'm very sorry – it is hard for me to see why to bother. Apparently the plan is that the revised constitution should say to do things exactly how we do them already, only expressing that more clearly and thoroughly. This does not appear to me as a promising approach to constitutional reform. The optimistic take on this would be that if even our most vocal proponents of reform don't go beyond merely editorial changes, we as a country must be doing pretty well. Which we probably are, but who says we cannot do better yet?

So let us stir things up a bit. I propose that we reintroduce a bicameral legislature!

(For those following along outside Denmark, the original democratic constitution of 1849 create a legislature consisting of an upper house, the Landsting, whose election rules favored landowning and conservative interests, and a lower house, the Folketing, with a closer approximation to universal suffrage. The precise rules changed several times over the years, and after the 1936 elections the relative strengths of the parties were the same in both houses. This made the Landsting increasingly irrelevant, and it was abolished in the 1953 Constitution which is still in force. Today the Folketing alone makes up an unicameral legislature).

There are three main points in my proposal:

1. The Folketing becomes the upper house of a bicameral parliament. It is supplemented by a new Lower House, name to be decided. (Put suggestions in the comments, please!)
2. Members of the LH are not elected, but selected by lot among citizens who have registered as willing to serve. Seats are refilled on a rolling basis, such that new members are continuously entering the LH.
3. Bills are heard and voted on first in the Folketing and then in the LH. Add the percentage of ayes in the Folketing to the percentage of ayes in the LH. If the sum exceeds 100%, the bill becomes law.

The idea of selecting members by lot goes back to the democracies of ancient Greece. Classical Athens had a 500-seat executive assembly called the boule, selected by lot among the citizenry. Lots were also drawn to fill most public offices; only a small number of individual offices were filled by election. I don't know any modern democracies that have taken up this idea for its formal legislative process. But actually we're not that far from it; many politicians act with great deference to the results of random opinion polls. One way to think of my Lower House is as a standing opinion poll and "focus group" for the Folketing. Its opinions will be at least somewhat more informed than those emerging from a point-blank phone poll, because the members are full-time legislators and have some time to read and consider each bill before voting on it.

In most existing bicameral legislatures, a bill has to pass in each house individually. My "add the percentages" method is what I think is really innovative in my proposal. Here is how it works:

Because members of the LH have no hope of re-election, they cannot be held to any partisan or ideological allegiances. They are unlikely to depart from their own honest opinion just becuase it might not be popular in the electorate at large. They don't have to keep friends with anybody in the LH after their term expires. They will have few tools for enforcing parliamentary deals among themselves, and are thus unlikely to make such deals in the first place. In short, the LH will be an extremely unruly and unpredictable lot.

And this is a good thing? Yes it is, because the Folketing votes first on every bill. At that time, it is impossible to be sure how much support it will have in the LH, and therefore ministers who want their bills to pass will have an interest in securing as large as possible a majority in the Folketing as possible. It is said jokingly that politics in our current system is all about "being able to count to 90", that being the size of a majority bloc in the 179-seat Folketing. A minister who makes a concession to an opposition party in order to get 100 votes for his bill rather than 90 is a fool; he does not need more than 90 votes. With an unruly LH in the equation, a minister doing this gets a real advantage, namely that his bill is less likely to be killed in the LH.

Thus the net effect of the LH will be a much greater incentive for the government to seek broad compromises among the Folketing's parties, which I count as a definite win for our democracy.

It gets better yet. The "professional" politicians in the Folketing will have a direct interest in having the LH members vote for their bills (or against bills they would like to fail). They will want to convince a certain number of LH members that this is a good (or bad) bill. The "amateur" members of the LH have little reason to be impressed with appeals to tactics or political tit-for-tat (you might promise me to vote for something else I want next month, but how do I collect on that promise if you don't keep it and my term expires shortly after?) or technocratic gobbledygook. The professionals will need to produce and present actual convincing and intelligible arguments about the merits of each bill. Certainly it will not be possible just to look the other way, cross one's fingers and hope that people will have forgotten this come next election.

As a bonus, the list of participants in the Lower House seat lottery can also be used to draw pools of lay judges and jurors for the criminal justice system. The current procedure for this is ill-defined and highly biased towards members of organized parties. That could definitely use a makeover, too.