The Two European Demoi: Authorizing EU Legislation and Deliberating on Affected Interests
Rainer Bauböck (European University Institute)
How should a European Citizens’ Assembly (ECA) relate to the European Parliament (EP) and the other institutions of the EU? In her lead essay, Kalypso Nicolaidis proposes a complementary role for the ECA. Richard Bellamy is skeptical that an assembly of randomly selected citizens will improve trust in European democracy. Cristina Lafont & Nadia Urbinati, Sandra Seubert, Daniel Freund and Jelena Dzankic see useful consultative tasks for such an assembly vis-à-vis the EP and the Commission, which would amount to a subordinate role for an ECA. By contrast, Yves Sintomer, Alvaro Oleart and Brett Hennig advocate for a more competitive relation and transformative role, in which the ECA would ‘prefigure’ a new model of democracy 3.0 that gives stronger weight to the agenda of protest movements, the interests of the Global South and of future generations. Finally, Svenja Ahlhaus & Eva Schmid keep the question of the ECA’s relation to existing political institutions open by arguing that the design of an ECA should depend on whether its task is to enhance transparency, to counter the hegemony of dominant interests, or to overcome reform deadlocks.
In my intervention, I will agree with Nicolaidis that an ECA should complement the EP rather than being subordinate to it or aiming to replace it. My argument for complementarity builds on the idea that the mode of selection of assembly members (sortition vs. elections) corresponds with different powers (deliberative vs. legislative authority) and the representation of differently composed demoi (affected interests vs. the citizenry). European democracy needs more institutionalised and publicly visible deliberation about the common European good and it needs a stronger representation of the interests of those who are not presently citizens of the Union but are deeply affected by its policies. This is what an ECA could potentially deliver if it is institutionally sufficiently strong and autonomous. But it cannot by itself generate democratic legitimacy of supranational legislation. Legislative authority in Europe is held jointly by member state governments in the Council and by MEPs in the EP. The mandate of the Council and the EP for making collectively binding decisions comes from the collective of all citizens voting in national and European elections. Random selection cannot provide such a mandate.
Strengthening deliberative democracy in Europe
As Nicolaidis points out, randomly selected citizens’ assemblies are not instruments of direct democracy, which involve all enfranchised citizens directly in decision-making. She identifies them instead as institutions of deliberative democracy. One could object that parliaments are of course also supposed to deliberate before taking decisions and this is what the EP certainly does in its committees and plenary debates. Why do we then need a separate deliberative institution?
Proponents of lottocracy answer that parliamentary democracy has been captured by the partisan interests of political parties competing with each other for power and powerful lobbies for special interests whose influence corrupts elected officials with long periods in office. These dynamics greatly reduce the space for deliberation about the common good in elected assemblies. There is some truth in this, but, as Sandra Seubert points out (citing Urbinati 2014), idealising non-partisanship risks chasing a problematic ideal of “unpolitical democracy” without competition for power. The real problem to which citizens’ assemblies respond is a growing political polarisation and alienation among citizens in European societies, which lead to declining support for democracy and rising vote shares for authoritarian parties. The core task of an ECA is to create a ‘mini-public’ that does not mirror the actual European publics, splintered as it is along national and ideological lines of fracture, but where participants respect each other as equals and are willing to listen to each other, to compromise and to prioritise the common good.
Descriptive representation is important for the ‘input legitimacy’ of CAs. An assembly of experts may claim epistemic authority for its recommendations but lacks democratic legitimacy. By contrast, an assembly whose composition mirrors that of European society has some initial democratic credibility. Yet its main purpose is not descriptive but ‘indicative representation’, as suggested by Philippe Pettit (2010) and mentioned by Bellamy. Precisely not indicative of the general public’s views as they currently are, which can be captured through opinion polls, but as they might be if well-informed citizens deliberated in a public arena. The CAs’ task is to create mini-publics in which political choices and legislative proposals are debated as they should ideally be in the macro-publics of European societies. They are much better suited for this task than elected assemblies.
As a merely epistemic tool for gleaning policy preferences of citizens under ideal conditions for deliberation, citizens’ assemblies may be an interesting tool for social scientists but will not do much to transform democratic politics. They could achieve real impact if they had independent legislative power, but this would be extremely problematic. In democracy, such power can be either exercised directly by citizens in referenda or by delegates who receive their mandate from all citizens through elections. If this power were exercised by randomly selected citizens, this would breach a principle of popular sovereignty.
Alternatively, citizens’ assemblies can gain power vis-à-vis law-making institutions if the latter have to vote on their legislative proposals. There is no fundamental democratic objection against extending legislative initiative rights to a randomly selected assembly if it is endowed by legislators with an appropriate mandate. I agree with Nicolaidis that in order to exercise such a right responsibly, and also to monitor how legislators deal with its initiatives, a citizens’ assembly would have to be a permanent institution rather than a one-off and issue-specific experiment. The most interesting suggestion is, however, to give a citizens’ assembly the power to reinforce its recommendations through direct democratic instruments, such as popular initiatives or referendums. Instead of bypassing popular sovereignty, citizens’ assemblies would then call on all citizens to endorse or reject their proposals. As Daniel Freund points out, the mere threat of using direct democratic instruments might cajole legislative assemblies into taking seriously proposals generated by citizens’ assemblies.
The powers of legislative initiative and of triggering direct democratic votes would do much to make sure that citizens’ assemblies do not remain in a subordinate and consultative role in relation to legislative ones. And if handled and publicised well, these powers could also capture the attention of wider audiences.
By contrast, I would place less confidence in the “pedagogy of sortition” than Nicolaidis. Random selection creates conditions of equality among participants that may change the ways they think about fellow EU citizens from other member states or social backgrounds. It will not by itself transform attitudes among the wider citizenry from which participants are selected. Different from the equal right to vote, equality of probability will hardly strengthen a sense of equal and common ownership of political institutions among citizens if chances to be called to serve are infinitesimally small for each individual, as Bellamy and Dzankic emphasise. We should abandon the idea that sortition-based assemblies in a polity as large as the EU could reinvigorate an Aristotelian conception of citizenship as ruling and being ruled in turn. Citizens’ assemblies invite too few citizens to participate and do not give those who accept to participate any real power to rule.
Why the deliberative demos must be wider than the legislative demos
It seems natural to assume that participants of an ECA should be selected from the same demos that is entitled to vote in European elections, i.e. the citizens of the Union at voting age. Nicolaidis proposes, however, to expand this demos by including the non-citizen long-term residents of Europe, as a way of overcoming the exclusion of a large part of the EU population of immigrant origin who cannot vote because they are not nationals of a member states. Dzankic goes a step further by urging the inclusion also of those without permanent residence status.
I want to endorse this proposal but on somewhat different grounds. Instead of regarding an extension of the demos for an ECA as transformative and prefigurative for EP elections, I will once again defend complementarity, and this time between two distinct demoi: a legislative and a deliberative one.
Citizenship of the European Union is derivative of member state nationality and strictly linked to the latter. It builds on a federal principle according to which the citizens of the federation are the citizens of its constituent polities. The EU is a Union of states that have pooled their sovereignty under the condition that they retain their international recognition as independent states. As Brexit has demonstrated, they have even retained a right to unilateral secession that does not exist within federal states. Citizenship in the sense of nationality is an essential feature of international statehood. If EU citizenship were derived from residence rather than member state nationality, this would jeopardise the federal character of the EU.
I agree with Nicolaidis and many other scholars that the exclusion of immigrant origin populations from EU citizenship is a real and pressing concern. We differ, however, in identifying the main cause, which I find in restrictive citizenship laws of member states that unjustly disenfranchise these populations in national as well as European elections. Disconnecting voting rights for the European Parliament from citizenship status would do little to correct this exclusion and would devalue European citizenship.
I have argued elsewhere that voting rights and citizenship should generally remain connected Bauböck 2018). As discussed in an earlier GLOBALCIT forum, this does not rule out a domicile principle that automatically turns long-term residents into citizens and voters. Ius domicilii is indeed appropriate for local citizenship and has been adopted by twelve member states that grant local voting rights not only to EU citizens but also to third country nationals. Applied at national and supranational level, however, ius domicilii would have the perverse consequence of making citizenship a status that is no longer held securely for a full life but is automatically lost with emigration. If we want to make EU citizenship more inclusive for all long-term residents, we must put pressure on the member states to adopt a ius soli principle for children born in their territory, to liberalise the conditions for naturalisation, and to accept multiple citizenship for those with genuine links to several countries.
The democratic principle behind this proposal is the following: the demos that authorizes legislation through elections should consist of all those and only those who have a stake in the common good of the polity. For the member states and their Union, these are individuals that qualify for life-long citizenship (under the liberal rules mentioned above).
The inclusion of democratic stakeholders as enfranchised citizens is, however, not the only important principle of democratic inclusion. Democracies restrict individual autonomy by imposing coercively binding laws on everybody present in their territories. They must, therefore, extend equal protection of the law to all those who are subjected to them – generally in virtue of residing in the territory – and they must give them equal opportunities to contest these laws by exercising their rights of free speech and association and by appealing against them. Interestingly, the 1992 Maastricht Treaty heeded this principle when giving all natural and legal persons in the EU – rather than only EU citizens – the right to petition the EP.
A third and last principle of democratic inclusion is that democratic decisions are only legitimate if they emerge from deliberations in which all interests that will be severely affected by a proposed legislation have been duly considered. It is this principle that is most systematically violated and ignored when a powerful polity like the EU adopts laws after deliberation into which only legislators elected by separate national demoi and some powerful corporate interest lobbies can provide relevant inputs. Among the main deficiencies of European democracy is that its legislation pursues national and European interests at the expense of global ones and those of other countries’ citizens who are negatively affected by its policies (such as most notoriously EU agricultural policy). The composition of the European demos and dynamics of electoral politics also mean that the interests of future generations get systematically neglected in favour of the interests of presently living older cohorts.
If citizens’ assemblies’ main task is to indicatively represent how citizens would deliberate on policy proposals under ideal conditions, they must represent a deliberative demos (see Owen in Bauböck 2018) that is considerably wider than the demos that authorises a legislative assembly through elections. At the minimum, this deliberative demos must include all residents in the European Union. I welcome, therefore, Nicolaidis’ proposal to balance the composition of an ECA not only by nationality, gender, income, and education but also by including a proportionate number of non-EU citizens. This will, however, not be enough. When an ECA deliberates, for example, on a policy responding to climate change, the demos whom it ought to represent is a global one that includes all humans and, arguably, also non-human animals. For practical reasons, it will not be possible to randomly select participants from such a wide demos. However, it is crucial that the ECA includes representatives of interests that are most severely affected by the policy that is being considered. It can do so by inviting virtual representatives of these interests who can credibly speak for populations in countries in the Global South worst hit by the climate crises, non-human animal species decimated by it or future generations that will bear the brunt of current failures to act decisively in cutting carbon emissions.
I acknowledge that this proposal leaves many questions open: How many virtual representatives should be added to an ECA? Should their selection depend on the specific issue that is debated? Should they merely have an advisory role, or should their votes be counted? Purists of sortition-based democracy may object that giving such representatives a stronger role than that of experts and including them in significant numbers would distort the descriptive representation of European societies. However, this objection begs the question: Why should only European residents form the demos that is represented in an assembly deliberating about European policies that severely affect the interests of so many non-Europeans? Sortition-based descriptive representation of all these interests is practically impossible. So the second-best solution seems to me a mixed ECA that combines random selection of European residents with purposefully designed representation of other interests.
The Test of Effective Transformation of Citizens’ Preferences
An ECA that meets its task of deliberating on EU policies by considering all interests that would be severely affected by them may still fail to change public opinion and the views of those citizens for whose votes national and European legislators compete. If it then initiates referendums or puts its proposals forward for a vote in the EP, these may simply get voted down. The ultimate test for an ECA is, therefore, whether and how its deliberations and proposals will feed back into the public spheres of European societies. This is the constraint that democrats have to accept: Citizens’ assemblies may fail to endorse policies that are urgently necessary, and even if they do endorse them, they may fail to reach out and convince those citizen voters who form their opinions under far less ideal conditions. Nicolaidis’ proposal contains interesting ideas on how to reduce this risk, but it is in the nature of democracy that it can never be fully overcome.