But there is a second, oddly counterintuitive reason for this increasing failure of democracy. This is not that government listens too little to the views of the public; it is that government listens too much. Every fancy of the population gets echoed in polls, and these polls in turn pulse the democracy. Yet the message the polls transmit is not the message of democracy; their frequency and influence is not the product of increased significance. The President makes policy on the basis of overnight polling only because overnight polling is so easy.
This is partly a technology problem. Polls mark an interaction of technology and democracy that we are just beginning to understand. As the cost of monitoring the current view of the population drops, and as the machines for permanent monitoring of the population are built, we are producing a perpetual stream of data about what “the people” think about every issue that government might consider.
A certain kind of code perfects the machine of monitoring — code that automates perfect sample selection, that facilitates databases of results, and that simplifies the process of connecting. We rarely ask, however, whether perfect monitoring is a good.
It has never been our ideal — constitutionally at least — for democracy to be a perfect reflection of the present temperature of the people. Our framers were keen to design structures that would mediate the views of the people. Democracy was to be more than a string of excited utterances. It was to be deliberative, reflective, and balanced by limitations imposed by a constitution.
But maybe, to be consistent with the arguments from Part III, I should say that at least there was a latent ambiguity about this question. In a world where elections were extremely costly and communication was complicated, democracy had to get by with infrequent elections. Nevertheless, we cannot really know how the framers would have reacted to a technology that allows perfect and perpetual polling.
There is an important reason to be skeptical of the flash pulse of the people. The flash pulse is questionable not because the people are uneducated or incapable of good judgment, and not because democracy needs to fail, but because it is often the product of ignorance. People often have ill-informed or partially informed views that they simply repeat as judgments when they know that their judgments are not being particularly noticed or considered.
Technology encourages this. As a consequence of the massive increase in reporting on news, we are exposed to a greater range of information about the world today than ever before. This exposure, in turn, gives us confidence in our judgment. Never having heard of East Timor, people when asked about it might well have said, “I don’t know.” But having seen ten seconds on TV, or thirty lines on a Web portal news page, gives them a spin they didn’t have before. And they repeat this spin, with very little value added.
The solution to this problem is not less news or a ban on polling. The solution is a better kind of polling. The government reacts to bad poll data because that is the only data we have. But these polls are not the only possible kinds of polls. There are techniques for polling that compensate for the errors of the flash poll and produce judgments that are both more considered and more stable.
An example is the “deliberative” poll devised by Professor James Fishkin. Rather than a pulse, Fishkin’s polls seek an equilibrium.[11] They bring a cross-section of people together for a weekend at a time. These people, who represent all segments of a society, are given information before the poll that helps ensure that they know something about the subject matter. After being introduced to the topic of the poll, they are then divided into small juries and over the course of a couple of days argue about the topic at issue and exchange views about how best to resolve it. At the end they are asked about their views, and their responses at this point form the “results” of the poll.
The great advantage of this system is not only that information is provided but that the process is deliberative. The results emerge out of the reasoning of citizens debating with other citizens. People are not encouraged to just cast a ballot. They give reasons for their ballot, and those reasons will or will not persuade.
We could imagine (we could dream) of this process extending generally. We could imagine it becoming a staple of our political life — maybe one rule of citizenship. And if it did, it might well do good, as a counterweight to the flash pulse and the perpetually interested process that ordinary government is. It would be a corrective to the process we now have, one that might bring hope.
Cyberspace might make this process more possible; it certainly makes it even more necessary. It is possible to imagine using the architecture of the space to design deliberative forums, which could be used to implement Fishkin’s polling. But my message throughout is that cyberspace makes the need all the more urgent.[12]
There is a magic in a process where reasons count — not where experts rule or where only smart people have the vote, but where power is set in the face of reason. The magic is in a process where citizens give reasons and understand that power is constrained by these reasons.
This was the magic that Tocqueville wrote of when he told the world of the amazing system of juries in the United States. Citizens serving on juries must make reasoned, persuasive arguments in coming to decisions that often have extraordinary consequences for social and political life. Writing in 1835, Tocqueville said of juries:
The jury . . . serves to communicate the spirit of the judges to the minds of all the citizens; and this spirit, with the habits which attend it, is the soundest preparation for free institutions. It imbues all classes with a respect for the thing judged and with the notion of right. . . . It teaches men to practice equity; every man learns to judge his neighbor as he would himself be judged. . . . The jury teaches every man not to recoil before the responsibility of his own actions and impresses him with that manly confidence without which no political virtue can exist. It invests each citizen with a kind of magistracy; it makes them all feel the duties which they are bound to discharge towards society and the part which they take in its government. By obliging men to turn their attention to other affairs than their own, it rubs off that private selfishness which is the rust of society.[13]
It wasn’t Tocqueville, however, or any other theorist, who sold me on this ideal. It was a lawyer who first let me see the power of this idea — a lawyer from Madison, Wisconsin, my uncle, Richard Cates.
We live in a time when the sane vilify lawyers. No doubt lawyers are in part responsible for this. But I can’t accept it, and not only because I train lawyers for a living. I can’t accept it because etched into my memory is a picture my uncle sketched, explaining why he was a lawyer. In 1974 he had just returned from Washington, where he worked for the House Committee on Impeachment — of Nixon, not Clinton, though Hillary Rodham was working with him. I pressed him to tell me everything; I wanted to hear about the battles. It was not a topic that we discussed much at home. My parents were Republicans. My uncle was not.
My uncle’s job was to teach the congressmen about the facts in the case — to first learn everything that was known, and then to teach this to the members of the committee. Although there was much about his story that I will never forget, the most compelling part was not really related to the impeachment. My uncle was describing for me the essence of his job — both for the House and for his clients:
11.
See, for example, James S. Fishkin,
12.
Dean Henry H. Perritt Jr. provides a well-developed picture of what "self-regulation" in the Internet context might be, drawing on important ideals of democracy; see "Cyberspace Self-government: Town Hall Democracy or Rediscovered Royalism?,"