Path dependence

To be clear, many proponents of the citizens’ assembly took issue with features of the design for which the OCA was criticized, e.g., the timing and public education campaigns. And I agree that the justification of such decisions was questionable at best. However, my contention is that the structure of Gutmann and Thompson’s theory allows these problems to arise, in principle and in practice. It does so because it provisionally justifies these decisions, until they may be revisited at a later time in a deliberative democratic mechanism.

While any decision remains open to being revisited in future, it is impor- tant to recognize how difficult it may be to revise decisions once they have been made. To understand the challenge this presents, the concept of path dependence may be useful. As Margaret Levi (1997, 28) defines it,

Path dependence has to mean, if it is to mean anything, that once a country or region has started down a track, the costs of reversal are very high. There will be other choice points, but the entrench- ments of certain institutional arrangements obstruct an easy re- versal of the initial choice. Perhaps the better metaphor is a tree, rather than a path. From the same trunk, there are many differ- ent branches and smaller branches. Although it is possible to turn around or to clamber from one to the other – and essential if the chosen branch dies – the branch on which a climber begins is the one she tends to follow.

In some cases, political decisions may be easily changed, but this possibility generally depends on multiple factors. Some of those factors may be best

understood as a matter of relatively arbitrary choice, such as what percentage of the vote in a referendum must support it to reform the electoral system. But other factors, as Levi points out, that may affect the ability to revise previous political decisions are the amount of resources that have already been spent to develop and implement a particular course of action (the resources to “grow” a particular part of the tree, and how far up the tree and along a particular branch one has travelled), and the additional cost in resources that will be required to pursue an alternative course instead (how much it will cost to get to another branch to which one wishes to switch).

To give examples from the OCA, I have suggested that public reason may have supported selecting a different mandate than electoral reform. Or the government might have reconsidered other decisions, such as the amount of time and resources it was willing to invest in public education and engage- ment. In Rawlsian terms, I have argued that it should have better addressed that these decisions apparently (in the eyes of reasonable citizens) did not adequately address reasonable citizens’ dissatisfaction with the OCA or the government.

While I do believe that the government ought to have revisited many fun- damental decisions about the OCA, such as its mandate and the timeframe for public engagement for the purposes of strengthening democracy, the concept of path dependence may be useful for understanding the reasons it had for not doing so. Put simply, the farther along in the process of designing and implementing the OCA, the greater the cost of most of these changes. For example, a change to the mandate, just in terms of the resources that had been invested to design the process on the presumption of electoral reform,

much less those used once the process had begun, would have resulted in a significant loss of resources with no apparent return on the investment.

To return to Levi’s metaphor of a tree, the choice of mandate would be quite close to the base of the trunk. And many other aspects of the OCA would be dependent on that one, or would branch out from that point in the base, e.g., the design and planning of learning exercises about electoral systems through voting simulations, arranging visits by guest speakers to give presentations on electoral systems. Thus, getting something of value in return for the resources spent on these preparations would depend on the mandate remaining the same. If a decision so far down on the base of the tree were changed, this would entail at least losing the value of resources that had been used to develop the original structure of the tree. And, to the extent that the original plans had been executed, a significant amount of additional resources would likely be required to get to an alternative part of the tree.

In contrast, other decisions may cost less to change, as they are farther up the tree. For instance, it may be relatively easier, and cost fewer resources, for the assembly to change its decision about which electoral system to develop, rather than its general mandate to develop an alternative electoral system. How much it would cost to change its decision about which electoral system to develop would depend, in part, on how far up the tree the assembly had actually travelled, or how far along the decision-making process about its first choice the OCA had gotten.

In other words, the cost of changing its decision to develop one electoral system instead of another may be thought of in terms of how much distance would have to be travelled to get from one branch of the tree to the other. In

contrast with the decision to change its mandate, the choice to change its de- cision about which electoral system to develop would not require going all the way back down to the base of the trunk of the tree. Nor would it require grow- ing a new part of the tree, so long as the assembly chose to change its decision to another system already included among the options to be considered.

According to Rose (2007, 15), the OCA had 15 decisions to make about the MMP system that it would recommend to Ontarians. If the OCA had not yet begun to make any of these decisions, the switch to another system, e.g., Single Transferable Vote (STV), would be relatively “cheap,” compared to the cost of switching after it had worked through all of these decision points. In its initial learning phase, the assembly participated in simulations designed to teach it about all of the electoral systems they would have the option of developing. Thus, they could have made a move from the “branch” to design an MMP system to another, e.g., to design an STV system, at very little cost if they had not yet begun to work through the decisions about the design of an MMP system.

I raise all of this to explain another problem with Thompson’s argument that citizens should accept ordinary legislative mechanisms to make the initial decisions about a citizens’ assembly. Thompson’s view that the benefits of accepting their decisions is likely to outweigh the costs because they may be revisited later is weakened by two questionable assumptions. The first is that, as the concept of path dependence may help to illustrate, decisions may be more resistant to change than Thompson seems to acknowledge. This depends on how entrenched the decisions are, and the costs that have already been spent on pursuing a particular path. Second, as I will argue below, some citizens,

particularly those who are marginalized, may have good reason to doubt that they will have an opportunity to challenge decisions that have been made by ordinary legislative mechanisms.

On my view, citizens may rely on ordinary legislative mechanisms to de- sign institutions, but whether they should do so depends on how well ordinary legislative mechanisms meet the standard of public reason. This avoids the pitfalls of placing so much weight on the opportunity to revisit decisions. De- cisions are only ever justified to the extent that they meet the standard of public reason, or are likely to be conducive to citizens’ satisfaction with the institutions involved, over time. This is not to deny that the justification of a particular decision may change with time. But on my view, insofar as any of the decisions made by the Ontario government and decision-makers were likely to compromise the legitimacy of the OCA or the institutions involved, they were less justified.