The initiation problem

Thompson’s response to the regress problem is that citizens may provisionally accept an institution that has been designed according to decision-makers’ best understanding of its principles. Then, once within the deliberative democratic institution that is formed, they may challenge any decisions that have been made about it. But even accepting Thompson’s response to the regress prob- lem for the moment, there is still the question of how to initiate a deliberative democratic institution.

In answer to this, Thompson (2008, 29–30) states, “It is preferable, for pragmatic and constitutional reasons, that the institution be established by the legislature or some regular procedure of government.” In the face of rea- sonable disagreement among citizens, we may fall back on what I will refer to as ‘ordinary legislative mechanisms’ (e.g., legislatures, courts, ministries) to make the decision to create a deliberative democratic institution, as well as to make the initial decisions about its design.1 _{For example, in Ontario, the}

Premier, Dalton McGuinty, seemed to be primarily responsible for the deci- sion to hold it (Secretariat, 2007, 197–198), and the Ministry Responsible for Democratic Renewal, headed by Marie Bountrogianni, was charged with its 1_{More precisely, it would determine how to make decisions about the design – i.e., it}

might make them itself, or decide to delegate them to another body, or do something in between, e.g., make the final decisions on the basis of recommendations of a commission.

implementation (Secretariat, 2007, 205–206).

Thompson does not expand on what he means by “constitutional reasons”, but the reasoning to support this move may relate to Gutmann’s and his view that justification for political institutions comes in degrees (§3.1.2.).2

Often, institutions such as the legislature are not fully justified according to deliberative democratic principles. For, often, neither those institutions nor the decisions they make have been determined by the people in deliberative democratic processes.

However, ordinary legislative mechanisms may still make decisions to form a deliberative democratic process, and these may be justified to some extent initially. How well justified they are seems to depend on the extent to which the process fulfils the principles that Gutmann and Thompson advance, ac- cording to the best understanding of the principles at the time. And, as we have seen, there seemed to be good reasons for thinking that the OCA, as it was constructed by the government and decision-makers initially, fulfilled Gutmann and Thompson’s principles to a significant degree. Then, in subse- quent deliberative democratic institutions, citizens may revisit prior decisions, which have been made by ordinary legislative mechanisms on the basis of how those involved believe Gutmann and Thompson’s principles are best fulfiled. The subsequent democratic deliberation by citizens would then seem to more fully justify either the initial decisions or their revision.

I agree with Thompson that ordinary legislative mechanisms may be used 2_{On my view, I generally conceive of institutions as legitimate, and decisions as justified,}

although institutions may confer some degree of legitimacy on decisions they make. However, I have adopted Gutmann and Thompson’s terminology throughout this part of my argument, which seems to apply the concept of justification to both institutions and their decisions.

to create a deliberative democratic institution to address an issue such as elec- toral reform. However, this is not the only way to initiate deliberative demo- cratic institutions that may be legitimate, and that may give rise to legitimate decisions. Deliberative democratic institutions may also be initiated and de- veloped by people in other institutions, such as academics and professionals such as physicians, clinicians, or lawyers.

Also, mechanisms may be developed by grassroots or non-governmental organizations to enable citizens to communicate with one another and politi- cal officials about policy decisions. For example, the Directgov online petition website (http://epetitions.direct.gov.uk/) was initially developed by a grassroots organization to facilitate British citizens’ ability to communicate with their government. Eventually, it was incorporated into the formal polit- ical structure. If more than 100,000 citizens sign a particular e-petition, the issue may be debated in the House of Commons. Also, political officials may respond to petitions on the website.

So, although they go unnoticed in Thompson’s analysis, there are alterna- tives to ordinary legislative mechanisms that may initiate deliberative demo- cratic institutions. The existence of alternative ways to initiate deliberative democratic institutions is worth noting, since I will argue that there is a seri- ous challenge for relying on ordinary legislative mechanisms to stop the regress and initiation problems, as Gutmann and Thompson do. The problem arises from what motivates many deliberative democratists, including Gutmann and Thompson, to ground their conception of legitimacy in citizen participation: ordinary legislative mechanisms have systematically failed to protect and pro- mote at least some citizens’ interests.

I agree with Gutmann and Thompson that this is a serious problem that plagues many political institutions in many modern liberal democracies. But insofar as this is what motivates deliberative democratists, there is a prob- lem with turning to ordinary legislative mechanisms to initiate deliberative democratic institutions. If ordinary legislative mechanisms have consistently failed to adequately consider citizens in their decisions, it seems as though we should not be surprised when, yet again, political officials fail to fulfil that goal in designing and implementing new institutions.

Of course, some change in context may occur to make it more likely that existing legislative mechanisms will construct an institution that serves to strengthen democracy.3 _{But generally, there must be some change in the ordi-}

nary legislative mechanism first, if it is to be likely to construct a deliberative democratic mechanism that strengthens democracy. In Rawlsian terms, the in- stitution must do better at consistently meeting the standard of public reason in its decisions, including those about the deliberative democratic mechanism. Gutmann and Thompson’s theory fails to address the question: why think that political officials would construct an institution that would fulfil their principles, if they have systematically failed to do so in the past?

And indeed, the OCA seems to bear out this worry with Thompson’s re- 3_{For example, political officials may change their behaviour because they perceive that}

many citizens are becoming so dissatisfied with current politics that the authority of the institutions (from which political officials derive their authority) is under threat. Two examples of this may be found in British Columbia, when a number of scandals associated with the ruling New Democratic Party was made public(Lundberg, 2007, 482), and seemed to do significant damage to the legitimacy of the provincial government there, and in Scotland, when, during the Thatcher era, the British government implemented numerous policies that many of the Scottish people found objectionable, because the policies during that era strongly conflicted with their public political conception of justice, which favoured a more welfarist government.(Paterson et al., 2001, 121)

sponse to the regress problem. Prior to the OCA, there was evidence to suggest that one of the most serious problems with Ontario’s political institutions was that officials were not meeting the standard of public reason adequately, and that this was affecting the legitimacy of the Ontario government. This is not to say that at any point, the Ontario government had no legitimacy. But there was evidence to suggest that its legitimacy seemed to be weakening in recent years.

For instance, prior to the government’s announcement to convene the OCA, Cameron et al. (2003, 42) reported that 68% of Ontarians felt that, in the au- thors’ words, “legislators lose touch with the people.” Furthermore, supporting the view that the electoral system undermined the legitimacy of the political structure for some, Cameron et al. (2003, 42) also noted that “almost half of respondents indicated that the first-past-the-post system is ‘unacceptable’.” In its report to the Ontario government, submitted before the OCA began, the Law Commission of Canada (2002, 5) cited that over 70% of Canadians polled in 1997 reported believing that “both federal and provincial political systems are highly corrupt.” And, in his report on the special consultation meetings4 held during the OCA, Clutterbuck (2007, 3-11–3-12) notes that “Participants in all four communities felt strongly that there were major barriers to the participation of many people in the general democratic political process at all levels of government, which went beyond the electoral system itself.”

On my view, these complaints with the government are usefully under- stood as being about failures of public reason. That is, the basic reason for 4_{Four “special consultation meetings” were designed and held for the specific purpose of}

engaging citizens who are often excluded from politics, such as those in northern Ontario and predominantly Aboriginal communities.

Ontarians’ dissatisfaction was because it was not apparent to them that po- litical officials were striving to take into account citizens’ views about what they ought to do. Although a significant number of citizens reported being dissatisfied with the electoral system, the sources of their dissatisfaction were much broader in scope. Besides the electoral system, the references to corrup- tion and major barriers to political participation suggest that many citizens believed that political officials, in general, were failing to take into account rea- sonable people’s views about political issues that significantly affect them.5 _In

short, political officials were making decisions in ways that citizens perceived as unjust.

And a number of decisions by the Ontario government about the OCA suggest that this trend continued, of not adequately meeting the standard of public reason. For example, the Ontario government was heavily criticized for the inadequate amount of time that the assembly had to make its decisions about the alternative electoral system, as well as for public engagement and education of the general public prior to the referendum. And although an analysis of the demographics of the OCA has not yet been made public, it seems unlikely that the OCA fared any better than the BCCA on the ques- tion of whether marginalized groups were better represented on the assembly.6

These aspects of the OCA seem to be the basis of reasonable people’s further

5_{It is worth noting, I think, that citizens’ complaints were not that political officials were}

making decisions to which citizens deeply or strongly objected, but were about the apparent lack of any consideration at all of their own or other citizens’ views about politics. The distinction is important, since the first may suggest that such citizens were unreasonable, while the second does not. Rather, in Rawlsian terms, in the second line of objection may be restated as that political officials were failing to acknowledge the political equality of some citizens, thereby apparently failing to meet the standard of public reason.

dissatisfaction with the Ontario government, because they violate people’s conceptions of justice.