Healthy Democracy Oregon has put together a wonderful video illustrating their proposal to reform Oregon's initiative procedure by adding a citizen jury review panel to develop representative and unbiased pro and con statements for the voter information pamphlet. The NI4D deliberative committee would go one step further and permit the panel to rewrite the initiative if a consensus can be reached. NI4D could also use the more expensive and more accurate deliberative polling approach advanced by James Fishkin and colleagues.

The Deliberative Committee will be made up of a number (determined by the Electoral Trust) of citizens selected at random from the voter registration rolls in much the same manner as judicial juries are selected today. Unlike juries, members of the Deliberative Committee will be compensated at their respective usual rates of remuneration, up to a reasonable limit determined by the Electoral Trust. The Deliberative Committee fulfills the same deliberative function that committees and subcommittees provide to the legislative bodies of representative government. In this area it provides an opportunity for ordinary citizens to conduct in-depth analyses and discussions of the initiative's content as well as its actual and potential impact on various elements of society. The Committee will have at its disposal research staff, can call on experts and, under extraordinary circumstances, can commission appropriate studies. The Electoral Trust will determine the duration of the Committee's deliberations, mindful of the complexities of the initiative and of the affected government jurisdiction.

The Deliberative Committee's Report will describe the initiative's advantages and disadvantages, costs and benefits, environmental and societal impacts from the viewpoint of ordinary citizens with access to sufficient technical information to make informed judgments. The Deliberative Committee's Report will, in its recommendations, reflect both the majority and minority views of its members. If, after due consideration and consultation with the Sponsor, the Committee concludes that the initiative as originally submitted to the Committee for consideration is not consistent with the Sponsor's intent as it is documented in the Preamble, it may, upon two-thirds vote of its members, make changes to the Title, Summary or text of the initiative. If the Sponsor finds the changes made by the Deliberative Committee to be unacceptable, the Sponsor has three options:

• If the deadline for withdrawal established by the Electoral Trust has not passed, the Sponsor can withdraw the initiative.
• The Sponsor can have its disagreement and its reasoning noted and explained in the Sponsor's own words in the Deliberative Committee's Report.
• The Sponsor can sue the Electoral Trust and let a court of competent jurisdiction adjudicate, among other possibilities, the final language.

As a brief introduction, it is worth establishing the need for public deliberation. Mattson (1998), pp. 100-101 wrote:

Contrary to other Progressive Era intellectuals like Herbert Croly and Walter Lippmann, Follett insisted that a democratic public came before all other reforms. In her introduction to The New State (1918) she argued:

The first reform needed in our political practice is to find some method by which the government shall continuously represent the people. No state can endure unless the political bond is being forever forged anew. The organization of men in small local groups gives opportunity for this continuous political activity which ceaselessly creates the state. (11)

Though Follett believed in direct democracy, she understood that without a deliberating public capable of making collective decisions about key issues, direct democracy would be a farce. She wrote: "We all know, and we can see every year if we watch the history of referendum votes, that the party organization is quite able to use 'direct government' for its own ends. ..Direct government can be beneficial to American politics only if accompanied by the organization of voters in nonpartisan groups for the production of common ideas and a collective purpose" (178). Without ensuring the institutional means through which citizens could educate themselves about the issues of the day, direct democracy would remain a myth. Thus, the democratic public had to be developed first and become a constant feature of politics, not something generated only at points of crisis. The idea of a democratic public went to the root of the problems of direct government. In Follett's own words: "Those who are working for particular reforms to be accomplished immediately will not be interested in neighborhood organization; only those will be interested who think that it is far more important for us to find the right method of attacking all our problems than to solve any one" (202).

At the time of writing, only Oregon (since 2009) incorporates any deliberation in its initiative law. The consequence is that initiatives are written by the sponsor before signature collection begins and there is no discussion, consensus building, or compromise incorporated into the text of the initiative. Once enacted, an initiative may fail to perform as advertised or is struck down by the courts. Miller (2002) analyzed the 163 initiatives approved by voters during 1960-1999 in California, Oregon, Washington, and Colorado. Of these, more than half (52 percent) were challenged in court. Of the initiatives challenged in court, the court invalidated, in whole or in part, more than half (55 percent).

Miller (2009) quoted California Chief Justice Rose Bird, p. 93:
"[I]nitiatives are drafted only by their proponents, so there is usually no independent review by anyone else," she wrote. "There are no public hearings. The draftsmen so monopolize the process that they completely control who is given the opportunity to comment on or criticize the proposal before it appears on the ballot." Moreover, she wrote, "[t]he voters have no opportunity to propose amendment or revisions ... [the] only expression left to all other interested parties who are not proponents is the 'yes' or 'no' vote they cast. Since the only people who have input into the drafting of the measure are its proponents, there is no opportunity for compromise or negotiation." The consequence of this "inflexibility," Bird concluded, is that "more often than not a proposed initiative represents the most extreme form of law which is considered politically expedient."

Now I will turn to the specific feedback advanced during the 2002 Democracy Symposium.

Jacob, 2002, pp. 4-5 wrote:
It is not clear if the citizens "selected at random" and compensated for participating on Deliberative Committees are free, once chosen, to refuse service. Jurors, who are in a similar role, are not free to refuse service but are given wide latitude to be excused from service. The Deliberative Committees should be filled only with those randomly selected individuals who voluntary agree to serve.

Is it precisely experience with the jury system which informs the design of the selection process of the deliberative committee. Instead of being obligated to serve with no compensation (as in a jury), citizens may choose to serve or refuse service on a deliberative committee. If they choose to serve then they are fairly compensated for their time.

Allen, 2002, p. 14 wrote:
Allowing amendments by those other than the sponsors that are “consistent” with the original proposals may be inviting a hornet’s nest. I would recommend having the Committee make suggestions to the sponsors, for them to accept or reject.

Stern & Holman, 2002, p. 6 wrote:
After the Hearing Officer completes hearings on the initiative, a Deliberative Committee must issue a report on the initiative and may also amend the Title, Summary, and text of the measure. This committee is given enormous powers, particularly the power to amend the text of the measure. The power to amend the text over the objections of the sponsor must be carefully drawn so that the rights of the sponsor are protected.

Jacob, 2002, p. 4 wrote:
Proponents fear deliberation is a euphemism for delaying or detouring the people. The Deliberation Committee should be a service and not a hurdle for sponsors of initiatives. That means sponsors should be free to take or leave the "advice" and services offered.

Yet, the Deliberation Committee can by a two-thirds vote overwrite the wishes of the sponsor of the initiative concerning the text. Granted, the Committee is restricted by clear language, which says, "By two-thirds margin, the Committee may amend the Title, Summary and text of the initiative, provided that the amendments are consistent with the stated purposes of the initiative." But clear language has been known to get fuzzy when governments or judges become conflicted by special interests or self-interest. Who is to interpret what is "consistent" with the stated purposes of the initiative? The Electoral Trust is not immune to the corrupting influences of power. For this reason, the proponent(s) of an initiative should have the final authority on the text. After all, the exact language desired by the sponsors is the exact purpose and ought not be abridged even by a unanimous vote of the Deliberation Committee.

Listen to Senator Mike Gravel's rebuttal from the Democracy Symposium (1m 18s).

Stern & Holman, 2002, p. 6 wrote:
The Deliberative Committee is composed of a group of registered voters randomly selected. This is similar to a jury pool. What if people don't want to serve on the committee? How many people serve on the committee? Shouldn’t this committee consist of people who are familiar with the subject matter of the initiative, rather than a random group of registered voters?

Listen to an introduction to deliberative polling (12m 29s). Also, relevant is the question of why are deliberative committee members fairly compensated? (1m 15s).

Stern & Holman, 2002, p. 6 wrote:
It is unclear from the language, which says that the Committee prepares a written report with its recommendations, whether the committee can actually recommend supporting or opposing the measure. The Act should clearly state that the Committee may not take a position for or against the initiative.

The Committee can certainly take a position in favor of the initiative because the Committee is permitted to revise the initiative provided that the changes are consistent with the stated purpose of the initiative.

Miller, K. P. (2002). Madison's revenge: Judicial review of direct democracy. Unpublished doctoral dissertation, University of California, Berkeley.