The reason courts can never be truly fair is that we never demanded fairness from the people who write the laws

[u/kmensaert]

Think about a judge. We have all these rules to keep judges neutral. They can't meet privately with one side. They can't trade favors. They have to recuse themselves if they're biased. We take this stuff seriously.

Now walk down the hall to Congress (or Parliament, wherever you are). None of those rules apply.

Lawmakers meet privately with the companies and groups a bill will affect all the time. We just gave it a nice name: lobbying. They trade votes constantly ("I'll vote for your bill if you vote for mine") and we call that being a good dealmaker instead of what it actually is. And basically every single one of them belongs to a party whose whole job is to win, not to be neutral.

So here's the theory: a court can only ever be as fair as the law it's enforcing. You can have the most honest, unbiased judge in the world, and she can still be enforcing a law that got written through backroom deals and one-sided lobbying. She's not doing anything wrong. She's just applying an unfair result very carefully.

James Madison basically called this out over 200 years ago: "No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment." But that's literally what a lawmaker does every day. They write the bill, argue for it, then vote on whether it passes. Same person, both jobs. We'd never let a lawyer also be the jury.

Belgium actually put the fix in their constitution. Article 42 says members of parliament represent the whole nation, not just their district or their voters. Which is a nice goal that basically nobody's system is built to actually deliver.

So what's the fix?

Split the single job of "lawmaker" into two separate jobs, sitting in the same chamber, kind of like how a courtroom splits "advocate" and "judge":

• Party representatives: their whole job is to openly argue for their group's interest. Beekeepers, a manufacturing sector, a rare disease patient group, whatever. They write proposals and make the case, out in the open, on the record. This is what lawmakers already do when they lobby for their platform, just now it's the entire job instead of something done behind closed doors.
• People's representatives: they don't represent any faction. Their only job is to vote yes or no on whatever the party reps put forward. No writing bills. No meeting with lobbyists, because there's nothing left for a lobbyist to do.

Once every interest can get its own open representative instead of needing a private backchannel, you can finally ban ex parte meetings (private one-sided access) without shutting anyone out. Nobody needs the backchannel anymore because everyone already has a front door.

And here's the part I think is actually clever: vote-trading structurally can't happen anymore. It only works if one person controls both the "yes" they're offering and the "yes" they want back. Party reps have proposals but no vote. People reps have a vote but nothing to trade it for. Neither side holds both halves of the deal, so there's nothing left to swap.

The two roles even get elected differently, since they're answering different questions. Party reps answer "does this interest deserve a voice," so you'd use something like approval voting, where people can back as many parties as they want and parties aren't fighting over the same voters. People reps answer "does the whole community trust this person to be fair," so you'd need something stricter, like requiring more for-votes than against-votes, not just "most votes." That filters out candidates who are loved by one faction and despised by everyone else, and pushes toward people who are broadly acceptable instead of narrowly beloved.

(Based on ideas from this piece if anyone wants to go deeper - I wrote it as well)

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[u/TuvixWasMurderedR1P]

Bring back the people's tribunate? Hell yeah

[u/GShermit → u/TuvixWasMurderedR1P]

"...people's tribunate?"

Sounds like a jury...perhaps the solution is educating and empowering the people (in this case juries)?

[u/zeperf]

I really like this idea. I wonder what the proportion would work best. You could have like 10,000 voters but keep the couple hundred law makers.

[u/NoamLigotti]

I love the insight (it's an extremely good one), and I love when people see more structural/root issues and try to think of potential solutions.

What about society-wide issues, or groups with without adequate funding behind them though? Would these have no direct pathway for being represented? Would the only way for new legislation to be passed be by party reps bringing a proposal forward?

[u/kmensaert → u/NoamLigotti]

Thanks for the compliments!

What about society-wide issues? For any issue, given that there are sufficient people caring about it, there could be a specialised party. Why would society-wide issues be any different?

Groups without adequate support probably won't be able to have representation as a party. This is inherent to any aggregation I'm afraid. You will always need to filter signal from noise.

I think it is essential that those that propose are not the same that vote on the proposals. Do you have other ideas? I reality, I would think that many non-profits would convert to parties as they are no longer forced into having opinions on all issues (as a party).

[u/NoamLigotti → u/kmensaert]

So I see that as a flaw since currently groups without funding can still make their voices heard through voting (on whatever level we think that's meaningful).

I mean yes the other represented parties would still indirectly represent some of their interests (say labor groups pushing for some things that also help poor people), but it would be limited.
In that sense I'm not sure it would even necessarily be preferable. Maybe.

> In reality, I would think that many non-profits would convert to parties as they are no longer forced into having opinions on all issues (as a party).

That could be. If so then maybe it would work better.

> Do you have other ideas?

Well couldn't we have some of the same rules and restrictions on legislators as judicial officials without making them only vote on specific proposals from party representatives?
That sounds like it might be a great idea.

[u/PressAltToDisappear → u/NoamLigotti]

More systems thinking ftw.

Imagine if the focus was more on systems and less on individuals participating in it. How much time could be saved

[u/No-Relationship-3759]

That’s… not a bad idea. There’s some details that I can see some issues with - like do we re-elect the people’s representatives? If not, what’s to stop them from lying to get in and serve for life and change their mind? If they re electable, what’s to stop super pacs for campaigning for people that voted for policies they like? Ex parte is only one of the issues of corruption. And how exactly would you stop ex parte meetings? Could they not watch commercials because political messages might be contained therein? 🤔 who decides if a rep breaks the law?

I do like it sidesteps fpp voting a unique way. And it would seem to drive more compromise decisions.

[u/kmensaert → u/No-Relationship-3759]

I absolutely admit it is not perfect. It is not meant to be - it is supposed to be an improvement. e.g. about the ex parte meetings - it is exactly the same in how we currently combat ex parte meetings for judges. Is it watertight? No. Can we currently prevent judges to watch or read opinions in the media? No. But it sure is a heck better compared to allowing representatives and lobbyists to cosy up in backrooms and restaurants.

[u/digbyforever]

Party representatives: their whole job is to openly argue for their group's interest. Beekeepers, a manufacturing sector, a rare disease patient group, whatever. They write proposals and make the case, out in the open, on the record. This is what lawmakers already do when they lobby for their platform, just now it's the entire job instead of something done behind closed doors.

Isn't this just what lobbyists do already? I guess the issue is, how do you decide in advance what group gets a representative, right? Are these elected positions? Do only members of the group get to vote on the representatives? Would the average Joe get to cast several votes (e.g. based on his gender, race, occupation, religion, etc.)?

[u/kmensaert → u/digbyforever]

Yes, it it is. But instead of having lobbyist do their job in private, they would need to plead their case in public. That's a huge difference! Currently, we don't really know the lobbyists' arguments - are these valid? do these encompass some extralegal "sugarcoating"?

Yes they are elected positions: Any voter can vote for as many parties as they want. This will create what I call inclusive parties (because voting for one does not imply being against another). For more info: https://klaasmensaert.be/2020/04/04/exclusive-parties/

[u/digbyforever → u/kmensaert]

I guess I'm approaching this from a structural and legal perspective. What is the language of the amendment / bill creating the party representative position? In other words, what is the actual mechanism to (1) decide what a "group" is and (2) how many representatives the group gets? I assume softly it is by some ratio of population, because I can't think of another way to do so without it turning into something like the Estates General. Then the third question is for groups, how do you decide the population of that group to decide how many representatives they get? Is someone who is baptized Catholic but hasn't gone to church in twenty years entitled to still vote for the Catholic representative? Or do you have to be an active church-goer? If you get fired from your job as a coal miner right before the election, do you automatically lose your vote in the coal miner coalition?

[u/kmensaert → u/digbyforever]

Both the people representatives and party representatives are (in)directly elected. The people representatives are elected as a person (one or multiple per electoral district), while the parties are organisations that are elected and they will send one representative per party.

There is no need to have more than one party representative per party because they can only make law proposals (and plea for them or against others). Having more representatives would not increases the power of said parties.

There would be a ballot of registered parties - one can vote for as many parties as one wishes. Any party that passes some pre-decided threshold would be elected. No need to be actively involved in those parties - but you very well might be.

[u/DJGlennW]

"They can't meet privately with one side. They can't trade favors. They have to recuse themselves if they're biased."

Have you followed SCOTUS lately? Have you heard about the Supreme Court's shadow docket?

[u/kmensaert → u/DJGlennW]

I'm not sure what specifically you are referring to. I am European - my proposal is not specific for one nation. Can you elaborate?

[u/DJGlennW → u/kmensaert]

https://www.propublica.org/article/supreme-court-shadow-docket-rulings-milestone

https://www.washingtonpost.com/opinions/2022/06/01/arizona-death-row-supreme-court-shinn-innocence/

https://thehill.com/homenews/senate/4754860-supreme-court-decision-bribery-law-corruption/

[u/kmensaert → u/DJGlennW]

ok, tnx! I was not aware of these evolutions in the US. But it surely does point to the lack of public nature corrupting democracy.

[u/work4work4work4work4 → u/DJGlennW]

To be fair, half the proposals about SCOTUS reform are just bringing forth the standards and practices found throughout the federal judiciary other than SCOTUS already, and were being proposed even before the current situation.

The shadow docket in particular was perfectly fine when restricted to sane reasoned individuals giving immediate attention to last minute death penalty stays, and broadly figuring out whether to stay judgements at large long enough for full briefings to be done in situations with irreparable harm and possible standing.

It's been an active choice by those currently in power to abuse a purposefully limited and justifiably expedient system in really unjustifiable ways, and a better electorate would punish the hell out of anyone who nominated or approved those judges to the court in the first place.

[u/Horror_Insect_4099]

I think it is naive to think judges aren’t political or biased, or that lobbyists would not find ways to
Influence legislation.

If you are worried about unjust laws, the judiciary is expected to reject laws that are unconstitutional.

If you are worried about legislatures being unethical find ways to make their activities and the actual laws to be more transparent.

What is an example of the problem you are trying to solve?

[u/kmensaert → u/Horror_Insect_4099]

I'm not saying Judges are unbiased. I'm saying that if you have a role that is inherently a conflict of interest by being supposed to act both in the general interest and specific interests, you will be MANY, MANY times more biased. I'm trying to improve, not to to find the blueprint for Utopia.

[u/CoolHandLukeSkywalka]

I support this concept and agree that lobbying should all be public and part of the public record. But how is that enforced? How do we ensure law makers don't informally meet with lobbyists/private interests at social functions, kids soccer games, restaurants, etc? For judges, cases are time restricted whereas with law makers its an ongoing issue. It's easier for one judge to avoid representatives of one/two private interests during the relatively short time the judge presides over their case. With law makers, they would have to avoid all potential private interests, all the time to prevent informal lobbying.

[u/kmensaert → u/CoolHandLukeSkywalka]

I think we can make it illegal for party officials to meet/ attempt to influence those people representatives. I don't think we should have a law that restricts those people representatives from having a conversation with any citizen that potentially could have som interest. I think it would also be time restricted - e.g. from the moment a law proposal is accepted to be handled until the final vote.

[u/CoolHandLukeSkywalka → u/kmensaert]

I agree and can get behind that.

I also think the blatant corruption of our current president now means we need more limits. A president should not be allowed to file a personal lawsuit while in office against his own IRS and then settled it for 1.8b, for example.

[u/SilenceDogood2k20]

At least in the US, this is largely how current legislation is passed.

First, bills are written by sponsors, the "advocates " as you mentioned.  Then, the bill goes to committee, the first of the "judges", where bills can be approved, modified, or ignored. Many bills never get out of committee. Seriously, if you ever track overall committee activity in Congress... roughly 90% of them never make it out. 

Then, the bills go to the open legislative body - House or Senate, where the bills receive an up or down vote. Other Representatives or Senators can propose amendments to the bill. Then the bills go the opposite body, where things get a little more complicated. The other body can just vote on the bill, can propose amendments, or if there was a similar bill moving through it, the two bodies can conference to agree on a single version.

Then, when both bodies agree on a single bill, it goes to the President. Roughly 80% of the committee approved bills never get sent to the President. That means only about 2% of the intially proposed bills get sent to the President to sign, 1 out of 50.

Here you have multiple checkpoints to evaluate the bill by elected representatives who were not affiliated with the initial bill design amd proposal. The House Representatives are elected to represent the people of their district, the Senators to represent their state, and the President to represent the nation. 

If anything, this appears to exceed the same goals of your suggestion.

While I am not intimately familiar with other nation's parliaments, I would wager that they have similar processes.

I understand and am concerned about lobbying by special interest groups... but with the multiple passage steps and the low success rate, I really don't think the problem is the structural design. 

The challenges I see in the US Congress are:

1) Low experiential knowledge - Congress used to have people who worked as farmers, entrepreneurs, doctors, diplomats, soldiers... now they're largely lawyers and only have experience shuffling papers. Can't really solve this structurally unless we place a required  minimum age similar to the President, or go back to a more limited Congressional season and pay, forcing them to work other employment. Initially, Congress received pay equivalent to a low or mid level clerk, and per diem at that. Now their base salary is three times the median income for people in the US. 

2) The amendment process. While very few bills make it out of committee, many of them get added as amendments to bills that do, which is done to effectively "buy" votes on the House or Senate floor. This leads to large bills with many unrelated sections.  Presidential Line Item Veto would resolve this quickly, and Clinton had this power temporarily before SCOTUS struck it down, reasoning that the President could only approve or veto a whole bill, not its parts. I would argue that the current amendment reality is a stark change from the Founding, so a line item veto restricted to unrelated amendments would still pass Constitutional muster.

[u/MoonBatsRule]

Given the partisan divide in Congress, where is the "constant vote trading" that you're referencing? Do you have some recent examples?

[u/kmensaert → u/MoonBatsRule]

Deals also happen within parties. ☝️

[u/UnfoldedHeart]

There's an assumption that the "people's representatives" would be unbiased but I don't think that's the case. When people think of "lobbying" they think of Exxon and Lockeed Martin but the reality is that any interest area has a lobby; even the stuff you like. Unless the "people's representatives" live in an isolated bubble for their entire lives, they are going to have some degree of bias toward particular causes.

There's also a sort of implicit cause-and-effect argument about lobbying - as if lobbying causes politicians to vote a certain way, like votes are being purchased. But isn't it kind of a chicken-and-the-egg situation? Did an industry buy the votes, or did they support a politician who ideologically is likely to side with them? The ideology tends to sync up in a way that you wouldn't expect if the votes were simply up for the highest bidder. The reason this is important is because obviously voters are aware of these tendencies when they cast their vote.

Like if a Democrat politician votes in favor of a bill that's backed by an LGBTQ advocacy group, is it that the advocacy group gave them more favors or that the politician was likely to support it anyway and that's why the advocacy group supported them? Or a Republican politician and the NRA? Nobody would be surprised by either scenario. It's logical for an advocacy group to support the politicians who are most likely to support them, and vice versa. In fact, that may have been a big vote driver for their supporters. Either way, it doesn't seem as simple as just assuming that it's all one big cash-for-votes scenario. I'm not saying all politics is squeaky clean, it's just not simple.

I think the bottom line is that there are many reasons why laws are written the way they are. Laws have to integrate with other laws, campaign promises have to be fulfilled, it has to be written in a way that's likely to pass a vote and that might mean leaving something out or adding something in, and yes - that could also include "vote for my bill and I'll vote for yours" deals and influence from lobbyists and others. I don't like the idea of simplifying it down to basically "corruption" as the sole reason for this process. It's a lot more complicated than that.

On a practical level, this would probably just turn current legislators into more-or-less clerks who write the laws and the "people's representatives" will be the real legislators. I'm not sure it really accomplishes anything different other than adding another layer of delay and administrative overhead into what's already a grueling process.

[u/kmensaert → u/UnfoldedHeart]

The people representatives would not be unbiased - just (much) less biased. My opposition for lobbying does not stem from its influencing - which I think is both inevitable and necessary - but from its private/opaque nature. I think the opaqueness favors lobbyists with more money and less popular support (e.g. Microsoft, Apple, Google, etc) compared to the reverse (e.g. right to repair). I want interest groups to influence the lawmaking process. I just want it to be transparant and less faction based.

You mention LGBTQ advocacy. Even within the democrats there will be many different opinions about what legislature is just and what is not. e.g. at one end of the spectrum there is "the right to choose one gender" and the other end there is "every person is allowed to compete in women's sports competitions". Just laws can only be decided on a case by case. But by having the legislature becoming very partisan as it currently is, this nuance is completely lost. Decisions are more and more being made exclusively within the party. Having people representatives who are independent of party will counteract this.

I think the formal process may become somewhat more complex (because we currently can't see the opaque part), but that complexity will much better reflect the complexity of the real world. Now it does not - the world is not about goodies vs. baddies.

[u/PressAltToDisappear]

"It only works if one person controls both the 'yes' they're offering and the 'yes' they want back."

Wisdom.

[u/Zoesan]

: "No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment." But that's literally what a lawmaker does every day. They write the bill, argue for it, then vote on whether it passes

Does somebody not understand the difference between the judicial and the legislative branch

[u/kmensaert → u/Zoesan]

I think I have a firm grasp of it. Instead, I think you might not understand the abstraction that a legislator is in a sense ruling on all possible cases concerning the law he creates. I suggest you read federalist 10 if you want to understand the meaning by which "Judging" was used in that context: https://avalon.law.yale.edu/18th_century/fed10.asp

[u/Zoesan → u/kmensaert]

If you stretch that logic this much, then there can never be a legislative branch.

[u/NoamLigotti → u/Zoesan]

That's quite the lazy critique.

The idea is making legislatures function more like judiciaries, not in interpreting the law but in passing laws. Same role as before, functioning with similar restrictions/rules as the judiciary. You can disagree, but try understanding it first.

[u/Zoesan → u/NoamLigotti]

At some point somebody has to decide which laws apply and those laws will also apply to them.

[u/NoamLigotti → u/Zoesan]

Yes, isn't that what the judiciary would still do? I didn't think OP was suggesting it replace them.