Rotating Veto Power by Lot: 

A Check on Oppressive Government 

G. Stolyarov II
 
Issue CLXXVI 
November 7, 2008
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This essay is part of a series of papers by Mr. Stolyarov discussing an improved constitutional blueprint for a free society. Such a constitution is now publicly available and is called the Freecharter. This essay discusses Article VII of the Freecharter.

In facilitating a truly free society, one of the conventional democratic principles (CDPs) that needs to be challenged is the idea that all government functionaries must be either elected by “the people” or appointed by officials who are elected by “the people.” Democratic election of officials is often vulnerable to a perverse process of selecting persons based on qualities antithetical to facilitating liberty and limited government. While elections have a role in a free society and should not be eliminated, powerful checks on the power of elected officials should exist outside the electoral system. Here, one such check is proposed: rotating veto power by lot, hereafter referred to as RVPL.

RVPL entails the selection by lot once every day of a random member of a governed population. For 24 hours, this person assumes the title of Nullifier and acquires absolute veto power over the decisions of any elected government officials or any officials or functionaries appointed by elected officials at any levels of government. The Nullifier can exercise his veto in ways ranging from reversing a federal executive order, legislative act, or judicial decision to preventing a local government from invoking the power of eminent domain. A constitution that incorporates RVPL can be so written as to require all government officials to adhere unconditionally to the Nullifier’s veto.

Moreover, the constitution may even give the Nullifier a measure of post-veto authority, which I define in an earlier work as the ability to revoke any positive act of government that has already been implemented, where a positive act is one “that demands a greater degree of obligation from any citizen or resident who is not a government employee than would have been demanded had the legislation not existed” (Stolyarov 2007).  While the Nullifier will have broad authority to repeal existing government acts, he will have no constitutional power at all to initiate or enact positive government acts himself. Moreover, even the Nullifier’s veto authority over current government actions can be restricted to a veto over positive measures. For instance, the Nullifier would be able to veto a tax increase but not a tax cut. Moreover, if he were faced with a bill that packaged negative acts together with positive acts, the Nullifier would only have the authority to selectively repeal the positive provisions of the bill.

RVPL is necessary to provide a check on behavioral tendencies prevalent among elected officials due to the mechanism they must endure to acquire power. While examples of virtuous and vicious conduct exist among government officials in both democratic and non-democratic regimes, democratic elections subject any individuals seeking office to a perverse selection process. Hans-Hermann Hoppe explains how even a monarchy has fewer obstacles than a democracy to decent human beings and benevolent policy-makers becoming top government officials: “Kings, coming into their position by virtue of birth, might be harmless dilettantes or decent men   (and if they are “madmen,” they will be quickly restrained or if need be, killed, by close relatives concerned with the possessions of the dynasty). In sharp contrast, the selection of government  rulers by means of popular elections makes it essentially impossible for a harmless or decent person to ever rise to the top.” (Hoppe 2001) In order to win a popular election where CDPs such as the “one man, one vote” principle exist, a candidate for high office often needs to engage in demagoguery, smear campaigns, populist rhetoric, and false promises. He needs to have at least enough moral unscrupulousness to accept these behaviors as necessary evils and enough desire for power to willingly endure the costs of the same behaviors directed at him by his opponents. Thus, Hoppe notes that, under a democracy with CDPs, “[p]residents and prime ministers come into their position as a result of their efficiency as morally uninhibited demagogues. Hence, democracy virtually assures that only dangerous men will rise to the top of government” (Hoppe 2001).

It is true that an occasional Andrew Jackson or a Grover Cleveland, each of whom vetoed more legislation than all their predecessors combined (Sollenberger 2004, pp. 2-3), might be elected democratically. However, the general tendency in electoral democracies favors officials who unscrupulously grow government and are loved for it by contemporaries and posterity due largely to their effective use of propaganda. Hence, Abraham Lincoln, Theodore Roosevelt, Woodrow Wilson, Franklin Roosevelt, Harry Truman, and John F. Kennedy are routinely honored in scholarly and public opinion polls as the United States’ top presidents (Wikipedia, Historical Rankings of United States Presidents), despite their tremendous increases of government power and similarly large reductions of individual liberty.

Fortunately, selection of some government functionaries by lot is a viable alternative to electing them and has strong historical precedent. The ancient Athenians relied extensively on selection by lot to fill many important governmental positions. According to Scott Gordon, the nine archons, the “most senior magistrates” (73) in Athens were “selected by lot [and] held office for only a year” (73-74). Moreover, if an official was suspected of non-financial misbehavior, the Athenians appointed by lot a board of ten examiners to hear the charges against him and to send him to a jury court if he failed to withstand the board’s scrutiny (75).

The Republic of Venice also relied on selection by lot as a part of the procedure determining the doge, the highest Venetian executive official. Scott Gordon offers a schematic of the steps involved in deciding on a 13th-century doge: “30L ? 9L ? 40E ? 12L ? 25E ? 9L ? 45E ? 11L ? 41E ? D” (140), where “NL” and “NE” stand for a number N of electors selected by lot or by election, respectively, who then either elect or determine by lot the number of electors in the next step of the selection process, until the doge is determined in step D.

The doganal elections involved not just one drawing by lot, but five, and served the dual function of preventing dishonest electoral conduct and “generat[ing] a great deal of discussion of the leading candidates for the office within the electoral bodies involved in the process and, generally, among the populace” (140). Selection of electors by lot made highly likely the participation of electors representing different elements of the population and different interests. Gordon acknowledges that “the person ultimately nominated was likely to have had broad consensual support and the acceptance of the most influential families” (140), leading to a doge whose rule was seen as legitimate and beneficial by both the aristocracy and the people at large.

RVPL differs from the Athenian and Venetian systems of selection by lot in that RVPL is more modest and restrained in its object. It still leaves the positive executive, legislative, and judicial functions in the hands of officials whose positions are somehow derived from an electoral process. Moreover, RVPL still maintains any veto power these officials already have as an additional check on oppressive government action. Ayn Rand defines a man’s negative rights as claims that “impose no obligations on [other people] except of a negative kind: to abstain from violating his rights” (110). The Nullifier only has negative authority, and only insofar as this authority extends to the enforcement of the negative rights of government subjects. Since he is not allowed to promulgate positive legislation or even repeal negative government acts, the Nullifier’s presence cannot increase the scope of government oppression. At worst, the Nullifier on any given day could choose to do nothing and thus preserve whatever oppression exists in the political status quo until the next day.

Selecting the Nullifier on a daily basis would prevent any Nullifier from legislating via the threat of veto. A possible objection to any kind of absolute veto power might be that the holder of such power might threaten to veto a positive government act because he believes this act does not give the government enough power, thereby influencing a re-drafting of the act to include broader grants of power than it would have had otherwise. However, during such a short time period as a day, it is virtually impossible for the Nullifier to make a threat regarding his future actions, since he does not have much of a future as Nullifier. In practice, he can choose now to either veto or not veto an existing government act or policy, but he cannot announce his non-veto to be conditional on changes to that act or policy, because he will not be Nullifier if and when those changes are implemented.

Another possible critique of RVPL might state that the Nullifier would lack the requisite knowledge and experience to decide on questions of government policy. It is indeed true that an ignorant or politically apathetic person could be selected as Nullifier on any given day. A reasonable argument might be made from this that such a person should not be permitted to design positive government policy, as such policy indeed requires extensive knowledge and expertise to promulgate effectively. An entirely different kind of awareness, however, is required to determine whether individuals, including oneself, are being oppressed by the government. It does not take great knowledge or experience to know that one is being hurt physically or that taxes and regulations take away from one’s possibilities for non-coercive action. Thus, any person of ordinary awareness and intelligence should be able to recognize some such instances of oppression, and a randomly selected person who is unable or unwilling to do so would simply pass his day as Nullifier in inactivity.

If, however, an intelligent, politically informed, and freedom-oriented person is by chance selected as Nullifier, the scope of government oppression might be reduced dramatically overnight, as many such people would have already intellectually prepared themselves for the possibility of being selected. Even though the chances of any given advocate of limited government becoming Nullifier are slight, such an individual would still enjoy the intellectual exercise of imagining himself in the role of Nullifier and thus could be expected to already have a plan of action if and when he is selected. In his remarks on the 2008 financial crisis, Dr. Ivan Pongracic suggested that one of the foremost roles of free-market thinkers should be to provide intellectual guidance if and when an opportunity comes about to influence policy decisions in the direction of liberty.  If such preparation to influence policy is already the occupation of some advocates of limited government, then even a slight possibility of becoming Nullifier should provide an even greater incentive for many freedom-minded individuals to engage in it.

RVPL would facilitate a dramatic reduction in the tendency of governments to systematically oppress some groups of people for the benefit of others. If every individual within the territory controlled by a government has an equal chance of being selected as Nullifier, then it is more likely than not that some Nullifiers will be members of groups that are victimized by government persecution, wealth redistribution, and discrimination. These Nullifiers’ foremost priority is likely to be the termination of the evil perpetrated on them and their kind. By extending the possibility of being selected as Nullifier to anyone residing within a country’s territory and not just citizens, it might also be possible to prevent oppression of non-citizen residents by instituting the possibility that some of them, too, might have a chance to veto government actions.

The most important function of RVPL, however, is to subject government decision-making to checks extrinsic to the electoral process. The Nullifier, like Hoppe’s hypothetical uncorrupted king, might be a “harmless dilettante or a decent man.” If the politicians who assumed office on account of their demagoguery, aggressiveness, and unscrupulousness attempt to institute policies that coerce some people for the benefit of others, such a Nullifier would rightly be appalled. Not being subject to the same incentives and constraints as the politicians, the Nullifier would have no reason not to veto their actions – especially if his defense of the people’s liberties might earn him, an otherwise ordinary person, a notable and honored place in history.

Further research into the feasibility and mechanisms of RVPL would include an investigation of how it might be possible to keep the selection by lot truly random and unmarred by the machinations of the very government officials whose actions the Nullifier is mean to check. In the cynical and true words of Josef Stalin, as quoted by Boris Barzhanov, “Those who cast the votes, they decide nothing. Those who count the votes, they decide everything.” If the same people who have counted the votes in many rigged elections also draw the lots or control the random name selection machines under RVPL, then it might be possible that only ignorant people and friends of the current political order would be selected. Research needs to be done on the manner in which elections have been rigged in the past, especially recently in nominally democratic regimes that actually practice a thinly veiled form of one-party rule. For instance, if may be fruitful to examine how recent presidential and parliamentary elections have been rigged in Belarus and Zimbabwe and to use these situations as case studies of outcomes that must be avoided in order for RVPL to be effective. Examining the mechanisms that exist in freer Western countries to ensure electoral transparency would offer some ideas regarding the institutions that would enable the selection of the Nullifier to be truly random and not biased toward the interests of those in power. Studying recent rigged elections and checks on electoral dishonesty will be the most promising research option, because it will yield an understanding of how newly developed technologies affect both the possibility of rigging elections and the possibility of preventing such manipulation.

Another important avenue of research with regard to RVPL might address its relationship to Knut Wicksell’s unanimity rule, as applied to decisions of government policy.  Wicksell devised the unanimity rule as “a kind of institutional framework for parliamentary governance [that] would make it possible for people in their capacities as taxpayers reasonably to say that their tax monies were directed as they wished” (Wagner 2). However, Wicksell also thought that the unanimity requirement “would… prove costly to any effort of trying truly to work out arrangements for collective support. Some modest movement away from unanimity might, Wicksell thought, be a reasonable compromise to expediency” (Wagner 2). While getting the explicit consent of every person to every government policy might indeed be prohibitively costly, RVPL might facilitate a much closer situation to Wicksellian unanimity than currently exists. Further research could concentrate on the threat of veto by random members of the population as an incentive for politicians to devise policies that they believe are likely to be met with near-unanimous approval. This research would aim to demonstrate that the institution of RVPL would lead to future government policies being designed with the expectation that they will be palatable to a much greater fraction of the population than is currently the case.

Find out more about the Freecharter.

Works Cited

Gordon, S. (1999). Controlling the State:   Constitutionalism from Ancient Athens to Today, Cambridge:  Harvard University Press.

“Historical Rankings of United States Presidents.” Wikipedia, the Free Encyclopedia. Available at http://en.wikipedia.org/wiki/Historical_rankings_of_United_States_Presidents. Accessed 5 Oct. 2008.

Hoppe, Hans-Hermann. (2001). “Democracy: The God That Failed.” LewRockwell.com. Available at http://www.lewrockwell.com/hoppe/hoppe4.html. Accessed 5 Oct. 2008.

“Josef Stalin.” List of Sourced Quotations. Wikiquote. Available at http://en.wikiquote.org/wiki/Joseph_Stalin. Accessed 5 Oct. 2008.

Pongracic, Ivan. Remarks on the 2008 Financial Crisis. Hillsdale College. Hillsdale, MI. 30 Sept. 2008.

Rand, Ayn. (1964). The Virtue of Selfishness. New York: Signet Publisher. ISBN: 0451163931.

Sollenberger, Mitchel A. (2004). Presidential Vetoes, 1789 to Present: A Summary Overview. CRS Report for Congress. Available at http://www.rules.house.gov/Archives/98-148.pdf. Accessed 8 Oct. 2008.

Stolyarov II, G. (2007). “Post-Veto Authority.” Associated Content. Available at http://www.associatedcontent.com/article/199633/postveto_authority.html. Accessed 5 Oct. 2008.

Wagner, Richard E. “Knut Wicksell.” Cato Encyclopedia. Available at http://mason.gmu.edu/~rwagner/Knut%20Wicksell%20Cato%20Encyclopedia.pdf. Accessed 5 Oct. 2008.


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