Making Deliberative Democracy Practical:

Public Consultation and Dispute Resolution

JAMES S. FISHKIN·

1. INTRODUCTION

Deliberative democracy is a form of alternative dispute resolution.

Consulting the public in a thoughtful and representative way can lead to
consequential public policy outcomes that might otherwise have been
difficult to achieve. However, some recent literature appears to treat
deliberative democracy and alternative dispute resolution as rivals.! While
there are differences in emphasis and in theoretical preoccupations between
the two, there are also some overlapping aims and methods.
In this article I will fIrst consider methods to consult the public and
discuss some criteria that might be applied to distinguish among these
methods. I will argue that there are good reasons to favor an approach
anchored in deliberative democracy. Second, I will offer some ways of
distinguishing deliberative democracy from other democratic approaches.
Third, I will respond to some of the confusing claims at issue between
deliberative democracy and alternative dispute resolution. Finally, I will
discuss a particular policy area to illustrate how deliberative democracy can
have a demonstrable impact. Using that illustration, I will show how some of
the practices common in alternative dispute resolution fInd a natural ally in
the deliberative democracy approach.

II. REALIZING DELffiERATIVE DEMOCRACY

Consider the following simple classification of forms of public

consultation. To clarify the basic issues, I have posed a series of dichotomies.
First, public consultation mayor may not consult people representative of the
broad population. Second, some forms of public consultation provide the
option to use a deliberative process. Third, some forms of public consultation
are consensus driven, while others are not (leaving the possibility that their
views can be aggregated or counted in some way). The latter divisions might

* Janet M. Peck Chair in International Communication and Director for the Center
for Deliberative Democracy at Stanford University. Professor Fishkin presented a version
of this article for the Schwartz Lecture on Dispute Resolution on April 15,2010, at the
Ohio State University Moritz College of Law.
! See, e.g., Lawrence Susskind, Deliberative Democracy and Dispute Resolution, 24
Omo ST. 1. ON Drsp. REsoL. 395 (2009).

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also be subdivided further, but I will focus on just one of the non-consensus
seeking alternatives.

Forms of Public Consultation

1\
A B
Unrepresentative Representative
1\
Bl B2
Non-deliberative Deliberative
1\
B2A B2B
Consensus Driven Non-Consensus Driven
(aggregative)

In each case, I will contend that there is a compelling argument to be

made for the right-hand option above. Taking the right-hand option in each
case will drive us to some variant of what I will call deliberative democracy.
As the argument unfolds, I will argue that a design I call "Deliberative
Polling"2 provides a practical method for realizing that conception of
democracy for particular policy issues.
Consulting the public can serve as a form of dispute resolution because it
can invoke a norm of democracy, thus providing the basis for what is
perceived as a legitimate solution. The ftrst two questions to ask about any
consultation are: (1) who is being consulted, (2) and how were they chosen?
If the group is not representative of the public, then there are strong grounds
to question why others should be interested in its views. In communities of
hundreds of thousands or states involving millions or hundreds of millions,
mobilized groups, even when seemingly large in absolute number, can hardly
presume to speak for the people as a whole, unless there is some systematic
method of selection.
SuperfIcially, a norm of openness might be invoked to allow
participation from anyone interested in a topic. But the result is almost
inevitably an unrepresentative group of participants, usually open to capture
by organized interests. Norman Bradburn coined the term "SLOP" to refer to
"self-selected listener opinion poll" for public consultations where anyone

2 "Deliberative Polling" is a registered trademark of James S. Fishkin. Any fees

from the trademark support research at the Center for Deliberative Democracy at
Stanford University.

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MAKING DE LIBERA TIVE DEMOCRACY PRACTICAL

can volunteer to offer an opinion. 3 SLOPs have been open to capture by

presidential candidates ranging from Alan Keyes to Ron Paul (in both cases
mobilized groups showed that these candidates were supposedly leading
contenders at the same time that they each had only tiny levels of support).4
SLOPs were also used by the Obama transition, "Citizen's Briefing Book."5
In the midst of two wars and the economic crisis, self-selected national
online consultations gave the highest policy priority to measures that would
legalize marijuana and legalize online gambling. 6
The representative approach proposed by this article calls for public
consultation via scientific random samples. Self-selected groups cannot
mobilize to capture a random sample because they cannot invite themselves
into the process. Deliberative Polling was developed explicitly to combine
random sampling with deliberation. It offers everyone an equal chance to
participate in a process designed to provide transparently good conditions for
considering an issue. It attempts to employ social science to uncover what
deliberative public opinion would be on an issue by conducting a quasi-
experiment, and then it inserts those deliberative conclusions into the actual
public dialogue or, in some cases, the actual policy process.
This brings us to the second divide in the classification above. Do the
opinions solicited represent public opinion as we usually find it in its natural
state in western developed democracies-a top of the head impression of
sound bites and headlines combined with low levels of information?7 Or is
there some method for the people involved to engage the issues in a balanced
and informed way? Of course these are not, strictly speaking, the only
possible alternatives, but we will simplify the discussion by restricting it to
these two poles in what is obviously a question of degree.
This second great divide between deliberative and non-deliberative forms
of opinion (B 1 versus B2 in above diagram) is just as consequential as the
first division between unrepresentative and representative samples of the
public (A versus B). At least in terms of alternative dispute resolution, why
should we listen to an unrepresentative group who presume to speak for

3 See generally Nonnan M. Bradburn, Presidential Address: A Response to the

Nonresponse Problem, 56 PUB. REv. Q. 391 (1992).
4 JAMES S. FISHKIN, WHEN THE PEOPLE SPEAK: DELIBERATIVE DEMOCRACY AND
PUBLIC CONSULTATION 22 (2009).
5 WhiteHouse.gov, Citizen's Briefing Book, available at http://www.white
house.gov/sites/defaultlfiles/microsites/Citizens_Briefing_Book_ Fina12. pdf.
6 Anand Giridharadas, Athens on the Net, N.Y. TIMES, Sept. 12,2009, at WKl.
7 For an overview of infonnation levels in the U.S. and comparatively, see, e.g.,
MICHAEL X. DELLI CARPINI & SCOTT KEETER, WHAT AMERICANS KNow ABOUT POLITICS
AND WHY IT MATTERS (1996).

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everyone else? And why should we listen to a group that has not thought
much about the issue or made serious efforts to become informed about it?
The fIrst two points are that the persons consulted need to be representative
and their views need to be deliberative. A third issue has to do with the
nature of the views that are collected post-deliberation. Do we expect or
strive for a consensus? Is the result of the deliberations meant to be a public
agreement, or do we collect the views in some other way? Some variants of
deliberative democracy operate like a jury. Indeed, one common model is the
so-called "citizen's jury."8 Other designs employ shared instant voting,
sometimes on electronic keypads. What is the best way to get the views or
fInal considered opinions of those who deliberate? Does it matter?
Our last basic divide is between designs that are consensus driven (B2A)
and those that are not (B2B). Some of the deliberative democracy literature
idealizes consensus and contrasts deliberation itself with so-called
aggregative conceptions of democracy that count individual votes rather than
seek consensus.9 However, there is extensive literature of jury-based
deliberations that show distortions in the process of group decisions seeking
consensus. Work by Cass Sunstein and his colleagues showed that jury-like
processes produce "polarization."10 If an issue has a midpoint, and if a group
starts out on one side of the midpoint, it will tend to move further out from
the midpoint in the same direction. So if the issue is, for example, a left-right
political one, and the group starts out on the right, it will move further to the
right; if it starts out on the left, it will move further to the left. Such a
predictable pattern is disturbing to advocates of deliberation because it
implies that the changes of opinion are due to a predictable distortion of
group psychology rather than to the merits of the issue. 11

8 See generally ANNA COOTE & Jo LENAGHAN, CITIZENS JURIES: THEORY INTO
PRACTICE (1997).
9 Joshua Cohen, Deliberation and Democratic Legitimacy, in DELffiERATIVE
DEMOCRACY: ESSAYS ON REASON AND POLITICS (James Bohman & William Rehg eds.,
1997); AMY GUTMANN & DENNIS THOMPSON, DEMOCRACY AND DISAGREEMENT (1996).
But see FISHKIN, supra note 4, at 85-88 (critiquing the distinction between aggregative
and deliberative theories).
10 Cass R. Sunstein, The Law of Group Polarization, in DEBATING DELffiERATIVE
DEMCORACY 80 (James S. Fishkin & Peter Laslett eds., 2003). See also David Schkade,
Cass R Sunstein & Daniel Kahneman, Deliberating About Dollars: The Severity Shift 100
COLUM. L. REv. 1139 (2000).
11 See CASS R. SUNSTEIN, GOING TO EXTREMES: How LIKE MINDS UNITE AND
DIVIDE 1-20 (2009).

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MAKING DELIBERATIVE DEMOCRACY PRACTICAL

However, as Sunstein has admitted, this pattern does not apply to the
Deliberative Poll, a process that does not seek consensus. 12 Sunstein offers
two causal mechanisms to explain polarization: a "social comparison" effect
and an imbalance in the "argument pool."13 The seeking of consensus, as in a
jury verdict, clearly offers a strong version of the social comparison effect, as
everyone knows everyone else's position and there is group pressure to get a
result. In Deliberative Polling, by contrast, the final considered judgments are
collected in confidential questionnaires, and the moderators are trained not to
seek consensus. If there is a consensus at the end of the day, then it will be
apparent in the confidential questionnaires. Any danger of a false consensus
is lessened by this design. In addition, there are elements of balance in the
Deliberative Polling design such as balanced briefmg materials, balanced
moderation, and balanced expert panels that seem to deal with the argument
pool's imbalance.

III. DELIBERATIVE POLLING AND DELIBERATIVE DEMOCRACY

Deliberative Polling begins with a concern about the defects likely to be

found in ordinary public opinion-the incentives for rational ignorance
applying to the mass public and the tendency for sample surveys to turn up
non-attitudes or phantom opinions (as well as very much "top-of-the-head"
opinions that approach being non-attitudes) on many public questions. At
best, ordinary polls offer a snapshot of public opinion as it is, even when the
public has little information, attention, or interest in the issue. Deliberative
Polling, by contrast, is meant to offer a representation of what the public
would think about an issue under good conditions. Every aspect of the
process is designed to facilitate an informed and balanced discussion. After
taking an initial survey, participants are invited, typically for a weekend, to
engage in face-to-face discussion. They are then given carefully balanced and
vetted briefing materials to provide an initial basis for dialogue. They are
paid honoraria, travel expenses, lodging, etc. Everything is done to recruit
those initially drawn in the sample. The briefing materials are the product of
a separate stakeholder process of deliberation-an advisory committee
representing competing points of view ensures the balance and accuracy of
the materials used.
Participants in Deliberative Polling are randomly assigned to small
groups for discussions with trained moderators and are encouraged to ask
questions that arise from the small group discussions to competing experts

12 Id. at 21-98.
13 Sunstein, supra note 10, at 83-84.

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and politicians in larger plenary sessions. The moderators attempt to establish

an atmosphere where participants listen to each other and no one is permitted
to dominate the discussion. At the end of the weekend, participants take the
same confidential questionnaire as they did at the time of first contact and the
resulting judgments in the final questionnaire are usually broadcast along
with -edited proceedings of the discussions throughout the weekend. The
weekend microcosm tends to be highly representative, in terms of attitude
and demographics, as compared to the entire baseline survey and to census
data about the popUlation. In every case thus far, there have also been a
number of large and statistically significant changes of opinion over the
weekend. Considered judgments are often different from the top-of-the-head
attitudes solicited by conventional polls. Looking at the full panoply of
Deliberative Polls, more than two-thirds of the opinion items change
significantly following deliberation.
But what do the results represent? Our respondents are able to overcome
the incentives for rational ignorance that normally exist in the mass public.
Instead of one vote in millions, they have, in effect, one vote in a few
hundred in the weekend sample and one voice in fifteen or so in the small
group discussions. The weekend is organized so as to make credible the
claim that the voices of our respondents matter. They overcome apathy,
disconnection, inattention, and an initial lack of information. The opinions of
participants from all social strata change during the course of deliberation.
From knowing that someone is educated or not, economically advantaged or
not, one cannot predict change in the deliberations. We do know, however,
that becoming informed on the issues predicts change on policy views. In
that sense, deliberative public opinion is informed and representative. As a
result, it is also, almost inevitably, counterfactual. The public will rarely, if
ever, be motivated to become as informed and engaged as our weekend
microcosms.
The idea is that if a counterfactual situation is morally relevant, why not
do a serious social science experiment-rather than merely engage in
informal inference or arm-chair empiricism-to determine what the
appropriate counterfactual might actually look like? And if that
counterfactual situation is both discoverable and normatively relevant, why
not then let the rest of the world know about it? Just as John Rawls' original
position can be thought of as having a kind of recommending force, the
counterfactual representation of public opinion identified by the Deliberative
Poll also recommends to the rest of the population some conclusions that

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MAKING DELmERATIVE DEMOCRACY PRACTICAL

they ought to take seriously.14 They ought to take the conclusions seriously
because the process represents everyone under conditions where they could
think-the process embodies a democratic decision made under especially
good conditions.
I offer Deliberative Polling as a practical method for realizing
deliberative democracy. But deliberative democracy is only one form of
democracy, one which is easily confused with its rivals. It is worth pausing to
consider the range of possibilities before returning to the similarities and
contrasts between deliberative democracy and alternative dispute resolution.

IV. FOUR DEMOCRATIC THEORIES

There are many democratic theories. In order to get a handle on the range
of possible positions, it is useful to think of some core component
principles-political equality, (mass) participation, deliberation, and the
value of avoiding tyranny of the majority (which I will call "non-tyranny").
Three of these principles are internal to the design of democratic institutions,
and one, non-tyranny, is about the effects of democratic decision, effects that
have long worried critics of democracy. If we consider these four principles
to be essential components of a democratic theory, then the variations in
commitment to them provide a kind of rudimentary grammar that allows us
to specify the range of alternative theories. In other words, we can get a
handle on different democratic theories according to whether or not they
accept or reject these component principles.
By political equality, I mean the extent to which an individual's views
are counted or weighed equally with those of others in a decision process.
More specifically, does the design of a decision process give each person a
theoretically equal chance of being the decisive voter (or having the decisive
opinion in achieving a majority)? Or, to take an obvious example, do voters
in Rhode Island have far more voting power than voters in New York in
selecting members of the Senate? By participation, I mean actions by voters
or ordinary citizens intended to influence politics or policy or influence the
dialogue about them. By deliberation, I mean the weighing of reasons-
under good conditions, in shared discussion-about what should be done.
Good conditions refer to having access to reasonably good information and
to a balanced discussion with others who are willing to participate
conscientiously. This summary is a simplification, but should do for now. By

14 See generally JOliN RAWLS, A THEORY OF JUSTICE (1971). For more on this
analogy, see JAMES S. FISHKIN, DEMOCRACY AND DELffiERATION: NEW DIRECTIONS FOR
DEMOCRATIC REFORM 81-104 (1991).

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non-tyranny, I mean the avoidance of a policy that would impose severe

deprivations when an alternative policy could have been chosen that would
not have imposed such deprivations on anyone. IS Obviously there are many
interesting complexities about the definition of severe deprivations, but the
basic idea is that a democratic decision should not impose very severe losses
on some when an alternative policy would not have imposed such losses on
anyone. The idea is to rule out only some of the most egregious policy
choices and leave the rest for democratic decision.

Competitive Elite Participatory Deliberative

Democracy Deliberation Democracy Democracy
Political equality + ? + +
Participation ? ? + ?
Deliberation ? + ? +
Non-tyranny + + ? ?

Four views on democracy are outlined in the table above: (1)

Competitive Democracy, (2) Elite Deliberation, (3) Participatory Democracy,
and (4) Deliberative Democracy. Each of these views explicitly embrace two
democratic core principles, and is agnostic in its view of two other core
principles. Explicit commitments of these principles are signaled by a "+."
Agnosticism is represented by"?". While there are sixteen possible positions
defined by acceptance or rejection of the four principles, I have argued
elsewhere that the useful positions reduce to these four. 16 Variations that
aspire to more than two of these principles turn out to be utopian or vacuous
since they just paper over hard choices that need to be faced in the typical
patterns by which these principles conflict. On the other hand, those positions
that aspire to less than two of these principles include elements of one of our
four positions but are less ambitious than necessary. The four positions
outlined above have all been influentia1. In some cases, I modify a familiar
position to make it more defensible, in order to get the strongest version of
each position.
Competitive Democracy references the notion of democracy championed
by Joseph Schumpeter and, more recently, Richard Posner.i7 To use

15 For these definitions and the theories they identify see FISHKIN, supra note 4, at
60--62. For an in-depth discussion of non-tyranny, see JAMES S. FISHKIN, TYRANNy AND
LEGITIMACY: A CRITIQUE OF POLITICAL THEORIES 3-61, 99-123 (1979).
16 See FISHKIN, supra note 4, at 197-200.
17 See JOSEPH A. SCHUMPETER, CAPITALISM, SOCIALISM AND DEMOCRACY 169-302
(1942); RICHARDA. POSNER, LAW, PRAGMATISM, AND DEMOCRACY 181-212 (2003).

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Schumpeter's famous phrase, democracy is not about collective will

formation but about a "competitive struggle for the people's vote."18 Legal
guarantees, particularly constitutional ones, are designed to protect against
tyranny of the majority. Within that constraint, all we need are competitive
elections. While Schumpeter did not even specify political equality as a
requirement for competitive elections, I have included it here on the grounds
that it makes the position more defensible than would a position that
embraced competitive elections in rotten boroughs. The question marks
signal agnosticism about the other two principles. Some variants of this
position avoid prizing participation, viewing it as a threat to stability or to
elite decisionmaking. Those adhering to this theory feel that it is better not to
arouse the passions of the masses. The passions might be dangerous and
motivate factions adverse to the rights of others, threatening Competitive
Democracy's commitment to protect against tyranny of the majority.
Because of collective action problems and incentives for "rational ignorance"
(to use Anthony Downs' famous phrase), little can be expected of ordinary
citizens. 19 This position makes that minimalism a virtue. 20
Elite Deliberation, refers to the notion of indirect filtration, which was
championed by Madison in his design for the U.S. Constitution. The
Constitutional Convention, the ratifying conventions, and the U.S. Senate
were supposed to be small elite bodies that would consider the competing
arguments. They would "refine and enlarge the public views by passing them
through the medium of a chosen body of citizens," as Madison said in
Federalist 10 when discussing the role ofrepresentatives. 21 Madison held that
the public views of such a deliberative body "might better serve justice and
the public good than if pronounced by the people themselves if convened for
the purpose."22 A similar position of elite deliberation was given further
development by John Stuart Mill, particularly in his account of the "Congress
of Opinions" which was supposed to embody a microcosm of the nation's
views. This was a place "where those whose opinion is over-ruled feel
satisfied that it is heard, and set aside not by a mere act of will, but for what
are thought superior reasons" (prefiguring Jiirgen Habermas' famous notion
about being convinced only by the "forceless force of the better

18 SCHUMPETER, supra note 17, at 269.

19 ANTIfONY DOWNS, AN ECONOMIC THEORY OF DEMOCRACY (1957).
20 See POSNER, supra note 16, at 172-73.
21 THE FEDERALIST NO. 10, at 49 (James Madison) (American Bar Association ed.,
2009).
22Id.

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argument").23 This position, like the last one, avoids embracing mass
participation as a value. The passions or interests that might motivate
factions are best left un-aroused. The Founders, after all, had lived through
Shays' rebellion (an armed uprising of indebted farmers in Massachusetts in
1786-1787) and viewed unfiltered mass opinion as dangerous. If only the
Athenians had a Senate, they might not have killed Socrates. 24
Participatory Democracy describes a position that emphasizes mass
participation and equal counting. While many proponents of Participatory
Democracy would also like deliberation, the essential components of the
position require participation (perhaps prized for its "educative function"25)
and equality in considering the views offered or expressed in that
participation (even if that expression is by secret ballot). Advocates of
Participatory Democracy might also advocate for voter handbooks, as did the
Progressives, but its foremost priority is public participation, whether or not
the public becomes informed or discusses the issues. 26 Part of the problem
with this position is that it is sometimes advocated based on a picture of
small-scale decisionmaking-such as the New England town meeting, but is
then implemented in the context of mass democracy-for example the
California process of ballot initiatives. 27
The fourth position, Deliberative Democracy, attempts to combine public
deliberation with an equal consideration of the views that result (whether
those views are counted in votes or in a tabulation of opinions, as in a poll).
One method for implementing this two-fold aspiration is the deliberative
microcosm chosen by lot, a model whose essential idea goes back to ancient
Athens. It was used by institutions such as the Council of 500 (which was
chosen by lot and which met for a year, setting the agenda for the Assembly),
the nomethetai (legislative commissions that were convened for a day to
make the final decisions on some legislative proposals), the graphe
paranomon (a procedure whereby a person could be prosecuted before a jury

23 JOHN
STUART MILL, CONSIDERATIONS ON REPRESENTATIVE GOVERNMENT 116
(1991);JURGEN HABERMAS, BETWEEN FACTS AND NORMS: CONTRIBUTIONS TO A
DISCOURSE THEORY OF LAW AND DEMOCRACY 287-328 (1996).
24 See THE FEDERALIST No. 63, at 361-67 (James Madison) (American Bar
Association ed., 2009).
25 CAROLE PATEMAN, PARTICIPATION AND DEMOCRATIC THEORY 42 (1970).
26 See DAVID B. MAGLEBY, DIRECT LEGISLATION: VOTING ON BALLOT
PROPOSITIONS IN THE UNITED STATES (1984). For information on the relative
ineffectiveness of voter handbooks and other efforts to get voters more informed, see id.
at 137-39.
27 See THOMAS E. CRONIN, DIRECT DEMOCRACY: THE POLITICS OF INITIATIVE,
REFERENDUM AND RECALL (1999).

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of five hundred chosen by lot for making an illegal proposal in the

Assembly), and the citizens juries (which were also typically juries of five
hundred chosen by lot that had a purview far greater than modem juries).28
Modem instances of something like this idea include the Citizens Assemblies
in British Columbia and Ontario as well as the method I call Deliberative
Polling.29 A Deliberative Poll administers a survey to a scientific random
sample of the population, proceeds to engage that sample in extensive face-
to-face or online deliberation, and then administers the same survey again.
Many Deliberative Polls are full-fledged scientific experiments with control
groups.30
The microcosmic version of deliberative democracy is not the only one.
The essential idea is to combine political equality with deliberation. The
microcosm is the most practical strategy, but, if in principle, one could get
everyone deliberating, that would satisfy the position just as well. Bruce
Ackerman and I have a proposal, Deliberation Day, for doing so, but it is an
ambitious and elaborate experiment. 3l For the moment, however, we will
focus on a more easily implemented microcosmic strategy.

V. DELmERATIVE DEMOCRACY VERSUS ALTERNATIVE DISPUTE

RESOLUTION?

In light of these distinctions between forms of democracy, consider

Susskind's argument that a consensus-based approach among stakeholders is
"more democratic" than what he calls deliberative democracy.32 I would ask
"more democratic" in what sense, and also, what is meant by "deliberative
democracy?" Susskind builds an extended case based on one example: he
asks us to imagine a town of thirty thousand considering a controversial
industrial facility that poses difficult trade-offs between employment and the

28 For a good overview of these ancient institutions, see MOGENS HERMAN HANSEN,
THE ATHENIAN DEMOCRACY IN THE AGE OF DEMOSTHENES: STRUCTURE, PRINCIPLES AND
IDEOLOGY (1991).
29 See the Final Report of the British Columbia Citizen's Assembly Making Every
Vote Count: The Case for Electoral Reform, the British Columbia Citizen's Assembly
(2004), available at http://www.citizensassembly.bc.cairesources/reports/dmaclachlan-
3_04121 8 1253-524.pdf. For Ontario see One Ballot, Two Votes: A New Way to Vote in
Ontario; Recommendation of the Ontario Citizens' Assembly on Electoral Reform (2007)
available at
http://www.citizensassembly.gov.on.caiassets/One%20Ballot.%20Two%20Votes. pdf
30 For an overview of this research program, see FISHKIN, supra note 4.
3l See BRUCE ACKERMAN & JAMES S. FISHKIN, DELffiERATION DAY (2004).
32 Susskind, supra note I, at 396-97.

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environment. 33 His account of deliberative democracy is to let the elected

city council hold hearings and either vote on the merits or hold a
referendum. 34 His argument is that the work of stakeholders attempting to
reach a consensus has the two-fold merit that it is more democratic and might
lead to better results. 35 Based on this example, he characterizes "deliberative
democracy" as subject to the following three fundamental problems:

1. The Majority Rule Problem: we allow the majority to rule, but if we

tried, we could come close to meeting the needs of all the stakeholders
affected by or involved in key public policy choices.
2. The Representation Problem: we rely on general-purpose elected
officials rather than ad hoc representatives selected specifically to speak
on behalf of the scope and intensity of concerns of key stakeholder
groups in public policy decisions.
3. The Adversarial Problem: we accept an adversarial approach to
decisionmaking when facilitated joint problem-solving would produce
results that are fairer in the eyes of the parties, more efficient from the
standpoint of an independent analyst, more stable as defined by the
terms of the agreement, and wiser, in retrospect, according to the
parties and independent analysts. 36

These observations are flawed. First, Susskind has misidentified

deliberative democracy as a target for his arguments. As you see in our
classification above, his example combines competitive democracy (officials
who run for elected office), participatory democracy (the referendum), and
perhaps some elite deliberation (among the city council members). It
involves elements of all three rivals to deliberative democracy, but does not
incorporate the use of deliberative democracy by the people themselves.
Hence, the example upon which he builds his argument misfires-there is no
discussion at all of what we call deliberative democracy.
Second, once one really considers the nature of deliberative democracy
applications, properly defmed, it is arguable that they deal as well or better
with his three problems than would his proposed consensus-based approach
among stakeholders. Consider, for example, his "majority rule problem." His
claim, presumably, is that deliberations that occur as part of the stakeholder
process may change preferences and result in broadly advantageous

33 Id. at 395-96.
34Id. at 395.
35 Id. at 398-99.
36Id. at 397.

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solutions.37 Yet who is more likely to change: stakeholders who represent

organized groups or ordinary citizens? In reality, most ordinary citizens will
initially have less informed and less definitive views about most policy issues
than would professional advocates and interest group representatives. As
noted earlier, there is usually a lot of room for ordinary citizens to change in
a deliberative process. On the other hand, organized advocacy and interest
groups will have firm opinions and will also feel some responsibility to stand
by those opinions for their supporters. Their advocacy roles will greatly
constrain their opinion flexibility, at least as compared to ordinary citizens.
Hence, a deliberation by the people, if well conducted, might actually open
up areas of cooperation that the interest groups who speak for them might
find difficult to adopt. But once those areas of cooperation are sanctioned by
a public democratic process, they can be invoked by all sides as a possible
way forward.
Next, consider Susskind's "representation problem." Stakeholders
purport to speak for ordinary citizens, but they are usually self-selected or
self-appointed, either as individuals or as groups organized to fill that role.
Many ordinary people, in whose interests the stakeholders supposedly speak,
would be surprised to know who is purporting to represent their interests or
what is advocated on their behalf. Who are these "ad hoc representatives?"
What qualifies them to speak for you when there is no guarantee of any basis
for their agreeing with your point of view? Rather than self-nomination or
public visibility as an advocate for a given position or an ad hoc choice by a
mediator, deliberative democracy suggests the scientific method of
microcosmic representation. A good random sample of the people represents
everyone, not just organized groups. When done properly, it begins with tqe
same views as the rest of the population. A microcosm of the people can
represent all the people without the gap between organized interests and the
(mostly) unorganized public.
Now consider Susskind's last problem: the reliance on "adversarial"
decisionmaking. This reliance may be characteristic of courts and political
advocacy in competitive democracy (campaigns, elections, partisan interests,
and mass participation in participatory/referendum democracy). However,
deliberative democracy provides a basis for preference transformation and
for dialogue where those with competing positions can learn from each other.
It can be, in fact, a form of facilitated problem-solving through evidence-
based dialogue. Once again, Susskind's argument misfires by being directed
at one or another of the other democratic models, rather than at deliberative
democracy.

37Id. at 402.

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VI. How IT WORKS

Consider an example to contrast with Susskind's hypothetical one. In

1996, the regulated public utilities in Texas faced a requirement for
"Integrated Resource Planning" to determine how they were to provide
electric power in their service territories. They were supposed to consult the
public in some way as part of this process. The plans needed to be submitted
to the Public Utility Commission for approval,38
All eight regulated utilities conducted Deliberative Polls. First, an
advisory group of the relevant stakeholders was formed to vet a briefing
document suitable for ordinary citizens. That document described competing
policy options and the pros and cons of each. Would the power come from
coal, natural gas, or renewable energy, or would there be an investment in
"demand side management" (conservation which would reduce the need for
more power)? Would the power be produced locally, or would it be brought
in by transmission lines? Would there be subsidies for poor customers?
Once the briefing document was completed, a questionnaire was devised
about the competing policy options for supplying energy. In addition, it
posed questions about knowledge and fundamental values that might be
relevant to the trade-offs at issue. A random sample was recruited from the
entire service territory in each case and was brought, with all expenses paid
and an honorarium, to a single place for a weekend of discussions. The
discussions took place in small groups with trained moderators as well as in
plenary sessions with panels of competing experts to answer questions from
the groups. The final session of the weekend was held with the Public Utility
Commissioners themselves, who answered questions from the sample. After
the deliberations, the participants took the same questionnaire that they had
taken initially.
In eight such Deliberative Polls in various parts of Texas and nearby
Louisiana, the public favored shrewd combinations of natural gas, renewable
energy, and conservation. Averaging over eight projects, the percentage
willing to pay more on its monthly utility bill to support renewable energy
such as wind power ranged from 52-84%. The percentage willing to pay
more for conservation ranged from 43-73%.39 The resulting Integrated
Resource Plans all included substantial investments in renewable energy.
Before the Texas Deliberative Polls, the state of Texas had the lowest usage

38 For a more detailed account of this case, as well as some other Deliberative
Polling cases with policy consequences, see FISHKIN, supra note 4, at 150-58.
39 [d. at 124.

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of wind power on a percentage basis of any state in the U.S.40 Based on the
successive Deliberative Polls, the Integrated Resource Plans, which took
account of their results, and then the Renewable Energy Standard that was
supported by the Deliberative Polling results, Texas surpassed California as
the leading state in wind power in the U.S. in 2007.41
The head of the Texas Renewable Energy Industries Association wrote
the following about the eight Deliberative Polls:

These polls had astounding positive effect. They showed overwhelming

customer support for the addition of renewable energy sources. Not only did
folks from all regions of the state of Texas say they wanted clean,
renewable power on the system, they indicated their willingness to pay
more for it (mostly from $1 to $5 a month). There was also a preference for
the cost to be shared by all users. This was a significant underpinning for
the decisions yet to come. 42

Interest groups such as the Environmental Defense Fund and Public

Citizen found that they could agree with the companies in question and
support the results and their implementation. These interest groups were
accustomed to an adversarial process and were surprised to be able to issue
press releases contemporaneously with the utility companies that applauded
the same results. The stakeholder process that laid the groundwork for the
deliberations by the mass public was similar in spirit to Susskind's
consensus-based approach. However, the deliberative democracy component
used the perceived legitimacy of the public's conclusions under a system that
was transparent, balanced, and accurate. The process and its conclusions
were televised. The final Deliberative Polling results were shared with the
public and then filed with the Commission as part of the Integrated Resource
Planning process.

VII. CONCLUSION

Deliberative democracy processes have been used in a variety of

countries for many difficult issues. We have employed them in Northern

40 Prior to November 1995, there were no commercially viable wind projects in

Texas. See Renewable Electricity Standards: Lighting the Way: Hearing Before the
House Select Committee on Energy Independence and Global Warming, 1 lOth Congo 40-
47 (2007) (statement of Mike Sloan, Managing Consultant, The Wind Coalition).
41 FISHKIN, supra note 4, at 124.
42 Russel Smith, That's Right, I Said a Texas Wind Boom, WHOLE EARTH, 20-21
(2001).

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Ireland, in Bulgaria for issues with the Roma, in Porto Alegre, Brazil for civil
service reform, in China for choice of infrastructure, and in Italy for a health
care budget crisis. 43 In all these cases, there is an appeal to the public's
representative and informed judgments. When the process is sufficiently
transparent (usually accompanied by media coverage and materials on the
web) and when it is clearly scientific and evidence driven, so that it is not
open to manipulation, it has the credibility to assist in the solution of difficult
issues. It does not aspire to replace or supplant the consensus-based approach
to alternative dispute resolution, but it provides a distinctive addition to the
toolkit for resolving hard choices.

43 See, e.g., The Center for Deliberative Democracy, http://cdd.stanford.edu (last

visited Mar. 1,2011) (detailing these and other deliberative democracy projects).

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