A major revision of NCID was finalized in 2002 after the 2002 Democracy Symposium. If you are not familiar with the design of the 2002 version of NCID, please review the proceedings of the 2002 Democracy Symposium before continuing. Ten years later, with a more mature perspective on his proposal, Senator Gravel and colleagues went back and signficiantly revised the text.
Commentary and Justification
by Joshua Pritikin
The vast majority of changes in the 2012 version do not substantially change the meaning of the text relative to the 2002 version but pursue greater clarity and precision. For this reason, most of the changes are self-explanatory. However, there are a few important corrections and additions warranting detailed justification.
In Section 3, the 2002 version included a prescription that the Trust "shall qualify initiatives chronologically and shall conduct the entire initiative process chronologically." This sentence was poorly drafted. Even within a single jurisdiction, some initiatives will be easy to evaluate and some will be difficult. One Deliberative Committee may need five weeks; Another may finish over a weekend. It was never intended that only a single Deliberative Committee may conduct hearings at a time. To fixed a chronological order for the entire initiative process makes even less sense when considering initiatives concerning different jurisdictions.
The 2012 version adds a condition that Deliberative Committee members should "demographically represent the jurisdiction," in addition to the prescription that the Deliberative Committee be randomly selected. There is a small chance that random selection will not choose a group who demographically represents the jurisdiction. This provision gives the Trust the option to make minor adjustments to the random selection process to ensure that the jurisdiction is demographically represented (i.e. quota sampling).
The 2012 version tweaks the wording that describes the compensation of Deliberative Committee members (section 3-I) in comparison to the 2002 version. Starting with "Each member" more clearly suggests that compensation should be a separate consideration for each member and that all members need not be compensated equally. This better aligns with Senator Gravel’s vision of accommodating special needs of jury members without locking the Trust into a specific compensation formula.
The sentence "The Trust may promulgate regulations to more fully meet its responsibilities under this Act." was added to Section 4-A. This is an analogue of the sentence "Congress shall have the power to enforce this law through appropriate legislation." found in Constitutional Amendments 24 and 26.
The 2012 version adds the possibility for the Director of the Trust to serve for two terms of six years for a total of 12 years (section 4-D-1). Extending the possible length of service holds potential benefits and risks. The risk is that an unworthy Director will hold the office for two terms. The potential benefit is that the Trust will be able to retain the service of a talented Director for two terms. I believe there is adequate protection against an unworthy Director. The Director is subject to recall by the Board of Trustees or in a regular recall election. The reduction in threshold for the Trustees to recall a Director is an attempt to balance the added option of a second term for the Director. Also note that the appointment of Director is decided by the Board of Trustees. Therefore, it is unlikely that a first-term Director will be tempted to misuse public resources to campaign for re-election as has historically been a temptation for a popularly elected officials. Trustees have little responsibility besides that of keeping a watchful eye on the Director, and should have no reason to tolerate mischief.
The 2012 version adds a qualification step prior to admitting voters to the candidate pool for Deliberative Committees (section 4-F-4). The Trust will need to exercise discretion in setting the bar for prequalification. If the bar is set too high, panels selected for Deliberative Committees will not reflect the demographics of the jurisdiction. Difficult prequalification procedures will also tend to exclude citizens who are, at the time of prequalification, not inclined to serve. For these reasons, excessive filtering would be counterproductive, but some kind of basic test of civic knowledge seems worthwhile. I envision that prequalification will be harder than signing up for telephone service but less demanding than acquiring a driver’s license.
In the 2002 version, there was some confusion among non-lawyers about what constituted a government jurisdiction. The 2012 version addresses this shortcoming with a more specific glossary entry for "Government Jurisdiction."
The addition of recall to the glossary makes clear that recall is not a separate power but envisioned as an integral aspect of initiative (in contrast to the 2009 Universal Typology of Modern Direct Democratic Terms). Any government official may be recalled including any member of Congress, the President, or a Supreme Court justice. Federal judges have never previously been subject to recall, but bear in mind that recall under NCID procedures will incorporate a unprecedented degree of deliberation, far more deliberation than recall elections of the past.