Can “We the People” really help draft a national constitution? (sort of..)

As innovations like social media and open government initiatives have become an integral part of the politics in the twenty-first century, there is increasing interest in the possibility of citizens directly participating in the drafting of legislation. Indeed, there is a clear trend of greater public participation in the process of constitution making, and with the growth of e-democracy tools, this trend is likely to continue. However, this view is certainly not universally held, and a number of recent studies have been much more skeptical about the value of public participation, questioning whether it has any real impact on the text of a constitution.

Following the banking crisis, and a groundswell of popular opposition to the existing political system in 2009, the people of Iceland embarked on a unique process of constitutional reform. Having opened the entire drafting process to public input and scrutiny, these efforts culminated in Iceland’s 2011 draft crowdsourced constitution: reputedly the world’s first. In his Policy & Internet article “When Does Public Participation Make a Difference? Evidence From Iceland’s Crowdsourced Constitution”, Alexander Hudson examines the impact that the Icelandic public had on the development of the draft constitution. He finds that almost 10 percent of the written proposals submitted generated a change in the draft text, particularly in the area of rights.

This remarkably high number is likely explained by the isolation of the drafters from both political parties and special interests, making them more reliant on and open to input from the public. However, although this would appear to be an example of successful public crowdsourcing, the new constitution was ultimately rejected by parliament. Iceland’s experiment with participatory drafting therefore demonstrates the possibility of successful online public engagement — but also the need to connect the masses with the political elites. It was the disconnect between these groups that triggered the initial protests and constitutional reform, but also that led to its ultimate failure.

We caught up with Alexander to discuss his findings.

Ed: We know from Wikipedia (and other studies) that group decisions are better, and crowds can be trusted. However, I guess (re US, UK) I also feel increasingly nervous about the idea of “the public” having a say over anything important and binding. How do we distribute power and consultation, while avoiding populist chaos?  

Alexander: That’s a large and important question, which I can probably answer only in part. One thing we need to be careful of is what kind of public we are talking about. In many cases, we view self-selection as a bad thing — it can’t be representative. However, in cases like Wikipedia, we see self-selected individuals with specialized knowledge and an uncommon level of interest collaborating. I would suggest that there is an important difference between the kind of decisions that are made by careful and informed participants in citizens’ juries, deliberative polls, or Wikipedia editing, and the oversimplified binary choices that we make in elections or referendums.

So, while there is research to suggest that large numbers of ordinary people can make better decisions, there are some conditions in terms of prior knowledge and careful consideration attached to that. I have high hopes for these more deliberative forms of public participation, but we are right to be cautious about referendums. The Icelandic constitutional reform process actually involved several forms of public participation, including two randomly selected deliberative fora, self-selected online participation, and a popular referendum with several questions.

Ed: A constitution is a very technical piece of text: how much could non-experts realistically contribute to its development — or was there also contribution from specialised interest groups? Presumably there was a team of lawyers and drafters managing the process? 

Alexander: All of these things were going on in Iceland’s drafting process. In my research here and on a few other constitution-making processes in other countries, I’ve been impressed by the ability of citizens to engage at a high level with fundamental questions about the nature of the state, constitutional rights, and legal theory. Assuming a reasonable level of literacy, people are fully capable of reading some literature on constitutional law and political philosophy, and writing very well-informed submissions that express what they would like to see in the constitutional text. A small, self-selected set of the public in many countries seeks to engage in spirited and for the most part respectful debate on these issues. In the Icelandic case, these debates have continued from 2009 to the present.

I would also add that public interest is not distributed uniformly across all the topics that constitutions cover. Members of the public show much more interest in discussing issues of human rights, and have more success in seeing proposals on that theme included in the draft constitution. Some NGOs were involved in submitting proposals to the Icelandic Constitutional Council, but interest groups do not appear to have been a major factor in the process. Unlike some constitution-making processes, the Icelandic Constitutional Council had a limited staff, and the drafters themselves were very engaged with the public on social media.

Ed: I guess Iceland is fairly small, but also unusually homogeneous. That helps, presumably, in creating a general consensus across a society? Or will party / political leaning always tend to trump any sense of common purpose and destiny, when defining the form and identity of the nation?

Alexander: You are certainly right that Iceland is unusual in these respects, and this raises important questions of what this is a case of, and how the findings here can inform us about what might happen in other contexts. I would not say that the Icelandic people reached any sort of broad, national-level consensus about how the constitution should change. During the early part of the drafting process, it seems that those who had strong disagreements with what was taking place absented themselves from the proceedings. They did turn up later to some extent (especially after the 2012 referendum), and sought to prevent this draft from becoming law.

Where the small size and homogeneous population really came into play in Iceland is through the level of knowledge that those who participated had of one another before entering into the constitution-making process. While this has been over emphasized in some discussions of Iceland, there are communities of shared interests where people all seem to know each other, or at least know of each other. This makes forming new societies, NGOs, or interest groups easier, and probably helped to launch the constitution-making project in the first place. 

Ed: How many people were involved in the process — and how were bad suggestions rejected, discussed, or improved? I imagine there must have been divisive issues, that someone would have had to arbitrate? 

Alexander: The number of people who interacted with the process in some way, either by attending one of the public forums that took place early in the process, voting in the election for the Constitutional Council, or engaging with the process on social media, is certainly in the tens of thousands. In fact, one of the striking things about this case is that 522 people stood for election to the 25 member Constitutional Council which drafted the new constitution. So there was certainly a high level of interest in participating in this process.

My research here focused on the written proposals that were posted to the Constitutional Council’s website. 204 individuals participated in that more intensive way. As the members of the Constitutional Council tell it, they would read some of the comments on social media, and the formal submissions on their website during their committee meetings, and discuss amongst themselves which ideas should be carried forward into the draft. The vast majority of the submissions were well-informed, on topic, and conveyed a collegial tone. In this case at least, there was very little of the kind of abusive participation that we observe in some online networks. 

Ed: You say that despite the success in creating a crowd-sourced constitution (that passed a public referendum), it was never ratified by parliament — why is that? And what lessons can we learn from this?

Alexander: Yes, this is one of the most interesting aspects of the whole thing for scholars, and certainly a source of some outrage for those Icelanders who are still active in trying to see this draft constitution become law. Some of this relates to the specifics of Iceland’s constitutional amendment process (which disincentives parliament from approving changes in between elections), but I think that there are also a couple of broadly applicable things going on here. First, the constitution-making process arose as a response to the way that the Icelandic government was perceived to have failed in governing the financial system in the late 2000s. By the time a last-ditch attempt to bring the draft constitution up for a vote in parliament occurred right before the 2013 election, almost five years had passed since the crisis that began this whole saga, and the economic situation had begun to improve. So legislators were not feeling pressure to address those issues any more.

Second, since political parties were not active in the drafting process, too few members of parliament had a stake in the issue. If one of the larger parties had taken ownership of this draft constitution, we might have seen a different outcome. I think this is one of the most important lessons from this case: if the success of the project depends on action by elite political actors, they should be involved in the earlier stages of the process. For various reasons, the Icelanders chose to exclude professional politicians from the process, but that meant that the Constitutional Council had too few friends in parliament to ratify the draft.

Read the full article: Hudson, A. (2018) When Does Public Participation Make a Difference? Evidence From Iceland’s Crowdsourced Constitution. Policy & Internet 10 (2) 185-217. DOI:

Alexander Hudson was talking to blog editor David Sutcliffe.

Does crowdsourcing citizen initiatives affect attitudes towards democracy?

Crowdsourcing legislation is an example of a democratic innovation that gives citizens a say in the legislative process. In their Policy and Internet journal article ‘Does Crowdsourcing Legislation Increase Political Legitimacy? The Case of Avoin Ministeriö in Finland’, Henrik Serup Christensen, Maija Karjalainen and Laura Nurminen explore how involvement in the citizen initiatives affects attitudes towards democracy. They find that crowdsourcing citizen initiatives can potentially strengthen political legitimacy, but both outcomes and procedures matter for the effects.

Crowdsourcing is a recent buzzword that describes efforts to use the Internet to mobilize online communities to achieve specific organizational goals. While crowdsourcing serves several purposes, the most interesting potential from a democratic perspective is the ability to crowdsource legislation. By giving citizens the means to affect the legislative process more directly, crowdsourcing legislation is an example of a democratic innovation that gives citizens a say in the legislative process. Recent years have witnessed a scholarly debate on whether such new forms of participatory governance can help cure democratic deficits such as a declining political legitimacy of the political system in the eyes of the citizenry. However, it is still not clear how taking part in crowdsourcing affects the political attitudes of the participants, and the potential impact of such democratic innovations therefore remain unclear.

In our study, we contribute to this research agenda by exploring how crowdsourcing citizens’ initiatives affected political attitudes in Finland. The non-binding Citizens’ Initiative instrument in Finland was introduced in spring 2012 to give citizens the chance to influence the agenda of the political decision making. In particular, we zoom in on people active on the Internet website Avoin Ministeriö (Open Ministry), which is a site based on the idea of crowdsourcing where users can draft citizens’ initiatives and deliberate on their contents. As is frequently the case for studies of crowdsourcing, we find that only a small portion of the users are actively involved in the crowdsourcing process. The option to deliberate on the website was used by about 7% of the users; the rest were only passive readers or supported initiatives made by others. Nevertheless, Avoin Ministeriö has been instrumental in creating support for several of the most successful initiatives during the period, showing that the website has been a key actor during the introductory phase of the Citizens’ initiative in Finland.

We study how developments in political attitudes were affected by outcome satisfaction and process satisfaction. Outcome satisfaction concerns whether the participants get their preferred outcome through their involvement, and this has been emphasized by proponents of direct democracy. Since citizens get involved to achieve a specific outcome, their evaluation of the experience hinges on whether or not they achieve this outcome. Process satisfaction, on the other hand, is more concerned with the perceived quality of decision making. According to this perspective, what matters is that participants find that their concerns are given due consideration. When people find the decision making to be fair and balanced, they may even accept not getting their preferred outcome. The relative importance of these two perspectives remains disputed in the literature.

The research design consisted of two surveys administered to the users of Avoin Ministeriö before and after the decision of the Finnish Parliament on the first citizens’ initiative in concerning a ban on the fur-farming industry in Finland. This allowed us to observe how involvement in the crowdsourcing process shaped developments in central political attitudes among the users of Avoin Ministeriö and what factors determined the developments in subjective political legitimacy. The first survey was conducted in fall 2012, when the initiators were gathering signatures in support of the initiative to ban fur-farming, while the second survey was conducted in summer 2013 when Parliament rejected the initiative. Altogether 421 persons filled in both surveys, and thus comprised the sample for the analyses.

The study yielded a number of interesting findings. First of all, those who were dissatisfied with Parliament rejecting the initiative experienced a significantly more negative development in political trust compared to those who did not explicitly support the initiative. This shows that the crowdsourcing process had a negative impact on political legitimacy among the initiative’s supporters, which is in line with previous contributions emphasizing the importance of outcome legitimacy. It is worth noting that this also affected trust in the Finnish President, even if he has no formal powers in relation to the Citizens’ initiative in Finland. This shows that negative effects on political legitimacy could be more severe than just a temporary dissatisfaction with the political actors responsible for the decision.

Nevertheless, the outcome may not be the most important factor for determining developments in political legitimacy. Our second major finding indicated that those who were dissatisfied with the way Parliament handled the initiative also experienced more negative developments in political legitimacy compared to those who were satisfied. Furthermore, this effect was more pervasive than the effect for outcome satisfaction. This implies that the procedures for handling non-binding initiatives may play a strong role in citizens’ perceptions of representative institutions, which is in line with previous findings emphasising the importance of procedural aspects and evaluations for judging political authorities.

We conclude that there is a beneficial impact on political legitimacy if crowdsourced citizens’ initiatives have broad appeal so they can be passed in Parliament. However, it is important to note that positive effects on political legitimacy do not hinge on Parliament approving citizens’ initiatives. If the MPs invest time and resources in the careful, transparent and publicly justified handling of initiatives, possible negative effects of rejecting initiatives can be diminished. Citizens and activists may accept an unfavourable decision if the procedure by which it was reached seems fair and just. Finally, the results give reason to be hopeful about the role of crowdsourcing in restoring political legitimacy, since a majority of our respondents felt that the possibility of crowdsourcing citizens’ initiatives clearly improved Finnish democracy.

While all hopes may not have been fulfilled so far, crowdsourcing legislation therefore still has potential to help rebuild political legitimacy.

Read the full article: Christensen, H., Karjalainen, M., and Nurminen, L., (2015) Does Crowdsourcing Legislation Increase Political Legitimacy? The Case of Avoin Ministeriö in Finland. Policy and Internet 7 (1) 25–45.

Henrik Serup Christensen is Academy Research Fellow at SAMFORSK, Åbo Akademi University.

Maija Karjalainen is a PhD Candidate at the Department of Political Science and Contemporary History in the University of Turku, Finland.

Laura Nurminen is a Doctoral Candidate at the Department of Political and Economic Studies at Helsinki University, Finland.

Do Finland’s digitally crowdsourced laws show a way to resolve democracy’s “legitimacy crisis”?

There is much discussion about a perceived “legitimacy crisis” in democracy. In his article The Rise of the Mediating Citizen: Time, Space, and Citizenship in the Crowdsourcing of Finnish Legislation, Taneli Heikka (University of Jyväskylä) discusses the digitally crowdsourced law for same-sex marriage that was passed in Finland in 2014, analysing how the campaign used new digital tools and created practices that affect democratic citizenship and power making.

Ed: There is much discussion about a perceived “legitimacy crisis” in democracy. For example, less than half of the Finnish electorate under 40 choose to vote. In your article you argue that Finland’s 2012 Citizens’ Initiative Act aimed to address this problem by allowing for the crowdsourcing of ideas for new legislation. How common is this idea? (And indeed, how successful?)

Taneli: The idea that digital participation could counter the “legitimacy crisis” is a fairly common one. Digital utopians have nurtured that idea from the early years of the internet, and have often been disappointed. A couple of things stand out in the Finnish experiment that make it worth a closer look.

First, the digital crowdsourcing system with strong digital identification is a reliable and potentially viral campaigning tool. Most civic initiative systems I have encountered rely on manual or otherwise cumbersome, and less reliable, signature collection methods.

Second, in the Finnish model, initiatives that break the threshold of 50,000 names must be treated in the Parliament equally to an initiative from a group of MPs. This gives the initiative constitutional and political weight.

Ed: The Act led to the passage of Finland’s first equal marriage law in 2014. In this case, online platforms were created for collecting signatures as well as drafting legislation. An NGO created a well-used platform, but it subsequently had to shut it down because it couldn’t afford the electronic signature system. Crowds are great, but not a silver bullet if something as prosaic as authentication is impossible. Where should the balance lie between NGOs and centrally funded services, i.e. government?

Taneli: The crucial thing in the success of a civic initiative system is whether it gives the people real power. This question is decided by the legal framework and constitutional basis of the initiative system. So, governments have a very important role in this early stage – designing a law for truly effective citizen initiatives.

When a framework for power-making is in place, service providers will emerge. Should the providers be public, private or third sector entities? I think that is defined by local political culture and history.

In the United States, the civic technology field is heavily funded by philanthropic foundations. There is an urge to make these tools commercially viable, though no one seems to have figured out the business model. In Europe there’s less philanthropic money, and in my experience experiments are more often government funded.

Both models have their pros and cons, but I’d like to see the two continents learning more from each other. American digital civic activists tell me enviously that the radically empowering Finnish model with a government-run service for crowdsourcing for law would be impossible in the US. In Europe, civic technologists say they wish they had the big foundations that Americans have.

Ed: But realistically, how useful is the input of non-lawyers in (technical) legislation drafting? And is there a critical threshold of people necessary to draft legislation?

Taneli: I believe that input is valuable from anyone who cares to invest some time in learning an issue. That said, having lawyers in the campaign team really helps. Writing legislation is a special skill. It’s a pity that the co-creation features in Finland’s Open Ministry website were shut down due to a lack of funding. In that model, help from lawyers could have been made more accessible for all campaign teams.

In terms of numbers, I don’t think the size of the group is an issue either way. A small group of skilled and committed people can do a lot in the drafting phase.

Ed: But can the drafting process become rather burdensome for contributors, given professional legislators will likely heavily rework, or even scrap, the text?

Taneli: Professional legislators will most likely rework the draft, and that is exactly what they are supposed to do. Initiating an idea, working on a draft, and collecting support for it are just phases in a complex process that continues in the parliament after the threshold of 50,000 signatures is reached. A well-written draft will make the legislators’ job easier, but it won’t replace them.

Ed: Do you think there’s a danger that crowdsourcing legislation might just end up reflecting the societal concerns of the web-savvy – or of campaigning and lobbying groups

Taneli: That’s certainly a risk, but so far there is little evidence of it happening. The only initiative passed so far in Finland – the Equal Marriage Act – was supported by the majority of Finns and by the majority of political parties, too. The initiative system was used to bypass a political gridlock. The handful of initiatives that have reached the 50,000 signatures threshold and entered parliamentary proceedings represent a healthy variety of issues in the fields of education, crime and punishment, and health care. Most initiatives seem to echo the viewpoint of the ‘ordinary people’ instead of lobbies or traditional political and business interest groups.

Ed: You state in your article that the real-time nature of digital crowdsourcing appeals to a generation that likes and dislikes quickly; a generation that inhabits “the space of flows”. Is this a potential source of instability or chaos? And how can this rapid turnover of attention be harnessed efficiently so as to usefully contribute to a stable and democratic society?

Taneli: The Citizens’ Initiative Act in Finland is one fairly successful model to look at in terms of balancing stability and disruptive change. It is a radical law in its potential to empower the individual and affect real power-making. But it is by no means a shortcut to ‘legislation by a digital mob’, or anything of that sort. While the digital campaigning phase can be an explosive expression of the power of the people in the ‘time and space of flows’, the elected representatives retain the final say. Passing a law is still a tedious process, and often for good reasons.

Ed: You also write about the emergence of the “mediating citizen” – what do you mean by this?

Taneli: The starting point for developing the idea of the mediating citizen is Lance Bennett’s AC/DC theory, i.e. the dichotomy of the actualising and the dutiful citizen. The dutiful citizen is the traditional form of democratic citizenship – it values voting, following the mass media, and political parties. The actualising citizen, on the other hand, finds voting and parties less appealing, and prefers more flexible and individualised forms of political action, such as ad hoc campaigns and the use of interactive technology.

I find these models accurate but was not able to place in this duality the emerging typologies of civic action I observed in the Finnish case. What we see is understanding and respect for parliamentary institutions and their power, but also strong faith in one’s skills and capability to improve the system in creative, technologically savvy ways. I used the concept of the mediating citizen to describe an actor who is able to move between the previous typologies, mediating between them. In the Finnish example, creative tools were developed to feed initiatives in the traditional power-making system of the parliament.

Ed: Do you think Finland’s Citizens Initiative Act is a model for other governments to follow when addressing concerns about “democratic legitimacy”?

Taneli: It is an interesting model to look at. But unfortunately the ‘legitimacy crisis’ is probably too complex a problem to be solved by a single participation tool. What I’d really like to see is a wave of experimentation, both on-line and off-line, as well as cross-border learning from each other. And is that not what happened when the representative model spread, too?

Read the full article: Heikka, T., (2015) The Rise of the Mediating Citizen: Time, Space, and Citizenship in the Crowdsourcing of Finnish Legislation. Policy and Internet 7 (3) 268–291.

Taneli Heikka is a journalist, author, entrepreneur, and PhD student based in Washington.

Taneli Heikka was talking to Blog Editor Pamina Smith.