Why Your Judge Can't Take Bribes, But Your Lawmaker Can Trade Votes

Picture a courtroom. A judge sits in black robes. He promised to be fair. He has no favorite in the case. He doesn’t take secret meetings with one side. He doesn’t trade favors. We build strict rules around judges to protect this fairness: rules about who they can talk to, rules about when they must step aside, rules against taking gifts.

Now walk down the hall to where the law was actually written: the legislature (e.g. Congress or Parliament).

None of those rules apply there. Lawmakers can meet privately with the very companies or groups a bill will affect. We just gave this a normal-sounding name: lobbying. Lawmakers can trade votes. “Support my bill and I’ll support yours,” even if neither bill is actually good. We call this deal-making, and treat it as just how politics works. And almost every lawmaker belongs to a political party, a group with its own side to win. Political parties are what we mean when we say “factions.”

Here is the main point of this post: a court can only be as fair as the law it uses. If the people who decide on the laws are not neutral, then no court, no matter how careful, can fully fix that problem afterward.

Think about what we ask a modern lawmaker to do, and compare it to what we would ever allow a judge to do.

A lawmaker often acts as both the person arguing for a law and the person deciding whether it passes. They write the bill. They argue for it. They convince other people to vote for it. Then they vote on it themselves. Picture a courtroom where the lawyer arguing a case was also allowed to help decide the verdict. We would call that unfair and wrong. 

James Madison saw this exact problem more than two centuries ago, and stated the principle behind it plainly: “No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.” 

A lawmaker can also trade votes. “Vote for my farm bill, and I’ll vote for your road bill,” even if neither bill is judged on its own merits. If two judges said to each other, “rule my way on this case, and I’ll rule your way on your next one,” that would be a serious crime. When lawmakers do the same thing, we call it being a skilled dealmaker.

And a lawmaker can hold private meetings with one side only. These are called ex parte meetings, a term that means one party (a company, a union, an interest group) gets to talk to the decision-maker alone, without the other side present or even knowing about it. In court, ex parte meetings are banned, because a judge who hears only one side in private can no longer be trusted to judge fairly. In a legislature, this kind of private meeting has its own name and its own industry: lobbying. It is not just allowed. It is expected.

None of this means lawmakers are bad people. It’s simply how the job works today. But it means that by the time a law reaches a judge, it was never made by a neutral process. It came from trades, private meetings, and open advocacy for one side, built into the words of the law from the very first draft.

Imagine a completely honest judge. No bribes. No friends among either party in the case. No political ambitions. She could still be enforcing a law that was never fair to begin with. Maybe a tax law contains a special break that one industry won through private lobbying. Maybe a criminal law was shaped by whichever political party held power that year. If the judge applies that law correctly and carefully, she is still applying an unfair result. She’s just doing it very properly.

We can describe the ideal we’re missing with one word: afactional. It simply means “not belonging to or favoring any faction or party, and treating every side the same.” We ask judges to be afactional. We rarely ask the same of lawmakers.

The idea that political factions are dangerous, and that neutrality is the cure, dates to America’s founding. In his farewell address, George Washington warned that permanent political parties could slowly erode a government meant to serve everyone. James Madison agreed that faction could never be eliminated entirely, only controlled through careful design, since unchecked factionalism would corrupt every branch of government, including the courts.

The founders worried as much about lawmakers as judges: if those writing the laws didn’t represent everyone, every branch that followed would inherit that unfairness.

This concern predates America. In his 1774 Speech to the Electors of Bristol, Edmund Burke argued that a lawmaker shouldn’t merely echo one district’s or faction’s demands, but should exercise independent judgment in service of the nation’s shared interest — owing constituents honest judgment, not blind obedience.

This isn’t just an old American worry. Several European constitutions state this ideal in plain, binding legal language.

Belgium’s constitution says it very clearly. Article 42 of the Belgian Constitution says that members of the two Houses of parliament represent the Nation, not only the people who elected them. Read that slowly: a Belgian lawmaker is not, by law, the representative of just their district or their party or the voters who chose them. They represent the whole country, including the people who voted against them. This idea sits right at the top of the section about parliament, before any rules about committees or procedure, as the basic description of what a lawmaker is supposed to be.

Similar wording appears in other European constitutions too: lawmakers described as representing the whole nation, not any one faction or narrow group. It’s a proud constitutional goal, and it sits in sharp contrast with the daily reality of party discipline, forced voting blocks, and lobbyists with private access.

In the first part, we found the source of the problem. A lawmaker today does two jobs at once: the job of arguing for a law, and the job of deciding whether it passes. A judge would never be allowed to do both. We also saw that lawmakers meet privately with one side (lobbying) and trade votes for favors, two things a judge would be fired for doing. And we saw that Belgium’s constitution already states the goal in plain language: a lawmaker should represent the whole nation, not one faction.

So how do we actually get there?

Here is the proposal: split the single job of “lawmaker” into two separate jobs, done by two separate kinds of people, sitting in the same chamber.

Think back to the courtroom from part one. A courtroom works because it splits roles. There is an advocate, someone who argues for one side. And there is a judge, someone neutral who decides. Nobody is asked to do both. We can build the same split into a legislature.

The first role is the party representative. This person’s job is to represent a party’s or a group’s specific interest, openly and honestly. They write law proposals. They argue for them. They also argue against proposals that hurt their group. This is exactly the job a lawmaker already does when they lobby for their party’s platform, except now it’s the entire job, done openly, instead of a side activity done through private meetings.

The second role is the people’s representative. This person does not represent any faction. Their only job is to vote yes or no on the proposals the party representatives have already written and argued for. They do not write bills. They do not negotiate with lobbyists, because, as we’ll see, there would be no lobbyists left to negotiate with.

This split matters because it removes the exact overlap that part one identified as the root problem: the same person writing the case for a bill and then also being the one who decides its fate.

In today’s system, if your group’s interest is narrow (say, beekeepers, or a small manufacturing sector, or a patient group with a rare disease) your only way to get heard is to hire a lobbyist and get a private meeting with someone who has many other things to think about. Access is scarce, so the loudest and richest interests get the most of it.

Under this proposal, a specialized party representative could exist for beekeepers, for that manufacturing sector, for that patient group, and for dozens of other narrow interests. The interest just gets its own party representative, arguing in the open, on the record.

Once every serious interest can get organized representation instead of needing a private backchannel, ex parte meetings (private, one-sided meetings, defined in part one) stop being necessary. And once they stop being necessary, we can finally make them illegal without shutting anyone out, because everyone already has a legitimate, open channel instead.

The two roles aren’t just different in function. They should be elected differently too, because they’re answering two different questions.

A party representative answers the question: “does this group’s interest deserve a voice?” For this question, the proposal uses what’s called a positive asymmetric voting system. Asymmetric here means the system does not treat a “no” and a “don’t care” as different things; it only counts positive support, not opposition. Approval voting is a simple real-world example: each voter can approve of as many parties as they like, with no limit and no penalty for approving of more than one. A person could approve of a small farmers’ party and a green-energy party and a patients’ rights party, all at the same time. That’s what “mutually inclusive parties” means: parties aren’t rivals for the same voters, since one voter can back several parties whose interests overlap in their life. Because the bar is only “how much support do you have,” not “did you beat everyone else,” we can afford to have many specialized parties instead of two or three giant ones trying to cover every issue badly.

A people representative answers a different question: “does the whole community trust this person to judge fairly?” For that, the proposal uses a symmetric voting system, one that does distinguish between a vote for, a vote against, and indifference. And it adds a strict condition: nobody can hold the seat unless they have more for-votes than against-votes. This is a much harder bar to clear than simply “most votes,” because a candidate who is loved by one faction and hated by everyone else could easily win a normal election, yet fail this test completely. This pushes people representatives toward being broadly acceptable rather than narrowly beloved, which is exactly the “afactional” quality we want, defined in part one as not favoring any faction.

Go back to the two abuses from part one: the lawmaker-as-both-advocate-and-judge problem, and vote-trading.

The advocate-and-judge problem disappears because party representatives argue and people representatives vote; no single person does both anymore.

Vote-trading disappears for a structural reason, not just a moral one. Vote-trading only works if the same person controls both the “yes” they’re offering and a “yes” they want in return. A people representative has a vote to give, but under this system that is all they have. They cannot offer a law in exchange, because they don’t write laws. A party representative can offer a law in exchange for support, but they don’t have a vote on the floor to trade away. Neither role holds both halves of the trade at once, so there is nothing left to swap.

There’s a side benefit too. Because we only ever need one seat per party (not one seat per district, multiplied across every possible interest), the system scales cleanly as new interests organize themselves. A new patient group or a new industry doesn’t need to unseat an existing representative to get a voice; it can simply organize and gain its own party representative, argued for and voted on in public.

Part one ended with a challenge: if we want fair courts, fairness has to start further back, at the writing of the law itself. This proposal tries to answer that challenge directly, not by asking politicians to be more virtuous (Madison already warned, as we saw in part one, that faction cannot be removed by hoping for better people) but by redesigning the structure so that the two conflicting jobs are no longer forced onto the same person.

Advocacy stays. It just moves into the open, where Belgium’s constitution already says a lawmaker’s true master should be the whole nation. And judgment, the plain vote of “does this proposal deserve to become law,” is finally handed to people who were never asked to write it, argue for it, or trade it away in the first place.