When it Comes to American Constitutionalism, There Is No Silver Bullet

Citizens United and vote suppression by state governments are serious problems. But the dysfunction of the national government wouldn’t go away if they were addressed, either.

Consider, for example, what would happen if Antonin Scalia resigns with Hillary Clinton in the White House and the Republican Party in control of the Senate. It would almost certainly produce a constitutional crisis in which Clinton can’t any nominee confirmed. It’s hard to see how “taking the money out of politics” would solve the crisis — essentially nobody votes based on the Supreme Court, and Republican senators have far more to fear from a primary challenge than from voters who remember that a senator wouldn’t vote to confirm a Supreme Court nominee (in some cases 3-6 years ago.) Electoral reform would help matters only to the extent that it makes Democrats more likely to hold the Senate, but no electoral reform can guarantee that we don’t have divided government. American separation-of-powers was always a hand grenade, and Mitch McConnell just pulled the pin.