Do­minic Raab, take a bow in the roll-call of the tal­ent­less

The Guardian - Journal - - Front page - Ma­rina Hyde,

The talk in the US is of con­sti­tu­tional cri­sis. It’s been loom­ing for a while, thanks to the Mueller in­ves­ti­ga­tion into sus­pected col­lu­sion be­tween the Trump cam­paign and Krem­lin ef­forts to swing the 2016 elec­tion. At some point – per­haps when spe­cial coun­sel Robert Mueller is­sues a sub­poena, de­mand­ing Don­ald Trump an­swers his ques­tions – a clash was bound to come. But it may al­ready be upon us. That’s be­cause of a move Trump made within hours of see­ing his party take a beat­ing in the midterm elec­tions, los­ing the House of Rep­re­sen­ta­tives as Democrats notched up what should be, once the fi­nal tally is in, their big­gest gains since the post-Water­gate land­slide of 1974. The pres­i­dent fired his at­tor­ney-gen­eral and re­placed him with a re­li­able par­ti­san named Matt Whi­taker, who has loy­ally echoed Trump’s de­nun­ci­a­tions of Mueller’s probe as a “witch-hunt”. It is this man who is now charged with fairly and im­par­tially su­per­vis­ing the Mueller in­ves­ti­ga­tion. He will have ac­cess to all Mueller’s find­ings, which he could pass on to Trump, and has the power to block Mueller any way he likes, in­clud­ing by starv­ing him of funds.

Con­dem­na­tion for the move has been swift, in­clud­ing by a pair of con­sti­tu­tional lawyers who wrote a New

York Times op-ed de­nounc­ing it as “il­le­gal” on the grounds that Whi­taker had not gone through a Se­nate con­fir­ma­tion process for a se­nior role in the jus­tice depart­ment. “Con­sti­tu­tion­ally, Matthew Whi­taker is a no­body,” they wrote.

Such dis­sent is en­cour­ag­ing. But there’s a prob­lem.

For who has the power to make the cru­cial de­ci­sions, ei­ther by con­firm­ing Whi­taker in his post or by pass­ing a law to pro­tect Mueller, in­clud­ing from be­ing fired? The an­swer is the US Se­nate. And on Tues­day, Repub­li­cans re­tained their grip on that body.

Sim­i­larly, what if the Mueller-Trump stand­off ends up in court and ul­ti­mately the supreme court, as the great Water­gate bat­tles did 44 years ago? That body is also safely in the hands of Repub­li­can ap­pointees, its con­ser­va­tive ma­jor­ity boosted by the re­cent ar­rival of Trump favourite Brett Ka­vanaugh. There is no easy con­so­la­tion that a neu­tral ref­eree stands ready to blow the whis­tle: there is no such per­son.

This sit­u­a­tion points to the true con­sti­tu­tional cri­sis that af­flicts the United States. The fact that Trump is pres­i­dent and the fact that the Se­nate and supreme court are, if not in his hands, at least likely to back him, are not the cause of this cri­sis – they are symp­toms of it.

The prob­lem, stated sim­ply, is a demo­cratic deficit. Amer­ica’s elec­toral col­lege sys­tem awards the pres­i­dency to the win­ner of the right com­bi­na­tion of states rather than the pop­u­lar vote. That mech­a­nism gives dis­pro­por­tion­ate power to smaller, ru­ral states, which are al­most un­vary­ingly con­ser­va­tive.

The same is truer still of the Se­nate, in which a nearly empty, ru­ral state such as Wy­oming – pop­u­la­tion 580,000 – has the same rep­re­sen­ta­tion as Cal­i­for­nia, home to 39 mil­lion peo­ple. Both get two seats. Which is how Democrats could win 11m more votes than Repub­li­cans in Tues­day’s Se­nate con­tests yet Repub­li­cans still come out ahead. That mat­ters. It means a ma­jor­ity of Amer­i­cans could op­pose Ka­vanaugh, but he still had enough Se­nate votes to be el­e­vated to the top court.

De­fend­ers of the Se­nate say this is the price of a fed­eral sys­tem, which must ac­cord equal sta­tus to its con­stituent parts. They sug­gest it can­not be changed be­cause it’s part of the near-sa­cred set­tle­ment de­vised by the US’s founders. But those men could see the dan­gers from the start. Alexan­der Hamil­ton, no less, was a fierce op­po­nent of grant­ing two sen­a­tors to each state, re­gard­less of pop­u­la­tion, ac­cu­rately proph­esy­ing that “it may hap­pen that this ma­jor­ity of States is a small mi­nor­ity of the peo­ple of Amer­ica”.

If Hamil­ton was of­fended by the im­bal­ances then, how much more ap­palled would he be now. In 1790 the most pop­u­lous state, Vir­ginia, was 20 times larger than the least, Ten­nessee. To­day, the equiv­a­lent ra­tio – Cal­i­for­ni­ans to Wy­omin­gites – is 67 to 1. Be­sides, the Found­ing Fa­thers de­lib­er­ately set out to make the Se­nate un­demo­cratic, if not anti-demo­cratic: it was meant as a “cool­ing saucer”, draw­ing the heat of the pop­u­lar mood. Few would of­fer that de­fence now. Still, re­al­is­ti­cally, small states are not go­ing to vote for a change that would di­min­ish their in­flu­ence. So democrats – and Democrats – may need to look be­yond the Se­nate for rem­edy. There has rightly been a fo­cus on com­bat­ing voter sup­pres­sion and ger­ry­man­der­ing in House con­tests. But other re­forms are worth ex­plor­ing, and would en­tail no great rewrit­ing of the constitution. They re­late to the elec­toral col­lege.

There are a range of op­tions. States could al­lo­cate their elec­toral col­lege votes not on to­day’s win­ner­takes-all ba­sis, but in pro­por­tion to the pop­u­lar vote in that state. So Trump would have got some of, say, Wis­con­sin’s elec­toral col­lege votes in 2016 but not all of them – and not enough to win an elec­tion in which he got fewer ac­tual votes than his op­po­nent. Oth­ers sug­gest in­creas­ing the num­ber of seats in the House to re­flect the in­crease in US pop­u­la­tion since the cham­ber was last ex­panded a cen­tury ago. That would boost the more pop­u­lous states and give them greater weight in the elec­toral col­lege.

There are a va­ri­ety of moves Amer­i­cans could make, but they need to move. A sys­tem that re­peat­edly gives power to the los­ing side – favour­ing the white, ru­ral mi­nor­ity over the ex­pand­ing and di­verse ma­jor­ity – will soon lose le­git­i­macy in the eyes of its cit­i­zens. That is Amer­ica’s true con­sti­tu­tional cri­sis.

There is no easy con­so­la­tion that a neu­tral ref­eree stands ready to blow the whis­tle: there is no such per­son

PHO­TO­GRAPH: ALBA VIGARAY/EPA

A protest inNew York against Matt Whi­taker’s over­sight of the Mueller in­ves­ti­ga­tion

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