The Supreme Court is mulling the issue of "fusion." The case has nothing to do with thermonuclear bombs, but everything to do with the future of minor parties in America.
In this context, the term refers to a practice whereby a candidate may run on more than one party ticket. How does it work? Let's say that Leslie Liberty and Syd Statist are running as the major-party candidates for a House seat, and that you are mapping plans for a minor party. If your party fields its own candidate in this race, it might siphon votes from Liberty (who supports limited government) and tip the election to Statist (who combines the ideology of Leon Trotsky with the personality of Roseanne). As an alternative strategy, you might consider giving your party's nomination to Liberty, who would then have two spots on the ballot. That's "fusion."
Depending on the circumstances, as we'll see, a fusion strategy might make good political sense. But there's one catch. Only four states (New York, Oregon, Utah, Vermont) expressly allow candidates to accept more than one party's nomination, while a few other states are silent on the subject. The great majority directly or indirectly forbid fusion.
Things were not always so. Fusion was common in the 19th century, reaching its peak when both the Democrats and the Populists nominated William Jennings Bryan for president in 1896. Seeing a threat from the Populists and other grassroots political movements, however, the major parties in the state legislatures then started to pass the anti- fusion statutes.
The current challenge to these laws started with a 1994 race for the Minnesota legislature in which the leftist New Party chose to give its nomination to an incumbent Democrat. Though the lawmaker and his party consented to this endorsement, Minnesota's secretary of state said no, citing a state law directly banning fusion. The New Party mounted a legal fight (McKenna v. Twin Cities Area New Party), losing in federal district court but winning in the Eighth Circuit Court of Appeals. A few years earlier, another circuit court had reached the opposite conclusion, upholding an antifusion law in Wisconsin (Swamp v. Kennedy). To settle the issue, the U.S. Supreme Court accepted the Minnesota case for its docket, and it heard oral arguments in December.
Supporters of fusion argue that restrictive ballot laws abridge First Amendment rights by keeping minor parties from nominating the candidates of their choice. "This tells them what the substance of their political alliances can be," said Harvard law professor Laurence Tribe in his Supreme Court argument for the New Party.
Fusion enthusiasts also say that multiple listings give the voters more-detailed information and permit them to send more-specific messages to political elites. If a candidate appears on both the Republican and Right-to-Life party lines, the electorate will know more about that candidate's abortion stance than if he or she ran on the GOP ticket alone. And by voting for that candidate on the Right-to-Life line, anti-abortion voters indicate not only whom they support but why.
Opponents of fusion cite the need to preserve the two-party system. If a major party's candidates get a large share of their vote on a minor party's ticket, their loyalties will be divided and the last remnants of party discipline will vanish.
This argument assumes that the Republican-Democratic duopoly is a fundamental principle of American government. It isn't. The U.S. Constitution says nothing about parties, and it's awfully hard to find an endorsement of the two-party system in The Federalist. An advantage of a large and diverse republic, wrote James Madison, is "the greater security afforded by a greater variety of parties, against one party being able to outnumber and oppress" the others. Pedants might quibble that Madison was referring more to interest groups than to party organizations as we know them, but that objection misses the point: Madison liked the idea of loose and shifting political coalitions, the very thing that the antifusion laws try to stop.
Opponents of fusion also say that multiple ballot listings confuse voters. This contention is silly. In New York state, politicians routinely run on more than one line: In 1994, for instance, gubernatorial candidate George Pataki not only had the Republican and Conservative party nominations, he also created a "Tax Cut Now Party" so that he could get a third spot on the ballot. Residents of the Empire State are confused about many things (see any episode of Seinfeld), but this ballot system is not one of them. When I served as a precinct worker in Saratoga Springs, New York, I never saw a single person stagger from the voting booth, whimpering in bewilderment. This experience led me to a firm conclusion: Those who can't handle a multiple-listing ballot aren't going to vote anyway. People who are that cognitively impaired can't possibly find their way to the polling place.
During oral argument, several justices voiced a hesitancy to strike down dozens of state laws. Yet the anti-fusion statutes rest on such a weak foundation that the New Party might just win. If that happens, minor parties will have to rethink their political game plans, and they will discover that the fusion strategy has several advantages.
The first is economy of effort. Minor parties have a tough time recruiting and financing high-quality candidates. Let's face it: When seeking contenders for the county commission or even the U.S. House, minor parties find that their candidate pool is mighty shallow. Rather than scrape the bottom, minor parties could find it easier to give nominations to acceptable major-party candidates. This approach could also prevent embarrassment for minor parties. In a 1996 California congressional race, the Reform Party nearly nominated Mistress Madison, a professional dominatrix. (On second thought, it's too bad she didn't win: She would have made the perfect party whip.)
Of course, candidate-poor minor parties can always choose not to nominate anyone for a particular office. Unfortunately, blank ballot spots undercut a party's standing. Like a grocery store with empty shelves, a party without a full slate will come across as a fly-by-night operation.
The grocery analogy suggests another advantage of fusion. Browsers prefer to see at least a few familiar brands: If they look in the cooler and find only Mechanicville Cola instead of Coke or Pepsi, they will probably walk out without buying anything. In the same vein, the absence of well-known names on a minor-party slate may cause voters to wonder whether the party is a bunch of wackos. On the other hand, if a respected governor or senator accepts the party's nomination, the voters' comfort level will rise and they might take a look at the party's candidates for other offices.
Perhaps the greatest advantage of the fusion strategy is that it gives minor parties the power of political life or death over major-party candidates. In 1993, Rudy Giuliani ran for mayor of New York on both the Republican and Liberal lines, and the number of votes he won as a Liberal exceeded his margin of victory. If the Liberal Party had given its nomination to incumbent Democrat David Dinkins, Giuliani probably would have lost. And even if the Liberal Party had left its mayoral ballot slot blank, he might still have gone down to defeat. A significant number of New Yorkers hate the GOP so much that they would never touch a Republican ballot lever–even though they would vote for the same candidate on the Liberal line.
Accordingly, the Liberals gained a great deal of leverage over Mayor Giuliani, who gave plum jobs to well-connected Liberal Party members and to both sons of the party's state leader. The state's Conservative Party wields similar influence over Pataki.
To supporters of fusion, the New York state Conservative Party demonstrates how the practice can further the cause of principled politics. The party arose in reaction to the governorship of Republican Nelson Rockefeller, whose Mussolini-style public works dwarfed those of any "big-spending" Democrat. After spectacular showings by Conservative candidates (including the election of James Buckley to the U.S. Senate in 1970), Republicans increasingly warmed to the idea of fusion. To win the Conservatives' support, the state GOP moved steadily to the right.
But the Conservative Party experience also raises a cautionary note about fusion. In building its alliance with the GOP, the party has sometimes blessed candidates with less than totally conservative records. Sen. Al D'Amato, a Conservative Party favorite, has openly criticized Republicans for moving too far to the right. And according to the 1996 National Journal vote rankings, D'Amato's conservative scores are anemic: 54 percent on economics, 60 percent on social issues, and 63 percent on foreign policy.
A Conservative Party defender could argue that D'Amato is conservative "enough" and that any candidate who took a harder line would not win a majority in New York. (Buckley won with less than 50 percent in a three-way race.) This line of reasoning has its merits, but it raises larger questions. When minor parties turn pragmatic, what purpose do they serve? If you want to split the difference and yield on principle, why not merely join the Republicans or Democrats? And if fusion encourages compromise, might it diminish the creative, hell-raising, china-breaking role that minor parties have so often served?
If the Supreme Court opens the door to fusion, the leaders of minor parties should be wary before walking in. The major parties are like the Borg in Star Trek: If you get close to them, they'll assimilate you.
Contributing Editor John J. Pitney Jr. (firstname.lastname@example.org) is associate professor of government at Claremont McKenna College.