John McCain Cannot Be a Reformer

by John Carney

After the Michigan primary there can be no doubt that John McCain's appeal to voters is not limited by traditional party lines. Officially it was a Republican primary, but independents and Democrats overwhelmed the ballot boxes to hand the Senator his victory. This cross-party appeal has prompted some to speculate that McCain could be a fusion candidate, running on both the Republican and Reform party tickets.

Apparently these fusionists include members of McCain's own staff. Last week the McCain campaign met with Reform Party officials in Texas to discuss the possibility of putting McCain on the Reform ticket. McCain spokesman Dan Schnur told reporters that McCain should appeal to Reform Party voters concerned with issues the Senator has made a focus of his campaign, including campaign finance reform. If the Reform Party were to pick McCain, Schnur says the Senator would accept and run as the nominee of both parties.

The Dallas Morning News broke the story of the Texas meeting, and within days most major media outlets were carrying reports that McCain could be a GOP-Reform fusion candidate. Unfortunately, nearly all these reports ignored the most important fact – fusion tickets are prohibited by the election laws of all but a handful of states.

The issue of state bans on fusion tickets did not arise in the 19th century because prior to the introduction of the secret ballot near the end of that century, the state usually did not provide a ballot at all. It was the responsibility of individual voters to bring a ballot. In most cases the parties printed the ballots, each containing the name of their own candidates, and voters brought these to the voting booth.

With party provided ballots, fusion became a regular feature of Gilded Age American politics. In the West and Midwest, issue-oriented parties like the Grangers, Greenbacks and Populists often employed fusion with the Democratic Party. Republicans in the solidly Democratic South used fusion to exploit divisions within the Democratic Party, occasionally winning offices that would otherwise be out of reach to the GOP.

Although the Republicans and Democrats had occasionally benefitted from fusion tickets, the establishment of both parties had reason despise this practice. The natural tendency of the establishment in either party is to gravitate toward the u2018vital center' of American politics. Fusion effectively checked this tendency by pulling the parties toward the political frontiers where they could pick up the endorsements of more ideological minor parties. Despite their hatred of fusion, neither party could afford to abolish fusion on its own because the rational response of the other party would be to continue to employ the practice to draw in the ideological voters and win elections. It was a classic example of the prisoner's dilemma.

The advent of the secret ballot following the fraud-plagued election of 1888 consigned fusion tickets to one of our Republic's lost traditions. As states began to print their own ballots they had to establish criteria for eligibility of parties and candidates to be listed on the ballots. This gave the two parties a mechanism to solve their fusionist dilemma by writing the ban on fusion into the law. In a joint effort by the Republican and Democrats to bolster their two-party system, almost all states outlawed fusion tickets.

Forty states currently have "anti-fusion" laws that either prevent candidates from appearing on the ballot under the label of more than one party or accomplish the same result indirectly by requiring a candidate to be registered for the party that nominates him. Fusion candidates are permitted in only ten states, including New York.

The ban on fusion candidates was upheld by the Supreme Court in Timmons v. Twin Cities Area New Party. The Twin Cities Area New Party had filed a lawsuit against Minnesota after the state stymied the New Party's effort to nominate a candidate for the state Legislature who had already accepted the nomination of the Democratic-Farmer-Labor Party. Ruling 6-3 that the Minnesota anti-fusion law was constitutional, the court said that the state's interest in regulating elections trumped the New Party's First Amendment rights to select candidates.

In addition to the anti-fusion laws, another legal barrier stands in the way of the McCain campaign's dream of getting both the Republican and Reform Party nominations. If the $12 million of federal funds earmarked for the Reform Party nominee is one of the attractions of getting the party's nomination, the McCain campaign will most likely be disappointed. The Federal Elections Commissions which oversees the distribution of the funds will not allow a candidate to collect funds marked for more than one party.

Even if McCain loses the contest for the Republican nomination he will still be unable to find a home in the Reform Party. Although the anti-fusion laws would no longer apply, many states have "sore loser" statutes which prevent losers in primaries from running as independents or on another party's ticket in the general election. These laws have also passed constitutional muster before the Supreme Court.

Given that these insurmountable legal barriers would thwart any attempt by McCain to get the Reform Party nomination, it is surprising that the media coverage of McCain's flirtation with the Reform Party has ignored them entirely. Apparently the media is unwilling to let the facts get in the way of their attempt to foist McCain on the American people.

John Carney is a third-year law student at the University of Pennsylvania.