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April 28, 1997
To: Chapter Chairs, IEC Delegates, Chapter Staff, Finance Committee, Key Allies
From: Daniel Cantor, National Organizer/Executive Director
RE: Supreme Court Ruling in Timmons v. Twin Cities Area New Party
The Supreme Court ruled against us this morning by a 6-3 vote. Chief Justice Rehnquist wrote the majority opinion. On our side were the three justices who spoke up at the oral argument -- Ginsburg, Souter and Stevens. A full copy of the decision will be on the web site (http://www.newparty.org/) as soon as possible.
THE MAJORITY OPINION
The Rehnquist opinion is pretty amazing. It basically says that (1) a ban on fusion doesn't really hurt a minor party's ability to support its standard bearer, because we can always tell people to vote for our first-choice candidate on another party's line, or we can nominate a second-choice candidate on our own line, and (2) even if a fusion ban does limit a minor party's ability to reach the voting public and develop support, that's okay. "The State's interest permits them to enact reasonable election regulations that may, in practice, favor the traditional two-party system."
In other words, the First Amendment rights of citizens who support a minor party are not as important as those who support one of the two major parties.
Rehnquist also makes an inane argument about how voters will be confused in a multi-party environment, implicitly dismissing the right of a minor party to signal its views to the voting public. As has been noted many times, fusion is valuable in part precisely because it allows a party to signal that its votes carry a different meaning. But for Rehnquist & Company it is not legitimate for the New Party "to use the ballot to send a message, to its candidates and to the voters, about the nature of its support for the candidate. Ballots serve primarily to elect candidates, not as fora for political expression."
Excuse me? If an election is not a forum for political expression, what is it? A referendum on who's the richest candidate? A chance to see which television commercials were best? Our Chief Justice brings no distinction to the nation's judiciary. He leads a Court that, above all, wants to prevent any sort of organizational or ideological challenge to the status quo. Candidate-centered politics is okay; issue, ideology or party-centered politics are not.
THE DISSENTING OPINION
On the other side was the dissent by Justice Stevens. He begins, politely enough, by calling Rehnquist's and the Court majority's views "dubious." Then he demolishes them one at a time. Are the anti-fusion rules an unfair burden on minor parties? Of course, and to think otherwise is to ignore the historical record and the empirical evidence. Will voters will be perplexed if fusion is permitted? Stevens thinks not, citing the New York example and then stating that such an opinion is "meritless and severely underestimates the intelligence of the typical voter."
"Minnesota's fusion ban simply cannot be justified [on these grounds]" writes Justice Stevens, and "I turn, therefore, to what appears to be the true basis for the Court's holding -- the interest in preserving the two-party system."
[You can almost hear him clear his throat as he writes].
"It is not surprising," continues Stevens, "that most States have enacted election laws that impose burdens on the development and growth of third parties. The law at issue in this case is undeniably such a law. The fact that the law was both intended to disadvantage minor parties and has had that effect is a matter that should weigh against, rather than in favor of, its constitutionality..."
Finally, he points out that fusion is not only important for minor parties, it's good for the major parties too, which of course is true.
"It demeans the strength of the two-party system to assume that the major parties need to rely on laws that discriminate against independent voters and minor parties in order to preserve their positions of power. Indeed, it is a central theme of our jurisprudence that the entire electorate, which necessarily includes the members of the major parties, will benefit from robust competition in ideas and governmental policies that is at the core of our electoral process and of the First Amendment freedoms."
Well, so much for the First Amendment. This was a political decision, not a Constitutional one. The Rehnquist Supreme Court (with Clinton stalwart Breyer in Rehnquist's pocket) showed that it is more devoted to the two-party system than to democracy itself. I suppose that shouldn't surprise us. But it still disappoints.
WHAT IT MEANS
What does it mean for our organizing? I want to briefly touch on the impact of the decision from a few different angles: legal, electoral practice/chapter activity, fundraising, and relations with key allies. This is not meant to be comprehensive, but rather as a way to begin a party-wide conversation.
LEGAL: This is the most straightforward one. State bans on fusion voting are now okay. In the 9 states where fusion is legal, it's still legal. In the others, it's either illegal or not discussed in state law. The two options for legalizing fusion would be to pass legislation in state legislatures, or pass ballot initiatives in those states where they are permitted.
The first route -- passing fusion legislation through state legislatures dominated by the major parties -- seems extremely unlikely. But the second is worth some investigation. Voters believe that democracy is a good thing, even if the Court does not, and an "open up the system" initiative could have real appeal. It would drive our expansion westward, by and large, given the distribution of states that allow ballot initiatives. City or County-based "proportional representation" voting systems, established via charter amendment, also warrant serious consideration.
ELECTORAL ACTIVITY/CHAPTER ACTIVITY: Given where we're currently at, the decision makes surprisingly little impact on our actual activity. Of the 200 elections in which NP chapters have backed candidates for local and state office, only 1 has been a fusion race. The other 199 have been for non-partisan offices, or inside Democratic Party primaries as "NP Democrats." This explains why in today's flurry of phone calls about the meaning of the decision, the least fazed, indeed almost completely unruffled group was chapter leadership and local staff. The creation of competent local electoral organizations has taken place in a non-fusion environment, and so nothing has changed. Indeed, the view from "local-land," as our field director calls it, is that fusion was always a good tool for attracting attention, but could never substitute for the hard work of building living, breathing organizations of people capable of gaining and then wielding power.
Where the decision will make a difference is in the higher-level partisan races. In those, we have to figure out how one can project progressive values and issues, over time, without the benefit of a party ballot line. In the meantime we'll keep our eyes on the 80% of all elections that remain non-partisan.
FUNDRAISING: Some chunk of the money that we raise both in chapters and nationally gets raised because the fusion case excites interest. We will have to demonstrate that the local work is both valuable on its own terms and promising as part of an overall national strategy, even without fusion. If we do so, I'm confident that we can keep and even expand our fundraising base. My view is that the need for independent, non-business dominated political organizations that recruit, train and elect candidates pledged to "a fair economy" and "a real democracy" -- a progressive version of the Christian Coalition, as we have sometimes been described -- is as strong
RELATIONS WITH KEY ALLIES: Here I'm referring mostly to labor. There has been tremendous and growing interest at all levels of the American trade union movement in the NP, with fusion politics as the "door-opener." Again, at the local level, these relationships are solid and will endure despite the Court ruling. But the response of national level labor leaders and political operatives will take some time to unfold. We will argue the obvious -- their organizational interest in building political power outside the Democrats is as strong as ever, and the NP remains an appropriate vehicle for experimentation. In our favor in this argument is the continuing disgrace that attends every aspect of the Democratic Party these days. Against us is the fact that the fusion case was like a brand name -- it was one of the things that distinguished the NP in the eyes of national-level Labor and other constituency groups (the others being our reputation for electoral competence and nerve, the multi-racial character of the organization, and the robustness of our ideas about metropolitan reconstruction).
SUMMING UP
It will take a while to process the meaning of today's decision. We need to do so at all levels of the organization, and collectively consider what changes might be required in any aspect of our work. SEIU's Suzanne Wall thinks it may in the end make us stronger -- no one-trick ponies in this show after all. Special attention should be paid by local NP chapters on the questions of how this will affect their outreach efforts, and what will be the impact on electoral organizing plans in the '97-98 cycle. Chapter chairs and IEC delegates will be convening for a teleconference call tomorrow, and there will be many additional conversations and meetings of staff, membership, leadership and friends/allies over the next few weeks and months.
The struggle is long, but hope is longer.
© 1997 The New Party
