North Korea celebrated its 74th birthday on September 9 with a new nuclear policy law. North Korea’s new law explains the general role of nuclear weapons in North Korea’s defense strategy, lays out the conditions under which it would use nuclear weapons, and establishes other broad policies, making it analogous to a U.S. nuclear posture review. North Korea’s nuclear policy law does not contain any unexpected revelations, but it highlights several worrying trends in the country’s nuclear strategy that could make future crises more dangerous.

The new nuclear policy law underscores the importance of first use, including preemptive attack, in North Korea’s nuclear strategy. The overarching objective of North Korea’s nuclear weapons, according to the new legislation, is to preserve the country’s sovereignty and territorial integrity. To achieve this goal, North Korea will have a flexible strategy for employing nuclear weapons, including retaliation and preemption. Nuclear preemption means using nuclear offensively to eliminate the danger of a looming attack by beating the other side to the punch.

A nuclear preemption strategy is intended to prevent enemy action by making it too dangerous for the other side to consider attacking in the first place. The target of the preemption strategy, in this case the United States and South Korea, needs to tread very carefully because it is not certain what actions will cross the other state’s threshold for nuclear use. The safest course of action, therefore, is for the target of the preemption strategy to always err on the side of caution and not make threats or maneuver its forces in ways that could trigger a nuclear attack.

Nuclear preemption is especially attractive for North Korea because of its overall weakness vis-à-vis the United States and South Korea. Once a war starts, be it conventional or nuclear, North Korea will likely not survive because its armed forces, while large, are at an immense qualitative disadvantage. Nuclear weapons give Kim Jong-un the ability to inflict immense pain on the United States and South Korea even if he would ultimately be defeated. While Seoul and Washington would ultimately prevail, the high costs stemming from North Korean nuclear use should be enough to stop them from attacking Pyongyang.

North Korea hopes that its preemption strategy will create such high risks of a conflict going nuclear that South Korea and the United States will always act cautiously. However, there is another way to respond to preemption: attack even faster. South Korea has leaned into this option with its “Kill Chain” system, which uses precise conventional weapons such as cruise and ballistic missiles to rapidly target North Korea’s leadership before it can give a launch order to nuclear forces. Kill Chain has been in development for several years, but the relatively new Yoon Suk-yeol administration has been particularly vocal about the system in recent months.

North Korea’s nuclear policy law does not mention Kill Chain by name, but it does contain provisions designed to undermine Kill Chain’s effectiveness. The law clearly states that Kim Jong-un has “all decisive powers concerning nuclear weapons” with assistance from other officials in carrying out attack orders. However, in the event of a Kill Chain-like attack against North Korea’s command and control, the new law states “a nuclear strike shall be launched automatically and immediately.” In other words, even if Kill Chain decapitates North Korea’s leadership, it will not be able to fully disable North Korea’s ability to use its nuclear weapons.

It is not clear how North Korea will turn this rhetoric into reality. One approach could involve delegating launch authority to military commanders in the field at some point during a crisis or early in a conflict so that they can fire their weapons if they are cut off from central command. Delegating launch authority would improve survivability against decapitation attacks, but it could also increase the likelihood of units going rogue and using their weapons to threaten North Korea’s leadership.

Taken together, North Korea’s nuclear policy law and South Korea’s Kill Chain system paint a worrying picture for nuclear stability on the Korean peninsula. In a crisis or conflict, both sides would face an incentive to escalate quickly and decisively to preempt the other’s preemption strategy. A nuclear crisis like the one in 2017 does not appear imminent. Hopefully things will stay calm on the Korean peninsula because the next crisis could be even more prone to escalation than the last one.

Several retirement savings bills are currently moving through the House and Senate. Among them is the Enhancing American Retirement Now (EARN) Act, which was introduced earlier in September by Senate Finance Committee Chairman Ron Wyden (D‑OR) and Ranking Member Senator Mike Crapo (R‑ID). The bill offers a mixed bag of policies to amend the private retirement savings system. Among them are three troubling provisions. The bill would:

• Expand the welfare state by increasing eligibility for accounts that circumvent asset tests
• Make the saver’s credit a refundable, matching contribution
• Allow employers to make 401(k) matching contributions based on student loan repayments

The Senate EARN Act is moving alongside related bills, including the (don’t hold your breath) Senate Retirement Improvement and Savings Enhancement to Supplement Healthy Investments for the Nest Egg Act – aka the RISE and SHINE Act – and the House Securing a Strong Retirement Act of 2021.

These bills are a product of a deliberate lobbying process, gently shepherded along by a well-organized group of financial service firms and antipoverty advocates. This combination of moral and financial advocacy makes this a textbook-perfect case of the Bootleggers-and-Baptists-theory in action. No surprise then that there’s chatter on Capitol Hill and in the news media that some combination of these bills has a high chance of passing Congress during this fall’s lame duck session.

Among the range of policies in the Senate EARN Act, to both improve and further complicate the private retirement savings system, there are three outlier provisions that deserve to be called out. The bill would:

Expand the welfare state by increasing eligibility for accounts that circumvent asset tests. I recently wrote on how an amendment in the Senate EARN Act would expand the welfare state by significantly increasing the eligibility age for so-called ABLE accounts, from 26 to 46. Funds in ABLE accounts do not count against Medicaid eligibility, ever, and account owners may accumulate up to $100,000 in assets while still maintaining eligibility for Supplemental Security Income cash benefits. By undermining asset tests, intended to ensure that government welfare benefits go toward individuals with the greatest need, the ABLE Age Adjustment Act amendment will increase means-tested welfare spending and incentivize more individuals to apply for benefits.

Make the saver’s credit a refundable, matching contribution. Another troubling provision in the Senate EARN Act would turn the current saver’s credit, which subsidizes retirement account contributions for individuals with low or moderate incomes, into a refundable savings match. The Senate EARN Act would provide a 50 percent government match for savers, who have no offsetting tax liability, for up to $2,000 per year. An individual that contributed $2,000 to a retirement savings account would receive an additional $1,000 match from federal taxpayers directly into their retirement account. Welfare advocates would much rather see this new cash benefit doled out directly via savers’ tax returns. This way the money could be spent without any strings attached. To address this concern, the EARN Act allows retirement account holders to withdraw $1,000 every three years without repayment, to pay for a wide range of qualifying emergencies. It’s a taxpayer handout for putting money into a retirement account.

Allows employers to make 401(k) matching contributions based on student loan repayments. Perhaps you’ve heard about the unprecedented and sweeping student loan forgiveness by executive order, being carried out by the Biden administration (likely) this fall. My Cato colleague Neal McCluskey has written on how “[college financial] aid almost certainly enable[es] colleges to raise their prices at rates far exceeding normal inflation.” The Senate EARN Act would further subsidize college financial aid by allowing employers to match student loan repayments as if they were 401(k) contributions. When a an employee makes a student loan repayment, they would be able to earn the same 401(k) match from their employer as if they had made a 401(k) contribution. On the surface, this provision will benefit private employers, trying to compete with nonprofits and the government for talent. Working in public service makes students eligible for public service loan forgiveness. If this provision passes, employers would be able to offer candidates, who carry student loans, a boost toward their retirement savings, while the employee pays down their student loan debt. By creating an indirect higher education subsidy, this provision has the potential to further drive up tuition costs.

Private savings are a crucial component of financial security in retirement. The federal government allows for a variety of complex retirement and health care savings vehicles, that are exempt from the double-taxation on regular savings, to encourage individuals to set aside funds for their own future needs. Making private retirement savings easier, especially for lower- and middle-income households, is important to reduce future strain on Social Security. This federal old-age income support program is already on shaky footing.

Instead of the morass of different retirement savings vehicles, with complex rules and regulations, it would be far easier if the federal government allowed for a Universal Savings Account. My Cato colleague, Chris Edwards, has written favorably about these simple, savings-friendly accounts.

Complexity creates jobs for lawyers and consultants, however. So they can help individuals and their employers navigate the maze of government rules and regulations. Nobody wants to run afoul of the IRS’s ire: “I am from the government, and I am here to penalize you for a mistake,” is just about anyone’s worst nightmare. So many employers resort to hiring lawyers and benefit consults ala “Please take my money and help me avoid IRS agents knocking down my door.”

Alas, the private retirement system is likely about to get more complicated, as the welfare state expands, and college tuition receives another cost-inflating subsidy. Bootleggers and Baptists rejoice as taxpayers pay the price.

The Senate Rules Committee will meet later today to conduct a markup on the Electoral Count Reform Act, the bipartisan ECA reform bill from a group of senators led by Susan Collins (R‑ME) and Joe Manchin (D‑WV). This hearing will make several changes to the bill before it goes to the full Senate, all with the support of both the committee’s chair Amy Klobuchar (D‑MN) and ranking member Roy Blunt (R‑MO).



While many of these changes are minor drafting issues and technical fixes, some also address key differences with the Lofgren-Cheney version of ECA reform, passed last week by the House as the Presidential Election Reform Act.



Among these changes is tightening the language for allowing extended voting in presidential elections in case of extreme emergencies. This was one of the main differences with the House bill, which defines such emergencies with much greater specificity. Changing this part of the existing law is seen as important because the current “failed elections” rule is extremely vague. It has been read by some to argue state legislatures could intervene in post-election disputes, possibly even to overturn their state’s election results, rather than as a narrow deadline extension to cover major natural disasters and the like.



To provide some additional limitation in the new rule, today’s amendment inserts the term “force majeure” as an additional qualifier on “extraordinary and catastrophic” events. That tracks with a suggestion Cato colleague Thomas Berry and I discussed in our statement to the Rules Committee analyzing the original ECRA draft:

[The draft ECRA’s change to the failed elections section] is a good step, but the language could be tighter to exclude arguments that allegations of fraud or protracted litigation could qualify as “extraordinary and catastrophic.” One drafting option would be to explicitly invoke the legal concept of force majeure, which is well-defined and provides ample guidance for the courts. 

Other changes announced this morning include language to make explicit that the bill’s expedited judicial procedure for handling a “rogue governor” does not displace other avenues for litigation over election-related matters. This is another change in relation to a point that was addressed more clearly in the House bill. Outside of the narrow and time-sensitive scenario of a governor obstructing the Electoral College process itself, cases of voting rights and equal protection lawsuits would continue to be handled through the regular federal court process.



Related to this point, the updated Senate bill also clarifies the intent that a court ruling on who has been properly certified as a state’s electors will be binding on Congress when they gather in joint session to count the electoral votes.



Other edits include waiving a normal waiting period so the expedited judicial procedure can work as intended, changing Supreme Court appeals in that procedure from mandatory to discretionary, and a minor correction to the congressional rules of procedure to make sure the distinction between “electors” and “electoral votes” is correctly followed.


Some differences from the House bill remain. The Senate bill still has a threshold of one-fifth of both chambers to raise objections to electoral votes, as opposed to one-third in the House version. The Senate bill also remains closer to current ECA on defining the permitted grounds for objections, rather than the House’s enumerated list of specific constitutional reasons. Both bills, however, are still a strong improvement over the status quo, and today’s changes further improve the Senate version. The overlap is substantial on most issues, and the differences between them are relatively small compared to how much both would improve the crisis-prone and hopelessly confusing Electoral Count Act of 1887.



The full Senate will now consider the amended Electoral Count Reform Act, with the intent to get the bill through both chambers and to President Biden’s desk by the end of the year.

My new op-ed in the Examiner looks at the interstate migration of top-earning households. I argue that states such as New York lose a lot when their high taxes drive out top earners, including losing their incomes, investments in startups, and entrepreneurial and charitable activities.

Many states are figuring this out, and my NRO op-ed last week discusses the recent wave of income tax cutting. While the leaders of monopoly Democratic states, such as New York, seem oblivious to the chronic damage their states are suffering from out-migration, leaders in states such as Iowa and Nebraska are doing something about it with pro-growth tax reforms. These issues are discussed in the forthcoming Fiscal Report Card on America’s Governors.

The chart shows something interesting about the interstate migration data, which is available from the IRS. For each state, I calculated the ratio of in-migration to out-migration. States losing households have ratios of less than 1.0, and states gaining households have ratios of more than 1.0. For example, New York gained 147,324 households in 2020 and lost 276,550, for a ratio of 0.53. Meanwhile, Florida gained 337,375 and lost 256,190, for a ratio of 1.32.

The IRS splits out households earning more than $200,000, and I calculated the migration ratios separately for this group. On the chart, each state is a dot. The horizontal axis is the ratio for all households, and the vertical axis is the ratio for households over $200,000. I labeled some of the states gaining and losing the most households.

Here’s what interesting. For the states gaining a lot of households, the ratio for top-earners is always higher than the overall ratio. Florida’s overall ratio is 1.32 but its top-earner ratio is 2.72. So Americans generally like Florida, but top earners super like Florida. This pattern is the same for all the states substantially above the line in the chart, including Arizona, Florida, Idaho, Maine, Montana, and South Carolina.

For states suffering out-migration, it is flipped. New York’s ratio for all households is 0.53, but for top-earning households is 0.33. That means New York gains one household for each two it loses overall, but it gains one household for each three it loses within the top-earning group. This pattern is true for the other large out-migration states—that is, the states on the far left below the line, including Illinois and California.

The out-migration states are doing something to drive out their residents, and those things are particularly toxic to top earners. State policymakers should figure out what those things are and fix them.

I have argued here , here, and here that the commissioner of the Food and Drug Administration (FDA) should exercise his authority to make the overdose antidote naloxone available over the counter (OTC). As long ago as 2016, Karen M. Mahoney, MD, then-Deputy Director of the FDA’s Division of Nonprescription Drug Products, stated that the opioid overdose antidote—approved by the FDA in 1971—was safe and ready to be reclassified as OTC, and encouraged the drug’s manufacturers to apply for reclassification. In 2019, then-FDA Commissioner Scott Gottlieb, MD announced the agency took the unprecedented step of preparing and testing the Drug Facts Label that a move from prescription-only to OTC would require—a task that the drug makers usually must perform. In the announcement, the commissioner practically pleaded with naloxone’s makers to officially apply for a change to OTC status.

Until last Friday, if harm reduction organizations operating syringe services programs needed naloxone to hand out to drug users, they needed to obtain a “standing order” prescription from a state-licensed health care practitioner. A standing order usually expires after one year. It instructs pharmacists throughout the state to dispense a drug—in this case naloxone—to any people who request it, under the authority of the prescriber, who assumes responsibility for the action. States have permitted and encouraged standing orders to work around the prescription-only status of naloxone.

Now the FDA has taken another step toward removing the prescription-only obstacle. On September 23, the FDA issued a statement that permits, as an emergency measure, harm reduction organizations to purchase naloxone in bulk without a prescription and to distribute it to their clients.

Writing in the harm reduction publication Filter, Kastalia Medrano states:

Naloxone is still a prescription drug. But this guidance circumvents, in one fell swoop, the entire bureaucratic patchwork of state-level regulations that have long prevented most harm reduction groups from wholesale distribution. The high-threshold requirements included having a unique DEA-licensed prescriber and commercial shipping address, and administrative barriers so cumbersome most groups couldn’t even accept naloxone donated by manufacturers for free.

As I have pointed out before, the FDA commissioner need not wait for a formal request from the naloxone makers to reclassify the drug OTC. The commissioner has the legal authority to order naloxone reclassified over-the-counter.

Naloxone manufacturers lack the incentive to apply for a change in the drug’s status to over-the-counter status. They can charge third party payers a much higher price than they might otherwise get away with if the drug was available without a prescription. In our white paper, “Drug Reformation: End Government’s Power to Require Prescriptions,” Michael Cannon and I point out that prices generally drop when drugs move from prescription-only to over-the-counter.

With the new FDA policy announced September 23, the agency can no longer justify further delaying making naloxone available over the counter not only to harm reduction organizations, but to any individual who wishes to obtain it.

Food prices in the United States are rising at the fastest rate in decades, and many policymakers want to respond. Increasing the number of legal foreign workers available to farms would increase food production and lower prices for consumers. The H‑2A program that allows farmers to hire foreign workers has no cap. Instead, Department of Labor (DOL) H‑2A minimum wage rules limit the number of workers hired and so reduce food production, which increases food inflation.

The Farm Workforce Modernization Act (H.R. 1603)—which passed the House of Representatives last year and is waiting for Senate action—reforms the H‑2A minimum wage rules to allow more foreign workers to harvest more crops on U.S. farms. This would be particularly important for crops with the highest cost of labor, such as fruits and vegetables, which account for about 60 percent of all H‑2A workers. This legislation could have some significant effects on this important problem:

• Food prices have increased 11.4 percent over the last year—the fastest rate in over 4 decades.
• H‑2A labor costs are increasing much faster than labor costs elsewhere.
• Agricultural unemployment reached 3.1 percent this summer.
• Low unemployment has driven 20-percent increases in the H‑2A program in 2021 and 2022.
• Increasing H‑2A costs alongside greater participation means that H‑2A wages are on pace to double by 2024 and make up over 29 percent of all farm labor costs.
• The Farm Workforce Modernization Act would reduce labor costs for H‑2A farms by about $1 billion in the first year and $1.8 billion in the second, which would result in many more workers being hired, more productivity, and lower prices for consumers.

Food Inflation Is Rising Alongside Increases in H‑2A Costs

Figure 1 graphs the scope of the food inflation problem. In four decades, the year-over-year increase in the Consumer Price Index for food has never gone far beyond 6 percent. In August 2022, it reached an astounding 11.4 percent—four times the average from 1982 to 2020 and nearly double the peak during that period. Unfortunately, it is showing no signs of letting up. Every possible effort must be made to reduce food costs because it eats up 10 percent of Americans’ disposable income, and it was 27 percent of total income for lower-income Americans.

The DOL assigns each state an H‑2A minimum wage—known as the Adverse Effect Wage Rate (AEWR)—which sets the wage that employers must offer to U.S. workers before hiring H‑2A workers and which must be paid to H‑2A workers. Right now, the H‑2A AEWR is based on the regional average wage paid to field and livestock workers reported in the Farm Labor Survey from the U.S. Department of Agriculture (USDA). DOL’s use of this survey is highly problematic because its methodology effectively guarantees continuous increases in the AEWR. Here is why:

DOL adjusts the AEWR annually based on a survey and uniquely classifies overtime, hazard pay, bonuses, performance incentives, and all other payments as wages. This inflates the base hourly rate before adding these types of extra compensation for the following year. This inflated average rate then applies to all workers, pricing out H‑2A and U.S. workers who had below-average wages. When these workers drop out, the surveyed wage is artificially inflated even further.

Partly because of these procedures, the H‑2A AEWR has increased much faster than the increase in the Employment Cost Index—which measures changes in the cost of employment nationwide. From 2006 to 2022, the nominal AEWR (the average of state AEWRs) increased 71 percent compared to 52 percent in the Employment Cost Index (Figure 2). In other words, the AEWR is having its intended effect of raising the price for farm labor faster than the price for labor generally.

These additional H‑2A labor costs are now important more than ever because the H‑2A program is growing rapidly. From 2011 to 2022, the number of certified H‑2A positions has increased from about 90,000 to nearly 380,000 (Figure 3). Farmers attempting to receive H‑2A workers must also offer U.S. workers the AEWR, and the number of U.S. workers subject to H‑2A contract was nearly 100,000, meaning that nearly half a million farm workers in 2022 were covered by the AEWR. The H‑2A program is growing rapidly at a rate of more than 20 percent per year from 2020 to 2022, and it is showing no signs of slowing down. With the very low unemployment rate in agriculture, it is likely that this growth rate continues, and the number of workers under H‑2A contracts will approach 690,000 by 2024.

The H‑2A program in 2022 covered wage contracts worth nearly $7 billion—already a nominal increase of nearly $2.5 billion over 2020. Given the increases in the AEWR and growth in workers, the amount of H‑2A wage contracts will almost certainly exceed $8.7 billion in 2023 and likely reach $11.3 billion by 2024. These projections assume that the number of workers keeps growing at its current 20-percent pace, and the AEWR grows at a projected 8 percent (which is the current year-over-year growth rate for the average wage in the Farm Labor Survey as of May). Figure 4 shows the astounding increase in H‑2A wage expenditures from 2006 to 2022 (with projections for 2023 and 2024 based on current trends).

Also, these growing expenditures also mean that the H‑2A wages now make up a much larger proportion of total labor expenditures for U.S. farms overall. H‑2A wages hit about 19 percent of all farm labor expenses in 2022 and would reach 29 percent of all labor expenses by 2024 if current trends continue (including the trend for overall increases in farm labor expenses). This means that the AEWR is having a powerful influence on the cost of food production in the United States, and its importance will grow much larger in the next two years.

How the Farm Workforce Modernization Act Would Help

The Farm Workforce Modernization Act (H.R. 1603) would put the brakes on AEWR increases by first freezing the AEWR for the next year (2023) and then capping increases at 3.25 percent for nine years after that. Given the fact that the AEWR is likely to increase by about 8 percent in 2023, the 3.25 percent cap will effectively be the new AEWR from that point forward. Using the projections of the AEWR and number of workers described in Figure 3, the bill’s new rules would have the effect of reducing H‑2A wage expenditures by nearly $2.8 billion over 2022 to 2024—$1 billion in 2023 and by nearly $1.8 billion in 2024. The savings are higher in 2024 than 2023 because the projection assumes both a 20 percent increase in workers and an increase in the AEWR of 8 percent in each year. The savings in later years would also likely grow. Florida farmers would see the largest savings of nearly $337 million over two years. 

The scale of this estimate is most sensitive to the assumption about the growth in the number of H‑2A workers. The estimate of 20-percent growth used in this post is based on the growth rate for 2020 to 2022. Given the low unemployment rate and the increasing demand for agricultural products, it is reasonable to expect this trend to continue regardless, but the Farm Workforce Modernization Act actually contains several provisions that could cause even more farms to use the H‑2A program.

First, the bill streamlines the approval process in important ways, such as by creating a single filing portal to replace multiple applications and eliminating duplicative application reviews by different agencies. Second, it expands the program to year-round farm jobs like those on dairies. These jobs would have a cap of 20,000 in 2023 and up to 22,500 in 2024 (so up to 42,500 cumulatively would be working in 2024), but the cap could be waived for severe shortages. Without getting into every provision, the legislation is deregulatory beyond just the wage provisions, making it highly likely that the program continues to expand with its passage.

Conclusion

The agricultural products market is highly competitive, and wage savings would benefit both farms and consumers. Farmers would likely spend the same amount on labor but could hire about 125,000 additional workers to increase production. Under the Farm Workforce Modernization Act, farm productivity would increase by more than the $1.8 billion in savings on labor, which would expand the supply of goods and result in a proportional decline in prices for food consumers.

In New Jersey, a pending lawsuit seeks to overturn the state’s ban on fusion voting: the practice where two or more parties nominate the same candidate, who then appears on the ballot as the nominee of multiple parties, with all of the votes cast for that candidate combined to determine the winner of the election. The case for allowing fusion is interesting in and of itself, but also at stake is a broader First Amendment principle.



Fusion nominations were once common in American politics. Before his tenure as chief justice, Earl Warren was re-elected as governor of California in 1946 as the simultaneous nominee of both the Republican and Democratic parties. But more commonly, fusion allowed third parties to grow in influence and support by selectively endorsing major-party candidates.



In the 19th century, fusion allowed growing third-party movements to form alliances with the weaker of the two major parties in a state, challenging the dominant party, often to good effect. In the 1890s, the Democratic stranglehold on the post-Reconstruction, Jim Crow-era Deep South was broken for a time in North Carolina, bringing to power a biracial fusion coalition of Republicans and Populists. After the Democrats regained power in 1898, explicitly campaigning on a platform of white supremacy, ending fusion went hand-in-hand with systematically disenfranchising black voters.

Across the country, fusion voting was used successfully by parties like the Greenbacks, Populists, and later the Progressives. In some states, these parties became so influential and successful that they eventually merged into one of the two major parties. This is why, to this day, Minnesota Democrats run under the banner of “Democratic-Farmer-Labor,” born of a merger between Democrats and the Farmer-Labor Party after the latter achieved substantial success with a mix of both fusion and non-fusion candidates.



The prohibition of fusion played a major role in the decline of third parties in the United States after decades in which they had played a significant role and frequently elected governors, state legislators, and members of Congress. Instead, the end of fusion relegated third parties to mostly running protest candidates and usually receiving an insubstantial percentage of the vote. American politics was always dominated by two major parties, but the end of fusion ushered in the modern era of having the world’s strictest and most exclusive two-party system. Today, the United States is the only major democracy with just two parties represented in its national legislature. Even for lower offices, successful third-party candidates are few and far between. 



Only a handful of states still permit fusion, and several of those only allow it under very narrow and difficult circumstances, like winning a party’s primary by write-in votes. The states that do still permit traditional fusion are also the home of the most electorally successful third parties, such as the Working Families Party in New York and other states, and the Vermont Progressive Party, both of which routinely elect members to the state legislature and even statewide offices. Fusion also allows minor parties to grow and attract support so that, when they choose, they can also mount credible non-fusion campaigns.



In an age of hyper-polarization, restoring fusion offers an important way to break up the strict duopoly of American politics. That’s the goal of the lawsuit in New Jersey, on behalf of a new Moderate Party which would like to selectively cross-endorse both Republicans and Democrats to provide an electoral advantage and base of support to more centrist politicians. Other fusion parties represent views more to the right or left of one of the major parties, allowing a fusion nomination on the ballot to reflect an important signal and political leverage for their voters. That was the case for both the Liberal Party and the Conservative Party, which have since declined but for much of the 20th century played an important role in New York politics, electing both fusion and non-fusion nominees to major offices. 



Aside from its merits as an electoral reform, alongside other options such as ranked choice voting and proportional representation, the case against state laws banning fusion is rooted in the First Amendment. As the Supreme Court has repeatedly affirmed, political parties are engaged in core First Amendment activity: political speech and organizing. The Court has also held that parties have a First Amendment right to handle their internal affairs as they see fit and to nominate the candidate of their choice. Laws which burden a political party’s freedom and limit ballot access for candidates must, therefore, survive First Amendment scrutiny.



In general, that means restrictions on ballot access (that is, the ability of candidates to appear on the ballot) must be justified by a legitimate, compelling state interest and be narrowly tailored to meeting that goal. Laws requiring a certain number of petition signatures for candidates, for example, serve the interest of avoiding a cluttered ballot and possible voter confusion. For that reason, the courts have upheld such laws so long as they are not too restrictive and do not impose excessive burdens (an amorphous and frequently litigated standard). States are also allowed to restrict parties from using ballot labels that are confusingly similar to another party’s name, e.g. “Republic” in contrast to “Republican,” or the use of the word “Independent” in a party name when that label is already used to designate candidates without any party affiliation.



Unfortunately, the Court has sometimes strayed from this principle. In 1997, in Timmons v. Twin Cities Area New Party, Chief Justice Rehnquist upheld Minnesota’s ban on fusion in an opinion holding, for the first time, that perpetuating the two-party system is in and of itself a legitimate state interest justifying restrictions on the First Amendment rights of political parties. 



This holding is at odds with the general principle that such restrictions must be content and viewpoint-neutral. The proposition that a two-party system is preferable to a multi-party system is a defensible view, one held by many Americans. But it is plainly a question that is open for debate and the opposite view is not uncommon. To uphold a ban on fusion on this basis is endorsing the idea that the government can pick one side of that debate, favoring its proponents and imposing restrictions on the speech and association rights of its opponents. A political party should not be prohibited from nominating the eligible candidate of its choice just because the government does not like a specific political opinion.



Challenging the Timmons precedent is a worthwhile endeavor, even for those who have little interest in relatively arcane election law issues such as fusion voting and ballot access. States are free to maintain electoral systems such as first-past-the-post and single-member districts which, in practice, incentivize a political ecosystem dominated by two major parties. But they should not be able to directly impinge on First Amendment rights of third parties for no other reason than a desire to protect Republicans and Democrats from competition. Doing so violates the fundamental principles of government neutrality which are deeply embedded in First Amendment law. Correcting that error is long overdue and would represent an important opportunity to strengthen First Amendment neutrality jurisprudence more broadly.



[Ed.: A previous version of this post said that Earl Warren was the Republican, Democratic, and Progressive nominee in the 1946 California gubernatorial election. The Progressive Party by this time was not on the ballot in California, and so Warren only appeared as the nominee of both the Republicans and the Democrats. Thanks to Richard Winger of Ballot Access News for the correction].