The Illinois Governor issued an executive order instituting a
hiring freeze, whereby state officials are prohibited from hiring
any employee, filling any vacancy, creating any new position, or
taking any similar action without the Governor's "express
permission." Petitioners and cross-respondents -- an applicant for
employment, employees who had been denied promotions or transfers,
and former employees who had not been recalled after layoffs --
brought suit in the District Court, alleging that, by means of the
freeze, the Governor was operating a political patronage system;
that they had suffered discrimination in state employment because
they had not been Republican Party supporters; and that this
discrimination violates the First Amendment. The District Court
dismissed the complaint for failure to state a claim upon which
relief could be granted. The Court of Appeals affirmed in part and
reversed in part. Noting that
Elrod v. Burns, 427 U.
S. 347, and
Branti v. Finkel, 445 U.
S. 507, had found that the patronage practice of
discharging public employees on the basis of their political
affiliation violates the First Amendment, the court held that other
patronage practices violate the Amendment only when they are the
"substantial equivalent of a dismissal,"
i.e., when they
would lead reasonable persons to resign. The court concluded, based
on
Wygant v. Jackson Bd. of Education, 476 U.
S. 267, that rejecting an employment application did not
impose a hardship comparable to the loss of a job. Thus, it
dismissed the hiring claim, but remanded the others for further
proceedings.
Held: The rule of
Elrod and
Branti
extends to promotion, transfer, recall, and hiring decisions based
on party affiliation and support, and petitioners and
cross-respondents have stated claims upon which relief may be
granted. Pp.
497 U. S.
68-79.
(a) Promotions, transfers, and recalls based on political
affiliation or support are an impermissible infringement on public
employees' First Amendment rights. Even though petitioners and
cross-respondents
Page 497 U. S. 63
have no legal entitlement to the promotions, transfers, and
recalls, the government may not rely on a basis that infringes
their constitutionally protected interests to deny them these
valuable benefits.
Perry v. Sindermann, 408 U.
S. 593,
408 U. S. 597.
Significant penalties are imposed on those employees who exercise
their First Amendment rights. Those who do not compromise their
beliefs stand to lose the considerable increases in pay and job
satisfaction attendant to promotions, the shorter commuting hours
and lower maintenance expenses incident to transfers to more
convenient work locations, and even the jobs themselves in the case
of recalls. As in
Elrod and
Branti, these
patronage practices are not narrowly tailored to serve vital
government interests. A government's interest in securing effective
employees can be met by discharging, demoting, or transferring
persons whose work is deficient, and its interest in securing
employees who will loyally implement its policies can be adequately
served by choosing or dismissing high-level employees on the basis
of their political views. Likewise, the "preservation of the
democratic process" is not furthered by these patronage decisions,
since political parties are nurtured by other less intrusive and
equally effective methods, and since patronage decidedly impairs
the elective process by discouraging public employees' free
political expression. Pp.
497 U. S.
71-75.
(b) The standard used by the Court of Appeals to measure alleged
patronage practices in government employment is unduly restrictive
because it fails to recognize that there are deprivations less
harsh than dismissal that nevertheless press state employees and
applicants to conform their beliefs and associations to some
state-selected orthdoxy. Pp.
497 U. S.
75-76.
(c) Patronage hiring places burdens on free speech and
association similar to those imposed by patronage promotions,
transfers, and recalls. Denial of a state job is a serious
privation, since such jobs provide financial, health, and other
benefits; since there may be openings with the State when business
in the private sector is slow; and since there are occupations for
which the government is the sole or major employer. Under this
Court's sustained precedent, conditioning hiring decisions on
political belief and association plainly constitutes an
unconstitutional condition unless the government has a vital
interest in doing so.
See, e.g., Branti, supra, 445 U.S.
at
445 U. S.
515-516. There is no such government interest here, for
the same reasons that the government lacks justification for
patronage promotions, transfers, and recalls. It is inappropriate
to rely on
Wygant to distinguish hiring from dismissal in
this context, since that case was concerned with the least harsh
means of remedying past wrongs, and did not question that some
remedy was permissible when there was sufficient evidence of past
discrimination. Here, however, it is unnecessary to consider
whether not being hired is less burdensome
Page 497 U. S. 64
than being discharged, because the government is not pressed to
do either on the basis of political affiliation. Pp.
497 U. S.
76-79.
868 F.2d 943 (CA7 1989), affirmed in part, reversed in part, and
remanded.
BRENNAN, J., delivered the opinion of the Court, in which WHITE,
MARSHALL, BLACKMUN, and STEVENS, JJ., joined. STEVENS, J., filed a
concurring opinion,
post, p.
497 U. S. 79.
SCALIA, J., filed a dissenting opinion in which REHNQUIST, C.J.,
and KENNEDY, J., joined, and in which O'CONNOR, J., joined as to
Parts II and III,
post, p.
497 U. S.
92.
Justice BRENNAN delivered the opinion of the Court.
To the victor belong only those spoils that may be
constitutionally obtained.
Elrod v. Burns, 427 U.
S. 347 (1976), and
Branti v. Finkel,
445 U. S. 507
(1980), decided that the First Amendment forbids government
officials to discharge or threaten to discharge public employees
solely for not being supporters of the political party in power,
unless party affiliation is an appropriate requirement for the
position involved.
Page 497 U. S. 65
Today we are asked to decide the constitutionality of several
related political patronage practices -- whether promotion,
transfer, recall, and hiring decisions involving low-level public
employees may be constitutionally based on party affiliation and
support. We hold that they may not.
I
The petition and cross-petition before us arise from a lawsuit
protesting certain employment policies and practices instituted by
Governor James Thompson of Illinois. [
Footnote 1] On November 12, 1980, the Governor issued an
executive order proclaiming a hiring freeze for every agency,
bureau, board, or commission subject to his control. The order
prohibits state officials from hiring any employee, filling any
vacancy, creating any new position, or taking any similar action.
It affects approximately 60,000 state positions. More than 5,000 of
these become available each year as a result of resignations,
retirements, deaths, expansion, and reorganizations. The order
proclaims that "
no exceptions" are permitted without the
Governor's "express permission after submission of appropriate
requests to [his] office." Governor's Executive Order No. 5 (Nov.
12, 1980), Brief for Petitioners 11 (emphasis added).
Page 497 U. S. 66
Requests for the Governor's "express permission" have allegedly
become routine. Permission has been granted or withheld through an
agency expressly created for this purpose, the Governor's Office of
Personnel (Governor's Office). Agencies have been screening
applicants under Illinois' civil service system, making their
personnel choices, and submitting them as requests to be approved
or disapproved by the Governor's Office. Among the employment
decisions for which approvals have been required are new hires,
promotions, transfers, and recalls after layoffs.
By means of the freeze, according to petitioners, the Governor
has been using the Governor's Office to operate a political
patronage system to limit state employment and beneficial
employment-related decisions to those who are supported by the
Republican Party. In reviewing an agency's request that a
particular applicant be approved for a particular position, the
Governor's Office has looked at whether the applicant voted in
Republican primaries in past election years, whether the applicant
has provided financial or other support to the Republican Party and
its candidates, whether the applicant has promised to join and work
for the Republican Party in the future, and whether the applicant
has the support of Republican Party officials at state or local
levels.
Five people (including the three petitioners) brought suit
against various Illinois and Republican Party officials in the
United States District Court for the Central District of Illinois.
[
Footnote 2] They alleged that
they had suffered discrimination with respect to state employment
because they had not been supporters of the State's Republican
Party and that this discrimination violates the First Amendment.
Cynthia B.
Page 497 U. S. 67
Rutan has been working for the State since 1974 as a
rehabilitation counselor. She claims that, since 1981, she has been
repeatedly denied promotions to supervisory positions for which she
was qualified because she had not worked for or supported the
Republican Party. Franklin Taylor, who operates road equipment for
the Illinois Department of Transportation, claims that he was
denied a promotion in 1983 because he did not have the support of
the local Republican Party. Taylor also maintains that he was
denied a transfer to an office nearer to his home because of
opposition from the Republican Party chairmen in the counties in
which he worked and to which he requested a transfer. James W.
Moore claims that he has been repeatedly denied state employment as
a prison guard because he did not have the support of Republican
Party officials.
The two other plaintiffs, before the Court as cross-respondents,
allege that they were not recalled after layoffs because they
lacked Republican credentials. Ricky Standefer was a state garage
worker who claims that he was not recalled, although his fellow
employees were, because he had voted in a Democratic primary and
did not have the support of the Republican Party. Dan O'Brien,
formerly a dietary manager with the mental health department,
contends that he was not recalled after a layoff because of his
party affiliation, and that he later obtained a lower-paying
position with the corrections department only after receiving
support from the chairman of the local Republican Party.
The District Court dismissed the complaint with prejudice, under
Federal Rule of Civil Procedure 12(b)(6), for failure to state a
claim upon which relief could be granted.
641 F.
Supp. 249 (CD Ill.1986). The United States Court of Appeals for
the Seventh Circuit initially issued a panel opinion, 848 F.2d 1396
(1988), but then reheard the appeal en banc. The court affirmed the
District Court's decision in part and reversed in part. 868 F.2d
943 (1989). Noting that this Court had previously determined that
the patronage practice of discharging
Page 497 U. S. 68
public employees on the basis of their political affiliation
violates the First Amendment, the Court of Appeals held that other
patronage practices violate the First Amendment only when they are
the "substantial equivalent of a dismissal."
Id. at 954.
The court explained that an employment decision is equivalent to a
dismissal when it is one that would lead a reasonable person to
resign.
Id. at 955. The court affirmed the dismissal of
Moore's claim because it found that basing hiring decisions on
political affiliation does not violate the First Amendment, but
remanded the remaining claims for further proceedings. [
Footnote 3]
Rutan, Taylor, and Moore petitioned this Court to review the
constitutional standard set forth by the Seventh Circuit and the
dismissal of Moore's claim. Respondents cross-petitioned this
Court, contending that the Seventh Circuit's remand of four of the
five claims was improper because the employment decisions alleged
here do not, as a matter of law, violate the First Amendment. We
granted certiorari, 493 U.S. 807 (1989), to decide the important
question whether the First Amendment's proscription of patronage
dismissals recognized in
Elrod, 427 U.
S. 347 (1976), and
Branti, 445 U.
S. 507 (1980), extends to promotion, transfer, recall,
or hiring decisions involving public employment positions for which
party affiliation is not an appropriate requirement.
II
A
In
Elrod, supra, we decided that a newly elected
Democratic sheriff could not constitutionally engage in the
patronage practice of replacing certain office staff with members
of
Page 497 U. S. 69
his own party "when the existing employees lack or fail to
obtain requisite support from, or fail to affiliate with, that
party."
Id., 427 U.S. at
427 U. S. 351,
and
427 U. S. 373
(plurality opinion) and
427 U. S. 375
(Stewart, J., with BLACKMUN, J., concurring in judgment). The
plurality explained that conditioning public employment on the
provision of support for the favored political party
"unquestionably inhibits protected belief and association."
Id. at
427 U. S. 359.
It reasoned that conditioning employment on political activity
pressures employees to pledge political allegiance to a party with
which they prefer not to associate, to work for the election of
political candidates they do not support, and to contribute money
to be used to further policies with which they do not agree. The
latter, the plurality noted, had been recognized by this Court as
"tantamount to coerced belief."
Id., 427 U.S. at
427 U. S. 355
(citing
Buckley v. Valeo, 424 U. S.
1,
424 U. S. 19
(1976)). At the same time, employees are constrained from joining,
working for or contributing to the political party and candidates
of their own choice.
Elrod, supra, 427 U.S. at
427 U. S.
355-356. "[P]olitical belief and association constitute
the core of those activities protected by the First Amendment," the
plurality emphasized. 427 U.S. at
427 U. S. 356.
Both the plurality and the concurrence drew support from
Perry
v. Sindermann, 408 U. S. 593
(1972), in which this Court held that the State's refusal to renew
a teacher's contract because he had been publicly critical of its
policies imposed an unconstitutional condition on the receipt of a
public benefit.
See Elrod, supra, 427 U.S. at
427 U. S. 359
(plurality opinion) and
427 U. S. 375
(Stewart, J., concurring in judgment);
see also Branti,
supra, 445 U.S. at
445 U. S.
514-516.
The Court then decided that the government interests generally
asserted in support of patronage fail to justify this burden on
First Amendment rights because patronage dismissals are not the
least restrictive means for fostering those interests.
See
Elrod, supra, 427 U.S. at
427 U. S.
372-373 (plurality opinion) and 375 (Stewart, J.,
concurring in judgment). The plurality acknowledged that a
government has a significant interest in ensuring that it has
effective and efficient employees. It expressed
Page 497 U. S. 70
doubt, however, that "mere difference of political persuasion
motivates poor performance," and concluded that, in any case, the
government can ensure employee effectiveness and efficiency through
the less drastic means of discharging staff members whose work is
inadequate. 427 U.S. at
427 U. S.
365-366. The plurality also found that a government can
meet its need for politically loyal employees to implement its
policies by the less intrusive measure of dismissing, on political
grounds, only those employees in policymaking positions.
Id. at
427 U. S. 367.
Finally, although the plurality recognized that preservation of the
democratic process "may in some instances justify limitations on
First Amendment freedoms," it concluded that the "process functions
as well without the practice, perhaps even better." Patronage, it
explained, "can result in the entrenchment of one or a few parties
to the exclusion of others," and
"is a very effective impediment to the associational and speech
freedoms which are essential to a meaningful system of democratic
government."
Id. at
427 U. S.
368-370. [
Footnote
4]
Page 497 U. S. 71
Four years later, in
Branti, supra, we decided that the
First Amendment prohibited a newly appointed public defender, who
was a Democrat, from discharging assistant public defenders because
they did not have the support of the Democratic Party. The Court
rejected an attempt to distinguish the case from
Elrod,
deciding that it was immaterial whether the public defender had
attempted to coerce employees to change political parties or had
only dismissed them on the basis of their private political
beliefs. We explained that conditioning continued public employment
on an employee's having obtained support from a particular
political party violates the First Amendment because of "the
coercion of belief that necessarily flows from the knowledge that
one must have a sponsor in the dominant party in order to retain
one's job." 445 U.S. at
445 U. S. 516.
"In sum," we said,
"there is no requirement that dismissed employees prove that
they, or other employees, have been coerced into changing, either
actually or ostensibly, their political allegiance."
Id. at
445 U. S. 517.
To prevail, we concluded, public employees need show only that they
were discharged because they were not affiliated with or sponsored
by the Democratic Party.
Ibid. [
Footnote 5]
B
We first address the claims of the four current or former
employees. Respondents urge us to view
Elrod and
Branti
Page 497 U. S. 72
as inapplicable because the patronage dismissals at issue in
those cases are different in kind from failure to promote, failure
to transfer, and failure to recall after layoff. Respondents
initially contend that the employee petitioners' First Amendment
rights have not been infringed, because they have no entitlement to
promotion, transfer, or rehire. We rejected just such an argument
in
Elrod, 427 U.S. at
427 U. S.
359-360 (plurality opinion) and
427 U. S. 375
(Stewart, J., concurring in judgment), and
Branti, 445
U.S. at
445 U. S.
514-515, as both cases involved state workers who were
employees at will, with no legal entitlement to continued
employment. In
Perry, 408 U.S. at
408 U. S.
596-598, we held explicitly that the plaintiff teacher's
lack of a contractual or tenure right to reemployment was
immaterial to his First Amendment claim. We explained the viability
of his First Amendment claim as follows:
"For at least a quarter-century, this Court has made clear that,
even though a person has no 'right' to a valuable governmental
benefit, and even though the government may deny him the benefit
for any number of reasons,
there are some reasons upon which
the government may not rely. It may not deny a benefit to a person
on a basis that infringes his constitutionally protected interests
-- especially, his interest in freedom of speech. For if the
government could deny a benefit to a person because of his
constitutionally protected speech or associations, his exercise of
those freedoms would in effect be penalized and inhibited. This
would allow the government to 'produce a result which [it] could
not command directly.'
Speiser v. Randall, 357 U. S.
513,
357 U. S. 526. Such
interference with constitutional rights is impermissible."
Perry, id., 408 U.S. at
408 U. S. 597
(emphasis added).
Likewise, we find the assertion here that the employee
petitioners had no legal entitlement to promotion, transfer, or
recall beside the point.
Page 497 U. S. 73
Respondents next argue that the employment decisions at issue
here do not violate the First Amendment because the decisions are
not punitive, do not in any way adversely affect the terms of
employment, and therefore do not chill the exercise of protected
belief and association by public employees. [
Footnote 6] This is not credible. Employees who
find themselves in dead-end positions due to their political
backgrounds are adversely affected. They will feel a significant
obligation to support political positions held by their superiors,
and to refrain from acting on the political views they actually
hold, in order to progress up the career ladder. Employees denied
transfers to workplaces reasonably close to their homes until they
join and work for the Republican Party will feel a daily pressure
from their long commutes to do so. And employees who have been laid
off may well feel compelled to engage in whatever political
activity is necessary to regain regular paychecks and positions
corresponding to their skill and experience. [
Footnote 7]
Page 497 U. S. 74
The same First Amendment concerns that underlay our decisions in
Elrod, supra, and
Branti, supra, are implicated
here. Employees who do not compromise their beliefs stand to lose
the considerable increases in pay and job satisfaction attendant to
promotions, the hours and maintenance expenses that are consumed by
long daily commutes, and even their jobs if they are not rehired
after a "temporary" layoff. These are significant penalties, and
are imposed for the exercise of rights guaranteed by the First
Amendment. Unless these patronage practices are narrowly tailored
to further vital government interests, we must conclude that they
impermissibly encroach on First Amendment freedoms.
See Elrod,
supra, 427 U.S. at
427 U. S.
362-363 (plurality opinion) and
427 U. S. 375
(Stewart, J., concurring in judgment);
Branti, supra, 445
U.S. at
445 U. S.
515-516.
We find, however, that our conclusions in
Elrod, supra,
and
Branti, supra, are equally applicable to the patronage
practices at issue here. A government's interest in securing
effective employees can be met by discharging, demoting or
transferring staff members whose work is deficient. A government's
interest in securing employees who will loyally implement its
policies can be adequately served by choosing or dismissing certain
high-level employees on the basis of their political views.
See
Elrod, supra, 427 U.S. at
427 U. S.
365-368;
Branti, supra, 445 U.S. at
445 U. S. 518,
and 9445 U.S. 520520, n. 14. Likewise, the "preservation of the
democratic process" is no more furthered by the patronage
promotions, transfers, and rehires at issue here than it is by
patronage dismissals. First, "political parties are nurtured by
other less intrusive and equally effective methods."
Elrod,
supra, 427 U.S. at
427 U. S.
372-373. Political parties have already survived the
substantial decline in patronage employment practices in this
century.
See Elrod, 427 U.S. at
427 U. S. 369,
and n. 23;
see also L. Sabato, Goodbye to Good-time
Charlie 67 (2d ed. 1983) ("The number of patronage positions has
significantly decreased in virtually every state"); Congressional
Quarterly Inc., State Government,
Page 497 U. S. 75
CQ's Guide to Current Issues and Activities 134 (T. Beyle ed.
1989-1990) ("Linkage[s] between political parties and government
office-holding . . . have died out under the pressures of varying
forces [including] the declining influence of election workers when
compared to media and money-intensive campaigning, such as the
distribution of form letters and advertising"); Sorauf, Patronage
and Party, 3 Midwest J.Pol.Sci. 115, 118-120 (1959) (many state and
local parties have thrived without a patronage system). Second,
patronage decidedly impairs the elective process by discouraging
free political expression by public employees.
See Elrod,
427 U.S. at
427 U. S. 372
(explaining that the proper functioning of a democratic system "is
indispensably dependent on the unfettered judgment of each citizen
on matters of political concern"). Respondents, who include the
Governor of Illinois and other state officials, do not suggest any
other overriding government interest in favoring Republican Party
supporters for promotion, transfer, and rehire.
We therefore determine that promotions, transfers, and recalls
after layoffs based on political affiliation or support are an
impermissible infringement on the First Amendment rights of public
employees. In doing so, we reject the Seventh Circuit's view of the
appropriate constitutional standard by which to measure alleged
patronage practices in government employment. The Seventh Circuit
proposed that only those employment decisions that are the
"substantial equivalent of a dismissal" violate a public employee's
rights under the First Amendment. 868 F.2d at 954-957. We find this
test unduly restrictive, because it fails to recognize that there
are deprivations less harsh than dismissal that nevertheless press
state employees and applicants to conform their beliefs and
associations to some state-selected orthodoxy.
See Elrod,
supra, 427 U.S. at
427 U. S.
356-357 (plurality opinion);
West Virginia Bd. of
Education v. Barnette, 319 U. S. 624,
319 U. S. 642
(1943). [
Footnote 8]
Page 497 U. S. 76
The First Amendment is not a tenure provision, protecting public
employees from actual or constructive discharge. The First
Amendment prevents the government, except in the most compelling
circumstances, from wielding its power to interfere with its
employees' freedom to believe and associate, or to not believe and
not associate.
Whether the four employees were in fact denied promotions,
transfers, or rehire for failure to affiliate with and support the
Republican Party is for the District Court to decide in the first
instance. What we decide today is that such denials are
irreconcilable with the Constitution, and that the allegations of
the four employees state claims under 42 U.S.C. § 1983 (1982 ed.)
for violations of the First and Fourteenth Amendments. Therefore,
although we affirm the Seventh Circuit's judgment to reverse the
District Court's dismissal of these claims and remand them for
further proceedings, we do not adopt the Seventh Circuit's
reasoning.
C
Petitioner James W. Moore presents the closely related question
whether patronage hiring violates the First Amendment.
Page 497 U. S. 77
Patronage hiring places burdens on free speech and association
similar to those imposed by the patronage practices discussed
above. A state job is valuable. Like most employment, it provides
regular paychecks, health insurance, and other benefits. In
addition, there may be openings with the State when business in the
private sector is slow. There are also occupations for which the
government is a major (or the only) source of employment, such as
social workers, elementary school teachers, and prison guards.
Thus, denial of a state job is a serious privation.
Nonetheless, respondents contend that the burden imposed is not
of constitutional magnitude. [
Footnote 9] Decades of decisions by this Court belie such
a claim. We premised
Torcaso v. Watkins, 367 U.
S. 488 (1961), on our understanding that loss of a job
opportunity for failure to compromise one's convictions states a
constitutional claim. We held that Maryland could not refuse an
appointee a commission for the position of notary public on the
ground that he refused to declare his belief in God, because the
required oath "unconstitutionally invades the appellant's freedom
of belief and religion."
Id. at
367 U. S. 496.
In
Keyishian v. Board of Regents of Univ. of New York,
385 U. S. 589,
385 U. S.
609-610 (1967), we held a law affecting appointment and
retention of teachers invalid because it premised employment on an
unconstitutional restriction of political belief and association.
In
Elfbrandt v. Russell, 384 U. S. 11,
384 U. S. 19
(1966), we struck down a loyalty oath which was a prerequisite for
public employment.
Almost half a century ago, this Court made clear that the
government "may not enact a regulation providing that no Republican
. . . shall be appointed to federal office."
Public Workers v.
Mitchell, 330 U. S. 75,
330 U. S. 100
(1947). What the
Page 497 U. S. 78
First Amendment precludes the government from commanding
directly, it also precludes the government from accomplishing
indirectly.
See Perry, 408 U.S. at
408 U. S. 597
(citing
Speiser v. Randall, 357 U.
S. 513,
357 U. S. 526
(1958));
see supra, at
497 U. S. 72.
Under our sustained precedent, conditioning hiring decisions on
political belief and association plainly constitutes an
unconstitutional condition, unless the government has a vital
interest in doing so.
See Elrod, 427 U.S. at
427 U. S.
362-363 (plurality opinion), and
427 U. S. 375
(Stewart, J., concurring in judgment);
Branti, 445 U.S. at
445 U. S.
515-516,;
see also Sherbert v. Verner,
374 U. S. 398
(1963) (unemployment benefits);
Speiser v. Randall, supra,
(tax exemption). We find no such government interest here, for the
same reasons that we found the government lacks justification for
patronage promotions, transfers or recalls.
See supra at
497 U. S.
71-76.
The court below, having decided that the appropriate inquiry in
patronage cases is whether the employment decision at issue is the
substantial equivalent of a dismissal, affirmed the trial court's
dismissal of Moore's claim.
See 868 F.2d at 954. The Court
of Appeals reasoned that "rejecting an employment application does
not impose a hardship upon an employee comparable to the loss of
[a] job."
Ibid., citing
Wygant v. Jackson Bd. of
Education, 476 U. S. 267
(1986) (plurality opinion). Just as we reject the Seventh Circuit's
proffered test,
see supra at
497 U. S. 75-76,
we find the Seventh Circuit's reliance on
Wygant to
distinguish hiring from dismissal unavailing. The court cited a
passage from the plurality opinion in
Wygant explaining
that school boards attempting to redress past discrimination must
choose methods that broadly distribute the disadvantages imposed by
affirmative action plans among innocent parties. The plurality said
that race-based layoffs placed too great a burden on individual
members of the nonminority race, but suggested that discriminatory
hiring was permissible, under certain circumstances, even though it
burdened white applicants because the burden was less intrusive
than the loss of an existing job.
Page 497 U. S. 79
Id. at
476 U. S.
282-284.
See also id. at
476 U. S.
294-295 (WHITE, J., concurring in judgment).
Wygant has no application to the question at issue
here. The plurality's concern in that case was identifying the
least harsh means of remedying past wrongs. It did not question
that some remedy was permissible when there was sufficient evidence
of past discrimination. In contrast, the Governor of Illinois has
not instituted a remedial undertaking. It is unnecessary here to
consider whether not being hired is less burdensome than being
discharged, because the government is not pressed to do either on
the basis of political affiliation. The question in the patronage
context is not which penalty is more acute, but whether the
government, without sufficient justification, is pressuring
employees to discontinue the free exercise of their First Amendment
rights.
If Moore's employment application was set aside because he chose
not to support the Republican Party, as he asserts, then Moore's
First Amendment rights have been violated. Therefore, we find that
Moore's complaint was improperly dismissed.
III
We hold that the rule of
Elrod and
Branti
extends to promotion, transfer, recall, and hiring decisions based
on party affiliation and support, and that all of the petitioners
and cross-respondents have stated claims upon which relief may be
granted. We affirm the Seventh Circuit insofar as it remanded
Rutan's, Taylor's, Standefer's, and O'Brien's claims. However, we
reverse the Circuit Court's decision to uphold the dismissal of
Moore's claim. All five claims are remanded for proceedings
consistent with this opinion.
It is so ordered.
[
Footnote 1]
The cases come to us in a preliminary posture and the question
is limited to whether the allegations of petitioners Rutan et al.
state a cognizable First Amendment claim sufficient to withstand
respondents' motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6). Therefore, for purposes of our review, we must
assume that petitioners' well-pleaded allegations are true.
Berkovitz v. United States, 486 U.
S. 531,
486 U. S. 540
(1988).
Three of the five original plaintiffs who brought the lawsuit --
Rutan, Taylor, and Moore -- are petitioners in case No. 88-1872,
and we refer to them as "petitioners." The defendants in the
lawsuit are various Illinois and Republican Party officials. We
refer to them as "respondents" because they are the respondents in
case No. 88-1872. They are also the cross-petitioners in case No.
88-2074. Four of the five original plaintiffs -- Rutan, Taylor,
Standefer, and O'Brien -- are named as cross-respondents in case
No. 88-2074.
[
Footnote 2]
The five originally brought this action both individually and on
behalf of those similarly situated. The Seventh Circuit, noting
that the District Court had failed to address the class-action
questions, reviewed the case as one brought by individuals only.
868 F.2d 943, 947 (1989). We therefore have only the claims of the
individuals before us.
[
Footnote 3]
The Seventh Circuit explained that Standefer's and O'Brien's
claims might be cognizable if there were a formal or informal
system of rehiring employees in their positions, 868 F.2d at
956-957, but expressed considerable doubt that Rutan and Taylor
would be able to show that they suffered the "substantial
equivalent of a dismissal" by being denied promotions and a
transfer.
Id. at 955-956.
[
Footnote 4]
Justice SCALIA's lengthy discussion of the appropriate standard
of review for restrictions the government places on the
constitutionally protected activities of its employees to ensure
efficient and effective operations,
see post at
497 U. S.
94-102, is not only questionable, it offers no support
for his conclusion that patronage practices pass muster under the
First Amendment. The interests that Justice SCALIA regards as
potentially furthered by patronage practices are not interests that
the government has in its capacity as an employer. Justice SCALIA
describes the possible benefits of patronage as follows: "patronage
stabilizes political parties and prevents excessive political
fragmentation,"
post at
497 U. S. 104;
patronage is necessary to strong, disciplined party organizations,
post at
497 U. S.
104-105; patronage "fosters the two-party system,"
post at
497 U. S. 106;
and patronage is "a powerful means of achieving the social and
political integration of excluded groups,"
post at
497 U. S. 108.
These are interests the government might have in the structure and
functioning of society as a whole. That the government attempts to
use public employment to further such interests does not render
those interests employment-related. Therefore, even were Justice
SCALIA correct that less-than-strict scrutiny is appropriate when
the government takes measures to ensure the proper functioning of
its internal operations, such a rule has no relevance to the
restrictions on freedom of association and speech at issue in this
case.
[
Footnote 5]
Branti v. Finkel, 445 U. S. 507
(1980), also refined the exception created by
Elrod v.
Burns, 427 U. S. 347
(1976), for certain employees. In
Elrod, we suggested that
policymaking and confidential employees probably could be dismissed
on the basis of their political views.
Elrod, supra, at
427 U. S. 367
(plurality), and
427 U. S. 375
(Stewart, J., concurring in judgment). In
Branti, we said
that a State demonstrates a compelling interest in infringing First
Amendment rights only when it can show that "party affiliation is
an appropriate requirement for the effective performance of the
public office involved."
Branti, supra, at
445 U. S. 518.
The scope of this exception does not concern us here, as
respondents concede that the five employees who brought this suit
are not within it.
[
Footnote 6]
Respondents' reliance on
Johnson v. Transportation Agency,
Santa Clara County, Cal., 480 U. S. 616
(1987), to this effect is misplaced. The question in
Johnson was whether the Santa Clara County affirmative
action program violated the antidiscrimination requirement of Title
VII. In that context, we said that the denial of a promotion did
not unsettle any legitimate, firmly rooted expectations. We did not
dispute, however, that it placed a burden on the person to whom the
promotion was denied. We considered Johnson's expectations in
discussing whether the plan unnecessarily trammeled the rights of
male employees --
i.e., whether its goal was pursued with
an excessive rather than reasonable amount of dislocation. Our
decision that promotion denials are not such an imposition that
Title VII prevented Santa Clara from considering gender in order to
redress past discrimination does not mean that promotion denials
are not enough of an imposition to pressure employees to affiliate
with the favored party.
[
Footnote 7]
The complaint in this case states that Dan O'Brien was driven to
do exactly this. After being rejected for recall by the Governor's
Office, he allegedly pursued the support of a Republican Party
official, despite his previous interest in the Democratic
Party.
[
Footnote 8]
The Seventh Circuit's proffered test was not based on that
court's determination that other patronage practices do not burden
the free exercise of First Amendment rights. Rather, the court
chose to defer to the political process in an area in which it felt
this Court had not yet spoken clearly. 868 F.2d at 953-954. The
court also expressed concern that the opposite conclusion would
open state employment to excessive interference by the federal
judiciary.
Ibid. We respect but do not share this
concern.
Our decision does not impose the federal judiciary's supervision
on any state government activity that is otherwise immune. The
federal courts have long been available for protesting unlawful
state employment decisions. Under Title VII, 42 U.S.C. §§ 2000e(a),
(f), and 2000e2(a) (1982 ed.), it is a violation of federal law to
discriminate in any way in state employment (excepting certain
high-level positions) on the basis of race, color, religion, sex,
or national origin. Moreover, the First Amendment, as the court
below noted, already protects state employees not only from
patronage dismissals but
"even an act of retaliation as trivial as failing to hold a
birthday party for a public employee . . . when intended to punish
her for exercising her free speech rights."
868 F.2d at 954, n. 4.
[
Footnote 9]
To the extent that respondents also argue that Moore has not
been penalized for the exercise of protected speech and association
rights because he had no claim of right to employment in the first
place, that argument is foreclosed by
Perry v. Sindermann,
408 U. S. 593,
408 U. S. 597
(1972).
See supra at
497 U. S.
72.
Justice STEVENS, concurring.
While I join the Court's opinion, these additional comments are
prompted by three propositions advanced by Justice SCALIA in his
dissent. First, he implies that prohibiting imposition
Page 497 U. S. 80
of an unconstitutional condition upon eligibility for government
employment amounts to adoption of a civil service system. Second,
he makes the startling assertion that a long history of open and
widespread use of patronage practices immunizes them from
constitutional scrutiny. Third, he assumes that the decisions in
Elrod v. Burns, 427 U. S. 347
(1976), and
Branti v. Finkel, 445 U.
S. 507 (1980), represented dramatic departures from
prior precedent.
Several years before either
Elrod or
Branti
was decided, I had occasion as a judge on the Court of Appeals for
the Seventh Circuit to evaluate each of these propositions.
Illinois State Employees Union, Council 34, Am. Fed of State,
County, and Municipal Emp., AFL-CIO v. Lewis, 473 F.2d 561
(1972),
cert. denied, 410 U.S. 928 (1973). With respect to
the first, I wrote:
"Neither this court nor any other may impose a civil service
system upon the State of Illinois. The General Assembly has
provided an elaborate system regulating the appointment to
specified positions solely on the basis of merit and fitness, the
grounds for termination of such employment, and the procedures
which must be followed in connection with hiring, firing,
promotion, and retirement. A federal court has no power to
establish any such employment code."
"However, recognition of plaintiffs' claims will not give every
public employee civil service tenure, and will not require the
state to follow any set procedure or to assume the burden of
explaining or proving the grounds for every termination. It is the
former employee who has the burden of proving that his discharge
was motivated by an impermissible consideration. It is true, of
course, that a
prima facie case may impose a burden of
explanation on the State. But the burden of proof will remain with
the plaintiff employee, and we must assume that the trier of fact
will be able to differentiate between those discharges which are
politically motivated and
Page 497 U. S. 81
those which are not. There is a clear distinction between the
grant of tenure to an employee -- a right which cannot be conferred
by judicial fiat -- and the prohibition of a discharge for a
particular impermissible reason. The Supreme Court has plainly
identified that distinction on many occasions, most recently in
Perry v. Sindermann, 408 U. S. 593 (1972)."
"Unlike a civil service system, the Fourteenth Amendment to the
Constitution does not provide job security, as such, to public
employees. If, however, a discharge is motivated by considerations
of race, religion, or punishment of constitutionally protected
conduct, it is well settled that the State's action is subject to
federal judicial review. There is no merit to the argument that
recognition of plaintiffs' constitutional claim would be tantamount
to foisting a civil service code upon the State."
473 F.2d at 567-568 (footnotes omitted). Denying the Governor of
Illinois the power to require every state employee, and every
applicant for state employment, to pledge allegiance and service to
the political party in power is a far cry from a civil service
code. The question in this case is simply whether a Governor may
adopt a rule that would be plainly unconstitutional if enacted by
the General Assembly of Illinois. [
Footnote 2/1]
Second, Justice SCALIA asserts that
"when a practice not expressly prohibited by the text of the
Bill of Rights bears the endorsement of a long tradition of open,
widespread, and unchallenged use that dates back to the beginning
of the Republic, we have no proper basis for striking it down."
Post at
497 U.S.
95;
post at
497 U. S. 102
(a "clear and continuing tradition of our people"
Page 497 U. S. 82
deserves "dispositive effect"). The argument that traditional
practices are immune from constitutional scrutiny is advanced in
two plurality opinions that Justice SCALIA has authored, but not by
any opinion joined by a majority of the Members of the Court.
[
Footnote 2/2]
In the
Lewis case, I noted the obvious response to this
position:
"if the age of a pernicious practice were a sufficient reason
for its continued acceptance, the constitutional attack on racial
discrimination would, of course, have been doomed to failure."
473 F.2d at 568, n. 14.
See, e.g., Brown v. Board of
Education, 347 U. S. 483
(1954). [
Footnote 2/3] I then
added
Page 497 U. S. 83
this comment on the specific application of that argument to
patronage practices:
"Finally, our answer to the constitutional question is not
foreclosed by the fact that the 'spoils system has been entrenched
in American history for almost two hundred years.'
Alomar v.
Dwyer, 447 F.2d 482, 483 (2d Cir.1971). For most of that
period it was assumed, without serious question or debate, that
since a public employee has no constitutional right to his job,
there can be no valid constitutional objection to his summary
removal.
See Bailey v.
Page 497 U. S. 84
Richardson, 86 U.S.App.D.C. 248,182 F.2d 46, 59 (1950),
affirmed per curiam by an equally divided Court, 341 U.S.
918;
Adler v. Board of Education, 342 U. S.
485. But as Mr. Justice Marshall so forcefully stated in
1965 when he was a circuit judge,"
"the theory that public employment which may be denied
altogether may be subjected to any conditions, regardless of how
unreasonable, has been uniformly rejected."
"
Keyishian v. Board of Regents, 345 F.2d 236, 239 (2d
Cir.1965). The development of constitutional law subsequent to the
Supreme Court's unequivocal repudiation of the line of cases ending
with
Bailey v. Richardson and
Adler v. Board of
Education is more relevant than the preceding doctrine which
is now 'universally rejected.'"
Lewis, 473 F.2d at 568 (footnotes and citations
omitted).
With respect to Justice SCALIA's view that, until
Elrod v.
Burns was decided in 1976, it was unthinkable that patronage
could be unconstitutional,
see post at
497 U. S. 96-97,
it seems appropriate to point out again not only that my views in
Lewis antedated
Elrod by several years, but, more
importantly, that they were firmly grounded in several decades of
decisions of this Court. As explained in
Lewis:
"[In 1947,] a closely divided Supreme Court upheld a statute
prohibiting federal civil service employees from taking an active
part in partisan political activities.
United Public Workers v.
Mitchell, 330 U. S. 75. The dissenting
Justices felt that such an abridgment of First Amendment rights
could not be justified. The majority, however, concluded that the
government's interests in not compromising the quality of public
service and in not permitting individual employees to use their
public offices to advance partisan causes were sufficient to
justify the limitation on their freedom."
"There was no dispute within the Court over the proposition that
the employees' interests in political action were protected by the
First Amendment. The Justices' different conclusions stemmed from
their different appraisals of the sufficiency of the justification
for the restriction. That justification -- the desirability of
political neutrality in the public service and the avoidance of the
use of the power and prestige of government to favor one party or
the other -- would condemn rather than support the alleged conduct
of defendant in this case. Thus, in dicta, the Court unequivocally
stated that the Legislature could not require allegiance to a
particular political faith as a condition of public employment:
"
Page 497 U. S. 85
" Appellants urge that federal employees are protected by the
Bill of Rights and that Congress may not 'enact a regulation
providing that no Republican, Jew or Negro shall be appointed to
federal office, or that no federal employee shall attend Mass or
take any active part in missionary work.' None would deny such
limitations on Congressional power but, because there are some
limitations, it does not follow that a prohibition against acting
as ward leader or worker at the polls is invalid."
"
330 U.S.
75."
"In 1952, the Court quoted that dicta in support of its holding
that the State of Oklahoma could not require its employees to
profess their loyalty by denying past association with Communists.
Wieman v. Updegraff, 344 U. S. 183,
344 U. S.
191-192. That decision did not recognize any special
right to public employment; rather, it rested on the impact of the
requirement on the citizen's First Amendment rights. We think it
unlikely that the Supreme Court would consider these plaintiffs'
interest in freely associating with members of the Democratic Party
less worthy of protection than the Oklahoma employees' interest in
associating with Communists or former Communists."
"In 1961, the Court held that a civilian cook could be summarily
excluded from a naval gun factory.
Cafeteria and Restaurant
Workers Union, Local 473, AFL-CIO v. McElroy, 367 U. S.
886. The government's interest in maintaining the
security of the military installation outweighed the cook's
interest in working at a particular location. Again, however, the
Court explicitly assumed that the sovereign could not deny
employment for the reason that the citizen was a member of a
particular political party or religious faith -- 'that she could
not have been kept out because she was a Democrat or a Methodist.'
367 U.S. at
367 U. S. 898. "
Page 497 U. S. 86
"In 1968, the Court held that 'a teacher's exercise of his right
to speak on issues of public importance may not furnish the basis
for his dismissal from public employment.'
Pickering v. Board
of Education, 391 U. S. 563,
391 U. S.
574 (1968). The Court noted that although criminal
sanctions"
"have a somewhat different impact on the exercise of the right
to freedom of speech from dismissal from employment, it is apparent
that the threat of dismissal from public employment is nonetheless
a potent means of inhibiting speech."
"
Ibid. The holding in
Pickering was a natural
sequel to Mr. Justice Frankfurter's comment in dissent in
Shelton v. Tucker that a scheme to terminate the
employment of teachers solely because of their membership in
unpopular organizations would run afoul of the Fourteenth
Amendment.
364 U. S. 479,
364 U. S.
496."
"In 1972, the Court reaffirmed the proposition that a nontenured
public servant has no constitutional right to public employment,
but nevertheless may not be dismissed for exercising his First
Amendment rights.
Perry v. Sindermann, 408 U. S.
593. The Court's explanation of its holding is pertinent
here:"
" For at least a quarter century, this Court has made clear
that, even though a person has no 'right' to a valuable
governmental benefit and even though the government may deny him
the benefit for any number of reasons, there are some reasons upon
which the government may not act. It may not deny a benefit to a
person on a basis that infringes his constitutionally protected
interests -- especially, his interest in freedom of speech. For if
the government could deny a benefit to a person because of his
constitutionally protected speech or associations, his exercise of
those freedoms would in effect be penalized and inhibited. This
would allow the government to 'produce a result which [it] could
not command directly.'
Speiser v. Randall, 357 U. S.
513,
357 U. S. 526. Such
interference with constitutional rights is impermissible. "
Page 497 U. S. 87
" We have applied this general principle to denials of tax
exemptions,
Speiser v. Randall, supra, unemployment
benefits,
Sherbert v. Verner, 374 U. S.
398,
374 U. S. 404-405, and
welfare payments,
Shapiro v. Thompson, 394 U. S.
618,
394 U. S. 627 n. 6;
Graham v. Richardson, 403 U. S. 365,
403 U. S.
374. But, most often, we have applied the principle to
denials of public employment.
United Public Workers v.
Mitchell, 330 U. S. 75,
330 U. S.
100;
Wieman v. Updegraff, 344 U. S.
183,
344 U. S. 192;
Shelton
v. Tucker, 364 U. S. 479,
364 U. S.
485-486;
Torcaso v. Watkins, 367 U. S.
488,
367 U. S. 495-496;
Cafeteria and Restaurant Workers, etc. v. McElroy,
367 U. S.
886,
367 U. S. 894;
Cramp v.
Board of Public Instruction, 368 U. S. 278,
368 U. S.
288;
Baggett v. Bullitt, 377 U. S.
360;
Elfbrandt v. Russell, 384 U. S.
11,
384 U. S. 17;
Keyishian v.
Board of Regents, 385 U. S. 589,
385 U. S.
605-06;
Whitehill v. Elkins, 389 U. S.
54;
United States v. Robel, 389 U. S.
258;
Pickering v. Board of Education,
391 U. S.
563,
391 U. S. 568. We have
applied the principle regardless of the public employee's
contractual or other claim to a job.
Compare Pickering v. Board
of Education, supra, with
Shelton v. Tucker,
supra."
" Thus the respondent's lack of a contractual or tenure 'right'
to reemployment for the 1969-1970 academic year is immaterial to
his free speech claim. . . . "
"408 U.S. at
408 U. S. 597."
"This circuit has given full effect to this principle."
473 F.2d at 569-572 (footnotes and citations omitted).
See
also American Federation of State County and Municipal Employees,
AFL-CIO v. Shapp, 443 Pa. 527, 537-545, 280 A.2d 375, 379-383
(1971) (Barbieri, J., dissenting).
To avoid the force of the line of authority described in the
foregoing passage, Justice SCALIA would weigh the supposed general
state interest in patronage hiring against the
Page 497 U. S. 88
aggregated interests of the many employees affected by the
practice. This defense of patronage obfuscates the critical
distinction between partisan interest and the public interest.
[
Footnote 2/4] It assumes that
governmental power and public resources
Page 497 U. S. 89
-- in this case employment opportunities -- may appropriately be
used to subsidize partisan activities even when the political
affiliation of the employee or the job applicant is entirely
unrelated to his or her public service. [
Footnote 2/5] The premise on which this position rests
would justify the use of public funds to compensate party members
for their campaign work, or conversely, a legislative enactment
denying public employment to nonmembers of the majority party. If
such legislation is unconstitutional -- as it clearly would be --
an equally pernicious rule promulgated by the Executive must also
be invalid.
Justice SCALIA argues that distinguishing "inducement and
compulsion" reveals that a patronage system's impairment of the
speech and associational rights of employees and would-be employees
is insignificant.
Post at
497 U. S.
109-110. This analysis contradicts the harsh reality of
party discipline that is the linchpin of his theory of patronage.
Post at
497 U. S. 105
(emphasizing the "link between patronage and party discipline, and
between that and party success"). [
Footnote 2/6] More importantly,
Page 497 U. S. 90
it rests on the long-rejected fallacy that a privilege may be
burdened by unconstitutional conditions.
See, e.g., Perry v.
Sindermann, 408 U. S. 593,
408 U. S. 597
(1972). There are a few jobs for which an individual's race or
religion may be relevant,
see Wygant v. Jackson Board of
Education, 476 U. S. 267,
476 U. S.
314-315 (1986) (dissenting opinion); there are many jobs
for which political affiliation is relevant to the employee's
ability to function effectively as part of a given administration.
In those cases -- in other words, cases in which "the efficiency of
the public service,"
Public Workers v. Mitchell,
330 U. S. 75,
330 U. S. 101
(1947), would be advanced by hiring workers who are loyal to the
Governor's party -- such hiring is permissible under the holdings
in
Elrod and
Branti. This case, however, concerns
jobs in which race, religion, and political affiliation are all
equally and entirely irrelevant to the public service to be
performed. When an individual has
Page 497 U. S. 91
been denied employment for an impermissible reason, it is
unacceptable to balance the constitutional rights of the individual
against the political interests of the party in power. It seems to
me obvious that the government may not discriminate against
particular individuals in hopes of advancing partisan interests
through the misuse [
Footnote 2/7]
of public funds.
The only systemic consideration permissible in these
circumstances is not that of the controlling party, but that of the
aggregate of burdened individuals. By impairing individuals'
freedoms of belief and association, unfettered patronage practices
undermine the "free functioning of the electoral process."
Elrod, 427 U.S. at
427 U. S. 356.
As I wrote in 1972:
"Indeed, when numbers are considered, it is appropriate not
merely to consider the rights of a particular janitor who may have
been offered a bribe from the public treasury to obtain his
political surrender, but also the impact on the body politic as a
whole when the free political choice of millions of public servants
is inhibited or manipulated by the selective award of public
benefits. While the patronage system is defended in the name of
democratic tradition, its paternalistic impact on the political
Page 497 U. S. 92
process is actually at war with the deeper traditions of
democracy embodied in the First Amendment."
Lewis, 473 F.2d at 576. [
Footnote 2/8]
The tradition that is relevant in this case is the American
commitment to examine and reexamine past and present practices
against the basic principles embodied in the Constitution. The
inspirational command by our President in 1961 is entirely
consistent with that tradition: "Ask not what your country can do
for you -- ask what you can do for your country." This case
involves a contrary command: "Ask not what job applicants can do
for the State -- ask what they can do for our party." Whatever
traditional support may remain for a command of that ilk, it is
plainly an illegitimate excuse for the practices rejected by the
Court today.
[
Footnote 2/1]
Despite Justice SCALIA's imprecise use of the term,
post at
497 U. S. 114,
the legal issue presented in this litigation is plainly not a
"political question."
See Elrod v. Burns, 427 U.
S. 347,
427 U. S.
351-353 (1976);
Illinois State Employees Union,
Council 34, Am. Fed. of State, County, and Municipal Emp., AFL-CIO
v. Lewis, 473 F.2d 561, 566-567 (1972),
cert. denied,
410 U.S. 928 (1973).
[
Footnote 2/2]
See Michael H. v. Gerald D., 491 U.
S. 110 (1989) (plurality);
Burnham v. Superior Court
of California, Marin County, 495 U. S. 604
(1990) (plurality). Justice SCALlA's additional reliance on
Bowers v. Hardwick, 478 U. S. 186
(1986),
post at
497 U. S. 103,
is misplaced because, in that case, the Court used a history of
state criminal prohibitions to support its refusal to extend the
doctrine of substantive due process to previously unprotected
conduct. The question in this case is whether mere longevity can
immunize from constitutional review state conduct that would
otherwise violate the First Amendment.
[
Footnote 2/3]
Ironically, at the time of the adoption of the Bill of Rights,
the party system itself was far from an "accepted political
nor[m]."
Post at
497 U.S.
95. Our founders viewed it as a pathology:
"Political discussion in eighteenth-century England and America
was pervaded by a kind of anti-party cant. Jonathan Swift, in his
Thoughts on Various Subjects, had said that 'Party is the
madness of many, for the gain of the few.' This maxim, which was
repeated on this side of the Atlantic by men like John Adams and
William Paterson, plainly struck a deep resonance in the American
mind. Madison and Hamilton, when they discussed parties or factions
(for them the terms were usually interchangeable) in
The
Federalist, did so only to arraign their bad effects. In the
great debate over the adoption of the Constitution both sides spoke
ill of parties. The popular sage, Franklin (who was not always
consistent on the subject), gave an eloquent warning against
factions and 'the infinite mutual abuse of parties, tearing to
pieces the best of characters.' George Washington devoted a large
part of his political testament, the Farewell Address, to stern
warnings against 'the baneful effects of the Spirit of Party.' His
successor, John Adams, believed that 'a division of the republic
into two great parties . . . is to be dreaded as the greatest
political evil under our Constitution.' Similar admonitions can be
found in the writings of the arch-Federalist Fisher Adams and the
'philosopher of Jeffersonian democracy,' John Taylor of Carolina.
If there was one point of political philosophy upon which these
men, who differed on so many things, agreed quite readily, it was
their common conviction about the baneful effects of the spirit of
party."
R. Hofstadter, The Idea of a Party System 2-3 (1969) (footnote
omitted).
Our contemporary recognition of a state interest in protecting
the two major parties from damaging intra-party feuding or
unrestrained factionalism,
see, e.g., Storer v. Brown,
415 U. S. 724
(1974);
post at
497 U. S.
106-107, has not disturbed our protection of the rights
of individual voters and the role of alternative parties in our
government.
See, e.g., Anderson v. Celebrezze,
460 U. S. 780,
460 U. S. 793
(1983) (burdens on new or small parties and independent candidates
impinge on associational choices);
Williams v. Rhodes,
393 U. S. 23,
393 U. S. 32
(1968) (there is "no reason why two parties should retain a
permanent monopoly on the right to have people vote for or against
them").
[
Footnote 2/4]
Although Justice SCALlA's defense of patronage turns on the
benefits of fostering the two-party system,
post at
497 U. S.
106-107, his opinion is devoid of reference to
meaningful evidence that patronage practices have played a
significant role in the preservation of the two-party system. In
each of the examples that he cites -- "the Boss Tweeds, the Tammany
Halls, the Pendergast Machines, the Byrd Machines and the Daley
Machines,"
post at
497 U. S. 93 --
patronage practices were used solely to protect the power of an
entrenched majority.
See Laycock, Notes on the Role of
Judicial Review, the Expansion of Federal Power, and the Structure
of Constitutional Rights, 99 Yale L.J. 1711, 1722 (1990)
(describing the "hopelessness of contesting elections" in Chicago's
"one-party system" when "half a dozen employees of the city and of
city contractors were paid with public funds to work [a precinct]
for the other side"); Johnson, Successful Reform Litigation: The
Shakman Patronage Case, 64 Chi.-Kent L.Rev. 479, 481 (1988) (the
"massive Democratic patronage employment system" maintained a
"noncompetitive political system" in Cook County in the
1960's).
Without repeating the Court's studied rejection of the policy
arguments for patronage practices in
Elrod, 427 U.S. at
427 U. S.
364-373, I note only that many commentators agree more
with Justice SCALIA's admissions of the systemic costs of patronage
practices -- the "financial corruption, such as salary kickbacks
and partisan political activity on government-paid time," the
reduced efficiency of government, and the undeniable constraint
upon the expression of views by employees,
post at
497 U. S.
108-110 -- than with his belief that patronage is
necessary to political stability and integration of powerless
groups.
See, e.g., G. Pomper, Voters, Elections, and
Parties 282-304 (1988) (multiple causes of party decline); D.
Price, Bringing Back the Parties 22-25 (1984) (same); Comment, 41
U.Chi.L.Rev. 297, 319-328 (1974) (same); Wolfinger, Why Political
Machines Have Not Withered Away and Other Revisionist Thoughts, 34
J.Pol. 365, 398 (1972) (absence of machine politics in California);
J. James, American Political Parties in Transition 85 (1974)
(inefficient and antiparty effects of patronage); Johnston, Patrons
and Clients, Jobs and Machines: A Case Study of the Uses of
Patronage, 73 Am.Pol.Sci.Rev. 385 (1979) (same); Grimshaw, The
Political Economy of Machine Politics, 4 Corruption and Reform 15
(1989) (same); Comment, 49 U.Chi.L.Rev. 181, 197-200 (1982) (same);
Freedman, Doing Battle with the Patronage Army: Politics, Courts
and Personnel Administration in Chicago, 48 Pub.Admin.Rev. 847
(1988) (race and machine politics).
Incidentally, although some might suggest that Jacob Arvey was
"best known as the promoter of Adlai Stevenson,"
post at
497 U. S. 104,
that connection is of interest only because of Mr. Arvey's creative
and firm leadership of the powerful political organization that was
subsequently led by Richard J. Daley. M. Tolchin & S. Tolchin,
To the Victor 36 (1971).
[
Footnote 2/5]
Neither Justice SCALIA nor any of the parties suggests that
party affiliation is relevant to any of the positions at stake in
this litigation -- rehabilitation counselor, road equipment
operator, prison guard, dietary manager, and temporary garage
worker. Reliance on the difficulty of precisely dividing the
positions in which political affiliation is relevant to the quality
of public service from those in which it is not an appropriate
requirement of the job is thus inapposite.
See post at
497 U. S.
110-114. Difficulty in deciding borderline cases does
not justify imposition of a loyalty oath in the vast category of
positions in which it is irrelevant.
[
Footnote 2/6]
The iron fist inside the velvet glove of Justice SCALIA's
"inducements" and "influences" is apparent from his own
descriptions of the essential features of a patronage system.
See, e.g., post at
497 U. S. 109
(the worker may "urge
within the organization the adoption
of any political position; but if that position is rejected, he
must vote and work for the party nonetheless");
post at
497 U. S. 105
(quoting M. Tolchin & S. Tolchin, To the Victor, at 123
(reporting that Montclair, New Jersey, Democrats provide fewer
services than Cook County, Illinois, Democrats, while "the rate of
issue participation is much higher among Montclair Democrats, who
are not bound by the fear displayed by the Cook County
committeemen"));
post at
497 U. S. 105
(citing W. Grimshaw, The Political Economy of Machine Politics, 4
Corruption and Reform 15, 30 (1989) (reporting that Mayor Daley
"sacked" a black committeeman for briefly withholding support for a
school board nominee whom civil rights activists opposed)).
Of course, we have firmly rejected any requirement that
aggrieved employees "prove that they, or other employees, have been
coerced into changing, either actually or ostensibly, their
political allegiance."
Branti, 445 U.S. at
445 U. S. 517.
What is at issue in these cases is not whether an employee is
actually coerced or merely influenced, but whether the attempt to
obtain his or her support through "party discipline" is legitimate.
To apply the relevant question to Justice SCALlA's example,
post at
497 U. S.
109-110 the person who attempts to bribe a public
official is guilty of a crime regardless whether the official
submits to temptation; likewise, a political party's attempt to
maintain loyalty through allocation of government resources is
improper regardless whether any employee capitulates.
[
Footnote 2/7]
I use the term "misuse" deliberately, because the entire
rationale for patronage hiring as an economic incentive for
partisan political activity rests on the assumption that the
patronage employee filling a government position must be paid a
premium to reward him for his partisan services. Without such a
premium, the economic incentive rationale on which Justice SCALIA
relies does not exist. It has been clear to Congress and this Court
for over a century that refusal to contribute "may lead to putting
good men out of the service, liberal payments may be made the
ground for keeping poor ones in," and
"the government itself may be made to furnish indirectly the
money to defray the expenses of keeping the political party in
power that happens to have for the time being the control of the
public patronage."
Ex parte Curtis, 106 U. S. 371,
106 U. S. 375
(1882) (upholding constitutionality of Act of Aug. 15, 1876, § 6,
ch. 287, 19 Stat. 169, prohibiting nonappointed federal employees
from requesting or receiving anything of value for political
purposes).
Petitioners Rutan and Taylor both allege that they are more
qualified than the persons who were promoted over them.
[
Footnote 2/8]
A decade later, in
Anderson v. Celebrezze, 460 U.S. at
460 U. S. 794,
this Court decided that a law burdening independent candidates,
by
"limiting the opportunities of independent-minded voters to
associate in the electoral arena to enhance their political
effectiveness as a group,"
would burden associational choices and thereby "threaten to
reduce diversity and competition in the marketplace of ideas." We
concluded that
"the primary values protected by the First Amendment -- 'a
profound national commitment to the principle that debate on public
issues should be uninhibited, robust, and wide-open,'
New York
Times Co. v. Sullivan, 376 U. S. 254,
376 U. S.
270 (1964) -- are served when election campaigns are not
monopolized by the existing political parties."
Ibid.
Justice SCALIA, with whom The Chief Justice and Justice KENNEDY
join, and with whom Justice O'CONNOR joins as to Parts II and III,
dissenting.
Today the Court establishes the constitutional principle that
party membership is not a permissible factor in the dispensation of
government jobs, except those jobs for the performance of which
party affiliation is an "appropriate requirement."
Ante at
497 U. S. 64. It
is hard to say precisely (or even generally) what that exception
means, but if there is any category of jobs for whose performance
party affiliation is not an appropriate requirement, it is the job
of being a judge, where
Page 497 U. S. 93
partisanship is not only unneeded but positively undesirable. It
is, however, rare that a federal administration of one party will
appoint a judge from another party. And it has always been rare.
See Marbury v.
Madison, 1 Cranch 137 (1803). Thus, the new
principle that the Court today announces will be enforced by a
corps of judges (the Members of this Court included) who
overwhelmingly owe their office to its violation. Something must be
wrong here, and I suggest it is the Court.
The merit principle for government employment is probably the
most favored in modern America, having been widely adopted by
civil-service legislation at both the state and federal levels. But
there is another point of view, described in characteristically
Jacksonian fashion by an eminent practitioner of the patronage
system, George Washington Plunkitt of Tammany Hall:
"I ain't up on sillygisms, but I can give you some arguments
that nobody can answer."
"First, this great and glorious country was built up by
political parties; second, parties can't hold together if their
workers don't get offices when they win; third, if the parties go
to pieces, the government they built up must go to pieces, too;
fourth, then there'll be hell to pay."
W. Riordon, Plunkitt of Tammany Hall 13 (1963). It may well be
that the Good Government Leagues of America were right, and that
Plunkitt, James Michael Curley and their ilk were wrong; but that
is not entirely certain. As the merit principle has been extended
and its effects increasingly felt; as the Boss Tweeds, the Tammany
Halls, the Pendergast Machines, the Byrd Machines and the Daley
Machines have faded into history; we find that political leaders at
all levels increasingly complain of the helplessness of elected
government, unprotected by "party discipline," before the demands
of small and cohesive interest groups.
Page 497 U. S. 94
The choice between patronage and the merit principle -- or, to
be more realistic about it, the choice between the desirable mix of
merit and patronage principles in widely varying federal, state,
and local political contexts -- is not so clear that I would be
prepared, as an original matter, to chisel a single, inflexible
prescription into the Constitution. Fourteen years ago, in
Elrod v. Burns, 427 U. S. 347
(1976), the Court did that.
Elrod was limited however, as
was the later decision of
Branti v. Finkel, 445 U.
S. 507 (1980), to patronage firings, leaving it to state
and federal legislatures to determine when and where political
affiliation could be taken into account in hirings and promotions.
Today the Court makes its constitutional civil-service reform
absolute, extending to all decisions regarding government
employment. Because the First Amendment has never been thought to
require this disposition, which may well have disastrous
consequences for our political system, I dissent.
I
The restrictions that the Constitution places upon the
government in its capacity as lawmaker,
i.e., as the
regulator of private conduct, are not the same as the restrictions
that it places upon the government in its capacity as employer. We
have recognized this in many contexts, with respect to many
different constitutional guarantees. Private citizens perhaps
cannot be prevented from wearing long hair, but policemen can.
Kelley v. Johnson, 425 U. S. 238,
425 U. S. 247
(1976). Private citizens cannot have their property searched
without probable cause, but in many circumstances government
employees can.
O'Connor v. Ortega, 480 U.
S. 709,
480 U. S. 723
(1987) (plurality opinion);
id. at
480 U. S. 732
(SCALIA, J., concurring in judgment). Private citizens cannot be
punished for refusing to provide the government information that
may incriminate them, but government employees can be dismissed
when the incriminating information that they refuse to provide
relates to the performance of their job.
Gardner
v. Broderick, 392
Page 497 U. S. 95
U.S. 273,
392 U. S.
277-278 (1968). With regard to freedom of speech in
particular: Private citizens cannot be punished for speech of
merely private concern, but government employees can be fired for
that reason.
Connick v. Myers, 461 U.
S. 138, 1
461 U. S. 47
(1983). Private citizens cannot be punished for partisan political
activity, but federal and state employees can be dismissed and
otherwise punished for that reason.
Public Workers v.
Mitchell, 330 U. S. 75,
330 U. S. 101
(1947);
CSC v. Letter Carriers, 413 U.
S. 548,
413 U. S. 556
(1973);
Broadrick v. Oklahoma, 413 U.
S. 601,
413 U. S.
616-617 (1973).
Once it is acknowledged that the Constitution's prohibition
against laws "abridging the freedom of speech" does not apply to
laws enacted in the government's capacity as employer the same way
it does to laws enacted in the government's capacity as regulator
of private conduct, it may sometimes be difficult to assess what
employment practices are permissible and what are not. That seems
to me not a difficult question, however, in the present context.
The provisions of the Bill of Rights were designed to restrain
transient majorities from impairing long-recognized personal
liberties. They did not create by implication novel individual
rights overturning accepted political norms. Thus, when a practice
not expressly prohibited by the text of the Bill of Rights bears
the endorsement of a long tradition of open, widespread, and
unchallenged use that dates back to the beginning of the Republic,
we have no proper basis for striking it down. [
Footnote 3/1] Such a venerable and accepted
tradition is not to
Page 497 U. S. 96
be laid on the examining table and scrutinized for its
conformity to some abstract principle of First Amendment
adjudication devised by this Court. To the contrary, such
traditions are themselves the stuff out of which the Court's
principles are to be formed. They are, in these uncertain areas,
the very points of reference by which the legitimacy or
illegitimacy of other practices are to be figured out. When it
appears that the latest "rule," or "three-part test," or "balancing
test" devised by the Court has placed us on a collision course with
such a landmark practice, it is the former that must be
recalculated by us, and not the latter that must be abandoned by
our citizens. I know of no other way to formulate a constitutional
jurisprudence that reflects, as it should, the principles adhered
to, over time, by the American people, rather than those favored by
the personal (and necessarily shifting) philosophical dispositions
of a majority of this Court.
I will not describe at length the claim of patronage to landmark
status as one of our accepted political traditions. Justice Powell
discussed it in his dissenting opinions in
Elrod and
Branti.
Elrod, 427 U.S. at
427 U. S.
378-379 (Powell, J., dissenting);
Branti, 445
U.S. at
445 U. S. 522,
n. 1 (Powell, J., dissenting). Suffice it to say that patronage
was, without any thought that it could be unconstitutional, a basis
for government employment from the earliest days of the Republic
until
Elrod -- and has continued unabated since
Elrod to the extent still permitted by that unfortunate
decision.
See, e.g., D. Price, Bringing Back the Parties
24, 32 (1984); Gardner, A Theory of the Spoils System, 54 Public
Choice 171, 181 (1987); Toinet & Glenn, Clientelism and
Corruption in the "Open" Society: The Case of the United States, in
Private Patronage and Public Power 193, 202 (C. Clapham ed.
Page 497 U. S. 97
1982). Given that unbroken tradition regarding the application
of an ambiguous constitutional text, there was in my view no basis
for holding that patronage-based dismissals violated the First
Amendment -- much less for holding, as the Court does today, that
even patronage hiring does so. [
Footnote 3/2]
II
Even accepting the Court's own mode of analysis, however, and
engaging in "balancing" a tradition that ought to be part of the
scales,
Elrod, Branti, and today's extension of them seem
to me wrong.
A
The Court limits patronage on the ground that the individual's
interest in uncoerced belief and expression outweighs the systemic
interests invoked to justify the practice.
Ante
Page 497 U. S. 98
at
497 U. S. 68-72.
The opinion indicates that the government may prevail only if it
proves that the practice is "narrowly tailored to further vital
government interests."
Ante at
497 U. S.
74.
That strict-scrutiny standard finds no support in our cases.
Although our decisions establish that government employees do not
lose all constitutional rights, we have consistently applied a
lower level of scrutiny when
"the governmental function operating . . . [is] not the power to
regulate or license, as lawmaker, an entire trade or profession, or
to control an entire branch of private business, but, rather, as
proprietor, to manage [its] internal operatio[ns]. . . ."
Cafeteria & Restaurant Workers v. McElroy,
367 U. S. 886,
367 U. S. 896
(1961). When dealing with its own employees, the government may not
act in a manner that is "patently arbitrary or discriminatory,"
id. at
367 U. S. 898,
but its regulations are valid if they bear a "rational connection"
to the governmental end sought to be served,
Kelley v.
Johnson, 425 U.S. at
425 U. S.
247.
In particular, restrictions on speech by public employees are
not judged by the test applicable to similar restrictions on speech
by nonemployees. We have said that
"[a] governmental employer may subject its employees to such
special restrictions on free expression as are reasonably necessary
to promote effective government."
Brown v. Glines, 444 U. S. 348,
444 U. S. 356,
n. 13, (1980). In
Public Workers v. Mitchell, 330 U.S. at
330 U. S. 101,
upholding provisions of the Hatch Act which prohibit political
activities by federal employees, we said that
"it is not necessary that the act regulated be anything more
than an act reasonably deemed by Congress to interfere with the
efficiency of the public service."
We reaffirmed
Mitchell in CSC v. Letter Carriers, 413
U.S. at
413 U. S. 556,
over a dissent by Justice Douglas arguing against application of a
special standard to government employees, except insofar as their
"job performance" is concerned,
id. at
413 U. S. 597.
We did not say that the Hatch Act was narrowly tailored to meet
Page 497 U. S. 99
the government's interest, but merely deferred to the judgment
of Congress, which we were not "in any position to dispute."
Id. at
413 U. S. 567.
Indeed, we recognized that the Act was not indispensably necessary
to achieve those ends, since we repeatedly noted that "Congress at
some time [may] come to a different view."
Ibid., see also
id. at
413 U. S. 555,
413 U. S. 564.
In
Broadrick v. Oklahoma, 413 U.
S. 601 (1973), we upheld similar restrictions on state
employees, though directed "at political expression which if
engaged in by private persons would plainly be protected by the
First and Fourteenth Amendments,"
id. at
413 U. S.
616.
To the same effect are cases that specifically concern adverse
employment action taken against public employees because of their
speech. In
Pickering v. Board of Education of Township High
School Dist., 391 U. S. 563,
391 U. S. 568
(1968), we recognized:
"[T]he State has interests as an employer in regulating the
speech of its employees that differ significantly from those it
possesses in connection with regulation of the speech of the
citizenry in general. The problem in any case is to arrive at a
balance between the interests of the [employee], as a citizen, in
commenting upon matters of public concern and the interests of the
State, as an employer, in promoting the efficiency of the public
services it performs through its employees."
Because the restriction on speech is more attenuated when the
government conditions employment than when it imposes criminal
penalties, and because "government offices could not function if
every employment decision became a constitutional matter,"
Connick v. Myers, 461 U.S. at
461 U. S. 143,
we have held that government employment decisions taken on the
basis of an employee's speech do not "abridg[e] the freedom of
speech," U.S. Const., Amdt. 1, merely because they fail
Page 497 U. S. 100
the narrow-tailoring and compelling-interest tests applicable to
direct regulation of speech. We have not subjected such decisions
to strict scrutiny, but have accorded "a wide degree of deference
to the employer's judgment" that an employee's speech will
interfere with close working relationships. 461 U.S. at
461 U. S.
152.
When the government takes adverse action against an employee on
the basis of his political affiliation (an interest whose
constitutional protection is derived from the interest in speech),
the same analysis applies. That is why both the
Elrod
plurality, 427 U.S. at
427 U. S. 359,
and the opinion concurring in the judgment,
id. at
427 U. S. 375,
as well as
Branti, 445 U.S. at
445 U. S.
514-515, and the Court today,
ante at
497 U. S. 72,
rely on
Perry v. Sindermann, 408 U.
S. 593 (1972), a case that applied the test announced in
Pickering, not the strict-scrutiny test applied to
restrictions imposed on the public at large. Since the government
may dismiss an employee for political speech "reasonably deemed by
Congress to interfere with the efficiency of the public service,"
Public Workers v. Mitchell, supra, 330 U.S. at
330 U. S. 101,
it follows
a fortiori that the government may dismiss an
employee for political
affiliation if "reasonably
necessary to promote effective government."
Brown v. Glines,
supra, 444 U.S. at
444 U. S. 356,
n. 13.
While it is clear from the above cases that the normal "strict
scrutiny" that we accord to government regulation of speech is not
applicable in this field, [
Footnote
3/3] the precise test that replaces
Page 497 U. S. 101
it is not so clear; we have used various formulations. The one
that appears in the case dealing with an employment practice
closest in its effects to patronage is whether the
Page 497 U. S. 102
practice could be "reasonably deemed" by the enacting
legislature to further a legitimate goal.
Public Workers v.
Mitchell, supra, 330 U.S. at
330 U. S. 101.
For purposes of my ensuing discussion, however, I will apply a less
permissive standard that seems more in accord with our general
"balancing" test: can the governmental advantages of this
employment practice reasonably be deemed to outweigh its "coercive"
effects?
B
Preliminarily, I may observe that the Court today not only
declines, in this area replete with constitutional ambiguities, to
give the clear and continuing tradition of our people the
dispositive effect I think it deserves, but even declines
to give it substantial weight in the balancing. That is contrary to
what the Court has done in many other contexts. In evaluating
Page 497 U. S. 103
so-called "substantive due process" claims, we have examined our
history and tradition with respect to the asserted right.
See,
e.g., Michael H. v. Gerald D., 491 U.
S. 110 (1989);
Bowers v. Hardwick, 478 U.
S. 186,
478 U. S.
192-194 (1986). In evaluating claims that a particular
procedure violates the Due Process Clause, we have asked whether
the procedure is traditional.
See, e.g., Burnham v. Superior
Court of California, Marin County, 495 U.
S. 604 (1990). And in applying the Fourth Amendment's
reasonableness test, we have looked to the history of judicial and
public acceptance of the type of search in question.
See, e.g.,
Camara v. Municipal Court of San Francisco, 387 U.
S. 523,
387 U. S. 537
(1967).
See also Press-Enterprise Co. v. Superior Court of
California, Riverside County, 478 U. S.
1,
478 U. S. 8 (1986)
(tradition of accessibility to judicial proceedings implies
judgment of experience that individual's interest in access
outweighs government's interest in closure);
Richmond
Newspapers, Inc. v. Virginia, 448 U.
S. 555,
448 U. S. 589
(1980) (BRENNAN, J., concurring in judgment) ("Such a tradition [of
public access] commands respect in part because the Constitution
carries the gloss of history");
Walz v. Tax Comm'n of New
York, 397 U. S. 664,
397 U. S. 678
(1970) ("unbroken practice of according the [property tax]
exemption to churches" demonstrates that it does not violate
Establishment Clause).
But even laying tradition entirely aside, it seems to me our
balancing test is amply met. I assume, as the Court's opinion
assumes, that the balancing is to be done on a generalized basis,
and not case-by-case. The Court holds that the governmental
benefits of patronage cannot reasonably be thought to outweigh its
"coercive" effects (even the lesser "coercive" effects of patronage
hiring as opposed to patronage firing) not merely in 1990 in the
State of Illinois, but at any time in any of the numerous political
subdivisions of this vast country. It seems to me that that
categorical pronouncement reflects a naive vision of politics and
an inadequate appreciation of the systemic effects of patronage in
promoting political stability
Page 497 U. S. 104
and facilitating the social and political integration of
previously powerless groups.
The whole point of my dissent is that the desirability of
patronage is a policy question to be decided by the people's
representatives; I do not mean, therefore, to endorse that system.
But in order to demonstrate that a legislature could reasonably
determine that its benefits outweigh its "coercive" effects, I must
describe those benefits as the proponents of patronage see them: As
Justice Powell discussed at length in his
Elrod dissent,
patronage stabilizes political parties and prevents excessive
political fragmentation -- both of which are results in which
States have a strong governmental interest. Party strength requires
the efforts of the rank-and-file, especially in "the dull periods
between elections," to perform such tasks as organizing precincts,
registering new voters, and providing constituent services.
Elrod, 427 U.S. at
427 U. S. 385
(dissenting opinion). Even the most enthusiastic supporter of a
party's program will shrink before such drudgery, and it is folly
to think that ideological conviction alone will motivate sufficient
numbers to keep the party going through the off-years.
"For the most part, as every politician knows, the hope of some
reward generates a major portion of the local political activity
supporting parties."
Ibid. Here is the judgment of one such politician,
Jacob Arvey (best known as the promoter of Adlai Stevenson):
Patronage is
"'a necessary evil if you want a strong organization, because
the patronage system permits of discipline, and without discipline,
there's no party organization.'"
Quoted in M. Tolchin & S. Tolchin, To the Victor 36 (1971).
A major study of the patronage system describes the reality as
follows:
"[A]lthough men have many motives for entering political life .
. . the vast underpinning of both major parties is made up of men
who seek practical rewards. Tangible advantages constitute the
unifying thread of most successful political practitioners. . .
."
Id. at 22.
Page 497 U. S. 105
"With so little patronage cement, party discipline is relatively
low; the rate of participation and amount of service the party can
extract from [Montclair] county committeemen are minuscule compared
with Cook County. The party considers itself lucky if 50 percent of
its committeemen show up at meetings -- even those labeled 'urgent'
-- while even lower percentages turn out at functions intended to
produce crowds for visiting candidates."
Id. at 123.
See also W. Grimshaw, The
Political Economy of Machine Politics, 4 Corruption and Reform 15,
30 (1989); G. Pomper, Voters, Elections, and Parties 255 (1988);
Wolfinger, Why Political Machines Have Not Withered Away and Other
Revisionist Thoughts, 34 J.Politics 365, 384 (1972).
The Court simply refuses to acknowledge the link between
patronage and party discipline, and between that and party success.
It relies (as did the plurality in
Elrod, 427 U.S. at
427 U. S. 369,
n. 23) on a single study of a rural Pennsylvania county by
Professor Sorauf,
ante at
497 U. S. 75 --
a work that has been described as "more persuasive about the
ineffectuality of Democratic leaders in Centre County than about
the generalizability of [its] findings." Wolfinger,
supra,
at 384, n. 39. It is unpersuasive to claim, as the Court does, that
party workers are obsolete because campaigns are now conducted
through media and other money-intensive means.
Ante at
497 U. S. 75.
Those techniques have supplemented but not supplanted personal
contacts.
See Price, Bringing Back the Parties, at 25.
Certainly they have not made personal contacts unnecessary in
campaigns for the lower-level offices that are the foundations of
party strength, nor have they replaced the myriad functions
performed by party regulars not directly related to campaigning.
And to the extent such techniques have replaced older methods of
campaigning (partly in response to the limitations the Court has
placed on patronage), the political system is not clearly better
off.
See Elrod, supra, at
427 U. S. 384
(Powell, J., dissenting);
Branti, 445
Page 497 U. S. 106
U.S. at
445 U. S. 528
(Powell, J., dissenting). Increased reliance on money-intensive
campaign techniques tends to entrench those in power much more
effectively than patronage -- but without the attendant benefit of
strengthening the party system. A challenger can more easily obtain
the support of party workers (who can expect to be rewarded even if
the candidate loses -- if not this year, then the next) than the
financial support of political action committees (which will
generally support incumbents, who are likely to prevail).
It is self-evident that eliminating patronage will significantly
undermine party discipline, and that, as party discipline wanes, so
will the strength of the two-party system. But, says the Court,
"[p]olitical parties have already survived the substantial decline
in patronage employment practices in this century."
Ante
at
497 U. S. 74.
This is almost verbatim what was said in
Elrod, see 427
U.S. at
427 U. S. 369.
Fourteen years later, it seems much less convincing. Indeed, now
that we have witnessed, in 18 of the last 22 years, an Executive
Branch of the Federal Government under the control of one party
while the Congress is entirely or (for two years) partially within
the control of the other party; now that we have undergone the most
recent federal election, in which 98% of the incumbents, of
whatever party, were returned to office; and now that we have seen
elected officials changing their political affiliation with
unprecedented readiness, Washington Post, Apr. 10, 1990, p. A1, the
statement that "political parties have already survived" has a
positively whistling-in-the-graveyard character to it. Parties have
assuredly survived -- but as what? As the forges upon which many of
the essential compromises of American political life are hammered
out? Or merely as convenient vehicles for the conducting of
national presidential elections?
The patronage system does not, of course, merely foster
political parties in general; it fosters the two-party system in
particular. When getting a job, as opposed to effectuating a
particular substantive policy, is an available incentive for
Page 497 U. S. 107
party workers, those attracted by that incentive are likely to
work for the party that has the best chance of displacing the
"ins," rather than for some splinter group that has a more
attractive political philosophy but little hope of success. Not
only is a two-party system more likely to emerge, but the
differences between those parties are more likely to be moderated,
as each has a relatively greater interest in appealing to a
majority of the electorate and a relatively lesser interest in
furthering philosophies or programs that are far from the
mainstream. The stabilizing effects of such a system are obvious.
See Toinet & Glenn, Clientelism and Corruption in the
"Open" Society, at 208. In the context of electoral laws, we have
approved the States' pursuit of such stability and their avoidance
of the "splintered parties and unrestrained factionalism [that] may
do significant damage to the fabric of government."
Storer v.
Brown, 415 U. S. 724,
415 U. S. 736
(1974) (upholding law disqualifying persons from running as
independents if affiliated with a party in the past year).
Equally apparent is the relatively destabilizing nature of a
system in which candidates cannot rely upon patronage-based party
loyalty for their campaign support, but must attract workers and
raise funds by appealing to various interest-groups.
See
Tolchin & Tolchin, To the Victor, at 127-130. There is little
doubt that our decisions in
Elrod and
Branti, by
contributing to the decline of party strength, have also
contributed to the growth of interest-group politics in the last
decade.
See, e.g., Fitts, The Vice of Virtue, 136
U.Pa.L.Rev. 1567, 1603-1607 (1988). Our decision today will greatly
accelerate the trend. It is not only campaigns that are affected,
of course, but the subsequent behavior of politicians once they are
in power. The replacement of a system firmly based in party
discipline with one in which each officeholder comes to his own
accommodation with competing interest groups produces "a dispersion
of political influence that may inhibit a
Page 497 U. S. 108
political party from enacting its programs into law."
Branti, supra, at
445 U. S. 531 (Powell, J., dissenting). [
Footnote 3/4]
Patronage, moreover, has been a powerful means of achieving the
social and political integration of excluded groups.
See, e.g.,
Elrod, supra, 427 U.S. at
427 U. S. 379
(Powell, J., dissenting); Cornwell, Bosses, Machines and Ethnic
Politics, in Ethnic Group Politics 190, 195-197 (H. Bailey, Jr.,
& E. Katz eds. 1969). By supporting and ultimately dominating a
particular party "machine," racial and ethnic minorities have -- on
the basis of their politics, rather than their race or ethnicity --
acquired the patronage awards the machine had power to confer. No
one disputes the historical accuracy of this observation, and there
is no reason to think that patronage can no longer serve that
function. The abolition of patronage, however, prevents groups that
have only recently obtained political power, especially blacks,
from following this path to economic and social advancement.
"Every ethnic group that has achieved political power in
American cities has used the bureaucracy to provide jobs in return
for political support. It's only when Blacks begin to play the same
game that the rules get changed. Now the use of such jobs to build
political bases becomes an 'evil' activity, and the city insists on
taking the control back 'downtown.'"
New York Amsterdam News, Apr. 1, 1978, p. A-4, quoted in
Hamilton, The Patron-Recipient Relationship and Minority Politics
in New York City, 94 Pol.Sci.Q. 211, 212 (1979).
While the patronage system has the benefits argued for above, it
also has undoubted disadvantages. It facilitates financial
corruption, such as salary kickbacks and partisan political
activity on government-paid time. It reduces the efficiency
Page 497 U. S. 109
of government, because it creates incentives to hire more and
less-qualified workers and because highly qualified workers are
reluctant to accept jobs that may only last until the next
election. And, of course, it applies some greater or lesser
inducement for individuals to join and work for the party in
power.
To hear the Court tell it, this last is the greatest evil. That
is not my view, and it has not historically been the view of the
American people. Corruption and inefficiency, rather than
abridgement of liberty, have been the major criticisms leading to
enactment of the civil-service laws -- for the very good reason
that the patronage system does not have as harsh an effect upon
conscience, expression, and association as the Court suggests. As
described above, it is the nature of the pragmatic,
patronage-based, two-party system to build alliances and to
suppress rather than foster ideological tests for participation in
the division of political "spoils." What the patronage system
ordinarily demands of the party worker is loyalty to, and activity
on behalf of, the organization itself, rather than a set of
political beliefs. He is generally free to urge
within the
organization the adoption of any political position; but if
that position is rejected, he must vote and work for the party
nonetheless. The diversity of political expression (other than
expression of party loyalty) is channeled, in other words, to a
different stage -- to the contests for party endorsement, rather
than the partisan elections. It is undeniable, of course, that the
patronage system entails some constraint upon the expression of
views, particularly at the partisan-election stage, and
considerable constraint upon the employee's right to associate with
the other party. It greatly exaggerates these, however, to describe
them as a general "
coercion of belief,'" ante at
497 U. S. 71,
quoting Branti, 445 U.S. at 445 U. S. 516;
see also ante at 497 U. S. 75;
Elrod, 427 U.S. at 427 U. S. 355
(plurality opinion). Indeed, it greatly exaggerates them to call
them "coercion" at all, since we generally make a distinction
between inducement and compulsion. The public official
Page 497 U. S. 110
offered a bribe is not "coerced" to violate the law, and the
private citizen offered a patronage job is not "coerced" to work
for the party. In sum, I do not deny that the patronage system
influences or redirects, perhaps to a substantial degree,
individual political expression and political association. But,
like the many generations of Americans that have preceded us, I do
not consider that a significant impairment of free speech or free
association.
In emphasizing the advantages and minimizing the disadvantages
(or at least minimizing one of the disadvantages) of the patronage
system, I do not mean to suggest that that system is best. It may
not always be; it may never be. To oppose our
Elrod-Branti
jurisprudence, one need not believe that the patronage system is
necessarily desirable; nor even that it is always and
everywhere
arguably desirable, but merely that it is a
political arrangement that may sometimes be a reasonable choice,
and should therefore be left to the judgment of the people's
elected representatives. The choice in question, I emphasize, is
not just between patronage and a merit-based civil service, but
rather among various combinations of the two that may suit
different political units and different eras: permitting patronage
hiring, for example, but prohibiting patronage dismissal;
permitting patronage in most municipal agencies but prohibiting it
in the police department; or permitting it in the mayor's office
but prohibiting it everywhere else. I find it impossible to say
that, always and everywhere, all of these choices fail our
"balancing" test.
C
The last point explains why
Elrod and
Branti
should be overruled, rather than merely not extended. Even in the
field of constitutional adjudication, where the pull of stare
decisis is at its weakest,
see Glidden Co. v. Zdanok,
370 U. S. 530,
370 U. S. 543
(1962) (opinion of Harlan, J.), one is reluctant to depart from
precedent. But when that precedent is not only wrong, not only
recent, not only contradicted by a long prior
Page 497 U. S. 111
tradition, but also has proved unworkable in practice, then all
reluctance ought to disappear. In my view that is the situation
here. Though unwilling to leave it to the political process to draw
the line between desirable and undesirable patronage, the Court has
neither been prepared to rule that no such line exists
(
i.e., that all patronage is unconstitutional) nor able to
design the line itself in a manner that judges, lawyers, and public
employees can understand.
Elrod allowed patronage
dismissals of persons in "policymaking" or "confidential"
positions. 427 U.S. at
427 U. S. 367
(plurality opinion);
id. at 375 (Stewart, J., concurring).
Branti retreated from that formulation, asking instead
"whether the hiring authority can demonstrate that party
affiliation is an appropriate requirement for the effective
performance of the public office involved."
445 U.S. at
445 U. S. 518.
What that means is anybody's guess. The Courts of Appeals have
devised various tests for determining when "affiliation is an
appropriate requirement."
See generally Martin, A Decade
of
Branti Decisions: A Government Officials' Guide to
Patronage Dismissals, 39 Am.U.L.Rev. 11, 23-42 (1989). These
interpretations of
Branti are not only significantly at
variance with each other, they are still so general that for most
positions it is impossible to know whether party affiliation is a
permissible requirement until a court renders its decision.
A few examples will illustrate the shambles
Branti has
produced. A city cannot fire a deputy sheriff because of his
political affiliation, [
Footnote
3/5] but then again perhaps it can, [
Footnote 3/6] especially if he is called the "police
captain." [
Footnote 3/7] A county
cannot fire on that basis its attorney for the department of
social
Page 497 U. S. 112
services, [
Footnote 3/8] nor its
assistant attorney for family court, [
Footnote 3/9] but a city can fire its solicitor and his
assistants, [
Footnote 3/10] or
its assistant city attorney, [
Footnote 3/11] or its assistant state's attorney,
[
Footnote 3/12] or its
corporation counsel. [
Footnote
3/13] A city cannot discharge its deputy court clerk for his
political affiliation, [
Footnote
3/14] but it can fire its legal assistant to the clerk on that
basis. [
Footnote 3/15] Firing a
juvenile court bailiff seems impermissible, [
Footnote 3/16] but it may be permissible if he is
assigned permanently to a single judge. [
Footnote 3/17] A city cannot fire on partisan grounds
its director of roads, [
Footnote
3/18] but it can fire the second in command of the water
department. [
Footnote 3/19] A
government cannot discharge for political reasons the senior vice
president of its development bank, [
Footnote 3/20] but it can discharge the regional
director of its rural housing administration. [
Footnote 3/21]
The examples could be multiplied, but this summary should make
obvious that the "tests" devised to implement
Branti have
produced inconsistent and unpredictable results. That uncertainty
undermines the purpose of both the nonpatronage
Page 497 U. S. 113
rule and the exception. The rule achieves its objective of
preventing the "coercion" of political affiliation,
see
supra at
497 U. S. 97,
only if the employee is confident that he can engage in (or refrain
from) political activities without risking dismissal. Since the
current doctrine leaves many employees utterly in the dark about
whether their jobs are protected, they are likely to play it safe.
On the other side, the exception was designed to permit the
government to implement its electoral mandate.
Elrod,
supra, at
427 U. S. 367
(plurality opinion). But unless the government is fairly sure that
dismissal is permitted, it will leave the politically uncongenial
official in place, since an incorrect decision will expose it to
lengthy litigation and a large damage award, perhaps even against
the responsible officials personally.
This uncertainty and confusion are not the result of the fact
that
Elrod, and then
Branti, chose the wrong
"line." My point is that there is no right line -- or at least no
right line that can be nationally applied and that is known by
judges. Once we reject as the criterion a long political tradition
showing that party-based
Page 497 U. S. 114
employment is entirely permissible, yet are unwilling (as any
reasonable person must be) to replace it with the principle that
party-based employment is entirely impermissible, we have left the
realm of law and entered the domain of political science, seeking
to ascertain when and where the undoubted benefits of political
hiring and firing are worth its undoubted costs. The answer to that
will vary from State to State, and indeed from city to city, even
if one rejects out of hand (as the
Branti line does) the
benefits associated with party stability. Indeed, the answer will
even vary from year to year. During one period, for example, it may
be desirable for the manager of a municipally owned public utility
to be a career specialist, insulated from the political system.
During another, when the efficient operation of that utility or
even its very existence has become a burning political issue, it
may be desirable that he be hired and fired on a political basis.
The appropriate "mix" of party-based employment is a political
question if there ever was one, and we should give it back to the
voters of the various political units to decide, through
civil-service legislation crafted to suit the time and place, which
mix is best.
III
Even were I not convinced that
Elrod and
Branti were wrongly decided, I would hold that they should
not be extended beyond their facts,
viz., actual discharge
of employees for their political affiliation. Those cases
invalidated patronage firing in order to prevent the "restraint it
places on freedoms of belief and association."
Elrod, 427
U.S. at
427 U. S. 355
(plurality opinion);
see also id. at
427 U. S. 357
(patronage "compels or restrains" and "inhibits" belief and
association). The loss of one's current livelihood is an
appreciably greater constraint than such other disappointments as
the failure to obtain a promotion or selection for an uncongenial
transfer. Even if the "coercive" effect of the former has been held
always to outweigh the benefits of party-based employment
decisions, the "coercive" effect of the latter should not be. We
have drawn a line between firing and other employment decisions in
other contexts,
see Wygant v. Jackson Bd. of Education,
476 U. S. 267,
476 U. S.
282-283 (1986) (plurality opinion), and should do so
here as well.
I would reject the alternative that the Seventh Circuit adopted
in this case, which allows a cause of action if the employee can
demonstrate that he was subjected to the "substantial equivalent of
dismissal." 868 F.2d 943, 950, 954 (CA7 1989). The trouble with
that seemingly reasonable standard is that it is so imprecise that
it will multiply yet again the harmful uncertainty and litigation
that
Branti has already created. If
Elrod and
Branti are not to be reconsidered in light of their
demonstrably unsatisfactory consequences, I would go no further
than to allow a cause of action when the employee has lost his
position, that is, his formal title and salary. That narrow ground
alone is enough to resolve the constitutional
Page 497 U. S. 115
claims in the present case. Since none of the plaintiffs has
alleged loss of his position because of affiliation, [
Footnote 3/22] I would affirm the Seventh
Circuit's judgment insofar as it affirmed the dismissal of
petitioners' claims, and would reverse the Seventh Circuit's
judgment insofar as it reversed the dismissal of cross-respondent's
claims.
The Court's opinion, of course, not only declines to confine
Elrod and
Branti to dismissals in the narrow
sense I have proposed but, unlike the Seventh Circuit, even extends
those opinions beyond "constructive" dismissals -- indeed, even
beyond adverse treatment of current employees -- to all hiring
decisions. In the long run, there may be cause to rejoice in that
extension. When the courts are flooded with litigation under that
most unmanageable of standards (
Branti) brought by that
most persistent and tenacious of suitors (the disappointed
office-seeker), we may be moved to reconsider our intrusion into
this entire field.
In the meantime, I dissent.
[
Footnote 3/1]
The customary invocation of
Brown v. Board of
Education, 347 U. S. 483
(1954), as demonstrating the dangerous consequences of this
principle,
see ante at
497 U. S. 82
(STEVENS, J., concurring), is unsupportable. I argue for the role
of tradition in giving content only to
ambiguous
constitutional text; no tradition can supersede the Constitution.
In my view, the Fourteenth Amendment's requirement of "equal
protection of the laws," combined with the Thirteenth Amendment's
abolition of the institution of black slavery, leaves no room for
doubt that laws treating people differently because of their race
are invalid. Moreover, even if one does not regard the Fourteenth
Amendment as crystal clear on this point, a tradition of
unchallenged validity did not exist with respect to the
practice in
Brown. To the contrary, in the 19th century,
the principle of "separate-but-equal" had been vigorously opposed
on constitutional grounds, litigated up to this Court, and upheld
only over the dissent of one of our historically most respected
Justices.
See Plessy v. Ferguson, 163 U.
S. 537,
163 U. S.
555-556 (1896) (Harlan, J., dissenting).
[
Footnote 3/2]
Justice STEVENS seeks to counteract this tradition by relying
upon the supposed "unequivocal repudiation" of the right-privilege
distinction.
Ante at
497 U. S. 83.
That will not do. If the right-privilege distinction was once used
to explain the practice, and if that distinction is to be
repudiated, then one must simply devise some other theory to
explain it. The order of precedence is that a constitutional theory
must be wrong if its application contradicts a clear constitutional
tradition, not that a clear constitutional tradition must be wrong
if it does not conform to the current constitutional theory. On
Justice STEVENS' view of the matter, this Court examines a
historical practice, endows it with an intellectual foundation, and
later, by simply undermining that foundation, relegates the
constitutional tradition to the dustbin of history. That is not how
constitutional adjudication works.
Cf. Burnham v. Superior
Court of California, Marin County, 495 U.
S. 604 (1990) (opinion of SCALIA, J.). I am not sure, in
any event, that the right-privilege distinction has been as
unequivocally rejected as Justice STEVENS supposes. It has
certainly been recognized that the fact that the government need
not confer a certain benefit does not mean that it can attach any
conditions whatever to the conferral of that benefit. But it
remains true that certain conditions can be attached to benefits
that cannot be imposed as prescriptions upon the public at large.
If Justice STEVENS chooses to call this something other than a
right-privilege distinction, that is fine and good -- but it is, in
any case, what explains the nonpatronage restrictions upon federal
employees that the Court continues to approve, and there is no
reason why it cannot support patronage restrictions as well.
[
Footnote 3/3]
The Court calls our description of the appropriate standard of
review "questionable," and suggests that these cases applied strict
scrutiny ("even
were Justice SCALIA correct that
less-than-strict scrutiny is appropriate").
Ante at
497 U. S. 70, n.
4 (emphasis added). This suggestion is incorrect, does not aid the
Court's argument, and, if accepted would eviscerate the
strict-scrutiny standard. It is incorrect because even a casual
perusal of the cases reveals that the governmental actions were
sustained not because they were shown to be "narrowly tailored to
further vital government interests,"
ante at
497 U. S. 74,
but because they were "reasonably" deemed necessary to promote
effective government. It does not aid the Court's argument,
moreover, because
whatever standard those cases applied
must be applied here, and if the asserted interests in patronage
are as weighty as those proffered in the previous cases, then
Elrod and
Branti were wrongly decided. It
eviscerates the standard, finally, because, if the practices upheld
in those cases survived strict scrutiny, then the so-called "strict
scrutiny" test means nothing. Suppose a State made it unlawful for
an employee of a privately owned nuclear power plant to criticize
his employer. Can there be any doubt that we would reject out of
hand the State's argument that the statute was justified by the
compelling interest in maintaining the appearance that such
employees are operating nuclear plants properly, so as to maintain
public confidence in the plants' safety?
But cf. CSC v. Letter
Carriers, 413 U. S. 548,
413 U. S. 565
(1973) (Hatch Act justified by need for government employees to
"appear to the public to be avoiding [political partiality], if
confidence in the system of representative Government is not to be
eroded"). Suppose again that a State prohibited a private employee
from speaking on the job about matters of private concern. Would we
even hesitate before dismissing the State's claim that the
compelling interest in fostering an efficient economy overrides the
individual's interest in speaking on such matters?
But cf.
Connick v. Myers, 461 U. S. 138,
461 U. S. 147
(1983) ("[W]hen a public employee speaks . . . upon matters only of
personal interest, absent the most unusual circumstances, a federal
court is not the appropriate forum in which to review the wisdom of
a personnel decision taken by a public agency allegedly in reaction
to the employee's behavior"). If the Court thinks that strict
scrutiny is appropriate in all these cases, then it should
forthrightly admit that
Public Workers v. Mitchell,
330 U. S. 75
(1947),
Letter Carriers, supra; Pickering v. Board of Education
of Township High School Dist., 391 U.
S. 563 (1968),
Connick, and similar cases were
mistaken, and should be overruled; if it rejects that course, then
it should admit that those cases applied, as they said they did, a
reasonableness test.
The Court's further contention that these cases are limited to
the "interests that the government has in its capacity as an
employer,"
ante at
497 U. S. 70, n.
4, as distinct from its interests "in the structure and functioning
of society as a whole,"
ibid., is neither true nor
relevant. Surely a principal reason for the statutes that we have
upheld preventing political activity by government employees -- and
indeed the
only substantial reason, with respect to those
employees who are permitted to be hired and fired on a political
basis -- is to prevent the party in power from obtaining what is
considered an unfair advantage in political campaigns. That is
precisely the type of governmental interest at issue here. But even
if the Court were correct, I see no reason in policy or principle
why the government would be limited to furthering only its
interests "as employer." In fact, we have seemingly approved the
furtherance of broader governmental interests through employment
restrictions. In
Hampton v. Mow Sun Wong, 426 U. S.
88 (1976), we held unlawful a Civil Service Commission
regulation prohibiting the hiring of aliens on the ground that the
Commission lacked the requisite authority. We were willing,
however, to
"assume . . . that, if the Congress or the President had
expressly imposed the citizenship requirement, it would be
justified by the national interest in providing an incentive for
aliens to become naturalized, or possibly even as providing the
President with an expendable token for treaty negotiating
purposes."
Id. at
426 U. S. 105.
Three months after our opinion, the President adopted the
restriction by Executive Order. Exec.Order No. 11935, 3 CFR 146
(1976 Comp.). On remand, the lower courts denied the
Mow Sun
Wong plaintiffs relief, on the basis of this new Executive
Order and relying upon the interest in providing an incentive for
citizenship.
Mow Sun Wong v. Hampton, 435 F. Supp.
37 (ND Cal.1977),
aff'd, 626 F.2d 739 (CA9 1980). We
denied certiorari
sub nom. Lum v. Campbell, 450 U.S. 959
(1981). In other cases, the lower federal courts have uniformly
reached the same result.
See, e.g., Jalil v. Campbell, 192
U.S.App. D.C. 4, 7, 590 F.2d 1120, 1123, n. 3 (1978);
Vergara
v. Hampton, 581 F.2d 1281 (CA7 1978),
cert. denied,
441 U.S. 905 (1979);
Santin Ramos v. United States Civil
Service Comm'n, 430 F.
Supp. 422 (PR 1977) (three-judge court).
[
Footnote 3/4]
Justice STEVENS discounts these systemic effects when he
characterizes patronage as fostering partisan, rather than public,
interests.
Ante at
497 U. S. 88.
But, taking Justice STEVENS at his word, one wonders why patronage
can ever be an "appropriate requirement for the position involved,"
ante at
497 U. S.
64.
[
Footnote 3/5]
Jones v. Dodson, 727 F.2d 1329, 1338 (CA4 1984).
[
Footnote 3/6]
McBee v. Jim Hogg County, Texas, 730 F.2d 1009,
1014-1015 (CA5 1984) (en banc).
[
Footnote 3/7]
Joyner v. Lancaster, 553 F.
Supp. 809,
818
(MDNC 1982),
later proceeding, 815 F.2d 20 24 (CA4),
cert. denied, 484 U.S. 830 (1987).
[
Footnote 3/8]
Layden v. Costello, 517 F.
Supp. 860, 862 (NDNY 1981).
[
Footnote 3/9]
Tavano v. County of Niagara, New York, 621 F.
Supp. 345, 349-350 (WDNY 1985),
aff'd mem., 800 F.2d
1128 (CA2 1986).
[
Footnote 3/10]
Ness v. Marshall, 660 F.2d 517, 521-522 (CA3 1981);
Montaquila v. St. Cyr, 433 A.2d
206, 211 (R.I. 1981).
[
Footnote 3/11]
Finkelstein v. Barthelemy, 678
F. Supp. 1255 1265 (ED La 1988).
[
Footnote 3/12]
Livas v. Petka, 711 F.2d 798, 800-801 (CA7 1983).
[
Footnote 3/13]
Bavoso v. Harding, 507 F.
Supp. 313, 316 (SDNY 1980).
[
Footnote 3/14]
Barnes v. Bosley, 745 F.2d 501, 508 (CA8 1984),
cert. denied, 471 U.S. 1017 (1985).
[
Footnote 3/15]
Bauer v. Bosley, 802 F.2d 1058, 1063 (CA8 1986),
cert. denied, 481 U.S. 1038 (1987).
[
Footnote 3/16]
Elrod v. Burns, 427 U. S. 347, 351
(1976).
[
Footnote 3/17]
Balogh v. Charron, 855 F.2d 356 (CA6 1988).
[
Footnote 3/18]
Abraham v. Pekarski, 537 F.
Supp. 858, 865 (ED Pa 1982),
aff'd in part and dismissed in
part, 728 F.2d 167 (CA3),
cert. denied, 467 U.S. 1242
(1984).
[
Footnote 3/19]
Tomczak v. Chicago, 765 F.2d 633 (CA7),
cert.
denied, 474 U.S. 946 (1985).
[
Footnote 3/20]
De Choudens v. Government Development Bank of Puerto
Rico, 801 F.2d 5, 10 (CA1 1986) (en banc),
cert.
denied, 481 U.S. 1013 (1987).
[
Footnote 3/21]
Rosario Nevarez v. Torres Gaztambide, 820 F.2d 525 (CA1
1987).
[
Footnote 3/22]
Standefer and O'Brien do not allege that their political
affiliation was the reason they were laid off, but only that it was
the reason they were not recalled. Complaint �� 9, 21-22, App. to
Respondent's Brief in Opposition;
641 F.
Supp. 249, 256, 257 (CDIll.1986). Those claims are essentially
identical to the claims of persons wishing to be hired; neither
fall within the narrow rule of
Elrod and
Branti
against patronage firing.