*1 v. BURNS ELROD, SHERIFF, et et al. al. Argued 19, 74-1520. April No. 1976 Decided June *2 J., Brennan, judgment announced the of the Court and delivered opinion, an JJ., joined. in which Marshall, Stewart, White J., opinion filed concurring an judgment, in the in which Blackmun, J., joined, post, p. J., dissenting 374. opinion, C. filed Burger, post, p. J., 375. Powell, dissenting opinion, filed a which Burger, J.,C. J., joined, post, p. Rehnquist, J., 376. Stevens, took part no in the consideration decision of the case.
Thomas A. For *3 argued an petitioners. cause for With him on the briefs were Carey, Bernard Paul P. Biebel, Jr., Raymond Simon, F. Robert and E. Wiss.
John C. Tucker argued respondents. the cause for him With Goldberger.* the brief David Mr. announced the Justice Brennan judgment the Court opinion and delivered an in which Mr. Justice White and joined. Justice Mr. Marshall
This presents case the question public whether em- ployees allege they discharged who that were or threat- solely discharge partisan ened with because of their political affiliation or nonaffiliation claim for state a by deprivation rights First of constitutional secured and Fourteenth Amendments.
I Respondents brought this- suit in the United States District for the District of Illinois Court Northern urging of amici curiae affirmance were filed C. Richard
*Briefs al.; Independent Johnson for the of Illinois and Voters et Joseph Jr., Silard, Rauh, L. Alan for John B. Morrison Public Citizen. Daley, Richard J. Elrod, J. petitioners, Richard
against County, Organization of Cook the Democratic County. County Committee Cook Democratic Central or they discharged alleged were complaint Their that they solely for reason that discharge threatened with Democratic by the sponsored were not affiliated with and other sought injunctive, Party. They declaratory, Amend- Fourteenth relief for of the First and violations Find- 1988. 1985, 1986, C. §§ ments and U. S. adequate failed make an ing respondents District Court denied showing irreparable injury, ultimately preliminary injunction motion state claim complaint for failure to dismissed their United granted. relief could be States upon which relying on Appeals Circuit, Court of for the Seventh Lewis, Union Illinois State Employees 473 F. 2d holding re- (CA7 remanded, reversed and 1972), claim. spondents’ complaint cognizable legally stated a Appeals The Court of instructed the District Court injunctive enter relief. appropriate preliminary 423 U. granted 2d 1133 certiorari. F. We 821. affirm.1 We
II *4 a Re- County, In December of Cook 1970, Sheriff by Elrod, a Democrat. publican, replaced was Richard em- were time, respondents, Republicans, At all They County were ployees of the Office. Cook Sheriff’s not employees and, therefore, covered non-civil-service regulation them protecting statute, ordinance, or Bums, arbitrary respondent, John discharge. from One Deputy supervised Division and was Chief of the Process working on the all of the Office departments Sheriff’s review, well-pleaded allegations purposes all of the 1 For of our complaint sup respondents’ uncontroverted affidavits filed port injunction taken preliminary of the as true. motion for a seventh floor of the building housing that office. Frank Yargas security guard was a bailiff and Juvenile County. Court of Buckley Cook Fred L. employed process as a server in the office. Joseph Dennard was employee an in the office. practice
It has been the of the Sheriff Cook County, he when assumes from office a Sheriff po- of a different litical replace party, non-civil-service employees of the Sheriff’s Office with members of his own party when existing employees lack or fail to requisite support obtain from, or fail to affiliate with, party. Consequently, subsequent to Sheriff Elrod’s assumption of re- office, spondents, exception with the dis- Buckley, were charged from their employment solely they because did support and were not members of the Democratic Party and had failed to obtain sponsorship of one of its leaders. Buckley is in imminent danger being discharged solely for Respondents the same reasons. al- lege that the discharges were ordered Sheriff Elrod under the direction of the codefendants in this suit.
Ill At outset, met objections we are our con- sideration of this case based on the political-question doctrine principle separation powers. and the These objections long need not detain us.
A question presented to prop- this Court decision is erly deemed its when resolution committed by the Constitution to a branch of the Federal Govern- ment Carr, other than this Court. Baker v. S.U. (1962). Thus, “it is the relationship between the judiciary and the coordinate branches of the Federal judiciary’s and not the Government, relationship federal ” to the gives which rise to States, 'political question.’ *5 Id., at 210. That matters related to a State’s, or even the Federal Government’s, process implicated elective are to question is not sufficient this Court's resolution of a ¡ question. par of withholding our decision justify only to determine ticular, in this we are asked case., discharge employees of politically whether the motivated County comports Office with the the Cook Sheriff’s Amendments. of the First and Fourteenth limitations solely question interpre of constitutional involves j.This ultimately this responsibility a function tation, . McCormack, Id., 211 Powell v. Court. See do 486, (1969). not, 618-549 Petitioners to constitu argue that a' decision as not, could to tionality should be left practices of the Sheriff’s doc Congress political-question or the President. The in this to review judicial is no trine, therefore, obstacle Rhodes, Williams 393 U. S. case. See v. case will our review of this object
Petitioners also powers, principle separation. offend faith- the laws be responsibility executive’s insure that re- fully power appointment requires executed oversight. by any judicial unimpaired moval at will, States, They Myers (1926), United cite U. S. to this support argument. of their The short answer like principle, (argument separation-of-powers is that the applicability no has political-question doctrine, judiciary’s relationship the States. the federal Myers permissibility limited to matter in itself was con- Congress on the President imposed of restraints cerning of the officers. More the removal executive ob- petitioners’ the answer however, fundamentally, Ejection impairment can no of executive is that there be where actions power, level, whether the state or federal pursuant under the Con- power impermissible to that can be no im- power, there is no there Where |_stitution. pairment of the power. And our determination limits in the Constitution power on state executive contained
353 is in proper keeping with our primary responsibility interpreting document. It is to such a determina- tion we now turn.
IV The Cook County practice Sheriff’s em- dismissing ployees partisan a is but general basis form of the one practice political in- patronage.2 practice The also placing loyal cludes supporters government jobs that may may have been made available discharges. may Nonofficeholders be the beneficiaries of lucrative highway contracts for construction, buildings, supplies. and may Favored wards receive improved public Members of judiciary services. engage practice even in the through appoint- ment of refereeships. receiverships, trusteeships, and Although comprises a range broad we are here activities, only concerned with the consti- tutionality of public dismissing employees for partisan reasons.
Patronage practice is not politics. new to American It has existed at the federal level at least since Presi- dency of Thomas Jefferson,3 although popularization its legitimation primarily occurred later, in the Presi- dency of practice Andrew Jackson.4 The not unique politics. American many has been used in Euro- pean countries,5 and darker times, played signifi- cant role in power the Nazi in Germany rise other totalitarian states.6 More recent times have wit- Tolchin, M. Tolchin. & (1971). To the Victor 5-6
3 Id., at 323.
4 Id., at 323-326. Fish, See Patronage C. Civil Service 209-210 (1904); Rosenbloom, D. Federal Service and the Constitution 238- Brzezinski, C. Friedrich Z. Dictatorship & Totalitarian and Au tocracy (rev. 1965). 183-188 ed. particularly use, in its strong decline
nessed
only
fewa
Indeed,
public employment.
respect
*7
strong
Andrew Jackson's administration,
decades after
inefficiency of the
corruption and
the
discontent with
in
eventuated
public employment
system of
patronage
modern civil
of
the foundation
Act,7
Pendleton
systems
merit
levels,
And on the state and local
service.
led
This trend
displaced
practice.8
increasingly
have
Carriers, 413 U.
Letter
S.
in CSC v.
the Court to observe
of
judgment
Congress,
564
“the
(1973),
548,
country
to have been that
appears
and the
Executive,
employees must
by federal
partisan
activities
effectively
operate
if
is to
be limited
the Government
rep-
in
play
proper part
their
elections are
fairly,
employees
themselves
resentative government,
improper influences.”
sufficiently
to be
free from
employment
of
patronage
not,
The decline of
constitutionality.
question
to the
of its
course, relevant
occur-
practice
is the
of its
magnitude
itself,
constitutionality of which must be determined.
rence,
of the
any unacceptability
Nor for that matter does
practice
its unconstitu-
signified
its decline indicate
tionality.
inquiry
judg-
Our
does not
with
begin
though
operation
prac-
ment of
the actual
of
history,
a
retrospect may help
in
tice viewed
assess its work-
ings
respect
with
Compare
to constitutional
limitations.
Education,
Brown v. Board
347
(1954),
U. S. 483
of
7
(2)
16, 1883,
27,
Fifth,
Act
2
of
c.
22
404.
Sixth,
Jan.
Stat.
§
Oklahoma,
(1973).
604-605,
See Broadrick v.
n.
contributing
declining
Factors
to the
use of
have not
proliferation
systems.
been
to the
of merit
limited
New methods
greater necessity
job
financing,
expertise
public
employment, growing
process,
issue orientation
elective
political campaigners
new
incentives
have also contributed.
Sorauf, The
Patronage,
Silent
Revolution
Admin. Rev.
Pub.
(1960).
28, 34
Plessy
Ferguson,
in-
Rather,
Y practice The cost of the is the restraint it places on freedoms of belief In order and association. respondents required maintain their jobs, were pledge their political allegiance to the Demo- cratic work for the election of other candidates Party, of the Democratic portion contribute Party, wages to the sponsorship or obtain the of a mem- Party, usually ber of the at the price one the first Party, *8 three alternatives. of Regardless party's the incumbent Democratic or consequences the for identity, otherwise, association and belief the same. An individual who is a member of the out-party maintains affiliation with his party own at the risk job. of his losing He works for the election of party's his espouses candidates and its policies at the same risk. The campaign financial and assistance he is provide induced to to party another the furthers advancement of party’s policies to the detriment of party's his ultimately views and his own beliefs, and salary assessment of his is tantamount to coerced belief. Valeo, See Buckley v. S. (1976). Even pledge of allegiance to another party, ostensible, however only compromise serves to the indi- vidual’s true beliefs. Since average public employee the hardly position the financial support party his and or to lend another, his time to two parties, the commentary 9 For comprehensive constitutionality on the of the practice of dismissals, Sehoen, Politics, see Patronage, and Constitution, Legal the (1969); Forum 35 Comment, Ind. Patron age Dismissals: Constitutional Limits and Political Justification, U. Chi. L. Rev. 297 to his beliefs according to act ability
individual’s is con- persuasion political his others associate is diminished. party support for his strained, restricted which are only belief and association It is not free practice. patronage is political where Condi- suffers. process also electoral functioning support prevents partisan on employment tioning public Existing em- interests. competing political support well as the support, as from such ployees are deterred jobs. government employment, As seeking multitude greater more becomes federal, pervasive, state be- greater on it therefore the dependence becomes, by power political opposition comes the starve partisan financial and otherwise. commanding support, process in favor of the Patronage tips thus the electoral practice’s scope incumbent is sub- party, and where of the impact stantial relative the size electorate, on process significant. can be impact
Our concern with the belief and association not occur in the abstract, does belief and association constitute the core protected by those activities the First Amendment.10 of the nature of the Regardless whether it inducement, be of public employment or, as Board the denial Barnette, Education 319 U. 624 (1943), *9 “[ijf any influence students, of a teacher is over there fixed star in our constitutional it is that constellation, or high petty, prescribe no can what official, shall be orthodox in politics, religion, or other mat- nationalism, opinion ters of or or force citizens to confess word Id., act though faith therein.” at And, 642. 10“It important is to note that while is the Fourteenth Amend directly upon specific ment which bears it is the State more limiting principles finally of govern the First Amendment that this Barnette, 624, Board Education case.” v. 319 U. S. 639
357 freedom belief is central, First Amendment “[t]he protects political association political expres as well as Buckley Valeo, supra, at no sion.” v. 15. “There can longer be doubt freedom associate with others for the common advancement of beliefs activity’ is form 'orderly group protected ideas and Fourteenth Amendments. NAACP by the First v. Button, 371 Rock, Bates Little U. 430; S. v. 415, NAACP Alabama, U. S. 522-523; v. 449, S. 516, 460-461. The right political party to associate with the part one’s choice is an integral of this basic constitu tional freedom.” Kusper Pontikes, v. U. S. 56- 51, 57 (1973). protections
These “profound reflect our com- national mitment to the principle that on public debate issues should be New wide-open,” uninhibited, robust, York Times Co. Sullivan, v. 376 U. 270 (1964), S. 254, a principle itself reflective under- fundamental standing that competition in governmental ideas “[ policies is at the core of our electoral process . . . Williams Rhodes, v. 393 U. at 32. S., there- Patronage, to the fore, extent it compels or restrains belief and association, process inimical to the which undergirds system our of government and is “at war deeper with the traditions of democracy embodied in the First Amend- Illinois ment.” Employees State Union Lewis, v. 2d, F. 576. As such, practice unavoidably con- fronts decisions this Court either or invalidating rec- ognizing as invalid action that inhibits be- lief through and association the conditioning public employment faith. in United Public Workers recognized
The Court Mitchell, 330 U. (1947), “Congress a regulation providing not 'enact that no Jew Republican, Negro be appointed shall federal office ....’” This *10 358 Updegraff, 344 in Wieman v. was reaffirmed
principle could not re a U. which held that State (1952), 183 S. loyalty by extract to quire employees its establish with Communists. ing past affiliation denying an oath McElroy, 367 U. S. Workers v. And in Cafeteria gov the again that recognized the Court 898 (1961), deny previous employment could not because ernment membership particular party.11 in a constitutionality of the
Particularly pertinent to Board Keyishian v. practice dismissals Perry v. Sinder Regents, (1967), 385 U. 589 mann, Keyishian, in the Court (1972). 593 408 U. S. merely barring employment New York statutes validated organizations. membership “subversive” on the basis alone Keyishian squarely held that association consti- consistently Amendment, could First not, limited of First Amendment interests has been Protection requiring government employment on to of conditions invalidation decisions allegiance particular political party. to This Court’s jobs benefits, prohibited' public form of conditions have generally otherwise, dampen the exercise of First Amend which rights, slight the inducement to the individual ment however rights. forsake those Watkins, (1961), v.
In Torcaso
Patronage practice
squarely
falls
prohibi-
within the
Keyishian
and Perry.
tions of
practice,
Under
that
public employees
jobs
hold their
on the condition
they
in
acceptable
some
provide,
manner, support
for the
favored
party. The threat of dismissal
provide
failure to
that support unquestionably in-
protected
hibits
belief and association, and dismissal for
provide
failure to
support only penalizes its exercise.
The
may
belief and association
which
not
directly
ordain
are achieved
And
indirection.13
12Thereafter,
(1967),
Robel,
United States v.
VI clearly practice dismissals Although is not inquiry First our infringes interests, Amendment of First prohibition at an for the on encroachment end, protections is not an absolute. Restraints Amendment Keyishian and for reasons. permitted appropriate Perry, only presumptive establish a not serve to however, dispose prohibition infringement, but also serve by af- suggested petitioners’ one reference to this Court’s by Bailey firmance an court in Rich equally divided v. ardson, C. aff’g App. 918 86 U. D. (1951), U. S. notion that (1950).14 That is the 248, 182 F. 2d such right benefit, government because there is no to a any be denied for may the benefit public employment, at least Perry, emphasized that however, reason. “[f]or clear that even this Court has made quarter-century, a govern though person Tight’ no to a valuable a has may though government and even mental benefit being government person a for a Re- penny fines a both where the penny for the same grant it withholds the publican where reason. government may not though that even
Petitioners contend jobs only they may if employees retain their provide public that in-party, respond- provide support for become with affiliated requirements. any objection to such ents here have waived completely difficulty argument swallows the this is that it may constitutionally qualification imposed not be rule. Since the justification, argument accept the appropriate absent an waiver may may say government do what it not A find- that the do. contrary ing case, therefore, to our view in this be waiver would qualification abridges Amendment. partisan job Eirst 14 Brief for Petitioners 12-13.
deny him the benefit any for number of reasons, there are some upon reasons which the may not rely.” S., Perry at 597. Keyishian properly recognize one such impermissible reason: The de nial of a public may benefit not be used the government the purpose of creating an incentive enabling it to achieve may what “ directly. command theory public employ ‘[T]he ment which be altogether may denied subjected be conditions, regardless of unreasonable, how has ” been uniformly rejected/ Keyishian v. Board Re gents, 385 U. atS., day 605-606. “It is too in the late to doubt that the liberties of religion expression may be infringed of or placing denial of conditions upon a benefit Verner, or privilege.” Sherbert “ *13 (1963). S. 404 398, U. rejected Court now has '[T]his the concept that rights upon constitutional turn whether a governmental benefit is as “right” characterized a as ”’ a “privilege.” Sugarman Dougall, 634, v. 413 U. S. Richardson, 644 (1973) (quoting Graham v. 403 U. S. 365, 374 (1971)).15 15 Regents 564, Board 9 Roth, See also v. 408 571 U. S. n.
(1972): leading many
“In years ago, Appeals a case decided the Court for the public employment District of Columbia Circuit held that general procedural a 'privilege/ 'right/ not a and that due Bailey process guarantees inapplicable. v. therefore were Richard son, 46, equally App. 248, 86 182 F. 2d aff’d an di S. D. C. U. holding Court, vided 341 U. 918. The basis of this has been S. ensuing years. For, thoroughly in the as Mr. Justice undermined only year, Blackmun last 'this Court now wrote for the Court rights rejected concept upon turn whether has that constitutional “right” “privi is as a or as a governmental benefit characterized ’ g., Richardson, 365, See, e. Mor v. 403 S. 374. lege.” Graham U. Burson, 535,] 539; rissey Brewer, ante, 482; Bell U. at v. S. v. [402 Shapiro Thompson, 254,] 262; Goldberg v. 394 Kelly, U. S. v. [397 Pickering Education, 563, 6; v. Board 391 U. S. 618, U. 627 S. n. Verner, 398,404.” 568; 374 U. S. Sherbert v. 362 the right-privilege distinction furnishes no
While
ground
justify
petitioners
which
patronage,
justifications
requiring
other
consider
raise several
how
examining
justifications,
ation. Before
those
necessary
is
mind the
to have in
standards
ever,
sufficiency
is to
according
which their
be measured.
firmly
impairment
is
established that a significant
rights
exacting scrutiny.
First Amendment
must survive
Valeo, 424
Buckley v.
at
NAACP v.
S.,
64-65;
U.
Ala
bama,
type
357
449,
(1958).
U. S.
460-461
“This
scrutiny
necessary
is
even if
on the
effect
deterrent
through
exercise of
rights
First
arises,
Amendment
government
indirectly
direct
action, but
an unintended
government’s
but inevitable result of
conduct
.”
.
..
Valeo,
Buckley
supra,
v.
at
Thus
65.
encroachment
showing
legiti
be
of a
justified upon
“cannot
mere
Pontikes,
state
at
Kusper
S.,
mate
interest.”
v.
paramount,
58.
interest advanced must be
one of
and the burden
on the
importance,
vital
Buckley
to show
existence
such an interest.
Valeo,
Rhodes, 393 U.
supra,
94;
S.,
at
Williams v.
Button,
NAACP v.
31-33;
415, 438,
at
371 U. S.
Rock,
(1960) ;
(1963);
516,
Bates v. Little
S.U.
Alabama,
464-466; Thomas v. Col
supra,
NAACP v.
care
lins,
case,
323 U.
the instant
partisan
interest of
be taken not
to confuse the
must
*14
Only
lat
governmental
interests.
the
with
organizations
enough
it
not
the
is
Moreover,
suffice.
ter will
rationally
be
the interest
chosen
furtherance of
means
Verner,
at 406.
supra,
end. Sherbert v.
to that
related
provided by
interest
subordinating
to the
gain
protected
of
outweigh
incurred loss
must
means
Mitchell, 330
S.,
v.
Public Workers
United
see
rights,
“emplo[y]
must
means
government
96,16
16
guarantees
of
the extent
of
must balance
his Court
«[T]
closely drawn to avoid unnecessary abridgment
..
.
Buckley
Valeo,
supra, at 25.
v.
may
State
“[A]
not choose means that unnecessarily restrict constitu
tionally protected liberty.
regulation
'Precision of
must
be the touchstone in
closely
an area so
touching our
most precious
If the
open
freedoms/
State has
it a less drastic way of satisfying its legitimate interests,
may
it
not choose
legislative
a
scheme that broadly
stifles the exercise of
personal
fundamental
liberties.”
Pontikes,
Kusper
supra,
(citations
v.
omitted).
at 59
United
Robel,
States v.
See
389 U.
(1967);
S. 258
Shelton
Tucker,
(1960).
v.
freedom protect enactment to a democratic society against supposed partisanship evil of classi employees government" fied Mitchell, United Public Workers v. S., 330 U. at 96. O’Brien, The Court’s decision in United States v. S.U. (1968), petitioners. support does not O’Brien dealt with the con stitutionality regulating “nonspeech” expres laws elements regulation sive No here, conduct. such is involved for it associa per se, tion belief particular conduct, form which Moreover, seeks to partisanship control. while registering involve activities such as a political organization, with wearing button, campaign contributing campaign fund, to a say equated we cannot these activities can be such conduct as destruction aof draft card which involved O’Brien. See Buckley Valeo, 424 U. Finally, paraphrase Buckley: the Court’s categorization observations in “Even if the [partisan activity] accepted, conduct were the limitations challenged here would not gov- meet the O’Brien test because the *15 of justification in offered which has been
One interest government is to insure effective the need patronage that It argued efficiency public employees. the of that not the same as persuasions of employees political the will not have public of office party of the in control effectively motivated to even be incentive work to efforts to incumbent administration’s subvert persuaded. not The ineffi- effectively. govern We large of ciency replacement from the resulting wholesale every office employees time public numbers changes justification. prospect belies this And the hands an in the incumbent of dismissal after election which only Fur- party good has lost is a disincentive to work.18 in order room it is not clear that dismissal to make ther, appointment replacement for a will result in patronage [practice in support patron- ernmental interests advanced of the ” age] Id., ‘suppressing communication.’ at 17. For the involve practice compulsion end to be furthered involves party. support leg- Indeed, incumbent unlike the Buckley, practice “focus islation tested in does subjected expressed persons groups ideas . . . .” [it] And, contrary proscription, Ibid. to O’Brien’s under governmental regulating in alleged "the interest conduct arises allegedly integral some measure the communication because thought conduct to be harmful.” 391 is itself 382. S., efficiency appear that and effective does origi Employees were the concerns of officials in this case. elected nally letters, obtaining sponsorship dismissed were reinstated after efficiency practice hardly promotive employee’s if the had work par employee previously been than or if the less had behaved App. Complaints by super an insubordinate manner. 14. one many people being discharged fast, visor that too were too with adequately replacements, response out trained were met with the the number of dismissals was be maintained because job openings partisan appointments. Id., needed for were at 15. Republican employee One of the Sheriff’s Office told his was nothing quality work, had do with the dismissal his but that position his replacement. needed Id., for Democratic at 22.
365 person qualified job appoint- more to do the since exchange delivery ment often occurs in for the of votes, party job capability. or other not More funda- service, not be- mentally, however, argument does succeed it is doubtful political cause the mere difference of persuasion poor motivates nor do we think performance; legitimately may imputing be used as a basis for such behavior. consistently The Court has recognized that mere political is association an for im- inadequate basis disposition puting to ill-willed Keyishian conduct. See v. Regents, Board 385 U. atS., 606-608; v. Elfbrandt Russell, 384 U. 19 (1966); S. Wieman Updegraff, v.
19 petitioners’ regard, this reliance on American Communica Douds, v. (1950), tions Assn. misplaced. 339 S. 382 To U. sure, upheld be that decision a section of the National Labor denying Relations Act certain benefits of the organiza Act to labor tions which had filed with the National Labor Relations Board affidavits that were not leaders members of the Communist Party. The legislative Court there deferred to determination that, respect relations, with labor Party the Communist parties unlike other in its use leadership bring of union about strikes and other obstructions to commerce. The Court was careful Douds, however, precise note holding in that case would not serve a departure point for inferences of ill conduct merely grounded on Id., Indeed, association. at 410. carefully Court in Douds also observed that affiliations ordinarily beliefs “are permissible circumstances irrelevant subjects Id., action.” at 391. Those caveats were well stated. exceptions With but three shortly Douds, after Adler Board v. Education, 342 U. S. (1952); Angeles Board, Garner v. Los (1951); 341 U. Supervisors, Gerende v. Board 341 U. 56S. the Court’s (1951), consistently rejected decisions merely have all inferences based association, today. belief and See, g., Keyishian and we do so e. Regents, S., Board 606-608; at Updegraff, Wieman v. S.,U. at 188-190. freely associating [respondents’] interest sider these Party worthy less [Republican] with members of the in associat- employees’ interest protection than [other] Illinois former Communists.” ing Communists At Lewis, 570. 473 F. 2d, Union v. Employees State insuring government all drastic means less events, efficiency are available to employee effectiveness and *17 always discharged may be employees Specifically, State. poor job per- for such as insubordination good cause, in fact exist. formance, when those bases effec- patronage if that serves argument Even the first argued efficiency may be be still rejected, tiveness and by giving the em- those interests patronage that serves party perform of the incentive ployees an incumbent incumbency party’s their and well in order insure thereby according argu- the jobs. Patronage, to the ment, employees highly thus accountable makes ability directly But of public. the officials more account- cause discharge employees able to the electorate to for in use availability growth and the merit systems, us that quite significant, which has been convince for patronage means less intrusive than still exist achiev- accountability ing public and, thereby, in the force work government. effec- greater effective and efficient patronage if means, tiveness of over these less drastic by the marginal, gain outweighed is at ab- any, best protected sence intrusion on interests under alternatives. any justification
The lack of dismissals as a furthering means of effectiveness and efficiency distinguishes from CSC Letter this case v. Car- riers, 413 U. United Public Workers (1973), S. Mitchell, both of those cases, legislative political management restraints by public employees upheld and campaigning were despite rights their encroachment on First Amendment alia, because, they necessary inter did serve in a man- ner to foster protect gov- efficient effective ernment.20 Interestingly, activities that were re- by legislation strained involved in those cases are characteristic of patronage practices. As the Court observed Mitchell: actively conviction that an “The partisan governmental personnel good threatens ad- ministration deepened Congress has since rec- [1882]. ognizes danger to service in that rather than political may official effort public earn to the advancement and governmental through favor be channeled U. S., connections.” at 97-98. A second interest advanced in support the need for loyalty of not to the end employees, efficiency effectiveness and insured, be but representative government end that undercut be obstructing implementation tactics policies new administration, policies presumably sanctioned *18 the justification electorate. The force, is not without but is inadequate patronage nevertheless to validate Limiting wholesale. to policymak- dismissals ing positions governmental is sufficient to achieve this end. Nonpolicymaking usually only individuals have responsibility limited and are therefore not in a position to goals thwart the in-party. the
No clear line can be drawn policymaking between nonpolicymaking positions. nonpolicymaking in- While usually dividuals have limited responsibility, that is not say that one with a of responsibilities number is nec- essarily in policymaking position. a The nature of responsibilities is critical. Employee for supervisors,
20Legislative on political management restraints campaigning upheld they were also in Letter Carriers and Mitchell because protect and, thereby, served individual belief and association political process. The distinction between this case and those respect infra, page cases treated is this at 368-371. re- but those may many responsibilities, example, have ob- may only limited and well-defined sponsibilities have responsibilities An jectives. employee with likely func- more scope or are of broad not well defined determining position. policymaking tions in a policymaking position, a employee occupies whether an the em- also be to whether given consideration should plans formulates for ployee acts as an adviser po- Thus, implementation goals. of broad or at loyalty “justification proof, litical a matter of is jobs.” kinds of argument, particular least directed at Lewis, 2d, State Union 473 F. Employees Illinois government's noted, 574. have is Since, we overriding interest in order burden to demonstrate an interests, protected an encroachment on validate any par- justification as to establishing burden of this petitioners remand, respondent ticular will rest on the particular being in favor of the cases of doubt resolved respondent. supporting third interest argued is that a process. democratic preservation is the
dismissals “ system no According to ‘we have contrived petitioners, place that does not considerable support party organization makes patronage. party reliance on The for its charges price work and democratic ” 21 thus on the cen- argument premised services.' is process. trality partisan politics the democratic certainly an process Preservation the democratic justify of which in some instances protection interest *19 Buckley on First Amendment freedoms. See limitations Carriers, 1 CSC Letter (1976); v. 424 v. U. S. Valeo, Rhodes, United (1968); 23 supra; Williams 393 U. S. v. Mitchell, im- But however supra. Public Workers v. 21 Key, Parties and 43, quoting Politics, Brief for Petitioners V. (5th 1964). Groups Pressure ed.
portant preservation of two-party system any or system involving may a fixed parties may number of Rhodes, not be,22 Williams v. supra, at we are not 32, persuaded that the elimination of patronage practice or, specifically as is here, involved the interdiction of patronage dismissals, will bring about the demise of party politics. parties Political in the existed absence patronage practice active prior to the administra- tion of Andrew Jackson, they have survived sub- stantial reduction in their patronage power through the systems.23 establishment of merit Patronage dismissals thus are not the least restrictive they alternative to achieving may the contribution make to the democratic process.24 process functions as the practice, perhaps well without for better, patron- even age clearly dismissals process. Patronage also retard that can parties result the entrenchment or a of one few the exclusion of others. And most indisputably, as we recognized very at the im- outset, patronage is a effective pediment to the associational speech freedoms which politics imprimatur only Partisan tradition, bears the Constitution. system
“It be correct that has been followed years’ two hundred and therefore was in existence when 'almost adopted. However, notoriety the Constitution prac- of the tice in the administration implies of Andrew Jackson in 1828 prevalent theretofore; it was not we are not aware of discussion practice during drafting of the Constitution or the First any event, age practice Amendment. of a pernicious if acceptance, were a sufficient reason for its constitu- continued course, tional attack on racial discrimination would, have been Employees Lewis, Illinois State Union doomed to failure.” 561, (CA7 1972). 473 F. 2d 568 n. 14 23Sorauf, The Patronage, Silent Revolution Admin. Pub. 28, (1960); Sorauf, Patronage Party, Rev. 32-33 3 Midwest J. Pol. 118-120 Sci. 8, supra. See n. *20 gov- system democratic meaningful ato
are essential to the contributes at all if Thus, ernment. by the is diminished that contribution process, elective unlike the Indeed, same. impairment of the practice’s Hatch provided the government representative gain Public and United supra, in CSC Letter Carriers, Act v. Mitchell, gain representative supra, Workers v. if any, provided by patronage, the practice First justify its sacrifice would be insufficient rights.25 Amendment upheld and Mitchell Hatch sure,
To be Letter Carriers man- political campaigning Act sacrificing restraints Buckley Valeo, 424 in The Court’s decision earlier this term here, (1976), contrary. in Buckley, is not true that accordingly system, and the interest to be served was the democratic rights was Buckley, infringement First in some Amendment Buckley, however, here, dis held to be tolerable. unlike financing, campaign closure and contribution which limitations improper upheld, eliminating grave were were essential to evil of political process. pro influence in the Court found those reality primary weapons against the Act’s visions "constitute appearance improper stemming dependence influence from the large campaign Id., of candidates on contributions.” at 58. The ceilings Court further found that contribution . serve . . “[t]he governmental safeguarding integrity the basic interest in process directly impinging upon rights of electoral without indi engage political citizens and vidual candidates to debate and respect expenditure limitations, discussion.” Ibid. With how ever, upheld, which were not provi the Court found: “These ability place sions and direct substantial restrictions on the of can citizens, protected didates, engage associations to expression, the First restrictions Amendment cannot tolerate.” Id., imposed by patronage dismissals, The restrictions 58-59. limit ing beliefs, expression, wholesale an individual’s and associa tion, direct, equally, more, substantial, perhaps while less if not Moreover, and therefore also intolerable to the First Amendment. influence, very dismissals the evil of involve whose justified need for elimination pro the contribution and disclosure Buckley. visions in *21 protected
agement, by activities themselves the First Amendment. But in those cases it was the Court’s judgment congressional that subordination of those ac- permissible tivities was to safeguard the core interests of individual belief and association.26 of Subordination some First activity Amendment permissible was pro- tect activity. other such we hold Today, that subordi- nation of other First Amendment activity, is, pa- tronage dismissals, only not is permissible, but also is mandated the First Amendment. patron- And since age dismissals fall within the category political of cam- paigning and management, irresistibly this conclusion flows from Mitchell and Letter Carriers. For if the First Amendment did place individual belief and associa- tion political above campaigning and management, least in setting public of employment, the restraints per- those latter activities could judged not have been missible in Mitchell Letter Carriers27 apparent required engage is that at bottom we are conflicting in the resolution of First interests under the adjudication Amendment. The constitutional called 26“To present activity- declare that the supposed political evils of beyond power Congress redress would leave nation many impotent to deal with what sincere men believe a material is system.” threat to the democratic United Public Workers v. Mitchell, S., “Congress reasonably 330 U. at 99. limit desire to party activity tendency employees of federal so as to toward avoid system.” one-party Id., at 100. judgment The political the First Amendment interests in campaigning management must, setting public employ in the ment, way give to the First interests in Amendment individual belief necessarily and association does not extend to other contexts. Re straining political campaigning management in the area of public employment settings. leaves free to continue in other The consequence restraint, however, complete no such is the restriction public employee of individual belief and association for each affected. illu- province.28 our well within task is this the task performing we turn to which minating source Amendment the First system of is the proper system whose a democratic protect, intended unfettered on the dependent functioning indispensably concern. on matters citizen judgment each that source to the guidance in obedience Our decision campaigning political parties does not outlaw *22 exist and their free to Parties are management. and require to are free continue. We concomitant activities he will every citizen to believe as only rights of that the be free to his beliefs according to act and associate to continue as well. severely restrict patronage dismissals summary, there is a vital Though
political belief and association. dis- effectiveness, such government efficiency need for missals are on balance not the least restrictive means to that fostering that end. There is also a need insure effectively policies which the electorate has sanctioned are implemented. by fully That interest can be satisfied to limiting patronage policymaking positions. dismissals justified by dismissals cannot Finally, be proper contribution to the our democratic functioning through process their assistance partisan politics since political parties by are nurtured less intrusive and other, “Although Letter Congress Carriers did observe: is free has, chooses, strike a balance than it so if it we think the different by obviously balance has so far struck is sustainable im portant sought interests to be partisan served the limitations on now S., activities contained in the Hatch Act.” 413 Though Congress may impose 564. be free not to restraints management campaigning public employment in the similarly sector, we are free to so practices, do where those protected they may contexts, be in impermissibly other are found pre-empt equally, more, if not rights. fundamental constitutional equally effective methods. More fundamentally, how- ever, contribution of patronage dismissals to the process democratic does not suffice override their severe encroachment on First Amendment freedoms. hold, We therefore, practice that the is un- dismissals constitutional under the First and Fourteenth Amend- ments, and that respondents thus stated a valid claim for relief.
VII There question remains the whether the issuance of a preliminary injunction properly directed Court of Appeals. The District Court predicated its denial of respondents' motion preliminary injunc- for a tion on its finding allegations in their com- plaints and affidavits did not constitute a sufficient show- ing irreparable injury and respondents had an adequate remedy at law. The Appeals Court of held, however: “Inasmuch as this case involves First Amend- ment rights of carefully association which must be *23 against guarded infringement by public holders, office injunctive judge clearly we is in appropriate relief these cases.” 509 2d, agree. F. at 1136. We
At the time preliminary injunction sought was only of Court, respondents District one In discharge. many threatened with addition, of members respondents seeking of class were to have prior certified to the dismissal of their complaint were discharge agreed provide sup- threatened with had port Party for the discharge. Democratic in order to avoid It is clear therefore that First Amendment interests were being impaired either threatened or in fact at the time sought. relief was The loss of First Amendment free- doms, periods time, unquestionably even minimal of New York Times Co. irreparable injury. constitutes See 374 in such States, Since United (1971).29 U. 713 S.
v. of time occurring at the threatened jury was both sufficiently respondents respondents’ motion and since the merits, of probability success demonstrated Dis properly held that of have Appeals might Court denying preliminary Court abused its discretion trict Sullivan, Books, Inc. injunctive relief. See Bantam (1963). 58, judgment Appeals of the Court is
Affirmed. con- participate in the Justice did not Mr. Stevens sideration or decision this case. Black-
Mr. Justice with whom Mr. Justice Stewart, concurring judgment. mun in the joins, wide-ranging I Although join plurality’s cannot I judgment. concur in its opinion, can and do us to consider the broad require This case does not its contours of with all the so-called system, permutations. particular, variations and does require validity of a us consider the constitutional system governmental confines the hiring some employees I particular political of a those party, would intimate no views whatever on that question. political speech particularly important. The timeliness of See Anne, 175, (1968); Carroll v. Princess 393 U. S. Wood v. Georgia, 370 U. S. 391-392
“[Tjhe purpose First Amendment the need includes ... ‘to protect parties publication public concern, in the free matters right public to secure their to a free public discussion of events and *24 measures, every and to bring enable citizen at time to any person authority in public opinion to the of bar by any just upon criticism conduct the exercise of the ” authority people upon Id., which the have conferred them.’ (quoting Cooley, (8th T. Constitutional Limitations 885 1927)). ed. question
The substantive single involved in this case is whether a nonpolicymaking, govern nonconfidential employee ment discharged can be or threatened with from discharge job satisfactorily a that he is performing upon the I ground sole of his agree beliefs. the plurality Perry that he cannot. Sinder See mann, 597-598.
Mr. Chief dissenting. Justice Burger, today represents The significant Court’s decision legislative policy intrusion into the area of con- of intrusion Mr. Justice cerns—the sort Brennan has recently protested in I join other contexts. therefore Justice Powell’s dissenting and add opinion, Mr. simply few words to emphasize aspect an that seems particularly important to me.
The Illinois Legislature pointedly has decided that roughly up half of staff shall Sheriff’s be made of tenured career personnel exclusively and the left balance to the choice of the department. elected head Court strains the rational bounds of First Amendment doctrine and practices runs counter to longstanding part system the fabric our democratic to hold Constitution commands something has not been thought require years. for 185 For all that time system our wisely has left these matters to the States federal to the and, Congress. The Court’s level, action is a example trivializing classic constitutional adjudication function of highest importance —a system. our
Only last
League
Usery,
in National
Cities v.
week,
Congress as matter ago, policy, purely of federal career service with a small number political appointments in Branch, the Executive many departments governmental have limited number positions no persons appointed which have pleasure tenure but serve at the officer the cabinet in turn agency pleasure who serves at the chief, g., Douglas, President. Leonard See, e. U. S. App. D. C. 2d F. The considera- leading legislative tions to these conclusions are —for open judicial scrutiny me—not guise under the of a First Amendment right more than is the of a claim, newly elected Representative or Senator, example, persons have a staff up made who share his philosophy and loyal affiliation and are to him. It seems me Illinois Legislature’s choice is entitled to no less deference.
Mr. Justice whom The Chief Powell, Justice Rehnquist and Mr. Justice join, dissenting.
The Court holds unconstitutional a practice as old as the Republic, practice which has contributed signifi- cantly to the democratization politics. American This urged decision is on us the name First Amendment rights, my but in view the judgment neither is constitu- *26 tionally required nor representa- serves the interest of a democracy. tive It also well disserve —rather than promote I values of the First Amendment. there- —core fore dissent.
I County The Cook employs approxi- Sheriff's Office mately 3,000 people. Roughly employees half of these are “merit” employees given protections various dis- from charge. other employees The half of the have no such protection. Customary political practice Illinois has al- lowed such “nonmerit” positions be awarded on “patronage” grounds. newly This tradition has entitled replace elected officeholders to incumbent nonmerit em- ployees patronage with appointments.
Petitioner Elrod, Richard a Democrat, elected County Republi- Sheriff of Cook in 1970, succeeding Consistently can. with he practice, Illinois dismissed a number of incumbent employees they because lacked Democratic affiliation and were unable to secure Demo- sponsorship. cratic The named several dis- respondents, charged employees and another employee threatened discharge, concededly all Republicans who were hired Elrod’s predecessor because of their affiliations.
II
plurality opinion
prac-
As
recognizes, patronage
sort
long
tices of the
under
here have a
consideration
history
recounting
in America.1 Although an extensive
history
I
important
of that
is not
think it
necessary,
1Substantially
opinion,
plurality
I
reasons stated in the
note,
question
justiciable
agree
presented
that the
one.
I
here is
however,
ability
judicial
that the
is another
to formulate
standards
justiciability.
Carr,
evaluating
in
Baker
factor
be considered
difficulty
formulating
standards
survey than does the more employment received The observation legitimation during Jack- primary popularization its ante, historical understates the Presidency, son’s to Wash- of the which back practice, antecedents stretch ington’s Presidency. we know did as- politics, them,
Partisan as now immediately prominent politics sume a role national Nonetheless, adoption after the the Constitution. of cus- Washington appointments tended to confine even opposed postmasters Federalists, toms officials and *27 expanded, par- to of parties anti-Federalists. As the role employment de- tisan influenced quickly considerations from Republicans cisions. John Adams removed some minor to succeed posts, Jefferson, the first President significant patron- opposing party, a President an made age powers. use of the The appointment and removal Quincy Madison, administrations of and John Monroe, conspicuous patronage no for provided Adams occasion each practice employment, copartisan. in succeeded a he extensively course, used when Jackson, became the first President since Jefferson to succeed an antagonistic administration. appears patronage employment practices
It thus early emerged date, on the national at an and that level Presidency they during conspicuous were Jackson’s necessary dormancy during the largely because of their During that long Republican succession of Presidents. widely period, however, patronage hiring practiced in especially Pennsylvania. in the in New York and States, legitimacy a popular This afforded theoretical and lay acceptance helping groundwork patronage, on the Jackson’s actions national level. upon in text are primarily The sources relied for the statements Fish, (1905), Patronage and D. Rosen C. The Service and the Civil bloom, Federal and the Constitution Service recognized that patronage in employment played significant role democratizing politics. American See, g., e. C. Fish, Civil Service and the Patronage 156-157 (1905); Sorauf, Patronage and Party, 3 Midwest J. Pol. 115-116 (1959). Sci. Before prac- tices developed an fully, “aristocratic” class dominated political affairs, a tendency persisted in areas where patronage did not prevalent. become C. Fish, supra, at 157. Patronage practices broadened the base of participation by providing part incentives take in the thereby process, increasing the volume of dis- society. course Patronage strengthened also parties, encouraged hence the development of institutional responsibility to the permanent electorate on a basis. Parties became “instrument through discipline which [s] and responsibility be achieved within the Levia- than.” Sorauf, supra, 115. many patronage employment practices situations government efficiency.
also entailed costs to These costs eventually led placing to reforms most federal and state employment civil service But nonpatronage basis. the course of reform is such of limited relevance *28 It adjudication task of constitutional case. this impinge- to that a pertinent however, perceived note, by ment on beliefs the employees’ political patronage system not such reform. significant impetus was to primarily Most of were concerned advocates reform inefficiency corruption patronage the and that was power to service the that thought induce civil and thought practices give “profes- to patronage were Rosenbloom, politicians who relied on them. sional” D. (1971). 70-74 and the Constitution Federal Service thought generally it elimination Moreover, sys- imposition required both of a merit these evils on First Amendment activities restrictions tem and of Id., 82-86; see, employees. 76-77, Carriers, g., CSC v. Letter S. 648 e.
Ill dispose might possible be of this case well right implicates no First Amendment ground that they failed of the have respondents, therefore They seeking employees to state a cause of action. desiring opportunity citizens an discharge avoid —not county regard po- to their to be hired without loyalty. complaint ac- Respondents’ litical affiliation knowledges longstanding existence system they challenge: now many years past continuing
“For
to this time it
of Cook
practice
has been the
of the elected Sheriff
from
County, when he assumes office
a Sheriff
replace
substantially
different
all or
political party,
of the
employees
all
non-civil service
Sheriff’s
(a) Pledge
political
office who did not
their
alle-
party
incoming Sheriff;
to the
of the
giance
specified political
require-
meet other
[and/or
.
App.
. . .”
3.
ments]
apparently
thus
who
complaining employees
We
have
jobs
accepted patronage
knowingly
willingly,
while
fully
long
practices
prevailing
familiar with the “tenure”
employees
in the
Office.
Sheriff’s
Such
have benefited
they
activities;
from
have
beliefs and
I
not
penalized
circumstances,
been
for them.
these
agree
holding of
Supreme
am inclined to
with the
Pennsylvania
Federation
Court
in American
State
IV question is whether it is consistent with First and Fourteenth Amendments for a to offer some State employment explicitly or conditioned, implicitly, par- on tisan affiliation and on the fortunes of the incumbent officeholder. This is to be deter- as the mined, plurality opinion agrees, pa- whether tronage hiring practices sufficiently important advance justify state interests to the consequent burdening of First Valeo, Amendment Buckley interests. S.U. ante, (1976); disagree 360-363. It is difficult to with the view, proposition, govern- as an abstract that employment ment ordinarily should not be conditioned upon one’s or political beliefs But activities. we deal petitioners' On dismiss, motion to the District Court had be only complaint petitioners’ conclusory fore and the motions Although reasonably may dismiss. one these be confident employees willingly accepted employment political patronage, this knowledge depended employment full continued election, entirely outcome of the next this not be from the clear pleadings upon as viewed a motion to dismiss. The District Court made finding respect, opinion no of fact in this its brief does rely ground. on this may agree readily legitimately One plaintiffs that different could assert First Amendment interests. These be individuals would who employment possessed desired to be hired for state or local and who requisite qualifications except “right” political posture all sponsorship.
382 ele- highly practical a rather fundamental here with our not the theoretical abstrac- political system, ment of that concluding tions of a science seminar. hiring plu- patronage practices unconstitutional, gov- rality seriously strength of the underestimates especially ernment at the local level—in allow- interest — exaggerates ing patronage hiring some practices, rights.5 perceived burden First Amendment A have above, patronage hiring practices As indicated by stimulating po- democracy contributed to American thereby activity litical by strengthening parties, cannot helping government make accountable.6 seriously promote questioned be that these contributions Term important state interests. Earlier this we said encouraging political interest in debate: financing campaigns] is Presidential . . . “[Public en- money to use to facilitate and public [an effort] public participation in the elec- large discussion and goals self-governing toral vital process, Buckley (foot- people.” supra, v. Valeo at 92-93 omitted). note only employees. allegations face This case thus no involves We any from practices exclude voters or candidates political process by impermissibly participation
effective in the dis Organization advantaging them. Shakman v. Democratic Cf. County, (CA7 1970). Cook 2d 267 Elrod informs us F. Republicans, Independent two and an Democrats, since 1955 two Reply Brief for 20a. have served as Sheriff. Petitioners n. prac hiring believed that Some commentators have promote interests as well: tices other social minority groups, involving “Patronage peculiarly important for appointment spoils first than the mere of office. Each much more underdog given is a in that element’s element boost member acceptance. It means that another barrier to struggle for social lifted, swung open.” has another shut door has been advance 76-77 of American Polities Lubell, The Future “Legislation to enhance these First Amendment rule, values is the exception. not the Our statute replete books are with laws providing financial *31 assistance to of speech the exercise free Id., . . . at 93 n. 127. recognized
We also have strong government the interests in encouraging political parties stable ex- avoiding and political cessive fragmentation. Through the medium of parties established the “people presented . . are. with understandable choices and the in general winner the election with sufficient support govern effectively,” Brown, Storer v. 415 U. 724, 735 (1974), “splin- while parties tered [might] and unrestrained do factionalism damage Id., significant government.” to the of at fabric Buckley Valeo, 736. supra, 98, See at 101. dis- plurality opinion the analysis, however, Without patronage practices parages hiring the contribution of merely advancing in these state interests. asserts that practices functioning such cause the “free ante, “we electoral and that process suffer],” [to not . persuaded are that the elimination of . . party politics.”
dismissals, bring will about the demise Ante, however, the impression, at 369. One cannot avoid not parties would that even a threatened demise my thinking In reflects plurality. view, this trouble insensitivity realities relevant disturbing disposition this to the case.7 employees or complaining parties are were are many In the sheriff’s duties communities, Sheriff. his election attracts process as serving, as routine States, In the general public no interest. little or question only consti presents case whether State As this do con tutionally may hiring practices, we pursue patronage justified pursued if practices be sider whether such would Federal Government. there communities, in of local
especially the thousands many rel- large numbers of elective are offices, or constable. atively as that of the local sheriff obscure ongoing offices to the importance of elective Despite campaigns for lesser governments, of local election work from particular usually attract little attention offices of in- media, consequent disinterest and absence public. Unless participation part on the of the telligent dispense the the candidates for these offices are able to to the offices, that has accrued traditional they unlikely to donations of time also are attract the resource money voluntary groups. short, from intensity and de- that fuel the interest pools frequently “could care “important” elections bate *32 relatively to be less” about who fills the offices deemed this local unimportant. Long experience teaches that at signifi- patronage practices level traditional contribute cantly process. The for to the democratic candidates support precinct level, at the these offices derive from cadres funding publicity, and their modest hope if political friends and associates who to benefit of the latter are their “man” is elected.8 activities (D. Ill.) Douglas Former Paul H. said of Senator hiring practices: short, having
“In I am service but not for civil service for civil give public employment percent. That would us the dominate Germany bureaucracy regard which I do not and France as ideal. long lib- you just most I like how
“But would to have consider you all Congress stripped if us of last in erals would be able to try interests of you to defend the patronage, as desire. whoWe commonly taxpayers face people, the consumers and the groups spend which will powerful opposition special-interest of the survive money . . . If are to to defeat us. we enormous sums of for material favors which gratitude support need some rooted we injure general public.” Letter New the same time do not July p. Republic, 14, 1952, 2. principal
often the political source of information for the public. voting The “robust” political discourse that the plurality opinion properly emphasizes is furthered —not by system. time-honored restricted — Patronage hiring practices party also organiza- enable tions to persist and function at the local level. Such organizations become large visible to the electorate at only at election time, periods but the dull between elec- tions require ongoing precinct organizations activities: maintained; must be minor new voters registered; and political performed “chores” for citizens who otherwise practical have no means access to officeholders. In some party communities, organizations and clubs helpful also render social services.
It think naive to types these ac- tivities are motivated at these levels some academic in “democracy” interest or other public impulse. service every For the most part, politician knows, hope generates of some major reward portion of the local political activity supporting parties. is difficult system overestimate the contributions to our major fortunately parties, limited number compared to the fractionalization that has made continued existence of democratic doubtful *33 in generally some other stable, countries. Parties are high-profile, permanent institutions. the When names on a long meaningless ballot are to the average voter, by party guidepost affiliation affords a which voters myriad political rationalize a of Buck- choices. Cf. Valeo, ley v. 424 Voters can hold S.,U. at 66-68. and do long-term to parties and it is not too accountability, say respon- much to in their that, absence, responsive and performance sible in is low-profile offices, particularly, difficult to maintain. against experience contrary, decades of to the plurality opinion that
then, patronage the concludes that functioning of the interfere with “free hiring practices judicial hoc at This ad process.” electoral 356. Ante, represent- runs of the judgment judgments counter to the rep- governments, people of the in state and local atives in most to retain chosen, resentatives who instances, have a merit- practices in combination with patronage some rep- One think that elected oriented civil service. would than we equipped of the better people resentatives of weigh need for some continuation identified,9 in interests above practices light of the in CSC v. particularly view local conditions.10 See plurality might promotion The be taken to concede some hiring that process practices but to conclude democratic political impermissibly in net debate practices effect such will reduce thereby de by affecting employees potential employees and some society judgment each citizen on mat priving of the “unfettered Ante, past ters of concern.” at 372. In the Court congressional designed increase the overall upheld has actions adversely affecting the First Amend level of discourse but Buckley Valeo, 1, v. S. ment interests some individuals. U. Carriers, Letter (disclosure CSC v. (1976) requirements); 64-68 Broadcasting FCC, Lion Red Co. (1973); 548, 564r-566 413 U. S. In Letter Carriers we indicated 392-395 employees specifically that the First Amendment freedoms of federal functioning be limited in an effort to further could legislative judgments I process. democratic do not believe that local process fight to what will democratic of local as further congressional judg weight than these conditions should receive less Surely record, until have a ments. should be the case we created, showing plurality if one could be the fears of the to be justified. today judgment nonpoficymaking positions. is limited to Ante, however, “policymaking” exception, A at 367-368. will allow substantial of the state interests undercut advancement holding, significant Court’s as it is number of doubtful employees policymakers sheriff’s office. can be identified many provide have for the election of local officials States chosen supra, functions, policymaking genuine who have little or no see 383-384, likely and the subordinates such officials are even less
387 Carriers, Letter 413 at S., 564; United Public Workers Mitchell, 330 (1947). U. S. 75, Against this back ground, the assertion in the plurality opinion “[p]a- that tronage . dismissals . are not . the least restrictive alter native [any] to achieving contribution they may make to the process” democratic is unconvincing, especially since no alternative to some continuation of patronage practices Ante, is suggested. (footnote omitted). at 369
B
I thus conclude
practices
that
hiring
suffi-
ciently
important
serve
state interests,
including some
sought
interests
to be advanced
First
Amendment,
justify
a tolerable
on
intrusion
the First Amendment
interests of employees
potential
employees.
plurality
The
opinion
that patronage hiring
asserts
“
practices contravene the fundamental principle
'no
that
official, high or
prescribe
can
petty,
what shall be ortho
dox in politics, nationalism, religion, or other
matters
opinion
Ante,
quoting
at
Educa
356,
Board of
Barnette,
tion v.
U. S.
But such
practices simply cannot be so construed. This case
materially
differs
from previous
the im
involving
cases
position
g.,
conditions
e.
employment, see,
Los Angeles Board,
Garner v.
341 U.
cases
(1951),
attempt
minority
where there was an
to exclude “a
group
Id.,
. . .
majority.”
odious to the
(Frank
concurring in
furter, J.,
part
dissenting
part).
in
danger
governmental
that context there was a
action
was directed toward the elimination of
beliefs
today
holding
predictable
have such functions.
It thus is
that the
completely
will terminate almost
the contributions
hiring practices
process.
probability
democratic
efficiency
this result is increased to the
extent that
needs of
require
policymaking positions
local
be included
merit-oriented,
nonpolitical
service.
civil
*35
hiring
patronage
to
But
by penalizing adherents
them.
vigor-
historically practices have been consistent
“marketplace.”
ideological competition
political
ous
in
system
beneficiary,
And
after one becomes
even
political expression.
significant room for individual
leaves
freely11
may vote
regardless
affiliation,
Employees,
on
issues. See
express
themselves
some
Pickering
Sindermann,
(1972);
Perry v.
V assumption On must that we reach the constitu- I hold respondents, tional issue at the behest of would government a state or local elect to condition employment prospective on the affiliation of a employee hiring and on the in- political fortunes History long-prevailing practice cumbent. across country support patronage hiring prac- the view that a sufficiently tices make contribution to the substantial practical system functioning sup- of our democratic appears ballot, adoption that before the Australian job one’s access or retention of a could sometimes supra, depend Rosenbloom, voting “correctly.” D. n. at 61. Today beyond political expression this ultimate core of the reach system. coercive effects of the port relatively modest intrusion on First Amend- ment interests. The judgment today unnecessarily con- stitutionalizes another element of American life—an certainly element not without its faults but one which generations accepted have on balance having merit.12 *36 We should have heeded, instead, the admonition of Mr. Justice Holmes that thing practised has been “[i]f for years two hundred common consent, it will need strong for case the Fourteenth Amendment to affect . . . Jackman v. Co., Rosenbaum S. 22, (1922); Comm’n, see Walz Tax 397 U.
12In concluding require the Constitution the in does validation of patronage systems, state local I make wish to clear approval system particular type practice or of the State, any particular community city, implied. I is not be prevailing practice lieve that is to establish a broad base of service, merit-oriented opera civil but to leave room some for patronage. say tion of traditional I must that the “mix” in Cook (where County only employees in about half of the the Sheriff's system) disproportionate. Office are within the merit seems On hand, g., the other there are where smaller communities —e. non council-manager government partisan, forms of exist—in which system majority public the merit embraces the vast em differ, ployees. government Political scientists students time, have varied from time to as to the best views also structuring employment in state and local means every necessarily same public interest. is the Nor answer community size, government, regard to its form of or other without above, My conviction, opinion in the conditions. indicated local options not foreclose local the name a consti is that we should applicable right perceived to be for the first time after tutional nearly centuries. two