Lead Opinion
delivered the opinion of the Court.
Tо the victor belong only those spoils that may be constitutionally obtained. Elrod v. Burns,
I — 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.
By means of the freeze, according to petitioners and cross-respondents, 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.
The two other plaintiffs, before the Court as cross-respondents, allege that they were not recalled after layoffs because they lacked Republican credentials. Ricky Stande-fer 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.
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,
II
A
In Elrod, swpra, we decided that a newly elected Democratic sheriff could not constitutionally engage in the patronage practice of replacing certain office staff with members of
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, at 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 ex
B
We first address the claims of the four current or former employees. Respondents urge us to view Elrod and Branti
“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 nf 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 , 526 [(1958)]. Such interference with constitutional rights is impermissible.” Id., at 597 (emphasis added).
Likewise, we find the assertion here that the employee petitioners and cross-respondents had no legal entitlement to promotion, transfer, or recall beside the point.
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, at 365-368 (plurality opinion); Branti, supra, at 518, and 520, 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, at 372-373 (plurality opinion). Political parties have already survived the substantial decline in patronage employment practices in this century. See Elrod, supra, at 369, and n. 23 (plurality opinion); 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 Govern
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.
Whether the four employees were in fact denied promotions, transfers, or rehires 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 Amend
Nonetheless, respondents contend that the burden imposed is not of constitutional magnitude.
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,
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
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.
Ill
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 Seventh Circuit’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.
Notes
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,
Three of the five original plaintiffs who brought the lawsuit — Rutan, Taylor, and Moore — are petitioners in No. 88-1872, and we refеr 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 No. 88-1872. They are also the cross-petitioners in No. 88-2074. Four of the five original plaintiffs — Rutan, Taylor, Standefer, and O’Brien — are named as cross-respondents in No. 88-2074.
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.
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,
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 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 104; patronage is necessary to strong, disciplined party organizations, post, at 104-105; patronage “fosters the two-party system,” post, at 106; and patronage is “a powerful means of achieving the social and political integration of excluded groups,” post, at 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 op
Branti v. Finkel,
Respondents’ reliance on Johnson v. Transportation Agency, Santa Clara County,
The complaint in this case states that Dan O’Brien was driven to do exactly this. After being rejectеd 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.
The Seventh Circuit’s proffered test was not based on that court’s determination that other patronage practices do not burden the free exer
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 2000e-2(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 also from “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.”
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,
Concurrence Opinion
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 im
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. Federation of State, Cty., and Municipal Employees, AFL-CIO v. Lewis,
“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*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 flat — 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 and citations 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.
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 95; post, at 102 (a “clear and continuing tradition of our peo-
In the Lewis case, I noted the obvious response to this position: “[I]f 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.”
“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. 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 [(1952)]. 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.*84 Richardson and Adler v. Board of Education is more relevant than the preceding doctrine which is now ‘universally rejected.’”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 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:
*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 , 100.
“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 , 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 898 .
*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 , 574. 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 , 496 [(1960)].
“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 , 526. Such interference with constitutional rights is impermissible.’
*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 , 404-405 [(1963)], and welfare payments, Shapiro v. Thompson,394 U. S. 618 , 627 n. 6 [(1969)]; Graham v. Richardson,403 U. S. 365 , 374 [(1971)]. But, most often, we have applied the principle to denials of public employment. United Public Workers v. Mitchell,330 U. S. 75 , 100 [(1947)]; Wieman v. Updegraff,344 U. S. 183 , 192 [(1952)]; Shelton v. Tucker,364 U. S. 479 , 485-486 [(1960)]; Torcaso v. Watkins,367 U. S. 488 , 495-496 [(1961)]; Cafeteria and Restaurant Workers, etc. v. McElroy,367 U. S. 886 , 894 [(1961)]; Cramp v. Board of Public Instruction,368 U. S. 278 , 288 [(1961)]; Baggett v. Bullitt,377 U. S. 360 [(1964)]; Elfbrandt v. Russell, 384 U. S. [11,] 17 [(1966)]; Keyishian v. Board of Regents,385 U. S. 589 , 605-606 [(1967)]; Whitehill v. Elkins,389 U. S. 54 [(1967)]; United States v. Robel,389 U. S. 258 [(1967)]; Pickering v. Board of Education,391 U. S. 563 , 568 [(1968)]. 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 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, Cty. and Municipal Employees, AFL-CIO v. Shapp,
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
Justice Sc alia 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 109-110. This analysis contradicts the harsh reality of party discipline that is the linchpin of his theory of patronage. Post, at 105 (emphasizing the “link between patronage and party discipline, and between that and party success”).
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,
“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*92 process is actually at war with the deeper traditions of democracy embodied in the First Amendment.” Lewis,473 F. 2d, at 576 .8
The tradition that is relevant in these cases 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.” These cases involve 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.
Despite Justice Scalia’s imprecise use of the term, post, at 114, the legal issue presented in this litigation is plainly not a “political question.” See Elrod v. Burns,
See Michael H. v. Gerald D.,
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 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 Caroline. 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 intraparty feuding or unrestrained factionalism, see, e. g., Storer v. Brown,
Although Justice Scalia’s defense of patronage turns on the benefits of fostering the two-party system, post, at 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 Pen-dergast Machines, the Byrd Machines, and the Daley Machines,” post, at 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,
Incidentally, although some might suggest that Jacob Arvey was “best known as the promoter of Adlai Stevenson,” post, at 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).
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 manаger, 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 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.
The iron fist inside the velvet glove of Justice Scalia’s “inducements” and “influences” is apparent from his own descriptions of the essen
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,
1 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 Sc alia 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,
Petitioners Rutan and Taylor both allege that they are more qualified than the persons who were promoted over them.
A decade later, in Anderson v. Celebrezze,
Dissenting Opinion
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 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
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 Pender-gast 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 eleсted government, unprotected by “party discipline,” before the demands of small and cohesive interest groups.
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,
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 in the same way that 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.
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, supra, at 378-379; Branti, supra, at 522, n. 1. 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.
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,
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 operations] . . . .” Cafeteria & Restaurant Workers v. McElroy,
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,
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.,
“[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 balаnce between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest 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,
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,
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,
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 eval
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 sta
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,
“[Although 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.
*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, supra, at 369, n. 23) on a single study of a rural Pennsylvania county by Professor Sorauf, ante, at 75 — a work that has been described as “more persuasive about the ineffectuality of Democratic leaders in Centre County than about the generaliz-ability 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 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 384 (Powell, J., dissenting); Branti, 445
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, “[pjolitical parties have already survived the substantial decline in patronage employment practices in this century.” Ante, at 74. This is almost verbatim what was said in Elrod, see
The patronage system does not, of course, merely foster political parties in general; it fosters the two-party systеm in particular. When getting a job, as opposed to effectuating a particular substantive policy, is an available incentive for
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 in party discipline with one in which each officeholder comes to his own accommodation with сompeting interest groups produces “a dispersion of political influence that may inhibit a
Patronage, moreover, has been a powerful means of achieving the social and political integration of excluded groups. See, e. g., Elrod,
“ ‘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 effi
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 abridgment 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 71, quoting Branti,
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 de-cisis is at its weakest, see Glidden Co. v. Zdanok,
A few examples will illustrate the shambles Branti has produced. A city cannot fire a deputy sheriff because of his political affiliation,
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 nonpatron-
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 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
II
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,
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.”
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 officeseeker) we may be moved to reconsider our intrusion into this entire field.
In the meantime, I dissent.
The customary invocation of Brown v. Board of Education,
Justice Stevens seeks to counteract this tradition by relying upon the supposed “unequivocal repudiation” of the right-privilege distinction. Ante, at 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,
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 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 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
The Court’s further contention that these eases are limited to the “interests that the government has in its capacity as an employer,” ante, at 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 hаve 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
Justice Stevens discounts these systemic effects when he characterizes patronage as fostering partisan, rather than public, interests. Ante, at 88. But taking Justice Stevens at his word, one wonders why patronage can ever be an “appropriate requirement for the position involved,” ante, at 64.
Jones v. Dodson, 727 F. 2d 1329, 1338 (CA4 1984).
McBee v. Jim Hogg County,
Joyner v. Lancaster,
Layden v. Costello,
Tavano v. County of Niagara,
Ness v. Marshall,
Finkelstein v. Barthelemy,
Livas v. Petka,
Bavoso v. Harding,
Barnes v. Bosley,
Bauer v. Bosley,
Elrod v. Burns,
Balogh v. Charron,
Abraham v. Pekarski,
Tomczak v. Chicago,
De Choudens v. Government Development Bank of Puerto Rico,
Rosario Nevarez v. Toms Gaztambide,
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 f,i 9, 21-22, App. to Respondents' Brief in Opposition;