Subject: RUTAN v. REPUBLICAN PARTY OF ILLINOIS, Syllabus



 
    NOTE: Where it is feasible, a syllabus (headnote) will be released, as
is being done in connection with this case, at the time the opinion is
issued.  The syllabus constitutes no part of the opinion of the Court but
has been prepared by the Reporter of Decisions for the convenience of the
reader.  See United States v. Detroit Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES


Syllabus



RUTAN et al. v. REPUBLICAN PARTY
OF ILLINOIS et al.


certiorari to the united states court of appeals for the seventh circuit

No. 88-1872.  Argued January 16, 1990--Decided June 21, 1990 {1}

The Illinois Governor issued an executive order instituting a hiring
freeze, whereby state officials are prohibited from hiring any employee,
filling any vacancy, creating any new position, or taking any similar
action without the Governor's "express permission."  Petitioners and cross-
respondents--an applicant for employment, employees who had been denied
promotions or transfers, and former employees who had not been recalled
after layoffs--brought suit in the District Court, alleging that, by means
of the freeze, the Governor was operating a political patronage system;
that they had suffered discrimination in state employment because they had
not been Republican Party supporters; and that this discrimination violates
the First Amendment.  The District Court dismissed the complaint for
failure to state a claim upon which relief could be granted.  The Court of
Appeals affirmed in part and reversed in part.  Noting that Elrod v. Burns,
427 U. S. 507, and Branti v. Finkel, 445 U. S. 507, had found that the
patronage practice of discharging public employees on the basis of their
political affiliation violates the First Amendment, the court held that
other patronage practices violate the Amendment only when they are the
"substantial equivalent of a dismissal," i. e., when they would lead
reasonable persons to resign.  The court concluded, based on Wygant v.
Jackson Bd. of Education, 476 U. S. 267, that rejecting an employment
application did not impose a hardship comparable to the loss of a job.
Thus, it dismissed the hiring claim, but remanded the others for further
proceedings.

Held: The rule of Elrod and Branti extends to promotion, transfer, recall,
and hiring decisions based on party affiliation and support, and
petitioners and cross-respondents have stated claims upon which relief may
be granted.  Pp. 5-16.

    (a) Promotions, transfers, and recalls based on political affiliation
or support are an impermissible infringement on public employees' First
Amendment rights.  Even though petitioners and cross-respondents have no
legal entitlement to the promotions, transfers, and recalls, the government
may not rely on a basis that infringes their constitutionally protected
interests to deny them these valuable benefits.  Perry v. Sin dermann, 408
U. S. 593, 597.  Significant penalties are imposed on those employees who
exercise their First Amendment rights.  Those who do not compromise their
beliefs stand to lose the considerable increases in pay and job
satisfaction attendant to promotions, the shorter commuting hours and lower
maintenance expenses incident to transfers to more convenient work
locations, and even the jobs themselves in the case of recalls.  As in
Elrod and Branti, these patronage practices are not narrowly tailored to
serve vital government interests.  A government's interest in securing
effective employees can be met by discharging, demoting, or transferring
persons whose work is deficient, and its interest in securing employees who
will loyally implement its policies can be adequately served by choosing or
dismissing high-level employees on the basis of their political views.
Likewise, the "preservation of the democratic process" is not furthered by
these patronage decisions, since political parties are nurtured by other,
less intrusive and equally effective methods, and since patronage decidedly
impairs the elective process by discouraging public employees' free
political expression.  Pp. 8-12.

    (b) The standard used by the Court of Appeals to measure alleged
patronage practices in government employment is unduly restrictive because
it fails to recognize that there are deprivations less harsh than dismissal
that nevertheless press state employees and applicants to conform their
beliefs and associations to some state-selected orthdoxy.  Pp. 12-13.

    (c) Patronage hiring places burdens on free speech and association
similar to those imposed by patronage promotions, transfers, and recalls.
Denial of a state job is a serious privation, since such jobs provide
financial, health, and other benefits; since there may be openings with the
State when business in the private sector is slow; and since there are
occupations for which the government is the sole or major employer.  Under
this Court's sustained precedent, conditioning hiring decisions on
political belief and association plainly constitutes an unconstitutional
condition, unless the government has a vital interest in doing so.  See, e.
g., Branti, supra, at 515-516.  There is no such government interest here,
for the same reasons that the government lacks justification for patronage
promotions, transfers, and recalls.  It is inappropriate to rely on Wygant
to distinguish hiring from dismissal in this context, since that case was
concerned with the least harsh means of remedying past wrongs and did not
question that some remedy was permissible when there was sufficient
evidence of past discrimination.  Here, however, it is unnecessary to
consider whether not being hired is less burdensome than being discharged,
because the government is not pressed to do either on the basis of
political affiliation.  Pp. 13-16.

868 F. 2d 943, affirmed in part, reversed in part, and remanded.

Brennan, J., delivered the opinion of the Court, in which White, Marshall,
Blackmun, and Stevens, JJ., joined.  Stevens, J., filed a concurring
opinion.  Scalia, J., filed a dissenting opinion in which Rehnquist, C. J.,
and Kennedy, J., joined, and in which O'Connor, J., joined as to Parts II
and III.
------------------------------------------------------------------------------
1
    Together with No. 88-2074, Frech et al. v. Rutan et al., also on
certiorari to the same court.





Subject: 88-1872 & 88-2074--OPINION, RUTAN v. REPUBLICAN PARTY OF ILLINOIS

 


NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
SUPREME COURT OF THE UNITED STATES


Nos. 88-1872 and 88-2074


CYNTHIA RUTAN, et al., PETITIONERS
v.
88-1872
REPUBLICAN PARTY OF ILLINOIS et al.


MARK FRECH, et al., PETITIONERS
v.
88-2074
CYNTHIA RUTAN et al.


on writs of certiorari to the united states court of appeals for the
seventh circuit

[June 21, 1990]



    Justice Brennan delivered the opinion of the Court.

    To the victor belong only those spoils that may be consti tutionally
obtained.  Elrod v. Burns, 427 U. S. 347 (1976), and Branti v. Finkel, 445
U. S. 507 (1980), decided that the First Amendment forbids government
officials to discharge or threaten to discharge public employees solely for
not being supporters of the political party in power, unless party
affiliation is an appropriate requirement for the position involved.  Today
we are asked to decide the constitutionality of several related political
patronage practices--whether promotion, transfer, recall, and hiring
decisions involving low-level public employees may be constitutionally
based on party affiliation and support.  We hold that they may not.
I
    The petition and cross-petition before us arise from a lawsuit
protesting certain employment policies and practices instituted by Governor
James Thompson of Illinois. {1}  On November 12, 1980, the Governor issued
an executive order proclaiming a hiring freeze for every agency, bureau,
board, or commission subject to his control.  The order prohibits state
officials from hiring any employee, filling any vacancy, creating any new
position, or taking any similar action.  It affects approximately 60,000
state positions.  More than 5,000 of these become available each year as a
result of resignations, retirements, deaths, expansion, and
reorganizations.  The order proclaims that "no exceptions" are permitted
without the Governor's "express permission after submission of appropriate
requests to [his] office."  Governor's Executive Order No. 5 (Nov. 12,
1980), Brief for Petitioners 11 (emphasis added).
    Requests for the Governor's "express permission" have allegedly become
routine.  Permission has been granted or withheld through an agency
expressly created for this purpose, the Governor's Office of Personnel
(Governor's Office).  Agencies have been screening applicants under
Illinois' civil service system, making their personnel choices, and
submitting them as requests to be approved or disapproved by the Governor's
Office.  Among the employment decisions for which approvals have been
required are new hires, promotions, transfers, and recalls after layoffs.
    By means of the freeze, according to petitioners, the Governor has been
using the Governor's Office to operate a political patronage system to
limit state employment and beneficial employment-related decisions to those
who are supported by the Republican Party.  In reviewing an agency's
request that a particular applicant be approved for a particular position,
the Governor's Office has looked at whether the applicant voted in
Republican primaries in past election years, whether the applicant has
provided financial or other support to the Republican Party and its
candidates, whether the applicant has promised to join and work for the
Republican Party in the future, and whether the applicant has the support
of Republican Party officials at state or local levels.
    Five people (including the three petitioners) brought suit against
various Illinois and Republican Party officials in the United States
District Court for the Central District of Illinois. {2}  They alleged that
they had suffered discrimination with respect to state employment because
they had not been supporters of the State's Republican Party and that this
discrimination violates the First Amendment.  Cynthia B. Rutan has been
working for the State since 1974 as a rehabilitation counselor.  She claims
that since 1981 she has been repeatedly denied promotions to supervisory
positions for which she was qualified because she had not worked for or
supported the Republican Party.  Franklin Taylor, who operates road
equipment for the Illinois Department of Transportation, claims that he was
denied a promotion in 1983 because he did not have the support of the local
Republican Party.  Taylor also maintains that he was denied a transfer to
an office nearer to his home because of opposition from the Republican
Party chairmen in the counties in which he worked and to which he requested
a transfer.  James W. Moore claims that he has been repeatedly denied state
employment as a prison guard because he did not have the support of
Republican Party officials.
    The two other plaintiffs, before the Court as cross-respondents, allege
that they were not recalled after layoffs because they lacked Republican
credentials.  Ricky Standefer was a state garage worker who claims that he
was not recalled, although his fellow employees were, because he had voted
in a Democratic primary and did not have the support of the Republican
Party.  Dan O'Brien, formerly a dietary manager with the mental health
department, contends that he was not recalled after a layoff because of his
party affiliation and that he later obtained a lower paying position with
the corrections department only after receiving support from the chairman
of the local Republican Party.
    The District Court dismissed the complaint with prejudice, under
Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim upon
which relief could be granted. 641 F. Supp. 249 (CD Ill. 1986).  The United
States Court of Appeals for the Seventh Circuit initially issued a panel
opinion, 848 F. 2d 1396 (1988), but then reheard the appeal en banc.  The
court affirmed the District Court's decision in part and reversed in part.
868 F. 2d 943 (1989).  Noting that this Court had previously determined
that the patronage practice of discharging public employees on the basis of
their political affiliation violates the First Amendment, the Court of
Appeals held that other patronage practices violate the First Amendment
only when they are the "substantial equivalent of a dismissal."  Id., at
954.  The court explained that an employment decision is equivalent to a
dismissal when it is one that would lead a reasonable person to resign.
Id., at 955.  The court affirmed the dismissal of Moore's claim because it
found that basing hiring decisions on political affiliation does not
violate the First Amendment, but remanded the remaining claims for further
proceedings. {3}
    Rutan, Taylor, and Moore petitioned this Court to review the
constitutional standard set forth by the Seventh Circuit and the dismissal
of Moore's claim.  Respondents cross-petitioned this Court, contending that
the Seventh Circuit's remand of four of the five claims was improper
because the employment decisions alleged here do not, as a matter of law,
violate the First Amendment.  We granted certiorari, 493 U. S. ---- (1989),
to decide the important question whether the First Amendment's proscription
of patronage dismissals recognized in Elrod, 427 U. S. 347 (1976), and
Branti, 445 U. S. 507 (1980), extends to promotion, transfer, recall, or
hiring decisions involving public employment positions for which party
affiliation is not an appropriate requirement.
II


A
    In Elrod, supra, we decided that a newly elected Democratic sheriff
could not constitutionally engage in the patronage practice of replacing
certain office staff with members of his own party "when the existing
employees lack or fail to obtain requisite support from, or fail to
affiliate with, that party."  Id., at 351, and 373 (plurality opinion) and
375 (Stewart, J., with Blackmun, J., concurring in judgment).  The
plurality explained that conditioning public employment on the provision of
support for the favored political party "unquestionably inhibits protected
belief and association."  Id., at 359.  It reasoned that conditioning
employment on political activity pressures employees to pledge political
allegiance to a party with which they prefer not to associate, to work for
the election of political candidates they do not support, and to contribute
money to be used to further policies with which they do not agree.  The
latter, the plurality noted, had been recognized by this Court as
"tantamount to coerced belief."  Id., at 355 (citing Buckley v. Valeo, 424
U. S. 1, 19 (1976)).  At the same time, employees are constrained from
joining, working for or contributing to the political party and candidates
of their own choice.  Elrod, supra, at 355-356.  "[P]olitical belief and
association constitute the core of those activities protected by the First
Amendment," the plurality emphasized.  427 U. S., at 356.  Both the
plurality and the concurrence drew support from Perry v. Sindermann, 408 U.
S. 593 (1972), in which this Court held that the State's refusal to renew a
teacher's contract because he had been publicly critical of its policies
imposed an unconstitutional condition on the receipt of a public benefit.
See Elrod, supra, at 359 (plurality opinion) and 375 (Stewart, J.,
concurring in judgment); see also Branti, supra, at 514-516.
    The Court then decided that the government interests generally asserted
in support of patronage fail to justify this burden on First Amendment
rights because patronage dismissals are not the least restrictive means for
fostering those interests.  See Elrod, supra, 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 expressed doubt, however,
that "mere difference of political persuasion motivates poor performance"
and concluded that, in any case, the government can ensure employee
effectiveness and efficiency through the less drastic means of discharging
staff members whose work is inadequate.  427 U. S., at 365-366.  The
plurality also found that a government can meet its need for politically
loyal employees to implement its policies by the less intrusive measure of
dismissing, on political grounds, only those employees in policymaking
positions.  Id., at 367.  Finally, although the plurality recognized that
preservation of the democratic process "may in some instances justify
limitations on First Amendment freedoms," it concluded that the "process
functions as well without the practice, perhaps even better."  Patronage,
it explained, "can result in the entrenchment of one or a few parties to
the exclusion of others" and "is a very effective impediment to the
associational and speech freedoms which are essential to a meaningful
system of democratic government."  Id., at 368-370. {4}
    Four years later, in Branti, supra, we decided that the First Amendment
prohibited a newly appointed public defender, who was a Democrat, from
discharging assistant public defenders because they did not have the
support of the Democratic Party.  The Court rejected an attempt to
distinguish the case from Elrod, deciding that it was immaterial whether
the public defender had attempted to coerce employees to change political
parties or had only dismissed them on the basis of their private political
beliefs.  We explained that conditioning continued public employment on an
employee's having obtained support from a particular political party
violates the First Amendment because of "the coercion of belief that
necessarily flows from the knowledge that one must have a sponsor in the
dominant party in order to retain one's job."  445 U. S., at 516.  "In
sum," we said, "there is no requirement that dismissed employees prove that
they, or other employees, have been coerced into changing, either actually
or ostensibly, their political allegiance."  Id., at 517.  To prevail, we
concluded, public employees need show only that they were discharged
because they were not affiliated with or sponsored by the Democratic Party.
Ibid. {5}
B
    We first address the claims of the four current or former employees.
Respondents urge us to view Elrod and Branti as inapplicable because the
patronage dismissals at issue in those cases are different in kind from
failure to promote, failure to transfer, and failure to recall after
layoff.  Respondents initially contend that the employee petitioners' First
Amendment rights have not been infringed because they have no entitlement
to promotion, transfer, or rehire.  We rejected just such an argument in
Elrod, 427 U. S., at 359-360 (plurality opinion) and 375 (Stewart, J.,
concurring in judgment), and Branti, 445 U. S., at 514-515, as both cases
involved state workers who were employees at will with no legal entitlement
to continued employment.  In Perry, 408 U. S., at 596-598, we held
explicitly that the plaintiff teacher's lack of a contractual or tenure
right to re- employment was immaterial to his First Amendment claim.  We
explained the viability of his First Amendment claim as follows:

    "For at least a quarter-century, this Court has made clear that even
though a person has no `right' to a valuable governmental benefit and even
though the government may deny him the benefit for any number of reasons,
there are some reasons upon which the government may not rely.  It may not
deny a benefit to a person on a basis that infringes his constitutionally
protected interests--especially, his interest in freedom of speech.  For if
the government could deny a benefit to a person because of his
constitutionally protected speech or associations, his exercise of those
freedoms would in effect be penalized and inhibited.  This would allow the
government to `produce a result which [it] could not command directly.'
Speiser v. Randall, 357 U. S. 513, 526 [1958].  Such interference with
constitutional rights is impermissible."  Perry, id., at 597 (emphasis
added).


    Likewise, we find the assertion here that the employee petitioners had
no legal entitlement to promotion, transfer, or recall beside the point.
    Respondents next argue that the employment decisions at issue here do
not violate the First Amendment because the decisions are not punitive, do
not in any way adversely affect the terms of employment, and therefore do
not chill the exercise of protected belief and association by public
employees. {6}  This is not credible.  Employees who find themselves in
dead-end positions due to their political backgrounds are adversely
affected.  They will feel a significant obligation to support political
positions held by their superiors, and to refrain from acting on the
political views they actually hold, in order to progress up the career
ladder.  Employees denied transfers to workplaces reasonably close to their
homes until they join and work for the Republican Party will feel a daily
pressure from their long commutes to do so.  And employees who have been
laid off may well feel compelled to engage in whatever political activity
is necessary to regain regular paychecks and positions corresponding to
their skill and experience. {7}
    The same First Amendment concerns that underlay our decisions in Elrod,
supra, and Branti, supra, are implicated here.  Employees who do not
compromise their beliefs stand to lose the considerable increases in pay
and job satisfaction attendant to promotions, the hours and maintenance
expenses that are consumed by long daily commutes, and even their jobs if
they are not rehired after a "temporary" layoff.  These are significant
penalties and are imposed for the exercise of rights guaranteed by the
First Amendment.  Unless these patronage practices are narrowly tailored to
further vital government interests, we must conclude that they
impermissibly encroach on First Amendment freedoms.  See Elrod, supra, at
362-363 (plurality opinion) and 375 (Stewart, J., concurring in judgment);
Branti, supra, at 515-516.
    We find, however, that our conclusions in Elrod, supra, and Branti,
supra, are equally applicable to the patronage practices at issue here.  A
government's interest in securing effective employees can be met by
discharging, demoting or transferring staffmembers 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; 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.
Political parties have already survived the substantial decline in
patronage employment practices in this century.  See Elrod, 427 U. S., at
369, and n. 23; see also L. Sabato, Goodbye to Good-time Charlie 67 (2d ed.
1983) ("The number of patronage positions has significantly decreased in
virtually every state"); Congressional Quarterly Inc., State Government,
CQ's Guide to Current Issues and Activities 134 (T. Beyle ed. 1989-1990)
("Linkage[s] between political parties and government office-holding . . .
have died out under the pressures of varying forces [including] the
declining influence of election workers when compared to media and
money-intensive campaigning, such as the distribution of form letters and
advertising"); Sorauf, Patronage and Party, 3 Midwest J. Pol. Sci. 115,
118-120 (1959) (many state and local parties have thrived without a
patronage system).  Second, patronage decidedly impairs the elective
process by discouraging free political expression by public employees.  See
Elrod, 427 U. S., at 372 (explaining that the proper functioning of a
democratic system "is indispensably dependent on the unfettered judgment of
each citizen on matters of political concern").  Respondents, who include
the Governor of Illinois and other state officials, do not suggest any
other overriding government interest in favoring Republican Party
supporters for promotion, transfer, and rehire.
    We therefore determine that promotions, transfers, and recalls after
layoffs based on political affiliation or support are an impermissible
infringement on the First Amendment rights of public employees.  In doing
so, we reject the Seventh Circuit's view of the appropriate constitutional
standard by which to measure alleged patronage practices in government
employment.  The Seventh Circuit proposed that only those employment
decisions that are the "substantial equivalent of a dismissal" violate a
public employee's rights under the First Amendment.  868 F. 2d, at 954-957.
We find this test unduly restrictive because it fails to recognize that
there are deprivations less harsh than dismissal that nevertheless press
state employees and applicants to conform their beliefs and associations to
some state-selected orthodoxy.  See Elrod, supra, at 356-357 (plurality
opinion); West Virgina Bd. of Education v. Barnette, 319 U. S. 624, 642
(1943). {8}  The First Amendment is not a tenure provision, protecting
public employees from actual or constructive discharge.  The First
Amendment prevents the government, except in the most compelling
circumstances, from wielding its power to interfere with its employees'
freedom to believe and associate, or to not believe and not associate.
    Whether the four employees were in fact denied promotions, transfers,
or rehire for failure to affiliate with and support the Republican Party is
for the District Court to decide in the first instance.  What we decide
today is that such denials are irreconcilable with the Constitution and
that the allegations of the four employees state claims under 42 U. S. C.
MDRV 1983 (1982 ed.) for violations of the First and Fourteenth Amendments.
Therefore, although we affirm the Seventh Circuit's judgment to reverse the
District Court's dismissal of these claims and remand them for further
proceedings, we do not adopt the Seventh Circuit's reasoning.
C
    Petitioner James W. Moore presents the closely related question whether
patronage hiring violates the First Amendment.  Patronage hiring places
burdens on free speech and association similar to those imposed by the
patronage practices discussed above.  A state job is valuable.  Like most
employment, it provides regular paychecks, health insurance, and other
benefits.  In addition, there may be openings with the State when business
in the private sector is slow.  There are also occupations for which the
government is a major (or the only) source of employment, such as social
workers, elementary school teachers, and prison guards.  Thus, denial of a
state job is a serious privation.
    Nonetheless, respondents contend that the burden imposed is not of
constitutional magnitude. {9}  Decades of decisions by this Court belie
such a claim.  We premised Torcaso v. Watkins, 367 U. S. 488 (1961), on our
understanding that loss of a job opportunity for failure to compromise
one's convictions states a constitutional claim.  We held that Maryland
could not refuse an appointee a commission for the position of notary
public on the ground that he refused to declare his belief in God, because
the required oath "unconstitutionally invades the appellant's freedom of
belief and religion."  Id., at 496.  In Keyishian v. Board of Regents of
Univ. of New York, 385 U. S. 589, 609-610 (1967), we held a law affecting
appointment and retention of teachers invalid because it premised
employment on an unconstitutional restriction of political belief and
association.  In Elfbrandt v. Russell, 384 U. S. 11, 19 (1966), we struck
down a loyalty oath which was a prerequisite for public employment.
    Almost half a century ago, this Court made clear that the government
"may not enact a regulation providing that no Republican . . . shall be
appointed to federal office."  Public Workers v. Mitchell, 330 U. S. 75,
100 (1947).  What the First Amendment precludes the government from
commanding directly, it also precludes the government from accomplishing
indirectly.  See Perry, 408 U. S., at 597 (citing Speiser v. Randall, 357
U. S. 513, 526 (1958)); see supra, at ----.  Under our sustained precedent,
conditioning hiring decisions on political belief and association plainly
constitutes an unconstitutional condition, unless the government has a
vital interest in doing so.  See Elrod, 427 U. S., at 362-363 (plurality
opinion), and 375 (Stewart, J., concurring in judgment); Branti, 445 U. S.,
at 515-516; see also Sherbert v. Verner, 374 U. S. 398 (1963) (unemployment
benefits); Speiser v. Randall, supra (tax exemption).  We find no such
government interest here, for the same reasons that we found the government
lacks justification for patronage promotions, transfers or recalls.  See
supra, at ----.
    The court below, having decided that the appropriate inquiry in
patronage cases is whether the employment decision at issue is the
substantial equivalent of a dismissal, affirmed the trial court's dismissal
of Moore's claim.  See 868 F. 2d, at 954.  The Court of Appeals reasoned
that "rejecting an employment application does not impose a hardship upon
an employee comparable to the loss of [a] job."  Ibid., citing Wygant v.
Jackson Bd. of Education, 476 U. S. 267 (1986) (plurality opinion).  Just
as we reject the Seventh Circuit's proffered test, see supra at ----, we
find the Seventh Circuit's reliance on Wygant to distinguish hiring from
dismissal unavailing.  The court cited a passage from the plurality opinion
in Wygant explaining that school boards attempting to redress past
discrimination must choose methods that broadly distribute the
disadvantages imposed by affirmative action plans among innocent parties.
The plurality said that race-based layoffs placed too great a burden on
individual members of the nonminority race, but suggested that
discriminatory hiring was permissible, under certain circumstances, even
though it burdened white applicants because the burden was less intrusive
than the loss of an existing job.  Id., at 282-284.  See also id., at
294-295 (White, J., concurring in judgment).
    Wygant has no application to the question at issue here.  The
plurality's concern in that case was identifying the least harsh means of
remedying past wrongs.  It did not question that some remedy was
permissible when there was sufficient evidence of past discrimination.  In
contrast, the Governor of Illinois has not instituted a remedial
undertaking.  It is unnecessary here to consider whether not being hired is
less burdensome than being discharged because the government is not pressed
to do either on the basis of political affiliation.  The question in the
patronage context is not which penalty is more acute but whether the
government, without sufficient justification, is pressuring employees to
discontinue the free exercise of their First Amendment rights.
    If Moore's employment application was set aside because he chose not to
support the Republican Party, as he asserts, then Moore's First Amendment
rights have been violated.  Therefore, we find that Moore's complaint was
improperly dismissed.
III
    We hold that the rule of Elrod and Branti extends to promotion,
transfer, recall, and hiring decisions based on party affiliation and
support and that all of the petitioners and cross-respondents have stated
claims upon which relief may be granted.  We affirm the Seventh Circuit
insofar as it remanded Rutan's, Taylor's, Standefer's, and O'Brien's
claims.  However, we reverse the Circuit Court's decision to uphold the
dismissal of Moore's claim.  All five claims are remanded for proceedings
consistent with this opinion.
It is so ordered.
 
 
 
 
 
 

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1
    The cases come to us in a preliminary posture and the question is
limited to whether the allegations of petitioners Rutan et al., state a
cognizable First Amendment claim, sufficient to withstand respondents'
motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).
Therefore, for purposes of our review we must assume that petitioners'
well-pleaded allegations are true. Berkovitz v. United States, 486 U. S.
531, 540 (1988).
    Three of the five original plaintiffs who brought the lawsuit--Rutan,
Taylor, and Moore--are petitioners in case No. 88-1872, and we refer to
them as "petitioners."  The defendants in the lawsuit are various Illinois
and Republican Party officials.  We refer to them as "respondents" because
they are the respondents in case No. 88-1872.  They are also the
cross-petitioners in case No. 88-2074.  Four of the five original
plaintiffs-- Rutan, Taylor, Standefer, and O'Brien--are named as
cross-respondents in case No. 88-2074.

2
    The five originally brought this action both individually and on behalf
of those similarly situated.  The Seventh Circuit, noting that the District
Court had failed to address the class-action questions, reviewed the case
as one brought by individuals only.  868 F. 2d 943, 947 (1989).  We
therefore have only the claims of the individuals before us.

3
    The Seventh Circuit explained that Standefer's and O'Brien's claims
might be cognizable if there were a formal or informal system of rehiring
employees in their positions, 868 F. 2d, at 956-957, but expressed
considerable doubt that Rutan and Taylor would be able to show that they
suffered the "substantial equivalent of a dismissal" by being denied
promotions and a transfer.  Id., at 955-956.

4
    Justice Scalia's lengthy discussion of the appropriate standard of
review for restrictions the government places on the constitutionally
protected activities of its employees to ensure efficient and effective
operations, see post, at 3-11, 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 12; patronage is
necessary to strong, disciplined party organizations, post, at 12-13;
patronage "fosters the two-party system," post, at 15; and patronage is "a
powerful means of achieving the social and political integration of
excluded groups," post, at 16.  These are interests the government might
have in the structure and functioning of society as a whole.  That the
government attempts to use public employment to further such interests does
not render those interests employment-related.  Therefore, even were
Justice Scalia correct that less-than-strict scrutiny is appropriate when
the government takes measures to ensure the proper functioning of its
internal operations, such a rule has no relevance to the restrictions on
freedom of association and speech at issue in this case.

5
    Branti v. Finkel, 445 U. S. 507 (1980), also refined the exception
created by Elrod v. Burns, 427 U. S. 347 (1976), for certain employees.  In
Elrod, we suggested that policymaking and confidential employees probably
could be dismissed on the basis of their political views.  Elrod, supra, at
367 (plurality), and 375 (Stewart, J., concurring in judgment).  In Branti,
we said that a State demonstrates a compelling interest in infringing First
Amendment rights only when it can show that "party affiliation is an
appropriate requirement for the effective performance of the public office
involved."  Branti, supra, at 518.  The scope of this exception does not
concern us here as respondents concede that the five employees who brought
this suit are not within it.

6
    Respondents' reliance on Johnson v. Transportation Agency, Santa Clara
County, Cal., 480 U. S. 616 (1987), to this effect is misplaced.  The
question in Johnson was whether the Santa Clara County affirmative action
program violated the antidiscrimination requirement of Title VII.  In that
context, we said that the denial of a promotion did not unsettle any
legitimate, firmly rooted expectations.  We did not dispute, however, that
it placed a burden on the person to whom the promotion was denied.  We
considered Johnson's expectations in discussing whether the plan
unnecessarily trammeled the rights of male employees--i. e., whether its
goal was pursued with an excessive rather than reasonable amount of
dislocation.  Our decision that promotion denials are not such an
imposition that Title VII prevented Santa Clara from considering gender in
order to redress past discrimination does not mean that promotion denials
are not enough of an imposition to pressure employees to affiliate with the
favored party.

7
    The complaint in this case states that Dan O'Brien was driven to do
exactly this.  After being rejected for recall by the Governor's Office, he
allegedly pursued the support of a Republican Party official, despite his
previous interest in the Democratic Party.

8
    The Seventh Circuit's proffered test was not based on that court's
determination that other patronage practices do not burden the free
exercise of First Amendment rights.  Rather, the court chose to defer to
the political process in an area in which it felt this Court had not yet
spoken clearly.  868 F. 2d, at 953-954.  The court also expressed concern
that the opposite conclusion would open state employment to excessive
interference by the federal judiciary.  Ibid.  We respect but do not share
this concern.
    Our decision does not impose the federal judiciary's supervision on any
state government activity that is otherwise immune.  The federal courts
have long been available for protesting unlawful state employment
decisions.  Under Title VII, 42 U. S. C. 15 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 "even an act of retaliation as trivial
as failing to hold a birthday party for a public employee . . . when
intended to punish her for exercising her free speech rights."  868 F. 2d,
at 954, n. 4.

9
    To the extent that respondents also argue that Moore has not been
penalized for the exercise of protected speech and association rights
because he had no claim of right to employment in the first place, that
argument is foreclosed by Perry v. Sindermann, 408 U. S. 593, 597 (1972).
See supra, at ----.





Subject: 88-1872 & 88-2074--CONCUR, RUTAN v. REPUBLICAN PARTY OF ILLINOIS

 


    SUPREME COURT OF THE UNITED STATES


Nos. 88-1872 and 88-2074


CYNTHIA RUTAN, et al., PETITIONERS
v.
88-1872
REPUBLICAN PARTY OF ILLINOIS et al.


MARK FRECH, et al., PETITIONERS
v.
88-2074
CYNTHIA RUTAN et al.


on writs of certiorari to the united states court of appeals for the
seventh circuit

[June 21, 1990]



    Justice Stevens, concurring.
    While I join the Court's opinion, these additional comments are
prompted by three propositions advanced by Justice Scalia in his dissent.
First, he implies that prohibiting imposition of an unconstitutional
condition upon eligibility for government employment amounts to adoption of
a civil service system.  Second, he makes the startling assertion that a
long history of open and widespread use of patronage practices immunizes
them from constitutional scrutiny.  Third, he assumes that the decisions in
Elrod v. Burns, 427 U. S. 347 (1976), and Branti v. Finkle, 445 U. S. 507
(1980), represented dramatic departures from prior precedent.
    Several years before either Elrod or Branti was decided, I had occasion
as a judge on the Court of Appeals for the Seventh Circuit to evaluate each
of these propositions.  Illinois State Employees Union, Council 34, Am.
Fed. of State, County, and Municipal Emp., AFL-CIO v. Lewis, 473 F. 2d 561
(1972), cert. denied, 410 U. S. 928 (1973).  With respect to the first, I
wrote:
    "Neither this court nor any other may impose a civil service system
upon the State of Illinois.  The General Assembly has provided an elaborate
system regulating the appointment to specified positions solely on the
basis of merit and fitness, the grounds for termination of such employment,
and the procedures which must be followed in connection with hiring,
firing, promotion, and retirement.  A federal court has no power to
establish any such employment code.
    "However, recognition of plaintiffs' claims will not give every public
employee civil service tenure and will not require the state to follow any
set procedure or to assume the burden of explaining or proving the grounds
for every termination.  It is the former employee who has the burden of
proving that his discharge was motivated by an impermissible consideration.
It is true, of course, that a prima facie case may impose a burden of
explanation on the State.  But the burden of proof will remain with the
plaintiff employee and we must assume that the trier of fact will be able
to differentiate between those discharges which are politically motivated
and those which are not.  There is a clear distinction between the grant of
tenure to an employee--a right which cannot be conferred by judicial
fiat--and the prohibition of a discharge for a particular impermissible
reason.  The Supreme Court has plainly identified that distinction on many
occasions, most recently in Perry v. Sinder mann, 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."  Id.,
at 567-568 (footnotes omitted).


Denying the Governor of Illinois the power to require every state employee,
and every applicant for state employment, to pledge allegiance and service
to the political party in power is a far cry from a civil service code.
The question in this case is simply whether a Governor may adopt a rule
that would be plainly unconstitutional if enacted by the General Assembly
of Illinois. {1}
    Second, Justice Scalia asserts that "when a practice not expressly
prohibited by the text of the Bill of Rights bears the endorsement of a
long tradition of open, widespread, and unchallenged use that dates back to
the beginning of the Republic, we have no proper basis for striking it
down."  Post, at 4; post, at 11 (a "clear and continuing tradition of our
people" deserves "dispositive effect").  The argument that traditional
practices are immune from constitutional scrutiny is advanced in two
plurality opinions that Justice Scalia has authored, but not by any opinion
joined by a majority of the Members of the Court. {2}
    In the Lewis case, I noted the obvious response to this position: "if
the age of a pernicious practice were a sufficient reason for its continued
acceptance, the constitutional attack on racial discrimination would, of
course, have been doomed to failure."  473 F. 2d, at 568, n. 14.  See, e.
g., Brown v. Board of Education, 347 U. S. 483 (1954). {3}  I then added
this comment on the specific application of that argument to patronage
practices:
    "Finally, our answer to the constitutional question is not foreclosed
by the fact that the `spoils system has been entrenched in American history
for almost two hundred years.'  Alomar v. Dwyer, 447 F. 2d 482, 483 (2d
Cir. 1971).  For most of that period it was assumed, without serious
question or debate, that since a public employee has no constitutional
right to his job, there can be no valid constitutional objection to his
summary removal.  See Bailey v. 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. Richardson and Adler v. Board of Education is more relevant than
the preceding doctrine which is now `universally rejected.' "  Lewis, 473
F. 2d, at 568 (footnotes and citations omitted).


    With respect to Justice Scalia's view that until Elrod v. Burns was
decided in 1976, it was unthinkable that patronage could be
unconstitutional, see post, at 5, 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:
    `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.
    "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.
    `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; Shelton v. Tucker, 364
U. S. 479, 485-486; Torasco v. Watkins, 367 U. S. 488, 495-496; 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 County and Municipal Employees,
AFL-CIO v. Shapp, 443 Pa. 527, 537-545, 280 A. 2d 375, 379-383 (1971)
(Barbieri, J., dissenting).
    To avoid the force of the line of authority described in the foregoing
passage, Justice Scalia would weigh the supposed general state interest in
patronage hiring against the aggregated interests of the many employees
affected by the practice.  This defense of patronage obfuscates the
critical distinction between partisan interest and the public interest. {4}
It assumes that governmental power and public resources--in this case
employment opportunities--may appropriately be used to subsidize partisan
activities even when the political affiliation of the employee or the job
applicant is entirely unrelated to his or her public service. {5}  The
premise on which this position rests would justify the use of public funds
to compensate party members for their campaign work, or conversely, a
legislative enactment denying public employment to nonmembers of the
majority party.  If such legislation is unconstitutional--as it clearly
would be--an equally pernicious rule promulgated by the Executive must also
be invalid.
    Justice Scalia argues that distinguishing "inducement and compulsion"
reveals that a patronage system's impairment of the speech and
associational rights of employees and would-be employees is insignificant.
Post, at 18.  This analysis contradicts the harsh reality of party
discipline that is the linchpin of his theory of patronage.  Post, at 13-14
(emphasizing the "link between patronage and party discipline, and between
that and party success"). {6}  More importantly, it rests on the
long-rejected fallacy that a privilege may be burdened by unconstitutional
conditions.  See, e. g., Perry v. Sindermann, 408 U. S. 593, 597 (1972).
There are a few jobs for which an individual's race or religion may be
relevant, see Wygant v. Jackson Board of Education, 476 U. S. 267, 314-315
(1986) (dissenting opinion); there are many jobs for which political
affiliation is relevant to the employee's ability to function effectively
as part of a given administration.  In those cases--in other words, cases
in which "the efficiency of the public service," Public Workers v.
Mitchell, 330 U. S. 75, 101 (1947), would be advanced by hiring workers who
are loyal to the Governor's party--such hiring is permissible under the
holdings in Elrod and Branti.  This case, however, concerns jobs in which
race, religion, and political affiliation are all equally and entirely
irrelevant to the public service to be performed.  When an individual has
been denied employment for an impermissible reason, it is unacceptable to
balance the constitutional rights of the individual against the political
interests of the party in power.  It seems to me obvious that the
government may not discriminate against particular individuals in hopes of
advancing partisan interests through the misuse  {7} of public funds.
    The only systemic consideration permissible in these circumstances is
not that of the controlling party, but that of the aggregate of burdened
individuals.  By impairing individuals' freedoms of belief and association,
unfettered patronage practices undermine the "free functioning of the
electoral process."  Elrod, 427 U. S., at 356.  As I wrote in 1972:
"Indeed, when numbers are considered, it is appropriate not merely to
consider the rights of a particular janitor who may have been offered a
bribe from the public treasury to obtain his political surrender, but also
the impact on the body politic as a whole when the free political choice of
millions of public servants is inhibited or manipulated by the selective
award of public benefits.  While the patronage system is defended in the
name of democratic tradition, its paternalistic impact on the political
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 this case is the American commitment
to examine and reexamine past and present practices against the basic
principles embodied in the Constitution.  The inspirational command by our
President in 1961 is entirely consistent with that tradition: "Ask not what
your country can do for you--ask what you can do for your country."  This
case involves a contrary command: "Ask not what job applicants can do for
the State--ask what they can do for our party."  Whatever traditional
support may remain for a command of that ilk, it is plainly an illegitimate
excuse for the practices rejected by the Court today.

 
 
 
 
 


------------------------------------------------------------------------------
1
    Despite Justice Scalia's imprecise use of the term, post, at 22, the
legal issue presented in this litigation is plainly not a "political
question."  See Elrod v. Burns, 427 U. S. 347, 351-353 (1976); Illinois
State Employees Union, Council 34, Am. Fed. of State, County, and Municipal
Emp., AFL-CIO v. Lewis, 473 F. 2d 561, 566-567 (1972), cert. denied, 410 U.
S. 928 (1973).

2
    See Michael H. v. Gerald D., 491 U. S. ---- (1989) (plurality); Burnham
v. Superior Court of California, Main County, 495 U. S. ---- (1990)
(plurality).  Justice Scalia's additional reliance on Bowers v. Hardwick,
478 U. S. 186 (1986), post, at 11, is misplaced because in that case the
Court used a history of state criminal prohibitions to support its refusal
to extend the doctrine of substantive due process to previously unprotected
conduct.  The question in this case is whether mere longevity can immunize
from constitutional review state conduct that would otherwise violate the
First Amendment.

3
    Ironically, at the time of the adoption of the Bill of Rights, the
party system itself was far from an "accepted political nor[m]."  Post, at
4.  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, 415 U. S. 724 (1974); post, at
15-16, has not disturbed our protection of the rights of individual voters
and the role of alternative parties in our government.  See, e. g.,
Anderson v. Celebrezze, 460 U. S. 780, 793 (1983) (burdens on new or small
parties and independent candidates impinge on associational choices);
Williams v. Rhodes, 393 U. S. 23, 32 (1968) (there is "no reason why two
parties should retain a permanent monopoly on the right to have people vote
for or against them").

4
    Although Justice Scalia's defense of patronage turns on the benefits of
fostering the two-party system, post, at 15, 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 Pender
gast Machines, the Byrd Machines and the Daley Machines," post, at 2--
patronage practices were used solely to protect the power of an entrenched
majority.  See Laycock, Notes on the Role of Judicial Review, the Expansion
of Federal Power, and the Structure of Constitutional Rights, 99 Yale L. J.
1711, 1722 (1990) (describing the "hopelessness of contesting elections" in
Chicago's "one-party system" when "half a dozen employees of the city and
of city contractors were paid with public funds to work [a precinct] for
the other side"); Johnson, Successful Reform Litigation: The Shakman
Patronage Case, 64 Chi.-Kent L. Rev. 479, 481 (1988) (the "massive
Democratic patronage employment system" maintained a "noncompetitive
political system" in Cook County in the 1960's).
    Without repeating the Court's studied rejection of the policy arguments
for patronage practices in Elrod, 427 U. S., at 364-373, I note only that
many commentators agree more with Justice Scalia's admissions of the
systemic costs of patronage practices--the "financial corruption, such as
salary kickbacks and partisan political activity on government-paid time,"
the reduced efficiency of government, and the undeniable constraint upon
the expression of views by employees, post, at 17-18--than with his belief
that patronage is necessary to political stability and integration of
powerless groups.  See, e. g., G. Pomper, Voters, Elections, and Parties
282- 304 (1988) (multiple causes of party decline); D. Price, Bringing Back
the Parties 22-25 (1984) (same); Comment, 41 U. Chi. L. Rev. 297, 319-328
(1974) (same); Wolfinger, Why Political Machines Have Not Withered Away and
Other Revisionist Thoughts, 34 J. Pol. 365, 398 (1972) (absence of machine
politics in California); J. James, American Political Parties in Transition
85 (1974) (inefficient and antiparty effects of patronage); Johnston,
Patrons and Clients, Jobs and Machines: A Case Study of the Uses of
Patronage, 73 Am. Pol. Sci. Rev. 385 (1979) (same); Grimshaw, The Political
Economy of Machine Politics, 4 Corruption and Reform 15 (1989) (same);
Comment, 49 U. Chi. L. Rev. 181, 197-200 (1982) (same); Freedman, Doing
Battle with the Patronage Army: Politics, Courts and Personnel
Administration in Chicago, 48 Pub. Admin. Rev. 847 (1988) (race and machine
politics).
    Incidentally, although some might suggest that Jacob Arvey was "best
known as the promoter of Adlai Stevenson," post, at 13, 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).

5
    Neither Justice Scalia nor any of the parties suggests that party
affiliation is relevant to any of the positions at stake in this
litigation-- rehabilitation counselor, road equipment operator, prison
guard, dietary manager, and temporary garage worker.  Reliance on the
difficulty of precisely dividing the positions in which political
affiliation is relevant to the quality of public service from those in
which it is not an appropriate requirement of the job is thus inapposite.
See post, at 19-22.  Difficulty in deciding borderline cases does not
justify imposition of a loyalty oath in the vast category of positions in
which it is irrelevant.

6
    The iron fist inside the velvet glove of Justice Scalia's "inducements"
and "influences" is apparent from his own descriptions of the essential
features of a patronage system.  See, e. g., post, at 18 (the worker may
"urge within the organization the adoption of any political position; but
if that position is rejected he must vote and work for the party
nonetheless"); post, at 13 (quoting M. Tolchin & S. Tolchin, To the Victor,
at 123 (reporting that Montclair, New Jersey Democrats provide fewer
services than Cook County, Illinois Democrats, while "the rate of issue
participation is much higher among Montclair Democrats who are not bound by
the fear displayed by the Cook County committeemen")); post, at 13 (citing
W. Grimshaw, The Political Economy of Machine Politics, 4 Corruption and
Reform 15, 30 (1989) (reporting that Mayor Daley "sacked" a black
committeeman for briefly withholding support for a school board nominee
whom civil rights activists opposed)).
    Of course, we have firmly rejected any requirement that aggrieved
employees "prove that they, or other employees, have been coerced into
changing, either actually or ostensibly, their political allegiance."
Branti, 445 U. S., at 517.  What is at issue in these cases is not whether
an employee is actually coerced or merely influenced, but whether the
attempt to obtain his or her support through "party discipline" is
legitimate.  To apply the relevant question to Justice Scalia's example,
post, at 18, the person who attempts to bribe a public official is guilty
of a crime regardless whether the official submits to temptation; likewise,
a political party's attempt to maintain loyalty through allocation of
government resources is improper regardless whether any employee
capitulates.

7
    I use the term "misuse" deliberately because the entire rationale for
patronage hiring as an economic incentive for partisan political activity
rests on the assumption that the patronage employee filling a government
position must be paid a premium to reward him for his partisan services.
Without such a premium, the economic incentive rationale on which Justice
Scalia relies does not exist.  It has been clear to Congress and this Court
for over a century that refusal to contribute "may lead to putting good men
out of the service, liberal payments may be made the ground for keeping
poor ones in," and "the government itself may be made to furnish indirectly
the money to defray the expenses of keeping the political party in power
that happens to have for the time being the control of the public
patronage."  Ex parte Curtis, 106 U. S. 371, 375 (1882) (upholding
constitutionality of Act of Aug. 15, 1876, MDRV 6, ch. 287, 19 Stat. 169,
prohibiting nonappointed federal employees from requesting or receiving any
thing of value for political purposes).
    Petitioners Rutan and Taylor both allege that they are more qualified
than the persons who were promoted over them.

8
    A decade later, in Anderson v. Celebrezze, 460 U. S., at 794, this
Court decided that a law burdening independent candidates, by "limiting the
opportunities of independent-minded voters to associate in the electoral
arena to enhance their political effectiveness as a group," would burden
associational choices and thereby "threaten to reduce diversity and
competition in the marketplace of ideas."  We concluded that "the primary
values protected by the First Amendment--`a profound national commitment to
the principle that debate on public issues should be uninhibited, robust,
and wide-open,' New York Times Co. v. Sullivan, 376 U. S. 254, 270
(1964)--are served when election campaigns are not monopolized by the
existing political parties."  Ibid.





Subject: 88-1872 & 88-2074--DISSENT, RUTAN v. REPUBLICAN PARTY OF ILLINOIS

 


    SUPREME COURT OF THE UNITED STATES


Nos. 88-1872 and 88-2074


CYNTHIA RUTAN, et al., PETITIONERS
v.
88-1872
REPUBLICAN PARTY OF ILLINOIS et al.


MARK FRECH, et al., PETITIONERS
v.
88-2074
CYNTHIA RUTAN et al.


on writs of certiorari to the united states court of appeals for the
seventh circuit

[June 21, 1990]



    Justice Scalia, with whom The Chief Justice and Justice Kennedy join,
and with whom Justice O'Connor joins as to Parts II and III, dissenting.

    Today the Court establishes the constitutional principle that party
membership is not a permissible factor in the dispensation of government
jobs, except those jobs for the performance of which party affiliation is
an "appropriate requirement."  Ante, at 1.  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 partisanship is not only
unneeded but positively undesirable.  It is, however, rare that a federal
administration of one party will appoint a judge from another party.  And
it has always been rare.  See Marbury v. Madison, 1 Cranch 137 (1803).
Thus, the new principle that the Court today announces will be enforced by
a corps of judges (the Members of this Court included) who overwhelmingly
owe their office to its violation.  Something must be wrong here, and I
suggest it is the Court.
    The merit principle for government employment is probably the most
favored in modern America, having been widely adopted by civil-service
legislation at both the state and federal levels.  But there is another
point of view, described in characteristically Jacksonian fashion by an
eminent practitioner of the patronage system, George Washington Plunkitt of
Tammany Hall:


    "I ain't up on sillygisms, but I can give you some arguments that
nobody can answer.
    "First, this great and glorious country was built up by political
parties; second, parties can't hold together if their workers don't get
offices when they win; third, if the parties go to pieces, the government
they built up must go to pieces, too; fourth, then there'll be hell to
pay."  W. Riordon, Plunkitt of Tammany Hall 13 (1963).


It may well be that the Good Government Leagues of America were right, and
that Plunkitt, James Michael Curley and their ilk were wrong; but that is
not entirely certain.  As the merit principle has been extended and its
effects increasingly felt; as the Boss Tweeds, the Tammany Halls, the
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 elected government, unprotected by "party
discipline," before the demands of small and cohesive interest-groups.
    The choice between patronage and the merit principle--or, to be more
realistic about it, the choice between the desirable mix of merit and
patronage principles in widely varying federal, state, and local political
contexts--is not so clear that I would be prepared, as an original matter,
to chisel a single, inflexible prescription into the Constitution.
Fourteen years ago, in Elrod v. Burns, 427 U. S. 347 (1976), the Court did
that.  Elrod was limited however, as was the later decision of Branti v.
Finkel, 445 U. S. 507 (1980), to patronage firings, leaving it to state and
federal legislatures to determine when and where political affiliation
could be taken into account in hirings and promotions.  Today the Court
makes its constitutional civil-service reform absolute, extending to all
decisions regarding government employment.  Because the First Amendment has
never been thought to require this disposition, which may well have
disastrous consequences for our political system, I dissent.

I
    The restrictions that the Constitution places upon the government in
its capacity as lawmaker, i. e., as the regulator of private conduct, are
not the same as the restrictions that it places upon the government in its
capacity as employer.  We have recognized this in many contexts, with
respect to many different constitutional guarantees.  Private citizens
perhaps cannot be prevented from wearing long hair, but policemen can.
Kelley v. Johnson, 425 U. S. 238, 247 (1976).  Private citizens cannot have
their property searched without probable cause, but in many circumstances
government employees can.  O'Connor v. Ortega, 480 U. S. 709, 723 (1987)
(plurality opinion); id., at 732 (Scalia, J., concurring in judgment).
Private citizens cannot be punished for refusing to provide the government
information that may incriminate them, but government employees can be
dismissed when the incriminating information that they refuse to provide
relates to the performance of their job.  Gardner v. Broderick, 392 U. S.
273, 277-278 (1968).  With regard to freedom of speech in particular:
Private citizens cannot be punished for speech of merely private concern,
but government employees can be fired for that reason.  Connick v. Myers,
461 U. S. 138, 147 (1983).  Private citizens cannot be punished for
partisan political activity, but federal and state employees can be
dismissed and otherwise punished for that reason.  Public Workers v.
Mitchell, 330 U. S. 75, 101 (1947); CSC v. Letter Carriers, 413 U. S. 548,
556 (1973); Broadrick v. Oklahoma, 413 U. S. 601, 616-617 (1973).
    Once it is acknowledged that the Constitution's prohibition against
laws "abridging the freedom of speech" does not apply to laws enacted in
the government's capacity as employer the same way it does to laws enacted
in the government's capacity as regulator of private conduct, it may
sometimes be difficult to assess what employment practices are permissible
and what are not.  That seems to me not a difficult question, however, in
the present context.  The provisions of the Bill of Rights were designed to
restrain transient majorities from impairing long-recognized personal
liberties.  They did not create by implication novel individual rights
overturning accepted political norms.  Thus, when a practice not expressly
prohibited by the text of the Bill of Rights bears the endorsement of a
long tradition of open, widespread, and unchallenged use that dates back to
the beginning of the Republic, we have no proper basis for striking it
down. {1}  Such a venerable and accepted tradition is not to be laid on the
examining table and scrutinized for its conformity to some abstract
principle of First-Amendment adjudication devised by this Court.  To the
contrary, such traditions are themselves the stuff out of which the Court's
principles are to be formed.  They are, in these uncertain areas, the very
points of reference by which the legitimacy or illegitimacy of other
practices are to be figured out.  When it appears that the latest "rule,"
or "three-part test," or "balancing test" devised by the Court has placed
us on a collision course with such a landmark practice, it is the former
that must be recalculated by us, and not the latter that must be abandoned
by our citizens.  I know of no other way to formulate a constitutional
jurisprudence that reflects, as it should, the principles adhered to, over
time, by the American people, rather than those favored by the personal
(and necessarily shifting) philosophical dispositions of a majority of this
Court.
    I will not describe at length the claim of patronage to landmark status
as one of our accepted political traditions.  Justice Powell discussed it
in his dissenting opinions in Elrod and Branti.  Elrod, 427 U. S., at
378-379 (Powell, J., dissenting); Branti, 445 U. S., at 522, n. 1 (Powell,
J., dissenting).  Suffice it to say that patronage was, without any thought
that it could be unconstitutional, a basis for government employment from
the earliest days of the Republic until Elrod--and has continued unabated
since Elrod, to the extent still permitted by that unfortunate decision.
See, e. g., D. Price, Bringing Back the Parties 24, 32 (1984); Gardner, A
Theory of the Spoils System, 54 Public Choice 171, 181 (1987); Toinet &
Glenn, Clientelism and Corruption in the "Open" Society: The Case of the
United States, in Private Patronage and Public Power 193, 202 (C. Clapham
ed. 1982).  Given that unbroken tradition regarding the application of an
ambiguous constitutional text, there was in my view no basis for holding
that patronage-based dismissals violated the First Amendment--much less for
holding, as the Court does today, that even patronage hiring does so. {2}

II
    Even accepting the Court's own mode of analysis, however, and engaging
in "balancing" a tradition that ought to be part of the scales, Elrod,
Branti, and today's extension of them seem to me wrong.

A
    The Court limits patronage on the ground that the individual's interest
in uncoerced belief and expression outweighs the systemic interests invoked
to justify the practice.  Ante, at 5-9.  The opinion indicates that the
government may prevail only if it proves that the practice is "narrowly
tailored to further vital government interests."  Ante, at 10-11.
    That strict-scrutiny standard finds no support in our cases.  Although
our decisions establish that government employees do not lose all
constitutional rights, we have consistently applied a lower level of
scrutiny when "the governmental function operating . . . [is] not the power
to regulate or license, as lawmaker, an entire trade or profession, or to
control an entire branch of private business, but, rather, as proprietor,
to manage [its] internal operatio[ns] . . . ."  Cafeteria & Restaurant
Workers v. McElroy, 367 U. S. 886, 896 (1961).  When dealing with its own
employees, the government may not act in a manner that is "patently
arbitrary or discriminatory," id., at 898, but its regulations are valid if
they bear a "rational connection" to the governmental end sought to be
served, Kelley v. Johnson, 425 U. S., at 247.
    In particular, restrictions on speech by public employees are not
judged by the test applicable to similar restrictions on speech by
nonemployees.  We have said that "[a] governmental employer may subject its
employees to such special restrictions on free expression as are reasonably
necessary to promote effective government."  Brown v. Glines, 444 U. S.
348, 356, n. 13 (1980).  In Public Workers v. Mitchell, 330 U. S., at 101,
upholding provisions of the Hatch Act which prohibit political activities
by federal employees, we said that "it is not necessary that the act
regulated be anything more than an act reasonably deemed by Congress to
interfere with the efficiency of the public service."  We reaffirmed
Mitchell in CSC v. Letter Carriers, 413 U. S., at 556, over a dissent by
Justice Douglas arguing against application of a special standard to
government employees, except insofar as their "job performance" is
concerned, id., at 597.  We did not say that the Hatch Act was narrowly
tailored to meet the government's interest, but merely deferred to the
judgment of Congress, which we were not "in any position to dispute."  Id.,
at 567.  Indeed, we recognized that the Act was not indispensably necessary
to achieve those ends, since we repeatedly noted that "Congress at some
time [may] come to a different view."  Ibid., see also id., at 555, 564.
In Broadrick v. Oklahoma, 413 U. S. 601 (1973), we upheld similar
restrictions on state employees, though directed "at political expression
which if engaged in by private persons would plainly be protected by the
First and Fourteenth Amendments," Id., at 616.
    To the same effect are cases that specifically concern adverse
employment action taken against public employees because of their speech.
In Pickering v. Board of Education of Township High School Dist., 391 U. S.
563, 568 (1968), we recognized:

"[T]he State has interests as an employer in regulating the speech of its
employees that differ significantly from those it possesses in connection
with regulation of the speech of the citizenry in general.  The problem in
any case is to arrive at a balance between the interests of the [employee],
as a citizen, in commenting upon matters of public concern and the
interests of the State, as an employer, in promoting the efficiency of the
public services it performs through its employees."


Because the restriction on speech is more attenuated when the government
conditions employment than when it imposes criminal penalties, and because
"government offices could not function if every employment decision became
a constitutional matter," Connick v. Myers, 461 U. S., at 143, we have held
that government employment decisions taken on the basis of an employee's
speech do not "abridg[e] the freedom of speech," U. S. Const., Amdt. 1,
merely because they fail the narrow-tailoring and compelling-interest tests
applicable to direct regulation of speech.  We have not subjected such
decisions to strict scrutiny, but have accorded "a wide degree of deference
to the employer's judgment" that an employee's speech will interfere with
close working relationships.  461 U. S., at 152.
    When the government takes adverse action against an employee on the
basis of his political affiliation (an interest whose constitutional
protection is derived from the interest in speech), the same analysis
applies.  That is why both the Elrod plurality, 427 U. S., at 359, and the
opinion concurring in the judgment, id., at 375, as well as Branti, 445 U.
S., at 514-515, and the Court today, ante, at 8-9, rely on Perry v.
Sindermann, 408 U. S. 593 (1972), a case that applied the test announced in
Pickering, not the strict-scrutiny test applied to restrictions imposed on
the public at large.  Since the government may dismiss an employee for
political speech "reasonably deemed by Congress to interfere with the
efficiency of the public service," Public Workers v. Mitchell, supra, at
101, it follows a fortiori that the government may dismiss an employee for
political affiliation if "reasonably necessary to promote effective
government."  Brown v. Glines, supra, at 356, n. 13.
    While it is clear from the above cases that the normal "strict
scrutiny" that we accord to government regulation of speech is not
applicable in this field, {3} the precise test that replaces it is not so
clear; we have used various formulations.  The one that appears in the case
dealing with an employment practice closest in its effects to patronage is
whether the practice could be "reasonably deemed" by the enacting
legislature to further a legitimate goal.  Public Workers v. Mitchell,
supra, at 101.  For purposes of my ensuing discussion, however, I will
apply a less permissive standard that seems more in accord with our general
"balancing" test: can the governmental advantages of this employment
practice reasonably be deemed to outweigh its "coercive" effects?

B
    Preliminarily, I may observe that the Court today not only declines, in
this area replete with constitutional ambiguities, to give the clear and
continuing tradition of our people the dispositive effect I think it
deserves, but even declines to give it substantial weight in the balancing.
That is contrary to what the Court has done in many other contexts.  In
evaluating so-called "substantive due process" claims we have examined our
history and tradition with respect to the asserted right.  See, e. g.,
Michael H. v. Gerald D., 491 U. S. ---- (1989); Bowers v. Hardwick, 478 U.
S. 186, 192-194 (1986).  In evaluating claims that a particular procedure
violates the Due Process Clause we have asked whether the procedure is
traditional.  See, e. g., Burnham v. Superior Court of California, Marin
County, 495 U. S. ---- (1990).  And in applying the Fourth Amendment's
reasonableness test we have looked to the history of judicial and public
acceptance of the type of search in question.  See, e. g., Camara v.
Municipal Court of San Francisco, 387 U. S. 523, 537 (1967).  See also
Press-Enterprise Co. v. Superior Court of California, Riverside County, 478
U. S. 1, 8 (1986) (tradition of accessibility to judicial proceedings
implies judgment of experience that individual's interest in access
outweighs government's interest in closure); Richmond Newspapers, Inc. v.
Virginia, 448 U. S. 555, 589 (1980) (Brennan, J., concurring in judgment)
("Such a tradition [of public access] commands respect in part because the
Constitution carries the gloss of history"); Walz v. Tax Comm'n of New
York, 397 U. S. 664, 678 (1970) ("unbroken practice of according the
[property tax] exemption to churches" demonstrates that it does not violate
Establishment Clause).
    But even laying tradition entirely aside, it seems to me our balancing
test is amply met.  I assume, as the Court's opinion assumes, that the
balancing is to be done on a generalized basis, and not case-by-case.  The
Court holds that the governmental benefits of patronage cannot reasonably
be thought to outweigh its "coercive" effects (even the lesser "coercive"
effects of patronage hiring as opposed to patronage firing) not merely in
1990 in the State of Illinois, but at any time in any of the numerous
political subdivisions of this vast country.  It seems to me that that
categorical pronouncement reflects a naive vision of politics and an
inadequate appreciation of the systemic effects of patronage in promoting
political stability and facilitating the social and political integration
of previously powerless groups.
    The whole point of my dissent is that the desirability of patronage is
a policy question to be decided by the people's representatives; I do not
mean, therefore, to endorse that system.  But in order to demonstrate that
a legislature could reasonably determine that its benefits outweigh its
"coercive" effects, I must describe those benefits as the proponents of
patronage see them: As Justice Powell discussed at length in his Elrod
dissent, patronage stabilizes political parties and prevents excessive
political fragmentation--both of which are results in which States have a
strong governmental interest.  Party strength requires the efforts of the
rank- and-file, especially in "the dull periods between elections," to
perform such tasks as organizing precincts, registering new voters, and
providing constituent services.  Elrod, 427 U. S., at 385 (dissenting
opinion).  Even the most enthusiastic supporter of a party's program will
shrink before such drudgery, and it is folly to think that ideological
conviction alone will motivate sufficient numbers to keep the party going
through the off-years.  "For the most part, as every politician knows, the
hope of some reward generates a major portion of the local political
activity supporting parties."  Ibid.  Here is the judgment of one such
politician, Jacob Arvey (best known as the promoter of Adlai Stevenson):
Patronage is " `a necessary evil if you want a strong organization, because
the patronage system permits of discipline, and without discipline, there's
no party organization.' "  Quoted in M. Tolchin & S. Tolchin, To the Victor
36 (1971).  A major study of the patronage system describes the reality as
follows:

"[A]lthough men have many motives for entering political life . . . the
vast underpinning of both major parties is made up of men who seek
practical rewards.  Tangible advantages constitute the unifying thread of
most successful political practitioners"  Id., at 22.
    "With so little patronage cement, party discipline is relatively low;
the rate of participation and amount of service the party can extract from
[Montclair] county committeemen are minuscule compared with Cook County.
The party considers itself lucky if 50 percent of its committeemen show up
at meetings--even those labeled `urgent'--while even lower percentages turn
out at functions intended to produce crowds for visiting candidates."  Id.,
at 123.


See also W. Grimshaw, The Political Economy of Machine Politics, 4
Corruption and Reform 15, 30 (1989); G. Pomper, Voters, Elections, and
Parties 255 (1988); Wolfinger, Why Political Machines Have Not Withered
Away and Other Revisionist Thoughts, 34 J. Politics 365, 384 (1972).
    The Court simply refuses to acknowledge the link between  patronage and
party discipline, and between that and party success.  It relies (as did
the plurality in Elrod, 427 U. S., at 369, n. 23) on a single study of a
rural Pennsylvania county by Professor Sorauf, ante, at 13--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 13.
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 U. S., at 528 (Powell,
J., dissenting).  Increased reliance on money-intensive campaign techniques
tends to entrench those in power much more effectively than patronage--but
without the attendant benefit of strengthening the party system.  A
challenger can more easily obtain the support of party-workers (who can
expect to be rewarded even if the candidate loses--if not this year, then
the next) than the financial support of political action committees (which
will generally support incumbents, who are likely to prevail).
    It is self-evident that eliminating patronage will significantly
undermine party discipline; and that as party discipline wanes, so will the
strength of the two-party system.  But, says the Court, "[p]olitical
parties have already survived the substantial decline in patronage
employment practices in this century."  Ante, at 12-13.  This is almost
verbatim what was said in Elrod, see 427 U. S., at 369.  Fourteen years
later it seems much less convincing.  Indeed, now that we have witnessed,
in 18 of the last 22 years, an Executive Branch of the Federal Government
under the control of one party while the Congress is entirely or (for two
years) partially within the control of the other party; now that we have
undergone the most recent federal election, in which 98% of the incumbents,
of whatever party, were returned to office; and now that we have seen
elected officials changing their political affiliation with unprecedented
readiness, Washington Post, Apr. 10, 1990, p. A1, the statement that
"political parties have already survived" has a positively
whistling-in-the- graveyard character to it.  Parties have assuredly
survived--but as what?  As the forges upon which many of the essential
compromises of American political life are hammered out?  Or merely as
convenient vehicles for the conducting of national presidential elections?
    The patronage system does not, of course, merely foster political
parties in general; it fosters the two-party system in particular.  When
getting a job, as opposed to effectuating a particular substantive policy,
is an available incentive for party-workers, those attracted by that
incentive are likely to work for the party that has the best chance of
displacing the "ins," rather than for some splinter group that has a more
attractive political philosophy but little hope of success.  Not only is a
two-party system more likely to emerge, but the differences between those
parties are more likely to be moderated, as each has a relatively greater
interest in appealing to a majority of the electorate and a relatively
lesser interest in furthering philosophies or programs that are far from
the mainstream.  The stabilizing effects of such a system are obvious.  See
Toinet & Glenn, Clientelism and Corruption in the "Open" Society, at 208.
In the context of electoral laws we have approved the States' pursuit of
such stability, and their avoidance of the "splintered parties and
unrestrained factionalism [that] may do significant damage to the fabric of
government."  Storer v. Brown, 415 U. S. 724, 736 (1974) (upholding law
disqualifying persons from running as independents if affiliated with a
party in the past year).
    Equally apparent is the relatively destabilizing nature of a system in
which candidates cannot rely upon patronage- based party loyalty for their
campaign support, but must attract workers and raise funds by appealing to
various interest-groups.  See Tolchin & Tolchin, To the Victor, at 127-130.
There is little doubt that our decisions in Elrod and Branti, by
contributing to the decline of party strength, have also contributed to the
growth of interest-group politics in the last decade.  See, e. g., Fitts,
The Vice of Virtue, 136 U. Pa. L. Rev. 1567, 1603-1607 (1988).  Our
decision today will greatly accelerate the trend.  It is not only campaigns
that are affected, of course, but the subsequent behavior of politicians
once they are in power.  The replacement of a system firmly based in party
discipline with one in which each office-holder comes to his own
accommodation with competing interest groups produces "a dispersion of
political influence that may inhibit a political party from enacting its
programs into law."  Branti, supra, at 531 (Powell, J., dissenting). {4}
    Patronage, moreover, has been a powerful means of achieving the social
and political integration of excluded groups.  See, e. g., Elrod, supra, at
379 (Powell, J., dissenting); Cornwell, Bosses, Machines and Ethnic
Politics, in Ethnic Group Politics 190, 195-197 (H. Bailey, Jr., & E. Katz
eds. 1969).  By supporting and ultimately dominating a particular party
"machine," racial and ethnic minorities have-- on the basis of their
politics rather than their race or ethnicity--acquired the patronage awards
the machine had power to confer.  No one disputes the historical accuracy
of this observation, and there is no reason to think that patronage can no
longer serve that function.  The abolition of patronage, however, prevents
groups that have only recently obtained political power, especially blacks,
from following this path to economic and social advancement.


" `Every ethnic group that has achieved political power in American cities
has used the bureaucracy to provide jobs in return for political support.
It's only when Blacks begin to play the same game that the rules get
changed.  Now the use of such jobs to build political bases becomes an
"evil" activity, and the city insists on taking the control back
"downtown." ' "  New York Amsterdam News, Apr. 1, 1978, p. A-4, quoted in
Hamilton, The Patron- Recipient Relationship and Minority Politics in New
York City, 94 Pol. Sci. Q. 211, 212 (1979).


    While the patronage system has the benefits argued for above, it also
has undoubted disadvantages.  It facilitates financial corruption, such as
salary kickbacks and partisan political activity on government-paid time.
It reduces the efficiency of government, because it creates incentives to
hire more and less-qualified workers and because highly qualified workers
are reluctant to accept jobs that may only last until the next election.
And, of course, it applies some greater or lesser inducement for
individuals to join and work for the party in power.
    To hear the Court tell it, this last is the greatest evil.  That is not
my view, and it has not historically been the view of the American people.
Corruption and inefficiency, rather than abridgement of liberty, have been
the major criticisms leading to enactment of the civil-service laws--for
the very good reason that the patronage system does not have as harsh an
effect upon conscience, expression, and association as the Court suggests.
As described above, it is the nature of the pragmatic, patronage-based,
two-party system to build alliances and to suppress rather than foster
ideological tests for participation in the division of political "spoils."
What the patronage system ordinarily demands of the party worker is loyalty
to, and activity on behalf of, the organization itself rather than a set of
political beliefs.  He is generally free to urge within the organization
the adoption of any political position; but if that position is rejected he
must vote and work for the party nonetheless.  The diversity of political
expression (other than expression of party loyalty) is channeled, in other
words, to a different stage--to the contests for party endorsement rather
than the partisan elections.  It is undeniable, of course, that the
patronage system entails some constraint upon the expression of views,
particularly at the partisan-election stage, and considerable constraint
upon the employee's right to associate with the other party.  It greatly
exaggerates these, however, to describe them as a general " `coercion of
belief,' " ante, at 9, quoting Branti, 445 U. S., at 516; see also ante, at
11-12; Elrod, 427 U. S., at 355 (plurality opinion).  Indeed, it greatly
exaggerates them to call them "coercion" at all, since we generally make a
distinction between inducement and compulsion.  The public official offered
a bribe is not "coerced" to violate the law, and the private citizen
offered a patronage job is not "coerced" to work for the party.  In sum, I
do not deny that the patronage system influences or redirects, perhaps to a
substantial degree, individual political expression and political
association.  But like the many generations of Americans that have preceded
us, I do not consider that a significant impairment of free speech or free
association.
    In emphasizing the advantages and minimizing the disadvantages (or at
least minimizing one of the disadvantages) of the patronage system, I do
not mean to suggest that that system is best.  It may not always be; it may
never be.  To oppose our Elrod-Branti jurisprudence, one need not believe
that the patronage system is necessarily desirable; nor even that it is
always and everywhere arguably desirable; but merely that it is a political
arrangement that may sometimes be a reasonable choice, and should therefore
be left to the judgment of the people's elected representatives.  The
choice in question, I emphasize, is not just between patronage and a
merit-based civil service, but rather among various combinations of the two
that may suit different political units and different eras: permitting
patronage hiring, for example, but prohibiting patronage dismissal;
permitting patronage in most municipal agencies but prohibiting it in the
police department; or permitting it in the mayor's office but prohibiting
it everywhere else.  I find it impossible to say that, always and
everywhere, all of these choices fail our "balancing" test.

C
    The last point explains why Elrod and Branti should be overruled,
rather than merely not extended.  Even in the field of constitutional
adjudication, where the pull of stare decisis is at its weakest, see
Glidden Co. v. Zdanok, 370 U. S. 530, 543 (1962) (opinion of Harlan, J.),
one is reluctant to depart from precedent.  But when that precedent is not
only wrong, not only recent, not only contradicted by a long prior
tradition, but also has proved unworkable in practice, then all reluctance
ought to disappear.  In my view that is the situation here.  Though
unwilling to leave it to the political process to draw the line between
desirable and undesirable patronage, the Court has neither been prepared to
rule that no such line exists (i. e., that all patronage is
unconstitutional) nor able to design the line itself in a manner that
judges, lawyers, and public employees can understand.  Elrod allowed
patronage dismissals of persons in "policymaking" or "confidential"
positions.  427 U. S., at 367 (plurality opinion); id., at 375 (Stewart,
J., concurring).  Branti retreated from that formulation, asking instead
"whether the hiring authority can demonstrate that party affiliation is an
appropriate requirement for the effective performance of the public office
involved."  445 U. S., at 518.  What that means is anybody's guess.  The
Courts of Appeals have devised various tests for determining when
"affiliation is an appropriate requirement."  See generally Martin, A
Decade of Branti Decisions: A Government Officials' Guide to Patronage
Dismissals, 39 Am. U. L. Rev. 11, 23-42 (1989).  These interpretations of
Branti are not only significantly at variance with each other; they are
still so general that for most positions it is impossible to know whether
party affiliation is a permissible requirement until a court renders its
decision.
    A few examples will illustrate the shambles Branti has produced.  A
city cannot fire a deputy sheriff because of his political affiliation, {5}
but then again perhaps it can, {6} especially if he is called the "police
captain."  {7}  A county cannot fire on that basis its attorney for the
department of social services, {8} nor its assistant attorney for family
court, {9} but a city can fire its solicitor and his assistants, {10} or
its assistant city attorney, {11} or its assistant state's attorney, {12}
or its corporation counsel. {13}  A city cannot discharge its deputy court
clerk for his political affiliation, {14} but it can fire its legal
assistant to the clerk on that basis. {15}  Firing a juvenile court bailiff
seems impermissible, {16} but it may be permissible if he is assigned
permanently to a single judge. {17}  A city cannot fire on partisan grounds
its director of roads, {18} but it can fire the second in command of the
water department. {19}  A government cannot discharge for political reasons
the senior vice president of its development bank, {20} but it can
discharge the regional director of its rural housing administration. {21}
    The examples could be multiplied, but this summary should make obvious
that the "tests" devised to implement Branti have produced inconsistent and
unpredictable results.  That uncertainty undermines the purpose of both the
nonpatron age rule and the exception.  The rule achieves its objective of
preventing the "coercion" of political affiliation, see supra, at ----,
only if the employee is confident that he can engage in (or refrain from)
political activities without risking dismissal.  Since the current doctrine
leaves many employees utterly in the dark about whether their jobs are
protected, they are likely to play it safe.  On the other side, the
exception was designed to permit the government to implement its electoral
mandate.  Elrod, supra, at 367 (plurality opinion).  But unless the
government is fairly sure that dismissal is permitted, it will leave the
politically uncongenial official in place, since an incorrect decision will
expose it to lengthy litigation and a large damage award, perhaps even
against the responsible officials personally.
    This uncertainty and confusion are not the result of the fact that
Elrod, and then Branti, chose the wrong "line."  My point is that there is
no right line--or at least no right line that can be nationally applied and
that is known by judges.  Once we reject as the criterion a long political
tradition showing that party-based employment is entirely permissible, yet
are unwilling (as any reasonable person must be) to replace it with the
principle that party-based employment is entirely impermissible, we have
left the realm of law and entered the domain of political science, seeking
to ascertain when and where the undoubted benefits of political hiring and
firing are worth its undoubted costs.  The answer to that will vary from
State to State, and indeed from city to city, even if one rejects out of
hand (as the Branti line does) the benefits associated with party
stability.  Indeed, the answer will even vary from year to year.  During
one period, for example, it may be desirable for the manager of a
municipally owned public utility to be a career specialist, insulated from
the political system.  During another, when the efficient operation of that
utility or even its very existence has become a burning political issue, it
may be desirable that he be hired and fired on a political basis.  The
appropriate "mix" of party-based employment is a political question if
there ever was one, and we should give it back to the voters of the various
political units to decide, through civil-service legislation crafted to
suit the time and place, which mix is best.

III
    Even were I not convinced that Elrod and Branti were wrongly decided, I
would hold that they should not be extended beyond their facts, viz.,
actual discharge of employees for their political affiliation.  Those cases
invalidated patronage firing in order to prevent the "restraint it places
on freedoms of belief and association."  Elrod, 427 U. S., at 355
(plurality opinion); see also id., at 357 (patronage "compels or restrains"
and "inhibits" belief and association).  The loss of one's current
livelihood is an appreciably greater constraint than such other
disappointments as the failure to obtain a promotion or selection for an
uncongenial transfer.  Even if the "coercive" effect of the former has been
held always to outweigh the benefits of party-based employment decisions,
the "coercive" effect of the latter should not be.  We have drawn a line
between firing and other employment decisions in other contexts, see Wygant
v. Jackson Bd. of Education, 476 U. S. 267, 282-283 (1986) (plurality
opinion), and should do so here as well.
    I would reject the alternative that the Seventh Circuit adopted in this
case, which allows a cause of action if the employee can demonstrate that
he was subjected to the "substantial equivalent of dismissal."  868 F. 2d
943, 950, 954 (CA7 1989).  The trouble with that seemingly reasonable
standard is that it is so imprecise that it will multiply yet again the
harmful uncertainty and litigation that Branti has already created.  If
Elrod and Branti are not to be reconsidered in light of their demonstrably
unsatisfactory consequences, I would go no further than to allow a cause of
action when the employee has lost his position, that is, his formal title
and salary.  That narrow ground alone is enough to resolve the
constitutional claims in the present case.  Since none of the plaintiffs
has alleged loss of his position because of affiliation, {22} I would
affirm the Seventh Circuit's judgment insofar as it affirmed the dismissal
of petitioners' claims, and would reverse the Seventh Circuit's judgment
insofar as it reversed the dismissal of cross-respondent's claims.
    The Court's opinion, of course, not only declines to confine Elrod and
Branti to dismissals in the narrow sense I have proposed, but, unlike the
Seventh Circuit, even extends those opinions beyond "constructive"
dismissals--indeed, even beyond adverse treatment of current employees--to
all hiring decisions.  In the long run there may be cause to rejoice in
that extension.  When the courts are flooded with litigation under that
most unmanageable of standards (Branti) brought by that most persistent and
tenacious of suitors (the disappointed office-seeker) we may be moved to
reconsider our intrusion into this entire field.
    In the meantime, I dissent.
 
 
 
 
 
 

------------------------------------------------------------------------------
1
    The customary invocation of Brown v. Board of Education, 347 U. S. 483
(1954) as demonstrating the dangerous consequences of this principle, see
ante, at 4 (Stevens, J., concurring), is unsupportable.  I argue for the
role of tradition in giving content only to ambiguous constitutional text;
no tradition can supersede the Constitution.  In my view the Fourteenth
Amendment's requirement of "equal protection of the laws," combined with
the Thirteenth Amendment's abolition of the institution of black slavery,
leaves no room for doubt that laws treating people differently because of
their race are invalid.  Moreover, even if one does not regard the
Fourteenth Amendment as crystal clear on this point, a tradition of
unchallenged validity did not exist with respect to the practice in Brown.
To the contrary, in the 19th century the principle of "separate-but-equal"
had been vigorously opposed on constitutional grounds, litigated up to this
Court, and upheld only over the dissent of one of our historically most
respected Justices.  See Plessy v. Ferguson, 163 U. S. 537, 555-556 (1896)
(Harlan, J., dissenting).

2
    Justice Stevens seeks to counteract this tradition by relying upon the
supposed "unequivocal repudiation" of the right-privilege distinction.
Ante, at 5.  That will not do.  If the right-privilege distinction was once
used to explain the practice, and if that distinction is to be repudiated,
then one must simply devise some other theory to explain it.  The order of
precedence is that a constitutional theory must be wrong if its application
contradicts a clear constitutional tradition; not that a clear
constitutional tradition must be wrong if it does not conform to the
current constitutional theory.  On Justice Stevens' view of the matter,
this Court examines a historical practice, endows it with an intellectual
foundation, and later, by simply undermining that foundation, relegates the
constitutional tradition to the dustbin of history.  That is not how
constitutional adjudication works.  Cf. Burnham v. Superior Court of
California, Marin County, 495 U. S. ---- (1990) (opinion of Scalia, J.).  I
am not sure, in any event, that the right-privilege distinction has been as
unequivocally rejected as Justice Stevens supposes.  It has certainly been
recognized that the fact that the government need not confer a certain
benefit does not mean that it can attach any conditions whatever to the
conferral of that benefit.  But it remains true that certain conditions can
be attached to benefits that cannot be imposed as prescriptions upon the
public at large.  If Justice Stevens chooses to call this something other
than a right-privilege distinction, that is fine and good--but it is in any
case what explains the nonpatronage restrictions upon federal employees
that the Court continues to approve, and there is no reason why it cannot
support patronage restrictions as well.
3
    The Court calls our description of the appropriate standard of review
"questionable," and suggests that these cases applied strict scrutiny
("even were Justice Scalia correct that less-than-strict scrutiny is
appropriate").  Ante, at 7, 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 10-11, but because they were
"reasonably" deemed necessary to promote effective government.  It does not
aid the Court's argument, moreover, because whatever standard those cases
applied must be applied here, and if the asserted interests in patronage
are as weighty as those proffered in the previous cases, then Elrod and
Branti were wrongly decided.  It eviscerates the standard, finally, because
if the practices upheld in those cases survived strict scrutiny, then the
so-called "strict scrutiny" test means nothing.  Suppose a State made it
unlawful for an employee of a privately owned nuclear power plant to
criticize his employer.  Can there be any doubt that we would reject out of
hand the State's argument that the statute was justified by the compelling
interest in maintaining the appearance that such employees are operating
nuclear plants properly, so as to maintain public confidence in the plants'
safety?  But cf. CSC v. Letter Carriers, 413 U. S. 548, 565 (1973) (Hatch
Act justified by need for government employees to "appear to the public to
be avoiding [political partiality], if confidence in the system of
representative Government is not to be eroded").  Suppose again that a
State prohibited a private employee from speaking on the job about matters
of private concern.  Would we even hesitate before dismissing the State's
claim that the compelling interest in fostering an efficient economy
overrides the individual's interest in speaking on such matters?  But cf.
Connick v. Myers, 461 U. S. 138, 147 (1983) ("[W]hen a public employee
speaks . . . upon matters only of personal interest, absent the most
unusual circumstances, a federal court is not the appropriate forum in
which to review the wisdom of a personnel decision taken by a public agency
allegedly in reaction to the employee's behavior").  If the Court thinks
that strict scrutiny is appropriate in all these cases, then it should
forthrightly admit that Public Workers v. Mitchell, 330 U. S. 75 (1947),
Letter Carriers, Pickering v. Board of Education of Township High School
Dist., 391 U. S. 563 (1968), Connick, and similar cases were mistaken and
should be overruled; if it rejects that course, then it should admit that
those cases applied, as they said they did, a reasonableness test.
    The Court's further contention that these cases are limited to the
"interests that the government has in its capacity as an employer," ante,
at 7, n. 4, as distinct from its interests "in the structure and
functioning of society as a whole," ibid., is neither true nor relevant.
Surely a principal reason for the statutes that we have upheld preventing
political activity by government employees--and indeed the only substantial
reason, with respect to those employees who are permitted to be hired and
fired on a political basis--is to prevent the party in power from obtaining
what is considered an unfair advantage in political campaigns.  That is
precisely the type of governmental interest at issue here.  But even if the
Court were correct, I see no reason in policy or principle why the
government would be limited to furthering only its interests "as employer."
In fact, we have seemingly approved the furtherance of broader governmental
interests through employment restrictions.  In Hampton v. Mow Sun Wong, 426
U. S. 88 (1976), we held unlawful a Civil Service Commission regulation
prohibiting the hiring of aliens on the ground that the Commission lacked
the requisite authority.  We were willing, however, to "assume . . . that
if the Congress or the President had expressly imposed the citizenship
requirement, it would be justified by the national interest in providing an
incentive for aliens to become naturalized, or possibly even as providing
the President with an expendable token for treaty negotiating purposes."
Id., at 105.  Three months after our opinion, the President adopted the
restriction by Executive Order.  Exec. Order No. 11935, 3 CFR 146 (1976
Comp.).  On remand, the lower courts denied the Mow Sun Wong plaintiffs
relief, on the basis of this new Executive Order and relying upon the
interest in providing an incentive for citizenship.  Mow SunWong v.
Hampton, 435 F. Supp. 37 (ND Cal. 1977), aff'd, 626 F. 2d 739 (CA9 1980).
We denied certiorari, sub nom. Lum v. Campbell, 450 U. S. 959 (1981).  In
other cases, the lower federal courts have uniformly reached the same
result.  See, e. g., Jalil v. Campbell, 192 U. S. App. D. C. 4, 7, 590 F.
2d 1120, 1123, n. 3 (1978); Vergara v. Hampton, 581 F. 2d 1281 (CA7 1978),
cert. denied, 441 U. S. 905 (1979); Santin Ramos v. United States Civil
Service Comm'n, 430 F. Supp. 422 (PR 1977) (three-judge court).

4
    Justice Stevens discounts these systemic effects when he characterizes
patronage as fostering partisan, rather than public, interests.  Ante, at
9.  But taking Justice Stevens at his word, one wonders why patronage can
ever be an "appropriate requirement for the position involved," ante, at
1.

5
    Jones v. Dodson, 727 F. 2d 1329, 1338 (CA4 1984).

6
    McBee v. Jim Hogg County, Texas, 730 F. 2d 1009, 1014-1015 (CA5 1984)
(en banc).

7
    Joyner v. Lancaster, 553 F. Supp. 809, 818 (MDNC 1982), later
proceeding, 815 F. 2d 20, 24 (CA4), cert. denied, 484 U. S. 830 (1987).

8
    Layden v. Costello, 517 F. Supp. 860, 862 (NDNY 1981).

9
    Tavano v. County of Niagara, New York, 621 F. Supp. 345, 349-350 (WDNY
1985), aff'd mem., 800 F. 2d 1128 (CA2 1986).

10
    Ness v. Marshall, 660 F. 2d 517, 521-522 (CA3 1981); Montaquila v. St.
Cyr, 433 A. 2d 206, 211 (R. I. 1981).

11
    Finkelstein v. Barthelemy, 678 F. Supp. 1255, 1265 (ED La 1988).

12
    Livas v. Petka, 711 F. 2d 798, 800-801 (CA7 1983).

13
    Bavoso v. Harding, 507 F. Supp. 313, 316 (SDNY 1980).

14
    Barnes v. Bosley, 745 F. 2d 501, 508 (CA8 1984), cert. denied, 471 U.
S. 1017 (1985).

15
    Bauer v. Bosley, 802 F. 2d 1058, 1063 (CA8 1986), cert. denied, 481 U.
S. 1038 (1987).

16
    Elrod v. Burns, 427 U. S. 347, 351 (1976).

17
    Balogh v. Charron, 855 F. 2d 356 (CA6 1988).

18
    Abraham v. Pekarski, 537 F. Supp. 858, 865 (ED Pa 1982), aff'd in part
and dismissed in part, 728 F. 2d 167 (CA3), cert. denied, 467 U. S. 1242
(1984).

19
    Tomczak v. Chicago, 765 F. 2d 633 (CA7), cert. denied, 474 U. S. 946
(1985).

20
    De Choudens v. Government Development Bank of Puerto Rico, 801 F. 2d 5,
10 (CA1 1986) (en banc), cert. denied, 481 U. S. 1013 (1987).

21
    Rosario Nevarez v. Torres Gaztambide, 820 F. 2d 525 (CA1 1987).

22
    Standefer and O'Brien do not allege that their political affiliation
was the reason they were laid off, but only that it was the reason they
were not recalled.  Complaint 14 9, 21-22, App. to Respondent's Brief in
Opposition; 641 F. Supp. 249, 256, 257 (CDIll. 1986).  Those claims are
essentially identical to the claims of persons wishing to be hired; neither
fall within the narrow rule of Elrod and Branti against patronage firing.
