Political Spoils and the First Amendment

Publication year2008
Political Spoils and the First Amendment
No. 77 J. Kan. Bar Assn 10, 20 (2008)
Kansas Bar Journal
December, 2008

November, 2008.


By Michael T. Jilka

I. Introduction

"To the victor goes the spoils." That oft-quoted aphorism has deep historical roots and fuelled the rise of legendary political machines such as Tammany Hall, the Pendergasts, and Chicago's Daleys. While legislation such as the Pendleton Act[1] curbed some of its more abusive aspects, the constitutional validity of political patronage was commonly accepted at least until the 1970s. In 1976, the U.S. Supreme Court sharply curtailed the use of political patronage, holding that such practices amount to an unconstitutional coercion of a person's political beliefs and associations.[2] In a series of cases that followed over the ensuing two decades, the Court expanded both the scope of actions and persons potentially subject to this First Amendment right. The constitutional protection now extends beyond employment terminations to cover intermediate employment measures, and even independent contractors enjoy protection.

But the constitutional bar against political patronage is not absolute. Courts recognize that "[a] public agency would be unmanageable if its head had to ... retain his political enemies ... in positions of confidence or positions in which they would be ... exercising discretion in the implementation of policy."[3] Certain positions, known as policymakers or confidential employees, are exempted from constitutional protection. This aspect of the Court's First Amendment jurisprudence has spawned a steady stream of litigation. This article traces the development of the constitutional norms governing political patronage dismissals under the First Amendment right of political association.

II. Supreme Court Framework

The Supreme Court's jurisprudence addressing the constitutionality of political patronage dates from the 1970s. The Court's opinions reflect a sharp fissure among the justices over the normative value of political patronage. The prevailing view posits political patronage as an evil that inhibits a fundamental constitutional right — the right to freely express one's political beliefs and support candidates of one's choosing. The dissenting view, which is forcefully articulated by Justices Lewis F. Powell Jr. and Antonin Scalia, emphasizes the practical necessity of political patronage to the effective functioning of a democratic political system.

The Court's initial foray into the thicket of political patronage came in Elrod v. Burns.[4] In Elrod, a newly-appointed Democratic sheriff terminated Republican employees of the sheriff's department because they were not affiliated with or sponsored by the Democratic Party. More specifically, the employees were asked to pledge political allegiance to the proper party, work for political candidates, financially support the party, or obtain sponsorship of a party member to keep their jobs.

The Court held that the sheriff's actions violated the plaintiffs' First Amendment rights.[5] In a plurality opinion authored by Justice William J. Brennan Jr., the Court offered two reasons for its conclusion. First, it stated that political patronage "is inimical to the process, which undergirds our system of government and is at war with the deeper traditions of democracy embodied in the First Amendment."[6] The Court emphasized that political patronage forces individuals to compromise their beliefs and constrains their exercise of a fundamental constitutional right:

It is not only belief and association, which are restricted where political patronage is the practice. The free functioning of the electoral process also suffers. Conditioning public employment on partisan support prevents support of competing political interests. Existing employees are deterred from such support, as well as the multitude seeking jobs. As government employment, state or federal, becomes more pervasive, the greater the dependence on it becomes, and therefore the greater becomes the power to starve political opposition by commanding partisan support, financial and otherwise. Patronage thus tips the electoral process in favor of the incumbent party, and where the practice's scope is substantial relative to the size of the electorate, the impact on the process can be significant.[7]

Second, the Court found that apart from the potential impact of patronage dismissals on the expression of opinion, the practice also had the effect of imposing an unconstitutional condition on the receipt of a public benefit.[8] This effect ran afoul of the holdings in a line of cases beginning with Perry v. Sindermann,[9] which hold that the government cannot deny a benefit on a basis that infringes a constitutionally protected interest.

Elrod recognized that certain patronage dismissals fall outside the scope of First Amendment protection. The dismissal of so-called "policymakers" is constitutionally permissible "to the end that representative government not be undercut by tactics obstructing the implementation of policies of the new administration, policies presumably sanctioned by the elector-ate."[10] But the Court acknowledged that no clear demarcation existed between policymakers and nonpolicymakers:

While nonpolicymaking individuals usually have limited responsibility, that is not to say that one with a number of responsibilities is necessarily in a policymaking position. The nature of the responsibilities is critical. Employee supervisors, for example may have many responsibilities, but those responsibilities may have only limited and well-defined objectives. An employee with responsibilities that are not well defined or are of broad scope more likely functions in a policymaking position. In determining whether an employee occupies a policymaking position, consideration would also be given to whether the employee acts as an adviser or formulates plans for the implementation of broad goals. Thus the political loyalty "justification is a matter of proof, or at least argument, directed at particular kinds of jobs."[11]

The Court added new layers to Elrod's foundation in Branti v. Finkel.[12] In Branti, the newly-appointed public defender terminated two assistant public defenders on the basis of their Republican party affiliations. The Court held that the terminated employees need not prove they were forced to change political beliefs or lose their jobs.[13] Instead, the employees need only prove that they were terminated "solely for the reason that they were not affiliated with or sponsored by the Democratic Party."[14]

In the course of its opinion, the Court refined the "policymaker" exception and again recognized that the constitutional bar to politically-motivated dismissal is not absolute. "If an employee's private political beliefs would interfere with the discharge of his public duties, his First Amendment rights may be required to yield to the [s]tate's vital interest in maintaining governmental effectiveness and efficiency."[15] Persons who serve in "confidential" or "policymaking" positions can be terminated on the basis of their political affiliation.[16] But the Court again acknowledged the difficulty of drawing sharp lines delineating which positions are subject to constitutional protection. In some situations, a position may be labeled political and outside First Amendment scrutiny even though it is neither confidential nor policymaking in character. For example, the Court recognized that if a state's election laws require that precincts be supervised by two elections judges of different parties, a Republican judge could be legitimately discharged solely for changing his or her party affiliation.[17]

By the same token, party affiliation is not necessarily relevant to every policymaking or confidential position. For example, a state university's football coach formulates policy, but no one could claim that a certain political affiliation makes one a better coach. On the other hand, a governor could legitimately believe that the official duties of various assistants who serve as speechwriters, press secretaries or legislative liasons cannot be performed effectively unless those persons share her political beliefs and party commitments. Summarizing its holding, the Court instructed lower courts to look beyond labels and ask whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.[18]

In Rutan v. Republican Party of Illinois,[19] the Court extended the holdings of Elrod and Branti beyond termination to cover promotion, transfer, recall, and hiring decisions based on party affiliation and support. In Rutan, the governor of Illinois imposed a hiring freeze, which practically required his personal permission to hire, fire, or transfer any state employee. In deciding whether to grant such permission, the governor reviewed whether the applicant voted in Republican primaries, made financial contribution to the Republican party, or promised to join and work for the party in the future. The plaintiffs claimed they suffered adverse effects of the freeze because they were not Republican Party supporters.

The Court reversed the Seventh Circuit's holding[20] that only employment decisions constituting the "substantial equivalent of a dismissal" violate the First Amendment. The Court noted that the First Amendment concerns articulated in Elrod and Branti barring political patronage dismissals were equally applicable to adverse employment actions falling short of termination.[21] The potential loss in pay increases, inconvenient hours, or long commutes that may result from an employee's refusal to compromise their political beliefs violated the First Amendment just as does a termination.

To round out its quartet of holdings on the issue...

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