home
***
CD-ROM
|
disk
|
FTP
|
other
***
search
/
So Much Shareware 1
/
SoMuchSharewareV1_1991.iso
/
general
/
guide7-2.exe
/
LHARC3.EXE
/
PATRON3.STA
< prev
next >
Wrap
Text File
|
1991-06-27
|
17KB
|
297 lines
JUSTICE STEVENS discounts these systemic effects when he charac-
terizes patronage as fostering partisan, rather than public, in-
terests. Ante, at 9. But taking JUSTICE STEVENS at his word,
----
one wonders why patronage can ever be an ``appropriate require-
----
ment for the position involved,'' ante, at 1.
----
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 ac-
curacy 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 ob-
tained 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 re-
turn 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'' activi-
ty, and the city insists on taking the control back ``down-
town.'' ' '' 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 corr-
uption, such as salary kickbacks and partisan political activity
on government-paid time. It reduces the efficiency of govern-
ment, because it creates incentives to hire more and less-
qualified workers and because highly qualified workers are reluc-
tant 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 sys-
tem ordinarily demands of the party worker is loyalty to, and ac-
tivity on behalf of, the organization itself rather than a set of
political beliefs. He is generally free to urge within the or-
------ --- ---
ganization the adoption of any political position; but if that
----------
position is rejected he must vote and work for the party nonethe-
less. The diversity of political expression (other than expres-
sion of party loyalty) is channeled, in other words, to a dif-
ferent 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 consider-
able 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 exag-
gerates 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 sub-
stantial 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 pa-
tronage 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 pa-
----- ------
tronage system is necessarily desirable; nor even that it is al-
-----------
ways 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 dif-
ferent political units and different eras: permitting patronage
hiring, for example, but prohibiting patronage dismissal; permit-
ting 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 over-
----- ------
ruled, 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 unwil-
ling to leave it to the political process to draw the line
between desirable and undesirable patronage, the Court has nei-
ther 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 pub-
lic 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 re-
quirement.'' 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 af-
filiation, but then again perhaps it can, especially if he is
called the ``police captain.'' A county cannot fire on that basis
its attorney for the department of social services, nor its
assistant attorney for family court, but a city can fire its
solicitor and his assistants, or its assistant city attorney,
or its assistant state's attorney, or its corporation counsel.
A city cannot discharge its deputy court clerk for his political
affiliation, but it can fire its legal assistant to the clerk on
that basis. Firing a juvenile court bailiff seems impermissible,
but it may be permissible if he is assigned permanently to a
single judge.
A city cannot fire on partisan grounds its director of roads,
but it can fire the second in command of the water department.
A government cannot discharge for political reasons the senior
vice president of its development bank, 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 PP 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.
----- ------
The examples could be multiplied, but this summary should make
obvious that the ``tests'' devised to implement Branti have pro-
------
duced inconsistent and unpredictable results. That uncertainty
undermines the purpose of both the nonpatronage rule and the ex-
ception. 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 princi-
ple 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 bene-
fits 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, insu-
lated from the political system. During another, when the effi-
cient 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 pol-
itical 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 de-
----- ------
cided, 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 ``inhi-
--
bits'' belief and association). The loss of one's current livel-
ihood is an appreciably greater constraint than such other disap-
pointments 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 em-
ployment 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 impre-
cise 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 unsa-
tisfactory 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,
I would affirm the Seventh Circuit's judgment insofar as it af-
firmed the dismissal of petitioners' claims, and would reverse
the Seventh Circuit's judgment insofar as it reversed the dismis-
sal of cross-respondent's claims.
The Court's opinion, of course, not only declines to confine El-
---
rod 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 unmanage-
able 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.