O'HARE TRUCK SERVICE, INC., et al. v. CITY OF NORTHLAKE et al. Certiorari to the United States Court of Appeals for the Seventh Circuit.
518 U.S. 712116 S.Ct. 2353135 L.Ed.2d 874 (518 U.S. 712116 S.Ct. 2353135 L.Ed.2d 874, 518 U.S. 712116 S.Ct. 2353135 L.Ed.2d 874)
O'HARE TRUCK SERVICE, INC., et al. v. CITY OF NORTHLAKE et al. Certiorari to the United States Court of Appeals for the Seventh Circuit.
Argued: March 20, 1996
Decided: June 28, 1996
Respondent city maintains a rotation list of available companies to perform towing services at its request. Until the events recounted here, the city's policy had been to remove companies from the list only for cause. Petitioner O'Hare Truck Service, Inc., was removed from the list after its owner, petitioner Gratzianna, refused to contribute to respondent mayor's reelection campaign and instead supported his opponent. Alleging that the removal was in retaliation for Gratzianna's campaign stance and caused petitioners to lose substantial income, petitioners filed this suit under 42 U. S. C. Section(s) 1983. The District Court dismissed the complaint in conformity with Seventh Circuit precedent that Elrod v. Burns, 427 U. S. 347 (plurality opinion), and Branti v. Finkel, 445 U. S. 507-in which the Court held that government officials may not discharge public employees for refusing to support a political party or its candidates, unless political affiliation is an appropriate requirement for the job in question-do not extend to independent contractors. The Seventh Circuit affirmed.
Held: The protections of Elrod and Branti extend to an instance where government retaliates against a contractor, or a regular provider of services, for the exercise of rights of political association or the expression of political allegiance. Pp. 3-14.
(a) In assessing when party affiliation, consistent with the First Amendment, may be an acceptable basis for terminating a public employee, "the ultimate inquiry is not whether the label `policymaker' or `confidential' fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved." Branti, supra, at 518. A different, though related, inquiry, the balancing test from Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, is called for where a government employer takes adverse action on account of an employee or service provider's right of free speech. In Elrod and Branti, the raw test of political affiliation sufficed to show a constitutional violation. However, since the inquiry is whether the affiliation requirement is reasonable, it is inevitable that some case-by-case adjudication will be required even where political affiliation was the test the government imposed. The analysis will also accommodate cases where instances of the employee's speech or expression are intermixed with a political affiliation requirement. Pp. 3-7.
(b) Despite respondents' argument that the principles of Elrod and Branti have no force here because an independent contractor's First Amendment rights, unlike a public employee's, must yield to the government's asserted countervailing interest in sustaining a patronage system, this Court cannot accept the proposition that those who perform the government's work outside the formal employment relationship are subject to the direct and specific abridgment of First Amendment rights described in petitioners' complaint. The government may not coerce support in the manner petitioners allege, unless it has some justification beyond dislike of the individual's political association. As respondents offer no other justification for their actions, the complaint states a First Amendment claim. Allowing the constitutional claim to turn on a distinction between employees and independent contractors would invite manipulation by government, which could avoid constitutional liability simply by attaching different labels to particular jobs, Board of Comm'rs, Wabaunsee County v. Umbehr, ante, at ___. Accord, Lefkowitz v. Turley, 414 U. S. 70. Respondents present no convincing data to support their speculation that a difference of constitutional magnitude exists because independent contractors are less dependent on the government for income than employees are. There is little reason to suppose that a decision in petitioners' favor will lead to numerous lawsuits. While government officials may terminate at-will relationships, unmodified by any legal constraints, without cause, it does not follow that this discretion can be exercised to impose conditions on expressing, or not expressing, specific political views, see Perry v. Sindermann, 408 U. S. 593, 597. In view of the large number of legitimate reasons why a contracting decision might be made, fending off baseless First Amendment lawsuits should not consume scarce government resources. If the government terminates its affiliation with a service provider for reasons unrelated to political association, Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 287, as, for example, where the provider is unreliable, or if the service provider's political ``affiliation is an appropriate requirement for the effective performance'' of the task in question, Branti, supra, at 518, there will be no First Amendment violation. The absolute right to enforce a patronage scheme as a means of retaining control over independent contractors and satisfying government officials' concerns about reliability has not been shown to be a necessary part of a legitimate political system in all instances. This was the determination controlling the Court's decisions in Elrod, supra, at 365-368, 372-373, and Branti, supra, at 518-520. There is no basis for rejecting that reasoning in this context and drawing a line excluding independent contractors from the First Amendment safeguards of political association afforded to employees. Pp. 7-13.
(c) The lower courts, upon such further proceedings as are deemed appropriate, should decide whether the case is governed by the Elrod-Branti rule or by the Pickering rule. P. 13. 47 F. 3d 883, reversed and remanded.
Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O'Connor, Souter, Ginsburg, and Breyer, JJ., joined. Scalia, J., filed a dissenting opinion, in which Thomas, J., joined.
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.
Justice Kennedy delivered the opinion of the Court.
Government officials may not discharge public employees for refusing to support a political party or its candidates, unless political affiliation is a reasonably appropriate requirement for the job in question. Elrod v. Burns, 427 U. S. 347 (1976); Branti v. Finkel, 445 U. S. 507 (1980). We must decide whether the protections of Elrod and Branti extend to an independent contractor, who, in retaliation for refusing to comply with demands for political support, has a government contract terminated or is removed from an official list of contractors authorized to perform public services. Although the government has broad discretion in formulating its contracting policies, we hold that the protections of Elrod and Branti extend to an instance like the one before us, where government retaliates against a contractor, or a regular provider of services, for the exercise of rights of political association or the expression of political allegiance.
The suit having been dismissed by the District Court for failure to state a claim, the complaint's factual allegations are taken as true. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U. S. 163, 164 (1993). John Gratzianna is the owner and operator of O'Hare Truck Service, which provides towing services in Cook and DuPage Counties, Illinois. Gratzianna and his company are petitioners here, and we sometimes refer to them as O'Hare.
The city of Northlake, a respondent in this Court, coordinates towing services through its Police Department and for at least 30 years has maintained a rotation list of available towing companies. When the police receive a tow request, they call the company next on the list to provide the service. Until the events recounted here, the city's policy had been to remove a tow truck operator from the rotation list only for cause. O'Hare had been on the list since 1965, performing towing services at the city's request. O'Hare and the city's former Mayor, Gene Doyle, had a mutual understanding that the city would maintain O'Hare's place on the rotation list so long as O'Hare provided good service. In 1989, soon after being elected Northlake's new Mayor, respondent Reid Paxson told Gratzianna he was pleased with O'Hare's work and would continue using and referring its services.
Four years later, when Paxson ran for reelection, his campaign committee asked Gratzianna for a contribution, which Gratzianna refused to make. Gratzianna instead supported the campaign of Paxson's opponent and displayed the opponent's campaign posters at O'Hare's place of business. Soon after, O'Hare was removed from the rotation list. We shall assume, as the complaint alleges, that the removal was in retaliation for Gratzianna's stance in the campaign. Petitioners allege the retaliation caused them to lose substantial income.
O'Hare and Gratzianna sued in the United States District Court for the Northern District of Illinois, alleging infringement of First Amendment rights in violation of Rev. Stat. Section(s) 1979, 42 U. S. C. Section(s) 1983. In conformity with binding Seventh Circuit precedent, which does not extend Elrod and Branti to independent contractors, see, e. g., Downtown Auto Parks, Inc. v. Milwaukee, 938 F. 2d 705, cert. denied, 502 U. S. 1005 (1991), the District Court dismissed the complaint, 843 F. Supp. 1231 (1994). The Court of Appeals affirmed, adhering to the view that "it should be up to the Supreme Court to extend Elrod." 47 F. 3d 883, 885 (1995). (The Court of Appeals also affirmed dismissal of O'Hare's claim that respondents' failure to give it notice of removal from the list or provide a hearing on the matter deprived O'Hare of due process of law. That ruling is not before us.)
The Courts of Appeals take different positions concerning Elrod and Branti's applicability to independent contractors. Compare 47 F. 3d 883 (1995) (opinion below); Horn v. Kean, 796 F. 2d 668 (CA3 1986) (en banc); Sweeney v. Bond, 669 F. 2d 542 (CA8), cert. denied sub nom. Schenberg v. Bond, 459 U. S. 878 (1982), with Blackburn v. Marshall, 42 F. 3d 925 (CA5 1995); Abercrombie v. Catoosa, 896 F. 2d 1228 (CA10 1990). We granted certiorari to resolve the conflict, and now reverse.
The Court has rejected for decades now the proposition that a public employee has no right to a government job and so cannot complain that termination violates First Amendment rights, a doctrine once captured in Justice Holmes' aphorism that although a policeman "may have a constitutional right to talk politics . . . he has no constitutional right to be a policeman," McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N. E. 517 (1892). A State may not condition public employment on an employee's exercise of his or her First Amendment rights. See, e. g., Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U. S. 589 (1967); Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563 (1968); Perry v. Sindermann, 408 U. S. 593 (1972). See also Board of Comm'rs, Wabaunsee Cty. v. Umbehr, ante, at 5-6 (collecting cases). As we have said: "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. That would allow the government to `produce a result which it could not command directly.' Such interference with constitutional rights is impermissible." Perry v. Sindermann, supra, at 597, quoting Speiser v. Randall, 357 U. S. 513, 526 (1958). Absent some reasonably appropriate requirement, government may not make public employment subject to the express condition of political beliefs or prescribed expression.
In Elrod v. Burns, 427 U. S. 347 (1980), we considered whether to apply the principles of the unconstitutional conditions cases to public employees dismissed on account of their political association. In keeping with local tradition, a newly elected county sheriff had discharged non-civil-service employees because they were not members of his political party. It was by no means self-evident whether our First Amendment precedents applied, for as Justice Powell explained in dissent, id., at 377-387, the patronage practices at issue had been sanctioned by history and had been thought by some to contribute to the effective operation of political parties. See also Branti v. Finkel, 445 U. S., at 522, n. 1, 527-532 (Powell, J., dissenting); Rutan v. Republican Party of Ill., 497 U. S. 62, 104-109 (1990) (Scalia, J., dissenting). If indeed those patronage practices fortify the party system, they may serve important First Amendment interests, since parties promote and generate political discourse, see, e. g., Buckley v. Valeo, 424 U. S. 1, 14-15 (1976) (per curiam); Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U. S. 107, 121-122 (1981).
We need not inquire, however, whether patronage promotes the party system or serves instead to entrench parties in power, see Elrod v. Burns, supra, at 364-373 (plurality opinion); Rutan v. Republican Party of Ill., supra, at 88-89, n. 4 (Stevens, J., concurring), for Elrod and Branti establish that patronage does not justify the coercion of a person's political beliefs and associations. Although no opinion in Elrod commanded a majority of the Court, five Justices found common ground in the proposition that subjecting a nonconfidential, nonpolicymaking public employee to penalty for exercising rights of political association was tantamount to an unconstitutional condition under Perry v. Sindermann, supra. See Elrod v. Burns, supra, at 359 (plurality opinion) ("The threat of dismissal for failure to provide support for the favored political party unquestionably inhibits protected belief and association, and dismissal for failure to provide support only penalizes its exercise"); id., at 375 (Stewart, J., concurring in judgment) ("The single substantive question involved in this case is whether a nonpolicymaking, nonconfidential government employee can be discharged or threatened with discharge from a job that he is satisfactorily performing upon the sole ground of his political beliefs. I agree with the plurality that he cannot").
Four Terms later, in Branti v. Finkel, supra, we reaffirmed Elrod's common holding and said government termination of a public employee on account of his political affiliation brings our unconstitutional conditions cases into play, for "if the First Amendment protects a public employee from discharge based on what he has said, it must also protect him from discharge based on what he believes," 445 U. S., at 515. We also modified the standard, announced in the two opinions supporting the Elrod judgment, for assessing when party affiliation, consistent with the First Amendment, may be an acceptable basis for terminating a public employee: "The ultimate inquiry is not whether the label `policymaker' or `confidential' fits a particular position; rather, the question is 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.
Our cases call for a different, though related, inquiry where a government employer takes adverse action on account of an employee or service provider's right of free speech. There, we apply the balancing test from Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., supra. See generally Board of Comm'rs, Wabaunsee Cty. v. Umbehr, ante, at 6-9. Elrod and Branti involved instances where the raw test of political affiliation sufficed to show a constitutional violation, without the necessity of an inquiry more detailed than asking whether the requirement was appropriate for the employment in question. There is an advantage in so confining the inquiry where political affiliation alone is concerned, for one's beliefs and allegiances ought not to be subject to probing or testing by the government. It is true, on the other hand, as we stated at the outset of our opinion, supra, at 1, that the inquiry is whether the affiliation requirement is a reasonable one, so it is inevitable that some case-by-case adjudication will be required even where political affiliation is the test the government has imposed. A reasonableness analysis will also accommodate those many cases, perhaps including the one before us, where specific instances of the employee's speech or expression, which require balancing in the Pickering context, are intermixed with a political affiliation requirement. In those cases, the balancing Pickering mandates will be inevitable. This case-by-case process will allow the courts to consider the necessity of according to the government the discretion it requires in the administration and awarding of contracts over the whole range of public works and the delivery of governmental services.
The Court of Appeals, based on its understanding of the pleadings, considered this simply an affiliation case, and held, based on circuit precedent, there was no constitutional protection for one who was simply an outside contractor. We consider the case in those same terms, but we disagree with the Court of Appeals' conclusion.
There is no doubt that if Gratzianna had been a public employee whose job was to perform tow truck operations, the city could not have discharged him for refusing to contribute to Paxson's campaign or for supporting his opponent. In Branti, we considered it settled that to fire a public employee as a penalty for refusing a request for political and financial support would impose an unconstitutional condition on government employment. See 445 U. S., at 516. Respondents insist the principles of Elrod and Branti have no force here, arguing that an independent contractor's First Amendment rights, unlike a public employee's, must yield to the government's asserted countervailing interest in sustaining a patronage system. We cannot accept the proposition, however, that those who perform the government's work outside the formal employment relationship are subject to what we conclude is the direct and specific abridgment of First Amendment rights described in this complaint. As respondents offer no justification for their actions, save for insisting on their right to condition a continuing relationship on political fealty, we hold that the complaint states an actionable First Amendment claim.
The complaint alleges imposition of a burden on an individual's right of political association, a concerted effort to coerce its relinquishment. O'Hare was not part of a constituency that must take its chance of being favored or ignored in the larger political process-for example, by residing or doing business in a region the government rewards or spurns in the construction of public works. Gratzianna instead was targeted with a specific demand for political support. When Gratzianna refused, the city terminated a relationship that, based on longstanding practice, he had reason to believe would continue. We see nothing to distinguish this from the coercion exercised in our other unconstitutional conditions cases. See, e. g., Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U. S. 589 (1967) (teaching position conditioned upon nonmembership in "subversive" organizations); Perry v. Sindermann, 408 U. S. 593 (1972) (teaching position conditioned upon not criticizing college administration). Had Paxson or his backers solicited the contribution as a quid pro quo for not terminating O'Hare's arrangement with the city, they might well have violated criminal bribery statutes. Cf. Ill. Comp. Stat., ch. 720, Section(s) 5/33-1, 5/33-3; ch. 65, Section(s) 5/4-8-2 (1994). That Paxson may have steered clear of criminal liability, however, does little to diminish the attempted coercion of Gratzianna's political association, enforced by a tangible punishment. Our cases make clear that the government may not coerce support in this manner, unless it has some justification beyond dislike of the individual's political association. See, e. g., Branti v. Finkel, 445 U. S., at 516-517.
Respondents say this case is different because it involves a claim by an independent contractor. We are not persuaded. A rigid rule "giving the government carte blanche to terminate independent contractors for exercising First Amendment rights . . . would leave those rights unduly dependent on whether state law labels a government service provider's contract as a contract of employment or a contract for services, a distinction which is at best a very poor proxy for the interests at stake." Board of Comm'rs, Wabaunsee Cty. v. Umbehr, ante, at 10. It is true that the distinction between employees and independent contractors has deep roots in our legal tradition, see, e. g., 9 W. Jaeger, Williston on Contracts Section(s) 1012A (3d ed. 1967); 1 Restatement of Agency Section(s) 2, 220 (1933), and often serves as a line of demarcation for differential treatment of individuals who otherwise may be situated in similar positions, see, e. g., Community for Creative Non-Violence v. Reid, 490 U. S. 730 (1989); Nationwide Mut. Ins. Co. v. Darden, 503 U. S. 318 (1992); 2 Restatement (Second) of Torts Section(s) 409 (1964). We see no reason, however, why the constitutional claim here should turn on the distinction, which is, in the main, a creature of the common law of agency and torts. Recognizing the distinction in these circumstances would invite manipulation by government, which could avoid constitutional liability simply by attaching different labels to particular jobs, Board of Comm'rs, Wabaunsee Cty. v. Umbehr, ante, at 10. The fact of interference here is not altered by the circumstance that the victims are not classified as employees.
Our conclusion is in accord with Lefkowitz v. Turley, 414 U. S. 70 (1973), where independent contractor status did not suffice to allow government to insist upon a waiver of the Fifth Amendment's privilege against self-incrimination. After reviewing our rulings extending the Fifth Amendment's privilege to government employees, we said that "we fail to see a difference of constitutional magnitude between the threat of job loss to an employee of the State, and a threat of loss of contracts to a contractor." Id., at 83.
Some Courts of Appeals, refusing to extend Elrod and Branti to independent contractors, find "a difference of constitutional magnitude" in the relative degree to which employees and contractors depend on government sources for their income. See LaFalce v. Houston, 712 F. 2d 292, 294 (CA7 1983) ("An independent contractor would tend we imagine to feel a somewhat lesser sense of dependency"), cert. denied, 464 U. S. 1044 (1984); Horn v. Kean, 796 F. 2d, at 675 (same). Respondents present no convincing data to support this speculation, however, and we doubt it is true for many service providers who come under the formal classification of "independent contractor," cf., e. g., Havekost v. United States Dept. of Navy, 925 F. 2d 316 (CA9 1991) (worker was licensed grocery bagger at Navy commissary). The only statistics presented to us in the briefs are relevant to tow truck services, and these data point the other way. A national association of towing and recovery service operators, appearing as amicus, estimates that 75 percent of towing companies provide services in connection with government requests, the referrals generating between 30 and 60 percent of their gross revenues. Brief for Towing & Recovery Assn. of America, Inc., as Amicus Curiae 9. Petitioners, furthermore, allege a loss of substantial income due to their termination.
Perhaps some contractors are so independent from government support that the threat of losing business would be ineffective to coerce them to abandon political activities. The same might be true of certain public employees, however; they, too, might find work elsewhere if they lose their government jobs. If results were to turn on these sorts of distinctions, courts would have to inquire into the extent to which the government dominates various job markets as employer or as contractor. We have been, and we remain, unwilling to send courts down that path. See, e. g., Perry v. Sindermann, 408 U. S., at 597-598. Courts are not well suited to the task of measuring levels of employee dependence, but there is a more fundamental concern. Independent contractors, as well as public employees, are entitled to protest wrongful government interference with their rights of speech and association.
Some Courts of Appeals surmise that independent contractors doing business with the government "are political hermaphrodites," LaFalce v. Houston, supra, at 294, who find it in their self-interest to stay on good terms with both major political parties and so are not at great risk of retaliation for political association. The facts here, if the allegations in the complaint are true, indicate this dubious course of action may not be followed by many small independent contractors who are either unable or unwilling to maintain close ties to all the organized political forces in their communities. In all events, even if some independent contractors adjust to their precarious position by currying favor with diverse political parties, the question here concerns coercive government action taken against those who do not. That some citizens find a way to mitigate governmental overreaching, or refrain from complaining, does not excuse wrongs done to those who exercise their rights.
Respondents argue that any decision in O'Hare's favor will lead to numerous lawsuits, which will interfere with the sound administration of government contracting. We have little reason to accept the assessment. The amicus brief filed on behalf of respondents' position represents that in the six years since our opinion in Rutan v. Republican Party of Ill., 497 U. S. 62 (1990), which extended Elrod and Branti to public employment promotion, transfer, recall, and hiring decisions based on political affiliation, only 18 suits alleging First Amendment violations in employment decisions have been filed against Illinois state officials, Brief for Illinois State Officials as Amicus Curiae 3. Furthermore, we have found no reported case in the Tenth Circuit involving a First Amendment patronage claim by an independent contractor in the six years since its Court of Appeals first recognized such claims, see Abercrombie v. Catoosa, 896 F. 2d 1228 (1990). We have no reason to believe that governments cannot bear a like burden in defending against suits alleging the denial of First Amendment freedoms to public contractors, and we doubt that our decision today will lead to the imposition of a more extensive burden.
Cities and other governmental entities make a wide range of decisions in the course of contracting for goods and services. The Constitution accords government officials a large measure of freedom as they exercise the discretion inherent in making these decisions. Board of Comm'rs, Wabaunsee Cty. v. Umbehr, ante, at 5. Interests of economy may lead a governmental entity to retain existing contractors or terminate them in favor of new ones without the costs and complexities of competitive bidding. A government official might offer a satisfactory justification, unrelated to the suppression of speech or associational rights, for either course of action. The first may allow the government to maintain stability, reward good performance, deal with known and reliable persons, or ensure the uninterrupted supply of goods or services; the second may help to stimulate competition, encourage experimentation with new contractors, or avoid the appearance of favoritism. These are choices and policy considerations that ought to remain open to government officials when deciding to contract with some firms and not others, provided of course the asserted justifications are not the pretext for some improper practice. In view of the large number of legitimate reasons why a contracting decision might be made, fending off baseless First Amendment lawsuits should not consume scarce government resources. If the government terminates its affiliation with a service provider for reasons unrelated to political association, Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 287 (1977), as, for example, where the provider is unreliable, or if the service provider's political "affiliation is an appropriate requirement for the effective performance" of the task in question, Branti v. Finkel, 445 U. S., at 518, there will be no First Amendment violation.
Respondents' theory, in essence, is that no justification is needed for their actions, since government officials are entitled, in the exercise of their political authority, to sever relations with an outside contractor for any reason including punishment for political opposition. Government officials may indeed terminate at-will relationships, unmodified by any legal constraints, without cause; but it does not follow that this discretion can be exercised to impose conditions on expressing, or not expressing, specific political views, see Perry v. Sindermann, 408 U. S., at 597.
The absolute right to enforce a patronage scheme, insisted upon by respondents as a means of retaining control over independent contractors, Brief for Respondents 13, and satisfying government officials' concerns about reliability, Tr. of Oral Arg. 34-39, has not been shown to be a necessary part of a legitimate political system in all instances. This was the determination controlling our decisions in Elrod, 427 U. S., at 365-368, 372-373 (plurality opinion), and Branti, supra, at 518-520, and we see no basis for rejecting that reasoning in this context. We decline to draw a line excluding independent contractors from the First Amendment safeguards of political association afforded to employees.
Upon such further proceedings as are deemed appropriate by the Court of Appeals or the District Court, including upon motion for summary judgment if there is no genuine issue as to material facts, the courts on remand should decide whether the case is governed by the Elrod-Branti rule or by the Pickering rule.
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice Scalia, with whom Justice Thomas joins, dissenting.
Taken together, today's decisions in Board of Comm'rs, Waubansee Cty. v. Umbehr, ante, p. ___, and O'Hare Truck Service, Inc. v. Northlake, ante, p. ___, demonstrate why this Court's Constitution-making process can be called "reasoned adjudication" only in the most formalistic sense.
Six years ago, by the barest of margins, the Court expanded Elrod v. Burns, 427 U. S. 347 (1976), and Branti v. Finkel, 445 U. S. 507 (1980), which had held that public employees cannot constitutionally be fired on the basis of their political affiliation, to establish the new rule that applicants for public employment cannot constitutionally be rejected on the basis of their political affiliation. Rutan v. Republican Party of Ill., 497 U. S. 62 (1990). The four dissenters argued that "the desirability of patronage is a policy question to be decided by the people's representatives" and "a political question if there ever was one." Id., at 104, 114 (Scalia, J., dissenting). They were "convinced" that Elrod and Branti had been "wrongly decided," 497 U. S., at 114; indeed, that those cases were "not only wrong, not only recent, not only contradicted by a long prior tradition, but also . . . unworkable in practice" and therefore "should be overruled," id., at 110-111. At the very least, the dissenters maintained, Elrod and Branti "should not be extended beyond their facts," 497 U. S., at 114.
Today, with the addition to the Court of another Justice who believes that we have no basis for proscribing as unconstitutional practices that do not violate any explicit text of the Constitution and that have been regarded as constitutional ever since the framing, see, e.g., Bennis v. Michigan, 516 U. S. ___, ___ (1996) (slip op., at 1-2) (Thomas, J., concurring), one would think it inconceivable that Elrod and Branti would be extended far beyond Rutan to the massive field of all government contracting. Yet amazingly, that is what the Court does in these two opinions-and by lopsided votes, at that. It is profoundly disturbing that the varying political practices across this vast country, from coast to coast, can be transformed overnight by an institution whose conviction of what the Constitution means is so fickle.
The basic reason for my dissent today is the same as one of the reasons I gave (this one not joined by Justice O'Connor) in Rutan:
"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. 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 is 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." Rutan, supra, at 95-96 (Scalia, J., dissenting) (footnote omitted).
There can be no dispute that, like rewarding one's allies, the correlative act of refusing to reward one's opponents-and at bottom both of today's cases involve exactly that-is an American political tradition as old as the Republic. This is true not only with regard to employment matters, as Justice Powell discussed in his dissenting opinions in Elrod, supra, at 377-379, and Branti, supra, at 522, n. 1, but also in the area of government contracts, see, e.g., M. Tolchin & S. Tolchin, To the Victor: Political Patronage from the Clubhouse to the White House 14-15, 61, 233-241, 273-277 (1971); A. Heard, The Costs of Democracy 143-145 (1960); R. Caro, The Power Broker: Robert Moses and the Fall of New York 723-726, 738, 740-741, 775, 799, 927 (1975); M. Royko, Boss: Richard J. Daley of Chicago 69 (1971); Wolfinger, Why Political Machines Have Not Withered Away and Other Revisionist Thoughts, 34 J. Politics 365, 367-368, 372, 389 (1972); The Bond Game Remains the Same, Nat'l L. J., July 1, 1996, pp. A1, A20-A21. If that long and unbroken tradition of our people does not decide these cases, then what does? The constitutional text is assuredly as susceptible of one meaning as of the other; in that circumstance, what constitutes a "law abridging the freedom of speech" is either a matter of history or else it is a matter of opinion. Why are not libel laws such an "abridgment"? The only satisfactory answer is that they never were. What secret knowledge, one must wonder, is breathed into lawyers when they become Justices of this Court, that enables them to discern that a practice which the text of the Constitution does not clearly proscribe, and which our people have regarded as constitutional for 200 years, is in fact unconstitutional?
The Court seeks to avoid the charge that it ignores the centuries-old understandings and practices of our people by recounting, Umbehr, ante, at 13-14, shocking examples of raw political patronage in contracting, most of which would be unlawful under the most rudimentary bribery law. (It selects, of course, only the worst examples from the sources I have cited, omitting the more common practices that permit one author to say, with undeniable accuracy, that "honorable and prudent businessmen competing for government ventures make campaign contributions" out of "a desire to do what is thought necessary to remain eligible," and that "many contractors routinely do so to both parties." Heard, supra, at 145.) These "examples of covert, widely condemned and sometimes illegal government action," it says, do not "legitimize the government discrimination." Umbehr, ante, at 14. But of course it is not the County's or City's burden (or mine) to "legitimize" all patronage practices; it is Umbehr's and O'Hare's (and the Court's) to show that all patronage practices are not only "illegitimate" in some vague moral or even precise legal sense, but that they are unconstitutional. It suffices to demonstrate the error of the Court's opinions that many contracting patronage practices have been open, widespread, and unchallenged since the beginning of the Republic; and that those that have been objected to have not been objected to on constitutional grounds. That the Court thinks it relevant that many patronage practices are "covert, widely condemned and sometimes illegal" merely displays its persistent tendency to equate those many things that are or should be proscribed as a matter of social policy with those few things that we have the power to proscribe under the Constitution. The relevant and inescapable point is this: No court ever held, and indeed no one ever thought, prior to our decisions in Elrod and Branti, that patronage contracting could violate the First Amendment. The Court's attempt to contest this point, or at least to becloud the issue, by appeal to obnoxious and universally condemned patronage practices simply displays the feebleness of its case.
In each case today, the Court observes that we "have long since rejected Justice Holmes' famous dictum, that a policeman `may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.'" Umbehr, ante, at 5 (quoting McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N. E. 517 (1892)); see O'Hare, ante, at 3 (quoting same). But this activist Court also repeatedly rejects a more important aphorism of Justice Holmes, which expresses a fundamental philosophy that was once an inseparable part of our approach to constitutional law. In a case challenging the constitutionality of a federal estate tax on the ground that it was an unapportioned direct tax in violation of Article I, Section(s) 9, Justice Holmes wrote:
"The matter . . . is disposed of . . ., not by an attempt to make some scientific distinction, which would be at least difficult, but on an interpretation of language by its traditional use-on the practical and historical ground that this kind of tax always has been regarded as the antithesis of a direct tax . . . . Upon this point a page of history is worth a volume of logic." New York Trust Co. v. Eisner, 256 U. S. 345, 349 (1921) (emphasis added).
The Court's decision to enter this field cannot be justified by the consideration (if it were ever a justification) that the democratic institutions of government have not been paying adequate attention to the problems it presents. The American people have evidently decided that political influence in government contracting, like many other things that are entirely constitutional, is not entirely desirable, and so they have set about passing laws to prohibit it in some but not all instances. As a consequence, government contracting is subject to the most extraordinary number of laws and regulations at the federal, state, and local levels.
The United States Code contains a categorical statutory prohibition on political contributions by those negotiating for or performing contracts with the Federal Government, 2 U. S. C. Section(s) 441c, competitive bidding requirements for contracts with executive agencies, 41 U. S. C. Section(s) 252-253, public corruption and bribery statutes, e.g., 18 U. S. C. Section(s) 201, and countless other statutory requirements that restrict government officials' discretion in awarding contracts. "There are already over four thousand individual statutory provisions that affect the Defense Department's procurement process." Pyatt, Procurement Competition at Work: The Navy's Experience, 6 Yale J. Reg. 319, 319-320 (1989). Federal regulations are even more widespread. As one handbook in the area has explained, "their procedural and substantive requirements dictate, to an oftentimes astonishing specificity, how the entire contracting process will be conducted." ABA General Practice Section, Federal Procurement Regulations: Policy, Practice and Procedures 1 (1987). That is why it is no surprise in this area to find a 253-page book just setting forth "fundamentals," E. Massengale, Fundamentals of Federal Contract Law (1991), or a mere "deskbook" that runs 436 pages, ABA Section of Public Contract Law, Government Contract Law: The Deskbook for Procurement Professionals (1995). Such "summaries" are indispensable when, for example, the regulations that comprise the "Federal Acquisition Regulations System" total some 5,037 pages of fine print. See Title 48 CFR (1995).
Similar systems of detailed statutes and regulations exist throughout the States. In addition to the various statutes criminalizing bribes to government officials and other forms of public corruption, all 50 States have enacted legislation imposing competitive bidding requirements on various types of contracts with the government. 1 Government contracting is such a standard area for state regulation that a model procurement code has been developed, which is set forth in a 265-page book complete with proposed statutes, regulations, and explanations. See ABA Section of Urban, State and Local Government Law, Model Procurement Code for State and Local Governments (1981). As of 1989, 15 States had enacted legislation based on the model code. See ABA Section of Urban, State and Local Government Law, Annotations to the Model Procurement Code, at vii-viii (2d ed. 1992) (and statutes cited).
By 1992, more than 25 local jurisdictions had also adopted legislation based on the Model Procurement Code, see id., at ix, and thousands of other counties and municipalities have over time devised their own measures. New York City, for example, which "each year . . . enters into approximately 40,000 contracts worth almost $6.5 billion," has regulated the public contracting process by a myriad of codes and regulations that seek to assure "scrupulous neutrality in choosing contractors and consequently impose multiple layers of investigation and accountability." Anechiarico & Jacobs, Purging Corruption from Public Contracting: The `Solutions' Are Now Part of the Problem, 40 N. Y. L. S. L. Rev. 143, 143-144 (1995) (hereinafter Anechiarico & Jacobs).
These examples of federal, state, and local statutes, codes, ordinances, and regulations could be multiplied to fill many volumes. They are the way in which government contracts have been regulated, and the way in which public policy problems that arise in the area have been addressed, since the founding of the Republic. See, e.g., Federal Procurement Regulations: Policy, Practice and Procedures, at 11-196 (describing the history of federal government procurement regulation). But these laws and regulations have brought to the field a degree of discrimination, discernment, and predictability that cannot be achieved by the blunt instrument of a constitutional prohibition.
Title 48 of the Code of Federal Regulations would not contain the 5,000 pages it does if it did not make fine distinctions, permitting certain actions in some government acquisition areas and prohibiting them in others. Similarly, many of the competitive bidding statutes that I have cited contain exceptions for, or are simply written not to include, contracts under a particular dollar amount, 2 or those covering certain subject matters, 3 or those that are time-sensitive. 4 A political unit's decision not to enact contracting regulations, or to suspend the regulations in certain circumstances, amounts to a decision to permit some degree of political favoritism. As I shall discuss shortly, O'Hare's and Umbehr's First Amendment permits no such selectivity-or at least none that can be known before litigation is over.
If inattention by the democratic organs of government is not a plausible reason for the Court's entry into the field, then what is? I believe the Court accepts (any sane person must accept) the premise that it is utterly impossible to erect, and enforce through litigation, a system in which no citizen is intentionally disadvantaged by the government because of his political beliefs. I say the Court accepts that, because the O'Hare opinion, in a rare brush with the real world, points out that "O'Hare was not part of a constituency that must take its chance of being favored or ignored in the larger political process-for example, by residing or doing business in a region the government rewards or spurns in the construction of public works." Ante, at 8. Of course. Government favors those who agree with its political views, and disfavors those who disagree, every day-in where it builds its public works, in the kinds of taxes it imposes and collects, in its regulatory prescriptions, in the design of its grant and benefit programs-in a million ways, including the letting of contracts for government business. What good reason has the Court given for separating out this last way, and declaring it to be (as all the others for some reason are not) an "abridgment of the freedom of speech"? As I have explained, I would separate the permissible from the impermissible on the basis of our Nation's traditions, which is what I believe sound constitutional adjudication requires. In Elrod and Branti, the Court rejected this criterion-but if what it said did not make good constitutional law, at least it made some sense: the loss of one's job is a powerful price to pay for one's politics. But the Court then found itself on the fabled slippery slope that Justice Holmes's aphorism about history and logic warned about: one logical proposition detached from history leads to another, until the Court produces a result that bears no resemblance to the America that we know. The next step was Rutan, which extended the prohibition of political motivation from firing to hiring. The third step is today's Umbehr, which extends it to the termination of a government contract. And the fourth step (as I shall discuss anon) is today's O'Hare, which extends it to the refusal to enter into contractual relationships.
If it is to be possible to dig in our cleats at some point on this slope-before we end up holding that the First Amendment requires the City of Chicago to have as few potholes in Republican wards (if any) as in Democratic ones-would not the most defensible point of termination for this indefensible exercise be public employment? A public employee is always an individual, and a public employee below the highest political level (which is exempt from Elrod) is virtually always an individual who is not rich; the termination or denial of a public job is the termination or denial of a livelihood. A public contractor, on the other hand, is usually a corporation; and the contract it loses is rarely its entire business, or even an indispensable part of its entire business. As Judge Posner put it:
"Although some business firms sell just to government, most government contractors also have private customers. If the contractor does not get the particular government contract on which he bids, because he is on the outs with the incumbent and the state does not have laws requiring the award of the contract to the low bidder (or the laws are not enforced), it is not the end of the world for him; there are other government entities to bid to, and private ones as well. It is not like losing your job." LaFalce v. Houston, 712 F. 2d 292, 294 (CA7 1983).
Another factor that suggests we should stop this new enterprise at government employment is the much greater volume of litigation that its extension to the field of contracting entails. The government contracting decisions worth litigating about are much more numerous than the number of personnel hirings and firings in that category; and the litigation resources of contractors are infinitely more substantial than those of fired employees or rejected applicants. Anyone who has had even brief exposure to the intricacies of federal contracting law knows that a lawsuit is often used as a device to stay or frustrate the award of a contract to a competitor. See, e.g., Delta Data Systems Corp. v. Webster, 744 F. 2d 197 (CADC 1984); Delta Data Systems Corp. v. Webster, 755 F. 2d 938 (CADC 1985). What the Court's decisions today mean is that all government entities, no matter how small, are at risk of Section(s) 1983 lawsuits for violation of constitutional rights, unless they adopt (at great cost in money and efficiency) the detailed and cumbersome procedures that make a claim of political favoritism (and a Section(s) 1983 lawsuit) easily defended against.
The Court's opinion in O'Hare shrugs off this concern with the response that "we have no reason to believe that governments cannot bear a like burden to that in the employment context in defending against suits alleging the denial of First Amendment freedoms to public contractors." Ante, at 12. The burden is, as I have suggested, likely much greater than that in the employment context; and the relevant question (if one rejects history as the determinant) is not simply whether the governments "can bear" it, but whether the inconvenience of bearing it is outbalanced by the degree of abridgment of supposed First Amendment rights (of corporate shareholders, for the most part) that would occur if the burden were not imposed. 5 The Court in Umbehr dismisses the risk of litigation, not by analogy to the employment context, but by analogy to the many government-contracting laws of the type I have discussed. "We are aware," it says, "of no evidence of excessive or abusive litigation under such provisions." Umbehr, ante, at 15. I am not sure the Court would be aware of such evidence if it existed, but if in fact litigation has been "nonexcessive" (a conveniently imprecise term) under these provisions, that is scant indication that it will be "nonexcessive" under the First Amendment. Uncertainty breeds litigation. Government-contracting laws are clear and detailed, and whether they have been violated is typically easy to ascertain: the contract was put out for bid, or it was not. Umbehr's new First Amendment, by contrast, requires a sensitive "balancing" in each case; and the factual question of whether political affiliation or disfavored speech was the reason for the award or loss of the contract will usually be litigable. In short, experience under the government-contracting laws has little predictive value.
The Court additionally asserts that the line cannot be drawn between employment and independent contracting, because "`the applicability of a provision of the Constitution has never depended on the vagaries of state or federal law.'" Umbehr, ante, at 11 (quoting Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U. S. 257, 299 (1989) (O'Connor, J., concurring in part and dissenting in part)); see also Umbehr, ante, at 10-11 (citing other cases). That is not so. State law frequently plays a dispositive role in the issue of whether a constitutional provision is applicable. In fact, before we invented the First Amendment right not to be fired for political views, most litigation in this very field of government employment revolved around the Fourteenth Amendment's Due Process Clause, and asked whether the firing had deprived the plaintiff of a "property" interest without due process. And what is a property interest entitled to Fourteenth Amendment protection? " Property interests," we said, "are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law . . . . If it is the law of Texas that a teacher in the respondent's position has no contractual or other claim to job tenure, the respondent's federal constitutional claim would be defeated." Perry v. Sindermann, 408 U. S. 593, 602, n. 7 (1972) (internal quotation marks and citation omitted). See also Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 280-281 (1977) (whether a government entity possesses Eleventh Amendment immunity "depends, at least in part, upon the nature of the entity created by state law").
I have spoken thus far as though the only problem involved here were a practical one: as though, in the best of all possible worlds, if our judicial system and the resources of our governmental entities could only manage it, it would be desirable for an individual to suffer no disadvantage whatever at the hands of the government solely because of his political views-no denial of employment, no refusal of contracts, no discrimination in social programs, not even any potholes. But I do not believe that. The First Amendment guarantees that you and I can say and believe whatever we like (subject to a few tradition-based exceptions, such as obscenity and "fighting words") without going to jail or being fined. What it ought to guarantee beyond that is not at all the simple question the Court assumes. The ability to discourage eccentric views through the mild means that have historically been employed, and that the Court has now set its face against, may well be important to social cohesion. To take an uncomfortable example from real life: An organization (I shall call it the White Aryan Supremacist Party, though that was not the organization involved in the actual incident I have in mind) is undoubtedly entitled, under the Constitution, to maintain and propagate racist and antisemitic views. But when the Department of Housing and Urban Development lets out contracts to private security forces to maintain law and order in units of public housing, must it really treat this bidder the same as all others? Or may it determine that the views of this organization are not political views that it wishes to "subsidize" with public funds, nor political views that it wishes to hold up as an exemplar of the law to the residents of public housing? The state and local regulation I described earlier takes account of this reality. Even where competitive-bidding requirements are applicable (which is far from always), they almost invariably require that a contract be awarded not to the lowest bidder but to the "lowest responsible bidder." 6 "The word `responsible' is as important as the word `lowest,'" H. Cohen, Public Construction Contracts and the Law 81 (1961), and has been interpreted in some States to permit elected officials to exercise political discretion. "Some New York courts," for example, "have upheld agency refusals to award a contract to a low bidder because the contractor, while technically and financially capable, was not morally responsible." Anechiarico & Jacobs 146-147. In the leading case of Picone v. New York, 176 Misc. 967, 29 N. Y. S. 2d 539 (Sup. Ct. N. Y. Cty. 1941), the court stated that in determining whether a lowest bidder for a particular contract was the "lowest responsible bidder," New York City officials had permissibly considered "whether the bidder possessed integrity and moral worth." Id., at 969, 29 N. Y. S. 2d, at 541. The New Jersey Supreme Court has similarly said "it is settled that the legislative mandate that a bidder be `responsible' embraces moral integrity just as surely as it embraces a capacity to supply labor and materials." Trap Rock Industries, Inc. v. Kohl, 59 N. J. 471, 481, 284 A. 2d 161, 166 (1971). In the future, presumably, this will be permitted only if the disfavored moral views of the bidder have never been verbalized, for otherwise the First Amendment will produce entitlement to the contract, or at least guarantee a lawsuit.
In treading into this area, "we have left the realm of law and entered the domain of political science." Rutan, 497 U. S., at 113 (Scalia, J., dissenting). As Judge Posner rightly perceived, the issue that the Court today disposes of like some textbook exercise in logic "raises profound questions of political science that exceed judicial competence to answer." LaFalce v. Houston, 712 F. 2d, at 294.
If, however, the Court is newly to announce that it has discovered that the granting or withholding of a contract is a First Amendment issue, a coherent statement of the new law is the least that those who labor in the area are entitled to expect. They do not get it from today's decisions, which contradict each other on a number of fundamental points.
The decision in Umbehr appears to be an improvement on our Elrod-Branti-Rutan trilogy in one sense. Rutan, the most recent of these decisions, provided that the government could justify patronage employment practices only if it proved that such patronage was "narrowly tailored to further vital governmental interests." Rutan, supra, at 74. The four of us in dissent explained that "that strict-scrutiny standard finds no support in our cases," and we argued that, if the new constitutional right was to be invented, the criterion for violation should be "the test announced in Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563 (1968)." Rutan, supra, at 98, 100 (Scalia, J., dissenting). It thus appears a happy development that the Court in Umbehr explicitly rejects the suggestion, urged by Umbehr and by the United States as amicus curiae, that "on proof of viewpoint-based retaliation for contractors' political speech, the government should be required to justify its actions as narrowly tailored to serve a compelling state interest," Umbehr, ante, at 7; accord, ante, at 9, and instead holds "that the Pickering balancing test, adjusted to weigh the government's interests as contractor rather than as employer, determines the extent of independent contractors' protection" under the First Amendment, ante, at 4. Pickering balancing, of course, requires a case-by-case assessment of the government's and the contractor's interests. "Pickering and its progeny . . . involve a post hoc analysis of one employee's speech and its impact on that employee's public responsibilities." United States v. Treasury Employees, 513 U. S. ___, ___ (1995) (slip op., at 11). See also id., at ___ (slip op., at 2) (O'Connor, J., concurring in judgment in part and dissenting in part) (Pickering requires "case-by-case application"); Rankin v. McPherson, 483 U. S. 378, 388-392 (1987); Connick v. Myers, 461 U. S. 138, 150-154 (1983); Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, 568-573 (1968). It is clear that this is what the Court's opinion in Umbehr anticipates: "a fact-sensitive and deferential weighing of the government's legitimate interests," ante, at 8-9 (emphasis added), which accords "deference . . . to the government's reasonable assessments of its interests as contractor," ante, at 9 (emphasis removed). "Such a nuanced approach," Umbehr says, "which recognizes the variety of interests that may arise in independent contractor cases, is superior to a brightline rule." Ante, at 9-10.
What the Court sets down in Umbehr, however, it rips up in O'Hare. In Part III of that latter opinion, where the Court makes its application of the First Amendment to the facts of the case, there is to be found not a single reference to Pickering. See O'Hare, ante, at 7-13. Indeed, what is quite astonishing, the Court concludes that it "need not inquire" into any government interests that patronage contracting may serve-even generally, much less in the particular case at hand-"for Elrod and Branti establish that patronage does not justify the coercion of a person's political beliefs and associations." O'Hare, ante, at 5. Leaving aside that there is no coercion here, 7 the assertion obviously contradicts the need for "balancing" announced in the companion Umbehr decision. This rejection of "balancing" is evident elsewhere in O'Hare-as when the Court rejects as irrelevant the Seventh Circuit's observation in LaFalce v. Houston, 712 F. 2d 292 (1983), that some contractors elect to "curry favor with diverse political parties," on the ground that the fact "that some citizens thus find a way to mitigate governmental overreaching, or refrain from complaining, does not excuse wrongs done to those who exercise their rights." O'Hare, ante, at 11. But whether the government action at issue here is a "wrong" is precisely the issue in this case, which we thought (per Umbehr) was to be determined by "balancing." One would have thought these two opinions the products of the courts of last resort of two different legal systems, presenting fertile material for a comparative-law course on freedom of speech . . . were it not for a single paragraph in O'Hare, a veritable deus ex machina of legal analysis, which reconciles the irreconcilable. The penultimate paragraph of that portion of the O'Hare opinion which sets forth the general principles of law governing the case, see ante, at 6-7, advises that henceforth "the freedom of speech" alluded to in the Bill of Rights will be divided into two categories: (1) the "right of free speech," where "we apply the balancing test from Pickering," and (since this "right of free speech" presumably does not exhaust the Free Speech Clause), (2) "political affiliation," where we apply the rigid rule of Elrod and Branti. The Court (or at least the O'Hare Court) says that "there is an advantage in so confining the inquiry where political affiliation alone is concerned, for one's beliefs and allegiances ought not to be subject to probing or testing by the government." O'Hare, ante, at 6.
Frankly, the only "advantage" I can discern in this novel distinction is that it provides some explanation (no matter how difficult to grasp) of how these two opinions can issue from the same Court on the same day. It raises many questions. Does the "right of free speech" (category (1), that is) come into play if the contractor not only is a Republican, but says "I am a Republican"? (At that point, of course, the fatal need for "probing or testing" his allegiance disappears.) Or is the "right of free speech" at issue only if he goes still further, and says "I believe in the principles set forth in the Republican platform"? Or perhaps one must decide whether the Rubicon between the "right of free speech" and the more protected "political affiliation" has been crossed on the basis of the contracting authority's motivation, so that it does not matter whether the contractor says he is a Republican, or even says that he believes in the Republican platform, so long as the reason he is disfavored is simply that (whatever he says or believes) he is a Republican. But the analysis would change, perhaps, if the contracting authority really has nothing against Republicans as such, but can't stand people who believe what the Republican platform stands for. Except perhaps it would not change if the contractor never actually said he was a Republican-or perhaps only if he never actually said that he believed in the Republican platform. The many variations will provide endless diversion for the courts of appeals.
If one is so sanguine as to believe that facts involving the "right of free speech" and facts involving "political affiliation" can actually be segregated into separate categories, there arises, of course, the problem of what to do when both are involved. One would expect the more rigid test (Elrod nonbalancing) to prevail. That is certainly what happens elsewhere in the law. If one is categorically liable for a defamatory statement, but liable for a threatening statement only if it places the subject in immediate fear of physical harm, an utterance that which combines both ("Sir, I shall punch you in your lying mouth!") would be (at least as to the defamatory portion) categorically actionable. Not so, however, with our new First Amendment law. Where, we are told, "specific instances of the employee's speech or expression, which require balancing in the Pickering context, are intermixed with a political affiliation requirement," balancing rather than categorical liability will be the result. O'Hare, ante, at 6-7.
Were all this confusion not enough, the explanatory paragraph makes doubly sure it is not setting forth any comprehensible rule by adding, immediately after its description of how Elrod, rather than the Pickering balancing test, applies in "political affiliation" cases, the following: "It is true, on the other hand, . . . that the inquiry is whether the affiliation requirement is a reasonable one, so it is inevitable that some case-by-case adjudication will be required even where political affiliation is the test the government has imposed." O'Hare, ante, at 6. As I said in Rutan, "what that means is anybody's guess." 497 U. S., at 111 (Scalia, J., dissenting). Worse still, we learn that O'Hare itself, where the Court does not conduct balancing, may "perhaps be included" among "those many cases . . . which require balancing" because it is one of the "intermixed" cases I discussed in the paragraph immediately above. O'Hare, ante, at 6. Why, then, one is inclined to ask, did not the Court conduct balancing?
The answer is contained in the next brief paragraph of the O'Hare opinion:
"The Court of Appeals, based on its understanding of the pleadings, considered this simply an affiliation case, and held, based on circuit precedent, there was no constitutional protection for one who was simply an outside contractor. We consider the case in those same terms, but we disagree with the Court of Appeals' conclusion." Ante, at 7.
This is a deus ex machina sent in to rescue the Court's deus ex machina, which was itself overwhelmed by the plot of this tragedy of inconsistency. Unfortunately, this adjutor adjutoris (to overextend, perhaps, my classical analogy) is also unequal to the task: The respondent in this case is entitled to defend the judgment in its favor on the basis of the facts as they were alleged, not as the Court of Appeals took them to be. When, as here, "the decision we review adjudicated a motion to dismiss, we accept all of the factual allegations in petitioners' complaint as true and ask whether, in these circumstances, dismissal of the complaint was appropriate." Berkovitz v. United States, 486 U. S. 531, 540 (1988) (emphasis added). It is at least highly arguable that the complaint alleged what the Court calls a violation of the "right of free speech" rather than merely the right of "political affiliation." The count at issue was entitled "FREEDOM OF SPEECH," see App. in No. 95-191, p. 15, and contended that petitioners had been retaliated against because of "the exercise of their constitutional right of freedom of speech," id., at 17. One of the two central factual allegations is the following: "John A. Gratzianna openly supported Paxson's opponent for the office of Mayor. Campaign posters for Paxson's opponent were displayed at plaintiff O'Hare's place of business." Id., at 16. It is particularly inexcusable to hide behind the Court of Appeals' treatment of this litigation as "simply an affiliation case," since when the Court of Appeals wrote its opinion the world had not yet learned that the Free Speech Clause is divided into the two categories of "right of free speech" and "political affiliation." As far as that court knew, it could have substituted "freedom of speech" for "freedom of political affiliation" whenever it used the term, with no effect on the outcome. It did not, in other words, remotely make a "finding" that the case involves only the right of political affiliation. Unavoidably, therefore, if what the O'Hare Court says in its first explanatory paragraph is to be believed-that is, what it says in the latter part of that paragraph, to the effect that "intermixed" cases are governed by Pickering-there is simply no basis for reversing the Court of Appeals without balancing, and directing that the case proceed, effectively depriving the City of its right to judgment on the pleadings.
Unless, of course, Pickering balancing can never support the granting of a motion to dismiss. That is the proposition that today's O'Hare opinion, if it is not total confusion, must stand for. Nothing else explains how the Court can (1) assert that an "intermixed" case requires Pickering balancing, (2) acknowledge that the complaint here may set forth an "intermixed" case, and yet (3) reverse the dismissal without determining whether the complaint does set forth an "intermixed" case and, if so, proceeding to conduct at least a preliminary Pickering balancing. There is of course no reason in principle why this particular issue should be dismissal-proof, and the consequence of making it so, given the burdens of pre-trial discovery (to say nothing of trial itself) will be to make litigation on this subject even more useful as a device for harassment and weapon of commercial competition. It must be acknowledged, however, that proceeding this way in the present case has one unquestionable advantage: it leaves it entirely to the district court to clean up, without any guidance or assistance from us, the mess that we have made-to figure out whether saying "Vote against Paxson," or "Paxson is a hack," or "Paxson's project for a 100,000-seat municipal stadium is wasteful," or whatever else Mr. Gratzianna's campaign posters might have said, removes this case from the Political Affiliation Clause of the Constitution and places it within the Right of Free Speech Clause.
One final observation about the sweep of today's holdings. The opinion in Umbehr, having swallowed the camel of First Amendment extension into contracting, in its penultimate paragraph demonstrates the Court's deep-down judicial conservatism by ostentatiously straining out the following gnat: "Finally, we emphasize the limited nature of our decision today. Because Umbehr's suit concerns the termination of a pre-existing commercial relationship with the government, we need not address the possibility of suits by bidders or applicants for new government contracts who cannot rely on such a relationship." Umbehr, ante, at 17. The facts in Umbehr, of course, involved the termination of nothing so vague as a "commercial relationship with the government"; the Board of Commissioners had terminated Umbehr's contract. The fuzzier terminology is used, presumably, because O'Hare did not involve termination of a contract. As far as appears, O'Hare had not paid or promised anything to be placed on a list of tow-truck operators who would be offered individual contracts as they came up. The company had no right to sue if the city failed to call it, nor the city any right to sue if the company turned down an offered tow. It had, in short, only what might be called (as an infinity of things might be called) "a pre-existing commercial relationship" with the city: it was one of the tow-truck operators they regularly called. The quoted statement in Umbehr invites the bar to believe, therefore, that the Court which declined to draw the line of First Amendment liability short of firing from government employment (Elrod and Branti); short of nonhiring for government employment (Rutan); short of termination of a government contract (Umbehr); and short of denial of a government contract to someone who had a "pre-existing commercial relationship with the government" (O'Hare); may take a firm stand against extending the Constitution into every little thing when it comes to denying a government contract to someone who had no "pre-existing commercial relationship." Not likely; in fact, not even believable.
This Court has begun to make a habit of disclaiming the natural and foreseeable jurisprudential consequences of its pathbreaking (i.e., Constitution-making) opinions. Each major step in the abridgment of the people's right to govern themselves is portrayed as extremely limited or indeed sui juris. In Romer v. Evans, 517 U. S. ___, ___ (1996) (slip op. at 11, 12), announced last month, the Court asserted that the Colorado constitutional amendment at issue was so distinctive that it "defies . . . conventional inquiry" and "confounds the normal process of judicial review." In United States v. Virginia, ante, at ___ n. 7 (1996), announced two days ago, the Court purported to address "specifically and only an educational opportunity recognized by the District Court and the Court of Appeals as `unique.'" And in the cases announced today, "we emphasize the limited nature of our decision." Umbehr, ante, at 17. The people should not be deceived. While the present Court sits, a major, undemocratic restructuring of our national institutions and mores is constantly in progress.
They say hard cases make bad law. The cases before the Court today set the blood boiling, with the arrogance that they seem to display on the part of elected officials. Shall the American System of Justice let insolent, petty-tyrant politicians get away with this? What one tends to forget is that we have heard only the plaintiffs' tale. These suits were dismissed before trial, so the "facts" the Court recites in its opinions assume the truth of the allegations made (or the preliminary evidence presented) by the plaintiffs. We have no idea whether the allegations are true or false-but if they are true, they are certainly highly unusual. Elected officials do not thrive on arrogance.
For every extreme case of the sort alleged here, I expect there are thousands of contracts awarded on a "favoritism" basis that no one would get excited about. The Democratic mayor gives the city's municipal bond business to what is known to be a solid Democratic law firm-taking it away from the solid Republican law firm that had the business during the previous, Republican, administration. What else is new? Or he declines to give the construction contract for the new municipal stadium to the company that opposed the bond issue for its construction, and that in fact tried to get the stadium built across the river in the next State. What else would you expect? Or he awards the cable monopoly, not to the (entirely responsible) Johnny-come-lately, but to the local company that has always been a "good citizen"-which means it has supported with money, and the personal efforts of its management, civic initiatives that the vast majority of the electorate favor, though some oppose. Hooray! Favoritism such as this happens all the time in American political life, and no one has ever thought that it violated-of all things-the First Amendment to the Constitution of the United States.
The Court must be living in another world. Day by day, case by case, it is busy designing a Constitution for a country I do not recognize. Depending upon which of today's cases one chooses to consider authoritative, it has either (O'Hare) thrown out vast numbers of practices that are routine in American political life in order to get rid of a few bad apples; or (Umbehr) with the same purpose in mind subjected those routine practices to endless, uncertain, case-by-case, balance-all-the-factors-and-who-knows-who-will-win litigation.
CC∅ | Transformed by Public.Resource.Org
See, e.g., Ala. Code Section(s) 11-43C-70 (1989); id., Section(s) 24-1-83 (1992); id., Section(s) 41-16-20 (Supp. 1995); Alaska Stat. Ann. Section(s) 36.30.100 (1992); Ariz. Rev. Stat. Ann. Section(s) 41-2533 (1992); Ark. Code Ann. Section(s) 14-47-120, 14-47-138, 14-48-117, 14-48-129 (1987); Cal. Pub. Cont. Code Ann. Section(s) 10302, 10309, 10373, 10501, 10507.7, 20723, 20736, 20751, 20803, 20921, 21501, 21631 (West 1985 and Supp. 1996); Cal. Pub. Util. Code Ann. Section(s) 131285 (West 1991); Cal. Rev. & Tax. Code Ann. Section(s) 674 (West Supp. 1996); Colo. Rev. Stat. Section(s) 24-103-202 (Supp. 1995); Conn. Gen. Stat. Section(s) 4a-57 (Supp. 1996); Del. Code Ann., Tit. 9, Section(s) 671 (1989); id., Tit. 29, Section(s) 6903(a) (1991); Fla. Stat. Section(s) 190.033 (Supp. 1996); id., Section(s) 287.057 (1991 and Supp. 1996); Ga. Code Ann. Section(s) 2-10-10 (1990); id., Section(s) 32-10-7, 32-10-68 (1991 and Supp. 1995); Haw. Rev. Stat. Section(s) 103D-302 (Supp. 1995); Idaho Code Section(s) 33-1510 (1995); id., Section(s) 43-2508 (Supp. 1995); id., Section(s) 50-1710 (1994); id., Section(s) 67-5711C (1995); id., Section(s) 67-5718 (1995 and 1996 Idaho Sess. Laws, ch. 198); Ill. Comp. Stat., ch. 50, Section(s) 20/20 (1993); id., ch. 65, Section(s) 5/8-10-3 (1993); id., ch. 70, Section(s) 205/25, 225/25, 265/25, 280/1-24, 280/2-24, 290/26, 310/5-24, 320/1-25, 320/2-25, 325/1-24, 325/2-24, 325/3-24, 325/5-24, 325/6-24, 325/7-24, 325/8-24, 340/25, 2305/11, 2405/11, 2805/14, 2905/5-4 (1993 and Supp. 1996); Ind. Code Section(s) 2-6-1.5-2, 10-7-2-28, 4-13.6-5-2, 8-16-3.5-5.5 (Supp. 1995); Iowa Code Section(s) 18.6 (1995); Kan. Stat. Ann. Section(s) 49-417(a) (Supp. 1990); id., Section(s) 75-3739 to 75-3741 (1989, Supp. 1990, and 1996 Kan. Sess. Laws); Ky. Rev. Stat. Ann. Section(s) 162.070 (Baldwin 1990); La. Rev. Stat. Ann. Section(s) 39:1594 (West 1989); Me. Rev. Stat. Ann., Tit. 5, Section(s) 1743, 1743-A (1989); Md. Ann. Code, Art. 25, Section(s) 3(l) (Supp. 1995, and 1996 Md. Laws, ch. 66); id., Art. 25A, Section(s) 5(F) (Supp. 1995); Md. Nat. Res. Code Ann. Section(s) 3-103(g)(3), 8-1005(c) (Supp. 1995); Mass. Gen. Laws, ch. 149, Section(s) 44A-44M (1989 and Supp. 1996); Mich. Comp. Laws Ann. Section(s) 247.661c (West Supp. 1996); Minn. Stat. Section(s) 16B.07 (1988 and Supp. 1996); Miss. Code Ann. Section(s) 27-35-101 (1995); id., Section(s) 31-7-13, 37-151-17 (Supp. 1995); Mo. Rev. Stat. Section(s) 34.040.1, 34.042.1, 68.055.1 (Supp. 1996); Mont. Code Ann. Section(s) 7-3-1323, 7-5-2301, 7-5-2302, 7-5-4302, 7-14-2404 (1995); Neb. Rev. Stat. Section(s) 81-885.55, 84-1603 (1994); Nev. Rev. Stat. Section(s) 332.065 (1984); N. H. Rev. Stat. Ann. Section(s) 28:8 (1988); id., Section(s) 186-C:22(VI) (Supp. 1995); id., Section(s) 228:4 (1993); N. J. Stat. Ann. Section(s) 28:1-7 (West 1981); N. M. Stat. Ann. Section(s) 13-1-102 (1992); N. Y. Alt. County Govt. Law Section(s) 401 (McKinney 1993); N. Y. Gen. Mun. Law Section(s) 103 (McKinney 1986 and Supp. 1996); N. C. Gen. Stat. Section(s) 133-10.1 (1995); id., Section(s) 143-49 (1993); N. D. Cent. Code Section(s) 54-44.4-05 (Supp. 1995); Ohio Rev. Code Ann. Section(s) 307.90, 511.12 (1994); id., Section(s) 3381.11 (1995); Okla. Stat., Tit. 11, Section(s) 24-114 (1994); id., Tit. 52, Section(s) 318 (1991); id., Tit. 61, Section(s) 101 (1989); Ore. Rev. Stat. Section(s) 279.015 (1991); 53 Pa. Cons. Stat. Section(s) 23308.1 (Supp. 1996); R. I. Gen. Laws Section(s) 45-55-5 (Supp 1995); S. C. Code Ann. Section(s) 11-35-1520 (Supp. 1995); S. D. Codified Laws Section(s) 5-18-2, 5-18-3 (1994); id., Section(s) 5-18-9 (Supp. 1996); id., Section(s) 9-42-5 (1995); id., Section(s) 11-7-44 (1995); id., Section(s) 13-49-16, 42-7A-5 (1991); Tenn. Code Ann. Section(s) 12-3-202, 12-3-203, 12-3-1007 (1992 and Supp. 1995); Tex. Educ. Code Ann. Section(s) 51.907 (1987); Tex. Loc. Govt. Code Ann. Section(s) 252.021, 262.023, 262.027, 271.027, 375.221 (1988 and Supp. 1996); Utah Code Ann. Section(s) 17A-2-1195 (1991); Vt. Stat. Ann., Tit. 29, Section(s) 152(12) (1986); Va. Code Ann. Section(s) 11-41, 11-41.1 (1993); Wash. Rev. Code Section(s) 28A.160.140, 36.32.250 (Supp. 1996); W. Va. Code Section(s) 4-7-7, 5-6-7 (1994); Wis. Stat. Section(s) 30.32 (1989 and Supp. 1995); id., Section(s) 60.47 (1988 and Supp. 1995); Wyo. Stat. Section(s) 35-2-429 (1994).
See, e.g., 41 U. S. C. Section(s) 252a(b), 403(11) (certain federal contracting laws rendered inapplicable "to a contract or subcontract that is not greater than" $100,000); Cal. Pub. Cont. Code Ann. Section(s) 10507.7 (West Supp. 1996) (lowest-responsible-bidder requirement for certain goods and materials only applicable to "contracts involving an [annual] expenditure of more than fifty thousand dollars"); Ill. Comp. Stat., ch. 50, Section(s) 20/20 (1993) (lowest-responsible-bidder requirement for certain construction contracts not applicable to contracts for more than $5,000); N. Y. Gen. Mun. Law Section(s) 103.1 (McKinney Supp. 1996) (not covering public-work contracts for $20,000 or less or purchase contracts for $10,000 or less); S. D. Codified Laws Section(s) 5-18-3 (Supp. 1996) (requiring competitive bidding process for certain public-improvement contracts "involv[ing] the expenditure of twenty-five thousand dollars or more"); Texas Local Govt. Code Ann. Section(s) 262.023(a) (Supp. 1996) (applying only to "a contract that will require an expenditure exceeding $15,000").
See, e. g., Idaho Code Section(s) 33-1510 (1995); N. J. Stat. Ann. Section(s) 28:1-7 (1981); Ohio Rev. Code Ann. Section(s) 511.12 (Supp. 1995); Okla. Stat., Tit. 52, Section(s) 318 (1991); Utah Code Ann. Section(s) 17A-2-1195 (1991).
See, e.g., Del. Code Ann., Tit. 29, Section(s) 6903(a)(2) (1991); Fla. Stat. Section(s) 287.057(3)(a) (Supp. 1996); Minn. Stat. Section(s) 16B.08(6) (1988); N. H. Rev. Stat. Ann. Section(s) 228:4(I)(e) (1993); Tenn. Code Ann. Section(s) 12-3-202(3), 12-3-206 (1992).
O'Hare makes a brief attempt to minimize the seriousness of the litigation concern, pointing out that "[t]he amicus brief filed on behalf of respondents' position represents that in the six years since our opinion in [Rutan] . . . only 18 suits alleging First Amendment violations in employment decisions have been filed against Illinois state officials." Ante, at 11. In fact the brief said "at least eighteen cases," Brief for Illinois State Officials as Amici Curiae, at 3 (emphasis added), and that includes only suits against state officials, and not those against the officials of Illinois' 102 counties or its even more numerous municipalities. Those statistics pertain to employment suits, moreover-and as I have discussed, the contracting suits will be much more numerous.
O'Hare also says that "we have found no reported case in the Tenth Circuit involving a First Amendment patronage claim by an independent contractor in the six years since its Court of Appeals first recognized such claims, see Abercrombie v. Catoosa, 896 F. 2d 1228 (1990)." O'Hare, ante, at 11-12. With respect, Abercrombie (which discussed this issue in two short paragraphs) was such an obscure case that even the District Court in Umbehr, located in the Tenth Circuit, did not cite it, though it discussed cases in other jurisdictions. Umbehr v. McClure, 840 F. Supp. 837 (Kan. 1993). And when the Tenth Circuit reversed the District Court, it did not do so on the basis of Abercrombie-which, it noted, had "simply assumed that an independent contractor could assert a First Amendment retaliation claim" and had given "little reasoning" to the matter but merely so "suggested, without analysis." 44 F. 3d 876, 880 (1995) (emphasis added). Abercrombie was, in short, such a muffled clarion that even the courts did not hear it, much less the public at large.
See, e.g., Cal. Pub. Cont. Code Ann. Section(s) 10302, 10507.7, 20803 (West 1985 and Supp. 1996); Ill. Comp. Stat., ch. 50, Section(s) 20/20, 25/3; id., ch. 70, Section(s) 15/8, 15/9, 205/25, 220/1-24, 220/2-24 (1993); N. Y. Gen. Mun. Law Section(s) 103.1 (McKinney Supp. 1996).
As the dissenters in Rutan v. Republican Party of Ill., 497 U. S. 62 (1990), agreed, "it greatly exaggerates [the constraints entailed by patronage] 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." Id., at 109-110 (Scalia, J., dissenting).