| Opinion [ Kennedy ] | Syllabus | Dissent [ Scalia ] |
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Nos. 94-1654 and 95-191
BOARD OF COUNTY COMMISSIONERS, WABAUNSEE COUNTY, KANSAS, PETITIONER
v.
on writ of certiorari to the united states court of appeals for the tenth circuit
O'HARE TRUCK SERVICE, INCORPORATED, et al., PETITIONERS v. CITY OF NORTHLAKE et al.
95-191
on writ of certiorari to the united states court of appeals for the seventh circuit
[
Justice
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:
"[W]hen 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 "[m]any 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, §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. § 441c competitive bidding requirements for contracts with executive agencies, 41 U.S.C. §§ 252-253, public corruption and bribery statutes, e.g., 18 U.S.C. § 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, "[t]heir 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. [n.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 "[e]ach year . . . enter[s] 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, [n.2] or those covering certain subject matters, [n.3] or those that are time sensitive. [n.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 §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 §1983 lawsuit) easily defended against.
The Court's opinion in O'Hare shrugs off this concern with the response that "[w]e 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 out balanced 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. [n.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? " [P]roperty 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." [n.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 "[i]t 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 "[t]hat 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 "[d]eference . . . to the government's reasonable assessments of its interests as contractor," ante, at 9 (emphasis removed). "[S]uch 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--"or 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 nocoercion here, [n.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 "curr[y] favor with diverse political parties," on the ground that the fact "[t]hat 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 "[t]here 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, "[w]hat 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] includ[ed]" 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.
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.
I dissent.
Notes
1 See, e.g., Ala. Code §11-43C%70 (1989); id., §24-1-83 (1992); id., §41-16-20 (Supp. 1995); Alaska Stat. Ann. §36.30.100 (1992); Ariz. Rev. Stat. Ann. §41-2533 (1992); Ark. Code Ann. §§14-47-120, 14-47-138, 14-48-117, 14-48-129 (1987); Cal. Pub. Cont. Code Ann. §§10302, 10309, 10373, 10501, 10507.7, 20723, 20736, 20751, 20803, 20921, 21501, 21631 (West 1985 and Supp. 1996); Cal. Pub. Util. Code Ann. §131285 (West 1991); Cal. Rev. & Tax. Code Ann. §674 (West Supp. 1996); Colo. Rev. Stat. §24-103-202 (Supp. 1995); Conn. Gen. Stat. §4a-57 (Supp. 1996); Del. Code Ann., Tit. 9, §671 (1989); id., Tit. 29, §6903(a) (1991); Fla. Stat. §190.033 (Supp. 1996); id., §287.057 (1991 and Supp. 1996); Ga. Code Ann. §2-10-10 (1990); id., §§32-10-7, 32-10-68 (1991 and Supp. 1995); Haw. Rev. Stat. §103D-302 (Supp. 1995); Idaho Code §33-1510 (1995); id., §43-2508 (Supp. 1995); id., §50-1710 (1994); id., §67-5711C (1995); id., §67-5718 (1995 and 1996 Idaho Sess. Laws, ch. 198); Ill. Comp. Stat., ch. 50, §20/20 (1993); id., ch. 65, §5/8-10-3 (1993); id., ch. 70,§§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 §§2-6-1.5-2, 10-7-2-28, 4-13.6-5-2, 8-16-3.5-5.5 (Supp. 1995); Iowa Code §18.6 (1995); Kan. Stat. Ann. §49-417(a) (Supp. 1990); id., §§75-3739 to 75-3741 (1989, Supp. 1990, and 1996 Kan. Sess. Laws); Ky. Rev. Stat. Ann. §162.070 (Baldwin 1990); La. Rev. Stat. Ann. §39:1594 (West 1989); Me. Rev. Stat. Ann., Tit. 5, §§1743, 1743-A (1989); Md. Ann. Code, Art. 25, §3(l) (Supp. 1995, and 1996 Md. Laws, ch. 66); id., Art. 25A, §5(F) (Supp. 1995); Md. Nat. Res. Code Ann. §§3-103(g)(3), 8-1005(c) (Supp. 1995); Mass. Gen. Laws, ch. 149, §§44A-44M (1989 and Supp. 1996); Mich. Comp. Laws Ann. §247.661c (West Supp. 1996); Minn. Stat. §16B.07 (1988 and Supp. 1996); Miss. Code Ann. §27-35-101 (1995); id., §§31-7-13, 37-151-17 (Supp. 1995); Mo. Rev. Stat. §§34.040.1, 34.042.1, 68.055.1 (Supp. 1996); Mont. Code Ann. §§7-3-1323, 7-5-2301, 7-5-2302, 7-5-4302, 7-14-2404 (1995); Neb. Rev. Stat. §§81-885.55, 84-1603 (1994); Nev. Rev. Stat. §332.065 (1984); N. H. Rev. Stat. Ann. §28:8 (1988); id., §186-C:22(VI) (Supp. 1995); id., §228:4 (1993); N. J. Stat. Ann. §28:1-7 (West 1981); N. M. Stat. Ann. §13-1-102 (1992); N. Y. Alt. County Govt. Law §401 (McKinney 1993); N. Y. Gen. Mun. Law §103 (McKinney 1986 and Supp. 1996); N. C. Gen. Stat. §133-10.1 (1995); id., §143-49 (1993); N. D. Cent. Code §54-44.4-05 (Supp. 1995); Ohio Rev. Code Ann. §§307.90, 511.12 (1994); id., §3381.11 (1995); Okla. Stat., Tit. 11, §24-114 (1994); id., Tit. 52, §318 (1991); id., Tit. 61, §101 (1989); Ore. Rev. Stat. §279.015 (1991); 53 Pa. Cons. Stat. §23308.1 (Supp. 1996); R. I. Gen. Laws §45-55-5 (Supp 1995); S. C. Code Ann. §11-35-1520 (Supp. 1995); S. D. Codified Laws §§5-18-2, 5-18-3 (1994); id., §5-18-9 (Supp. 1996); id., §9-42-5 (1995); id., §11-7-44 (1995); id., §13-49-16, 42-7A%5 (1991); Tenn. Code Ann. §§12-3-202, 12-3-203, 12-3-1007 (1992 and Supp. 1995); Tex. Educ. Code Ann. §51.907 (1987); Tex. Loc. Govt. Code Ann. §§252.021, 262.023, 262.027, 271.027, 375.221 (1988 and Supp. 1996); Utah Code Ann. §17A-2-1195 (1991); Vt. Stat. Ann., Tit. 29, §152(12) (1986); Va. Code Ann. §§11-41, 11-41.1 (1993); Wash. Rev. Code §§28A.160.140, 36.32.250 (Supp. 1996); W. Va. Code §§4-7-7, 5-6-7 (1994); Wis. Stat. §30.32 (1989 and Supp. 1995); id., §60.47 (1988 and Supp. 1995); Wyo. Stat. §35-2-429 (1994).
2 See, e.g., 41 U.S.C. §§ 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. §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, §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 §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 §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. §262.023(a) (Supp. 1996) (applying only to "a contract that will require an expenditure exceeding $15,000").
3 See, e. g., Idaho Code §33-1510 (1995); N. J. Stat. Ann. §28:1-7 (1981); Ohio Rev. Code Ann. §511.12 (Supp. 1995); Okla. Stat., Tit. 52, §318 (1991); Utah Code Ann. §17A-2-1195 (1991).
4 See, e.g., Del. Code Ann., Tit. 29, §6903(a)(2) (1991); Fla. Stat. §287.057(3)(a) (Supp. 1996); Minn. Stat. §16B.08(6) (1988); N. H. Rev. Stat. Ann. §228:4(I)(e) (1993); Tenn. Code Ann. §§12-3-202(3), 12-3-206 (1992).
5 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.
6 See, e.g., Cal. Pub. Cont. Code Ann. §§10302, 10507.7, 20803 (West 1985 and Supp. 1996); Ill. Comp. Stat., ch. 50, §§20/20, 25/3; id., ch. 70, §§15/8, 15/9, 205/25, 220/1-24, 220/2-24 (1993); N. Y. Gen. Mun. Law §103.1 (McKinney Supp. 1996).
7 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).