Justices Bar Most Political Patronage

The Supreme Court sounded the death knell for patronage in public employment Thursday, ruling that most government jobs may not be handed out on the basis of politics.

In a 5-4 decision, the high court said that the First Amendment’s guarantee of freedom of speech and association protects public employees from discrimination because of their political views or party affiliations.

Top policy-making officials in government still may be chosen for political reasons, the court said. But politics may not play a part in the hiring, promoting, transferring or firing of public employees such as road workers, secretaries, counselors or prison guards.

The government may not “press state employees and applicants to conform their beliefs and association to some state-selected orthodoxy,” said Justice William J. Brennan Jr. for the court.

In the 19th Century, American politics operated on a different principle: “To the victor belong the spoils.” At all levels of government, but particularly in big cities, a winning political party also won the right to hand out government jobs to its supporters. Party bosses flourished, and so, too, did cronyism and corruption.

Beginning in the 1890s, government reformers of the Progressive era won approval for civil service systems that stressed merit in hiring, rather than political favoritism. California and Wisconsin were among the leaders in wiping out patronage in government.

But patronage lived on in such states as Illinois, Pennsylvania, Massachusetts and New York, as well as in such big cities as Philadelphia, Chicago and Boston.

In 1976, however, the Supreme Court dealt the first legal blow to patronage by ruling that Democratic bosses in Chicago could not fire city workers simply because they had failed to support Democrats. In a splintered opinion then, the court said that forcing public workers to support the favored party “unquestionably inhibits protected belief and association,” according to Brennan, who spoke for only three justices.

Nevertheless, in 1980, Illinois’ Republican Gov. James R. Thompson, then newly elected, issued an order freezing 60,000 state jobs. No one could be hired, promoted, recalled or transferred until Republican political operatives checked to see whether the applicants had voted in a Republican primary, given money to the party or worked on its behalf.

Five employees filed suit, charging that they had lost jobs or promotions because of the governor’s patronage policy. Cynthia Rutan, a rehabilitation counselor, said that she was passed over for a promotion because she had not supported the Republicans. The others were a prison guard, a road worker, a cafeteria manager and a garage worker. None had policy-making jobs.

A district judge threw out their suit in 1986, concluding that no employee had a First Amendment right to a public job. But the U.S. 7th Circuit Court of Appeals reinstated part of the lawsuit last year. Workers who could prove that they had suffered the equivalent of a “dismissal” could sue, but the others could not, the appeals court said. Before going to trial, the five Illinois employees appealed to the Supreme Court.

This time, Brennan, speaking for the five-member majority, extended his 1976 opinion to cover not just firings but all personnel moves involving public jobs that do not involve making policy.

“The First Amendment prevents the government, except in the most compelling circumstances, from wielding its power to interfere with its employees’ freedom to believe and associate, or to not believe and not associate,” he wrote. His opinion in the case (Rutan vs. Republican Party of Illinois, 88-1872) was joined by Justices Byron R. White, Thurgood Marshall, Harry B. Blackmun and John Paul Stevens.

Brennan did not spell out a clear distinction between “low-level” public jobs and those higher-level jobs that can be filled through patronage. In earlier decisions, the court has approved of the election of judges for political reasons but said that an assistant public defender did not have a “policy-making” job and, therefore, could not be fired for political reasons.

In dissent, Justice Antonin Scalia said that patronage has been an accepted norm through most of American history, and he noted that “the members of this court . . . owe their office” to political appointments. Trying to remove politics “may well have disastrous consequences for our political system,” he added.

Like Scalia, many political scientists recently have bemoaned the decline of American political parties and have placed much of the blame on their loss of patronage power.

“This is a terrible, tragic decision for the two-party system,” said Larry Sabato, a professor at the University of Virginia. “Patronage is the oil that greases the machine of government. It’s been an essential part of a functioning two-party democracy.”

But lawyers who represented the employees applauded the court for getting politics out of routine personnel decisions. “We think the court was right to say public employees should have a right to their own political views and that they should be protected from political retaliation,” said Walter Kamiat, AFL-CIO associate general counsel.

Mary Lee Leahy, a Springfield, Ill., lawyer who filed the suit on behalf of the five state employees, said that they made decisions in their jobs that were far removed from politics and public policy. The cafeteria manager “decided whether orange or lime sherbet would be on the menu,” she said, hardly the kind of decision that should be governed by politics.

Gov. Thompson’s patronage order is still in effect and the employee’s suit will now go to trial, she said.

In another decision, the court said that states and consumers may not use federal antitrust laws to sue energy producers for fixing prices. In 1977, the court said that federal law permitted only direct buyers of a product, not indirect purchasers, to sue for price fixing. In this case, 32 states asked the high court to make an exception in the energy field because consumers get their power from utilities, which pass on any overcharges to their customers. If consumers cannot sue, who will, they asked?