Elrod v. Burns

Mr. Justice Powell,

with whom The Chief Justice and Mr. Justice Rehnquist join, dissenting.

The Court holds unconstitutional a practice as old as the Republic, a practice which has contributed significantly to the democratization of American politics. This decision is urged on us in the name of First Amendment rights, but in my view the judgment neither is constitu*377tionally required nor serves the interest of a representative democracy. It also may well disserve — rather than promote — core values of the First Amendment. I therefore dissent.

I

The Cook County Sheriff's Office employs approximately 3,000 people. Roughly half of these employees are “merit” employees given various protections from discharge. The other half of the employees have no such protection. Customary Illinois political practice has allowed such “nonmerit” positions to be awarded on “patronage” grounds. This tradition has entitled newly elected officeholders to replace incumbent nonmerit employees with patronage appointments.

Petitioner Richard Elrod, a Democrat, was elected Sheriff of Cook County in 1970, succeeding a Republican. Consistently with Illinois practice, he dismissed a number of incumbent employees because they lacked Democratic affiliation and were unable to secure Democratic sponsorship. The named respondents, several discharged employees and another employee threatened with discharge, are all Republicans who concededly were hired by Elrod’s predecessor because of their political affiliations.

II

As the plurality opinion recognizes, patronage practices of the sort under consideration here have a long history in America.1 Although an extensive recounting of that history is not necessary, I think it important to *378survey it more fully than does the plurality opinion.2 The observation that patronage in employment received its primary popularization and legitimation during Jackson’s Presidency, ante, at 353, understates the historical antecedents of the practice, which stretch back to Washington’s Presidency.

Partisan politics, as we now know them, did not assume a prominent role in national politics immediately after the adoption of the Constitution. Nonetheless, Washington tended to confine appointments even of customs officials and postmasters to Federalists, as opposed to anti-Federalists. As the role of parties expanded, partisan considerations quickly influenced employment decisions. John Adams removed some Republicans from minor posts, and Jefferson, the first President to succeed a President of an opposing party, made significant patronage use of the appointment and removal powers. The administrations of Madison, Monroe, and John Quincy Adams provided no occasion for conspicuous patronage practice in employment, as each succeeded a copartisan. Jackson, of course, used patronage extensively when he became the first President since Jefferson to succeed an antagonistic administration.

It thus appears that patronage employment practices emerged on the national level at an early date, and that they were conspicuous during Jackson’s Presidency largely because of their necessary dormancy during the long succession of Republican Presidents. During that period, however, patronage in hiring was practiced widely in the States, especially in New York and Pennsylvania. This afforded a theoretical and popular legitimacy to patronage, helping to lay the groundwork for acceptance of Jackson’s actions on the national level.

*379It is recognized that patronage in employment played a significant role in democratizing American politics. See, e. g., C. Fish, The Civil Service and the Patronage 156-157 (1905); Sorauf, Patronage and Party, 3 Midwest J. Pol. Sci. 115-116 (1959). Before patronage practices developed fully, an “aristocratic” class dominated political affairs, a tendency that persisted in areas where patronage did not become prevalent. C. Fish, supra, at 157. Patronage practices broadened the base of political participation by providing incentives to take part in the process, thereby increasing the volume of political discourse in society. Patronage also strengthened parties, and hence encouraged the development of institutional responsibility to the electorate on a permanent basis. Parties became “instrument [s] through which discipline and responsibility may be achieved within the Leviathan.” Sorauf, supra, at 115.

In many situations patronage employment practices also entailed costs to government efficiency. These costs led eventually to reforms placing most federal and state civil service employment on a nonpatronage basis. But the course of such reform is of limited relevance to the task of constitutional adjudication in this case. It is pertinent to note, however, that a perceived impingement on employees’ political beliefs by the patronage system was not a significant impetus to such reform. Most advocates of reform were concerned primarily with the corruption and inefficiency that patronage was thought to induce in civil service and the power that patronage practices were thought to give the “professional” politicians who relied on them. D. Rosenbloom, Federal Service and the Constitution 70-74 (1971). Moreover, it generally was thought that elimination of these evils required the imposition both of a merit system and of restrictions on First Amendment activities *380by government employees. Id., at 76-77, 82-86; see, e. g., CSC v. Letter Carriers, 413 U. S. 648 (1973).

Ill

It might well be possible to dispose of this case on the ground that it implicates no First Amendment right of the respondents, and therefore that they have failed to state a cause of action. They are employees seeking to avoid discharge — not citizens desiring an opportunity to be hired by the county without regard to their political affiliation or loyalty. Respondents’ complaint acknowledges the longstanding existence of the patronage system they now challenge:

“For many years past and continuing to this time it has been the practice of the elected Sheriff of Cook County, when he assumes office from a Sheriff of a different political party, to replace all or substantially all of the non-civil service employees of the Sheriff’s office who did not (a) Pledge their political allegiance to the political party of the incoming Sheriff; [and/or meet other specified political requirements] . . . .” App. 3.

We thus have complaining employees who apparently accepted patronage jobs knowingly and willingly, while fully familiar with the “tenure” practices long prevailing in the Sheriff’s Office. Such employees have benefited from their political beliefs and activities; they have not been penalized for them. In these circumstances, I am inclined to agree with the holding of the Supreme Court of Pennsylvania in American Federation of State Employees v. Shapp, 443 Pa. 527, 280 A. 2d 375 (1971), that beneficiaries of a patronage system may not be heard to challenge it when it comes their turn to be replaced. See also Nunnery v. Barber, 503 F. 2d 1349 (CA4 1974).

The plurality opinion virtually ignores this issue in *381an apparent rush to constitutional adjudication. It also may be that the pleadings present an inadequate record on which to decide this matter.3 In any event, I am forced to turn to the question addressed by the plurality, even though a full development of the evidence or more carefully drawn pleadings may have justified a disposition on the ground that these respondents cannot challenge the patronage hiring practices.4

IV

The question is whether it is consistent with the First and Fourteenth Amendments for a State to offer some employment conditioned, explicitly or implicitly, on partisan political affiliation and on the political fortunes of the incumbent officeholder. This is to be determined, as the plurality opinion agrees, by whether patronage hiring practices sufficiently advance important state interests to justify the consequent burdening of First Amendment interests. Buckley v. Valeo, 424 U. S. 1, 25 (1976); ante, at 360-363. It is difficult to disagree with the view, as an abstract proposition, that government employment ordinarily should not be conditioned upon one’s political beliefs or activities. But we deal *382here with a highly practical and rather fundamental element of our political system, not the theoretical abstractions of a political science seminar. In concluding that patronage hiring practices are unconstitutional, the plurality seriously underestimates the strength of the government interest — especially at the local level — in allowing some patronage hiring practices, and it exaggerates the perceived burden on First Amendment rights.5

A

As indicated above, patronage hiring practices have contributed to American democracy by stimulating political activity and by strengthening parties, thereby helping to make government accountable.6 It cannot be questioned seriously that these contributions promote important state interests. Earlier this Term we said of the government interest in encouraging political debate:

“[Public financing of Presidential campaigns] is . . . [an effort] to use public money to facilitate and enlarge public discussion and participation in the electoral process, goals vital to a self-governing people.” Buckley v. Valeo supra, at 92-93 (footnote omitted).
*383“Legislation to enhance these First Amendment values is the rule, not the exception. Our statute books are replete with laws providing financial assistance to the exercise of free speech . . . Id., at 93 n. 127.

We also have recognized the strong government interests in encouraging stable political parties and avoiding excessive political fragmentation. Through the medium of established parties the “people . . . are presented with understandable choices and the winner in the general election with sufficient support to govern effectively,” Storer v. Brown, 415 U. S. 724, 735 (1974), while “splintered parties and unrestrained factionalism [might] do significant damage to the fabric of government.” Id., at 736. See Buckley v. Valeo, supra, at 98, 101.

Without analysis, however, the plurality opinion disparages the contribution of patronage hiring practices in advancing these state interests. It merely asserts that such practices cause the “free functioning of the electoral process [to suffer],” ante, at 356, and that “we are not persuaded that the elimination of . . . patronage dismissals, will bring about the demise of party politics.” Ante, at 369. One cannot avoid the impression, however, that even a threatened demise of parties would not trouble the plurality. In my view, this thinking reflects a disturbing insensitivity to the political realities relevant to the disposition of this case.7

The complaining parties are or were employees of the Sheriff. In many communities, the sheriff’s duties are as routine as process serving, and his election attracts little or no general public interest. In the States, and *384especially in the thousands of local communities, there are large numbers of elective offices, and many are as relatively obscure as that of the local sheriff or constable. Despite the importance of elective offices to the ongoing work of local governments, election campaigns for lesser offices in particular usually attract little attention from the media, with consequent disinterest and absence of intelligent participation on the part of the public. Unless the candidates for these offices are able to dispense the traditional patronage that has accrued to the offices, they also are unlikely to attract donations of time or money from voluntary groups. In short, the resource pools that fuel the intensity of political interest and debate in “important” elections frequently “could care less” about who fills the offices deemed to be relatively unimportant. Long experience teaches that at this local level traditional patronage practices contribute significantly to the democratic process. The candidates for these offices derive their support at the precinct level, and their modest funding for publicity, from cadres of friends and political associates who hope to benefit if their “man” is elected.8 The activities of the latter are *385often the principal source of political information for the voting public. The “robust” political discourse that the plurality opinion properly emphasizes is furthered — not restricted — by the time-honored system.

Patronage hiring practices also enable party organizations to persist and function at the local level. Such organizations become visible to the electorate at large only at election time, but the dull periods between elections require ongoing activities: precinct organizations must be maintained; new voters registered; and minor political “chores” performed for citizens who otherwise may have no practical means of access to officeholders. In some communities, party organizations and clubs also render helpful social services.

It is naive to think that these types of political activities are motivated at these levels by some academic interest in “democracy” or other public service impulse. For the most part, as every politician knows, the hope of some reward generates a major portion of the local political activity supporting parties. It is difficult to overestimate the contributions to our system by the major political parties, fortunately limited in number compared to the fractionalization that has made the continued existence of democratic government doubtful in some other countries. Parties generally are stable, high-profile, and permanent institutions. When the names on a long ballot are meaningless to the average voter, party affiliation affords a guidepost by which voters may rationalize a myriad of political choices. Cf. Buckley v. Valeo, 424 U. S., at 66-68. Voters can and do hold parties to long-term accountability, and it is not too much to say that, in their absence, responsive and responsible performance in low-profile offices, particularly, is difficult to maintain.

It is against decades of experience to the contrary, then, that the plurality opinion concludes that patronage *386hiring practices interfere with the “free functioning of the electoral process.” Ante, at 356. This ad hoc judicial judgment runs counter to the judgments of the representatives of the people in state and local governments, representatives who have chosen, in most instances, to retain some patronage practices in combination with a merit-oriented civil service. One would think that elected representatives of the people are better equipped than we to weigh the need for some continuation of patronage practices in light of the interests above identified,9 and particularly in view of local conditions.10 See CSC v. *387Letter Carriers, 413 U. S., at 564; United Public Workers v. Mitchell, 330 U. S. 75, 99 (1947). Against this background, the assertion in the plurality opinion that “[p]a-tronage dismissals . . . are not the least restrictive alternative to achieving [any] contribution they may make to the democratic process” is unconvincing, especially since no alternative to some continuation of patronage practices is suggested. Ante, at 369 (footnote omitted).

B

I thus conclude that patronage hiring practices sufficiently serve important state interests, including some interests sought to be advanced by the First Amendment, to justify a tolerable intrusion on the First Amendment interests of employees or potential employees.

The plurality opinion asserts that patronage hiring practices contravene the fundamental principle that “ 'no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion Ante, at 356, quoting Board of Education v. Barnette, 319 U. S. 624, 642 (1943). But such practices simply cannot be so construed. This case differs materially from previous cases involving the imposition of political conditions on employment, see, e. g., Garner v. Los Angeles Board, 341 U. S. 716 (1951), cases where there was an attempt to exclude “a minority group . . . odious to the majority.” Id., at 725 (Frankfurter, J., concurring in part and dissenting in part). In that context there was a danger that governmental action was directed toward the elimination of political beliefs *388by penalizing adherents to them. But patronage hiring practices have been consistent historically with vigorous ideological competition in the political “marketplace.” And even after one becomes a beneficiary, the system leaves significant room for individual political expression. Employees, regardless of affiliation, may vote freely11 and express themselves on some political issues. See Perry v. Sindermann, 408 U. S. 593 (1972); Pickering v. Board of Education, 391 U. S. 563 (1968). The principal intrusion of patronage hiring practices on First Amendment interests thus arises from the coercion on associational choices that may be created by one’s desire initially to obtain employment. This intrusion, while not insignificant, must be measured in light of the limited role of patronage hiring in most government employment. The pressure to abandon one’s beliefs and associations to obtain government employment — especially employment of such uncertain duration — does not seem to me to assume impermissible proportions in light of the interests to be served.

V

On the assumption that we must reach the constitutional issue at the behest of respondents, I would hold that a state or local government may elect to condition employment on the political affiliation of a prospective employee and on the political fortunes of the hiring incumbent. History and long-prevailing practice across the country support the view that patronage hiring practices make a sufficiently substantial contribution to the practical functioning of our democratic system to sup*389port their relatively modest intrusion on First Amendment interests. The judgment today unnecessarily con-stitutionalizes another element of American life — an element certainly not without its faults but one which generations have accepted on balance as having merit.12 We should have heeded, instead, the admonition of Mr. Justice Holmes that “[i]f a thing has been practised for two hundred years by common consent, it will need a strong case for the Fourteenth Amendment to affect it . . . Jackman v. Rosenbaum Co., 260 U. S. 22, 31 (1922); see Walz v. Tax Comm’n, 397 U. S. 664, 678 (1970).

Substantially for the reasons stated in the plurality opinion, I agree that the question presented here is a justiciable one. I note, however, that the ability to formulate judicial standards is another factor to be considered in evaluating justiciability. Baker v. Carr, 369 U. S. 186 (1962). The difficulty of formulating standards might pose a bar to judicial review of some patronage practices not before us.

The sources primarily relied upon for the statements in text are C. Fish, The Civil Service and the Patronage (1905), and D. Rosenbloom, Federal Service and the Constitution (1971).

On petitioners' motion to dismiss, the District Court had before it only the complaint and the petitioners’ conclusory motions to dismiss. Although one reasonably may be confident that these employees willingly accepted this employment as political patronage, with full knowledge that their continued employment depended on the outcome of the next election, this may not be entirely clear from the pleadings as viewed upon a motion to dismiss. The District Court made no finding of fact in this respect, and its brief opinion does not rely on this ground.

One may agree readily that different plaintiffs legitimately could assert First Amendment interests. These would be individuals who desired to be hired for state or local employment and who possessed all requisite qualifications except the “right” political posture or sponsorship.

This case involves only employees. We thus face no allegations that patronage practices exclude any voters or candidates from effective participation in the political process by impermissibly disadvantaging them. Cf. Shakman v. Democratic Organization of Cook County, 435 F. 2d 267 (CA7 1970). Elrod informs us that since 1955 two Democrats, two Republicans, and an Independent have served as Sheriff. Reply Brief for Petitioners 11 n. 20a.

Some commentators have believed that patronage hiring practices promote other social interests as well:

“Patronage is peculiarly important for minority groups, involving much more than the mere spoils of office. Each first appointment given a member of any underdog element is a boost in that element’s struggle for social acceptance. It means that another barrier to their advance has been lifted, another shut door has swung open.” S. Lubell, The Future of American Polities 76-77 (1952).

As this case presents only the question whether a State constitutionally may pursue patronage hiring practices, we do not consider whether such practices would be justified if pursued by the Federal Government.

Former Senator Paul H. Douglas (D. Ill.) said of patronage hiring practices:

“In short, I am for civil service but not for having civil service dominate public employment 100 percent. That would give us the bureaucracy of Germany and France which I do not regard as ideal.
“But I would like to have you consider just how long most liberals would be able to last in Congress if you stripped us of all patronage, as you desire. We who try to defend the interests of the people, the consumers and the taxpayers commonly face the powerful opposition of the special-interest groups which will spend enormous sums of money to defeat us. . . . If we are to survive we need some support rooted in gratitude for material favors which at the same time do not injure the general public.” Letter to New Republic, July 14, 1952, p. 2.

The plurality might be taken to concede some promotion of the democratic process by patronage hiring practices but to conclude that in net effect such practices will reduce political debate impermissibly by affecting some employees or potential employees and thereby depriving society of the “unfettered judgment of each citizen on matters of political concern.” Ante, at 372. In the past the Court has upheld congressional actions designed to increase the overall level of political discourse but affecting adversely the First Amendment interests of some individuals. Buckley v. Valeo, 424 U. S. 1, 64-68 (1976) (disclosure requirements); CSC v. Letter Carriers, 413 U. S. 548, 564r-566 (1973); Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 392-395 (1969). In Letter Carriers we indicated specifically that the First Amendment freedoms of federal employees could be limited in an effort to further the functioning of the democratic process. I do not believe that local legislative judgments as to what will further the democratic process in fight of local conditions should receive less weight than these congressional judgments. Surely that should be the case until we have a record, if one could be created, showing the fears of the plurality to be justified.

The judgment today is limited to nonpoficymaking positions. Ante, at 367-368. A “policymaking” exception, however, will not allow substantial advancement of the state interests undercut by the Court’s holding, as it is doubtful that any significant number of employees can be identified as policymakers in a sheriff’s office. States have chosen to provide for the election of many local officials who have little or no genuine policymaking functions, see supra, at 383-384, and the subordinates of such officials are even less likely to *387have such functions. It thus is predictable that the holding today will terminate almost completely the contributions of patronage hiring practices to the democratic process. The probability of this result is increased to the extent that the needs of efficiency in local government require that policymaking positions be included in a merit-oriented, nonpolitical civil service.

It appears that before the adoption of the Australian ballot, one’s access to or retention of a government job sometimes could depend on voting “correctly.” D. Rosenbloom, supra, n. 2, at 61. Today this ultimate core of political expression is beyond the reach of any coercive effects of the patronage system.

In concluding that the Constitution does not require the invalidation of state and local patronage systems, I wish to make clear that approval of any particular type of system or of the practice in any particular State, city, or community is not implied. I believe that the prevailing practice is to establish a broad base of merit-oriented civil service, but to leave some room for the operation of traditional patronage. I must say that the “mix” in Cook County (where only about half of the employees in the Sheriff's Office are within the merit system) seems disproportionate. On the other hand, there are smaller communities — e. g., where nonpartisan, council-manager forms of government exist — in which the merit system embraces the vast majority of public employees. Political scientists and students of government differ, and their views also have varied from time to time, as to the best means of structuring state and local government employment in the public interest. Nor is the answer necessarily the same for every community without regard to its size, form of government, or other local conditions. My conviction, as indicated in the opinion above, is that we should not foreclose local options in the name of a constitutional right perceived to be applicable for the first time after nearly two centuries.