concurring.
I.
In 1976, over a strong dissent by Justice Powell, the Supreme Court announced its decision in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 647 (1976), holding that the First and Fourteenth Amendments prohibit the dismissal of certain government employees on the basis of political affiliation.1 In Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), over a similar Powell dissent,2 the Court clarified Elrod by making clear that: (1) Elrod prohibits dismissal on the basis of party affiliation even if the discharged employee cannot show that he or she was coerced into changing his or her political allegiance; and (2) government employees can be dismissed for their party affiliation only when the government can show that certain political beliefs are necessary to carry out the duties of those offices. Then, in Rutan v. Republican Party of Illinois, 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990), the Court extended the Elrod principle to include hiring as well as firing. But Justice Scalia, undaunted by a decade and a half of Elrod’s hegemony, wrote a powerful dissent, building upon the words of Justice Powell, and assailing the Elrod-Branti-Rutan trilogy as not only amounting to bad constitutional law, but also as reflecting a deep misunderstanding of the essential, role that the patronage system has played in American history and political tradition.3
As this recitation suggests, the view that the Elrod-Branti-Rutan trilogy was a sérious mistake will not die. That it will not is, I suspect, because of the compelling logic of the Powell and Scalia arguments, described infra, as well as the fact that the total domination of election campaigns by money and special interests that we have seen in recent years not only adds fuel to the fire of the Powell and Scalia arguments, but renders them prophetic. The need to reexamine the trilogy, which is what I will argue for, is thus counseled by new developments in the years since the trilogy was complete. The need is doubled in spades by the extreme result in the present case.4
The “extreme result” is that the majority has been led by the Elrod trilogy to rule, in effect, that any political leader who advises his political associates to discharge a political opponent may be subject to suit under 42 U.S.C. § 1983 for a First Amendment violation. Although the present defendant, “Boss” Foerster, is a public official and a member of the Salary Board, under the majority’s logic, Foerster would be liable as a § 1983 co-conspirator if he were a private citizen-political boss who gave the same “orders” he is charged with giving here, to me a quite startling proposition. This result causes me to question whether there is now any limit to examination in the courts or under the aegis of the courts (through depositions and interrogatories) of any government personnel or procurement decision that gores the ox of someone who can claim political foul. And, query whether there is any limit to the judicial examination of the mental processes and conversations of defendants in such cases. If there is not, the fundamental premise of representative government — that *106it is our public officials who are held accountable for their actions at the ballot box rather than their political “bosses” — seems not only challenged, but also undermined.5
The 1996 election campaigns were startling in the extent to which the influence of money and special interest groups so clearly dwarfed the role of the political parties in affecting the outcomes. But this is the very specter that loomed so large in the sights of Justice Powell when he decried the results in Brcmti:
Particularly'in a time of growing reliance upon expensive television advertisements, a candidate who is neither independently wealthy nor capable of attracting substantial contributions must rely upon party workers to bring his message to the voters. In contests for less visible offices, a candidate may have no efficient method of appealing to the voters unless he enlists the efforts of persons who seek reward through the patronage "system. Insofar as the Court’s decision today limits the ability of candidates to present their views to the electorate, our democratic process surely is weakened.
Branti, 445 U.S. at 528-29, 100 S.Ct. at 1300 (Powell, J., dissenting). As the foregoing comments suggest (and as I will elaborate), I see the trilogy as extremely deleterious to the national polity. That is because it has seriously undermined certain traditions that have helped our democracy to flourish.
I recognize that I am a judge of an inferior court, but that does not preclude me from expressing an opinion where I feel strongly that the Supreme Court has gone down a dangerous path it ought to reconsider. U.S. v. Kennerley, 209 F. 119, 120 (S.D.N.Y.1913) (Hand, J.) (“While, therefore, the demurrer must be overruled, I hope it is not improper for me to say that the rule as laid down, however consonant it may be with mid-Victorian morals, does not seem to me to answer to the understanding and morality of the present time.”).
Thus, although I am constrained by the Supreme Court’s jurisprudence to concur in the present opinion and judgment, and therefore do só, I write separately to express my dismay about the way in which the First Amendment patronage jurisprudence has evolved. This opinion is energized by the scenario of the case at bar and the recent developments to which I have adverted.
II.
I begin with a description of the problem clearly identified by the Powell and Scalia dissents. In essence, the patronage system historically has been critical to the survival and strength of political parties by allowing party leaders to reward their party faithful. Strong parties have, in turn, played a crucial democratizing role: they have stimulated political activity and encouraged meaningful political debate; they have enabled local candidates for office to attract attention to their candidacies and galvanize grass-roots organizing; and they have facilitated the political participation of historically excluded groups, see Rutan, 497 U.S. at 108, 110 S.Ct. at 2755 (Scalia, J., dissenting) (“By supporting and ultimately dominating a particular party ‘machine,’ racial and ethnic minorities have — on the basis of their politics rather than their race or ethnicity — acquired the patronage awards the machine had to confer.”).6
Moreover, as Justice Scalia noted in Rutan, the “patronage system does not ... merely foster political parties in general; it fosters the two-party system in particular.” Id. at 106, 110 S.Ct. at 2754. If patronage jobs are available to workers who have chosen a winning candidate, campaign workers are more likely to choose a party with a chance of prevailing, rather than one with non-mainstream views. This tends to foster *107the preservation of the two-party system, as parties must ensure that their message has wide appeal to attract rank-and-file members.
As I see it, the Elrod trilogy has deprived parties of one of the most effective tools for building party unity: prospect of future political jobs for a job well done. The blow that this has dealt patronage systems has contributed to the need of political candidates to rely almost exclusively on media and money-intensive campaigns to succeed. That politics has come to be dominated by money, and hence large contributors and political action committees (PACs) have achieved a significant sway, has been true for a number of years now, but it surely cannot be doubted in the wake of the 1996 election campaigns. This effect has been felt most significantly at the local level, where candidates, particularly challengers who have no PAC money to draw on, can generate little support. Without personal wealth, such candidates are doomed to. failure. See Branti, 445 U.S. at 528-29, 100 S.Ct. at 1299-1301 (Powell, J., dissenting). I, of course, do not mean to suggest that the trilogy is the only reason for the massive influence of money in election campaigns, nor could I credibly do so given the ascendency of the mass media over so many aspects of national life, and the high cost of media advertising. But, it is at least a significant contributing factor.
Additionally, although the rise of modern, media-intensive campaigns has surely bene-fitted the democratic process by allowing some candidates to make broad-based appeals to the entire public, access to the media is limited to those candidates who can afford it, a terrible state of affairs. Moreover, the nature of modem campaigns has not rendered obsolete the crucial work done by individual party workers, particularly in local races. “Certainly they have not made personal contacts unnecessary in campaigns for the lower level offices that are the foundations of party strength, nor have they replaced the myriad functions performed by party regulars not directly related to campaigning. And to the extent such techniques have replaced older methods of campaigning (partly in response to the limitations the Court has placed on patronage), the political system is not clearly better off.” Rutan, 497 U.S. at 105, 110 S.Ct. at 2753 (Scalia, J., dissenting).
The decline of the patronage system has had other significant consequences for the character of the electoral process. The weakening of the party system affects the ability of voters to make educated choices among candidates, as voters with little information about candidates historically have looked to their party for cues. “With the decline in party stability, voters are less able to blame or credit a party for the performance of its elected officials. Our national party system is predicated upon the assumption that political parties sponsor, and are responsible for, the performance of the persons they nominate for office.” Branti, 445 U.S. at 531, 100 S.Ct. at 1301 (Powell, J., dissenting). Weaker parties also adversely affect citizen participation in the democratic process. Contrast the appalling national turnout of 48% in the 1996 presidential election, notwithstanding the vaunted impact of motor-voter registration laws, with the much higher turnout in years past when the political parties were stronger. That in itself is an ominous sign.
The deleterious impact of special interest money does not lessen after election day, as has often been noted. According to Justice Scalia, “[t]he replacement of a system firmly based in party discipline with one in which each officeholder, comes to his own accommodation with competing interest groups produces ‘a dispersion of political influence that may inhibit a political party from enacting its programs into law.’” Rutan, 497 U.S. at 107-08, 110 S.Ct. at 2754 (Scalia, J., dissenting) (quoting Branti, 445 U.S. at 531, 100 S.Ct. at 1301 (Powell, J., dissenting)). Additionally, as the decline in party strength hastens the rise of special interest groups, which are necessarily focused on narrow issues, government suffers because “candidates and office-holders are forced to be more responsive to the narrow concerns of unrepresentative special interest groups than to overarching issues of domestic and foreign policy.” Branti, 445 U.S. at 532, 100 S.Ct. at 1302 (Powell, J., dissenting). Such ills, fostered *108by the dominance of money in elections, can only grow more significant, as each election brings more expensive campaigns.
In a similar vein, Justice Powell explained that “[s]trong political parties aid effective governance after election campaigns end. Elected officials depend upon appointees who hold similar views to carry out their policies and administer their programs. Patronage ... serves the public interest by facilitating the. implementation of policies endorsed by the electorate.” Id. at 529, 100 S.Ct. at 1300.
It is also clear to me that the premise of Branti — that the accountability of elected officials to the voters is satisfied by exempting policy making officials from Elrod scrutiny— is not sound. Anyone with experience in government knows that officials of lower rank can undermine the policies of an administration just as effectively as higher ranking persons. Indeed, commentators have recognized that the Supreme Court has drawn a distinction between “partisan” patronage employees and “politically-neutral” civil servants.
According to one article, “[t]here is no empirical basis for this distinction. Highly protected career bureaucrats, who have strong ideological attachments to political causes or policies may also be motivated by partisan objectives, and these objectives can be inconsistent with the goals of elected officials. In reaching its conclusion, the Court ignores the agency problems faced by politicians in securing the compliance of government workers in molding and administering policy.” Ronald N. Johnson & Gary D. Libecap, Courts, a Protected Bureaucracy, and Reinventing Government, 37 Ariz.L.Rev. 791, 820-21 (1995) (footnotes omitted).
At the same time, the regime of the trilogy has created widespread uncertainty among government officials as to the legality of hiring and firing certain government employees. The line between who can be discharged for political affiliation and who cannot under Branti is less than pellucid, to say the least.7 This has required time-consuming and ongoing training of management-level government employees lest they run afoul of its precepts. In my view, Justice Powell was right when he said that “[a] constitutional standard that is both uncertain in its application and impervious to legislative change will now control selection and removal of key government personnel. Federal judges will now be the final arbiters as to who federal, state, and local governments may employ- [T]he Court is not justified in removing decisions so essential to responsible and efficient governance from the discretion of legislative and executive officials.” Branti, 445 U.S. at 525-26, 100 S.Ct. at 1298 (Powell, J., dissenting).8
I acknowledge, of course, that I have not made an empirical study of the impact of the Elrod trilogy, but a survey of the literature *109reveals no satisfactory data.9 On a matter such as this, I believe that seasoned judgment of those with experience in the political process is the best guide. Moreover, I share Justice Scalia’s view that to “oppose our El-rodr-Brcmti jurisprudence, one need not believe that the patronage system is necessarily desirable; nor even that it is always and everywhere arguably desirable; but merely that it is a political arrangement that may sometimes be a reasonable choice, and should therefore be left to the judgment of the people’s elected representatives.” Rutan, 497 U.S. at 110, 110 S.Ct. at 2756 (Scalia, J., dissenting).
III.
I do not claim that the patronage system is without flaw. The abuses of the system have been well documented over the years. But while patronage systems have their faults, the damage that the Elrod trilogy has done to the polity weighs, on balance, in favor of permitting elected officials to hire and fire based on political affiliation. Moreover, what is too often forgotten is that most patronage appointees — whether maintenance employees of municipalities, county clerks, or federal judges — perform honorably and well. And when they do, they bring credit upon the party that had them appointed and justify support therefor. While a distinction is often made between patronage and merit appointment, patronage employees are, far more often than not, true merit employees. The problems of the patronage system can be dealt with, and historically have been dealt with, through civil service reform-and other measures, rather than through constitutional litigation.
Turning to that aspect of the matter, as Justice Powell noted in his Elrod dissent, the “judgment today unnecessarily constitutionalizes another element of American life — an element certainly not without its faults but one which generations have accepted on balance as having merit.” Elrod, 427 U.S. at 389, 96 S.Ct. at 2697 (Powell, J., dissenting). I am also concerned by the proliferation of Elrod-generated litigation (an on-line review reflects that Elrod has now been cited 1249 times by federal courts alone), which is now extending rapidly to procurement decisions, such as the award of towing contracts, in addition to personnel decisions. See O’Hare Truck Serv., Inc. v. City of Northlake, — U.S. -, 116 S.Ct. 2353, 135 L.Ed.2d 874 (1996). The growing number of Elrod-based cases has imposed a burden on federal trial and appellate courts, embroiling them in the time-consuming and often quite difficult exercise of divining where a duty is sufficiently policy oriented to except an employee from Elrod scrutiny.
In sum, given the sea change in politics, even since Rutan, characterized primarily by the decline of political parties and the dominance of elections by money, Í submit that it is time for the Supreme Court to revisit this area of the law.
*110It seems that the import of the majority’s discussion on causation is that, if the fact-finder determines that the Salary Board would have itself decided to eliminate plaintiffs’ positions, Foerster must be absolved.10 Perhaps I am incorrect. At all events, the plaintiffs’ claim should really be cut off at the pass, i.e. now. I lament that it cannot be, but hope that the Supreme Court will accept Justices Powell and Scalia’s wisdom. As Justice Frankfurter once stated, “Wisdom too often never, comes, and so one ought not to reject it merely because it comes late.” Henslee v. Union Planters Bank, 335 U.S. 595, 600, 69 S.Ct. 290, 293, 93 L.Ed. 259 (1949) (Frankfurter, J., dissenting).
. Justice Powell was joined in dissent by Chief Justice Burger and Justice Rehnquist.
. Justice Powell was joined in dissent by Justice Rehnquist. Justice Stewart also dissented, but on narrower grounds.
. Justice Scalia was joined in dissent by Chief Justice Rehnquist, and Justices O'Connor and Kennedy.
.I recognize that, as the majority opinion has noted, we cannot reach the merits at this juncture. But since this case appears to be proceeding apace to a merits consideration, I think it appropriate to speak out now about the wisdom of the patronage jurisprudence.
. The majority’s opinion is, of course, controlled by the law of legislative immunity, and the result reached would be the correct one in any case brought against a political “boss” under § 1983, e.g., for an equal protection violation involving race or gender bias. The views that I express in this concurrence are limited to my concerns about subjecting political leaders and public officials to liability for politically motivated employment decisions only.
. Justice Scalia continued: “No one disputes the historical accuracy of this observation, and there is no reason to think that patronage can no longer serve that function.” Rutan, 497 U.S. at 108, 110 S.Ct. at 2755.
. In Rutan, Justice Scalia explained the legal morass into which public officials must wade, citing several circuit and district court opinions:
A city cannot fire a deputy sheriff because of his political affiliation, but then perhaps he can, especially if he is called the "police captain." A county cannot fire on that basis its attorney for the department of social services, nor its assistant attorney for family court, but a city can fire its solicitor and his assistants, or its assistant city attorney, or its assistant state's attorney, or its corporation counsel. A city cannot discharge its deputy court clerk for his political affiliation, but it can fire its legal assistant to the clerk on that basis. Firing a juvenile court bailiff seems impermissible, but it may be permissible if he is assigned permanently to a single judge. A city cannot fire on partisan grounds its director of roads, but it can fire the second in command of the water department. A government cannot discharge for political reasons the senior vice president of its development bank, but it can discharge the regional director of its rural housing administration.
Rutan, 497 U.S. at 111-12, 110 S.Ct. at 2756-57 (footnotes omitted).
. This exercise is especially frustrating when the plaintiff has been the beneficiary of the same partisan political largesse that he or she now decries, see Elrod, 427 U.S. at 380, 96 S.Ct. at 2693 (Powell, J., dissenting) ("[B]eneficiaries of a patronage system may not be heard to challenge it when it comes their turn to be replaced."). In this regard, it is important to note that these plaintiffs do not have a property interest-based interest in keeping their jobs, see Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), but rather only a Pickering-like claim based on Elrod, see Pickering v. Board of Educ. of Township High School Dist., 391 U.S. 563, 88 S.Ct 1731, 20 L.Ed.2d 811 (1968).
. Several studies have concluded that the many arguments in favor of patronage are misguided. See, e.g., Cynthia Grant Bowman, "We Don’t Want Anybody Anybody Sent": The Death of Patronage Hiring in Chicago, 86 Nw.U.L.Rev. 57 (1991); Anne Freedman, Patronage: An American Tradition 178-83 (1994). These studies, however, are not supported by persuasive social science research, in my view. They are generally limited to big-city or historically famous political machines, see Bowman, supra, or to samples that are too small to support generalized conclusions, see Rutan, 497 U.S. at 105, 110 S.Ct. at 2753 (Scalia, J., dissenting) (noting that the Court relies on a single study about a rural Pennsylvania county — Sorauf, Patronage and Party, 3 Midwest J. Pol. Sci. 115 (1959) — -which is “ ‘more persuasive about the ineffectuality of Democratic leaders in Centre County than about the generalizability of [its] findings’ ”). Moreover, notably absent from the work of these commentators are detailed interviews with politically experienced party workers, who are trying to run their organizations without patronage, about the effects of the Elrod trilogy. In the absence of social science research that clearly refutes the arguments in favor of patronage and in the face of some evidence that these arguments are correct, we should be careful not to disregard a political system that has historically been widely used and accepted.
I note in this regard that several commentators have drawn on the trilogy dissents and have expressed varied concerns about the demise of patronage along the lines that I have argued. See, e.g., Ronald N. Johnson & Gary D. Libecap, Courts, a Protected Bureaucracy, and Reinventing Government, 37 Ariz.L.Rev. 791 (1995); Susan Lorde Martin, Patronage Employment Decisions After Rutan, 23 U.Tol.L.Rev. 63 (1991); George F. Will, The Benefits of Patronage, Wash. Post, June 28, 1990, at A25.
. I note in this regard that antitrust law provides, useful insight into the causation question. Discussing the Supreme Court's refusal in Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961), to impose Sherman Act liability on private parties who sought to influence legislation, Professors Areeda and Hovenkamp explained that "private parties may have influenced or persuaded the government to act, but the government’s decision to act reflects an independent governmental choice, constituting a supervening 'cause' that breaks the link between a private party’s request and the plaintiff’s injury.” Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law § 201 (Supp.1996).