Political Patronage and the First Amendment

Traditional political patronage was the exchange of government jobs for political support—in other words, hiring people who belong to the party or faction of a candidate for political office and requiring them to do electoral work and/or give financial support, and firing them if they do not. The Democratic Party Organization of Cook County, Illinois, for example, totally dominated Chicago city government in this way under Mayor Richard J. Daley from 1955 to 1976. Daley controlled about thirty-five thousand patronage jobs and used the power to hire and fire to secure election of his candidates. City and county employees were required to buy tickets to party fundraising events and to work the precincts before elections. In this fashion, the Cook County political ‘‘machine’’ was able to mobilize the vote for Daley and his candidates every election day and exercised a virtual monopoly over Chicago politics.

Following the common patronage practice, in 1970 the newly elected Democratic sheriff of Cook County, Richard Elrod, fired various Republican employees of the sheriff’s office. The dismissed employees filed a lawsuit, on the grounds that firing them for their political affiliation constituted an unacceptable burden upon an employee’s First Amendment rights. How could employees feel free to associate with the party of their choice, support the candidates of their choice, even say what they thought, if their jobs hung in the balance?

In Elrod v. Burns, 427 U.S. 347 (1976), the U.S. Supreme Court agreed. Drawing upon its earlier cases finding that it was unconstitutional to require a loyalty oath as a condition of public employment, the Court held that politically motivated firing violated the rights of the individual employee and harmed the electoral process as a whole, discouraging present employees as well as anyone who might want to seek a public job from the free exercise of their rights of speech and association. Under the standard applied to government actions interfering with First Amendment rights, a public employer could do so only if it was necessary to a compelling governmental interest. In Branti v. Finkel, 445 U.S. 507 (1980), the Court made an explicit exception to Elrod for policymaking employees, thus permitting employment decisions on political grounds for positions where loyalty to and identification with the goals of a candidate were important to carrying out his or her program.

It was not until 1990 that the Supreme Court found that it was also unconstitutional to hire public employees on political grounds—or to promote, transfer, or take other adverse job actions against them. Ironically, that case, Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990), also came out of Illinois but involved patronage practices engaged in by the Republican governor instead of the Cook County Democratic machine. Four judges dissented in Rutan, however, arguing that patronage was essential to the operation of democratic politics and the American party system.

After Elrod and Rutan had made patronage hiring and firing illegal, contract patronage became more important. Many governmental functions were being privatized in the 1980s anyway, and the contracts to fulfill those functions (waste hauling, for example) were awarded to persons and companies who were political supporters of the party or faction in power and contributed to its coffers. The money received could be used to pay for the television ads, mass mailings, and telemarketing that were beginning to replace door-to-door campaigning.

In a pair of cases decided in 1996, the Supreme Court held that the prohibition against patronage hiring and firing extended to contract patronage as well. In one case, O’Hare Truck Service v. City of Northlake, 518 U.S. 712 (1996), a contract to do business for the city had been taken away from a trucking company whose owner supported the candidate opposing the incumbent mayor. The Court found that this was directly prohibited by Elrod.

In the other case, Board of County Commissioners of Wabaunsee County v. Umbehr, 518 U.S. 668 (1996), an exclusive trash-hauling contract had been terminated because the company’s owner had repeatedly and publicly criticized the county board. In other words, Umbehr was punished for speech, rather than for association with a particular party. The Supreme Court held that this case should be decided not under the Elrod line of cases, but instead under the Pickering Balancing Test (Pickering v. Board of Education, 391 U.S. 563, 1968) applied to speech by public employees, which is easier for employers to satisfy. Under that test, if a governmental employer’s interest in workplace discipline outweighs the employee’s interest in commenting on matters of public concern, the employee may be fired despite the impAct Upon his or her First Amendment rights.

The decision in Umbehr thus opened up a competing standard that may be applied to public employees exercising their First Amendment rights. As Justice Scalia commented in his dissenting opinion, this creates a confusing situation for courts and for potential litigants, who must distinguish between an employee’s or contractor’s exercise of the First Amendment rights of political association (which is protected for all but policymaking employees) and of free speech (which may be outweighed by the employer’s need for workplace discipline).

The prohibition of political patronage was unpopular with political parties, and there is evidence that the practice has persisted in some areas of the country, including Chicago. As the dissenting justices in Elrod, Branti, and Rutan pointed out, patronage was a practice of long standing that had played a major role in the American political party system, especially in big cities. Yet patronage also resulted in excluding later arriving minority groups (African Americans and Latinos, for example) from the political process in many areas, as earlier groups (such as the Irish) were able to make government offices into their private preserve. Awarding contracts or hiring friends in return for money or political favors often leads to corruption, inefficiency, and unduly costly government as well. Finally, and most important, political patronage impairs the functioning of the electoral process by discouraging political opposition and criticism of the party in power, reducing the electoral chances of opposition candidates, and entrenching the party in power—abuses the guarantees of the First Amendment were designed to prevent.

CYNTHIA GRANT BOWMAN

References and Further Reading

• Bowman, Cynthia Grant. ‘‘The Supreme Court’s Patronage Decisions and the Theory and Practice of Politics.’’ In The U.S. Supreme Court and the Electoral Process, David K. Ryden, ed. Washington, D.C.: Georgetown University Press, 2000, 124–141.
• Royko, Mike. Boss: Richard J. Daley of Chicago. New York: Dutton, 1971.

Cases and Statutes Cited

• Board of County Commissioners of Wabaunsee County v. Umbehr, 518 U.S. 668 (1996)
• Branti v. Finkel, 445 U.S. 507 (1980)
• Elrod v. Burns, 427 U.S. 347 (1976)
• O’Hare Truck Service v. City of Northlake, 518 U.S. 712 (1996)
• Pickering v. Board of Education, 391 U.S. 563 (1968)
• Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990)

See also Branti v. Finkel, 445 U.S. 507 (1980); Elrod v. Burns, 427 U.S. 347 (1976); Pickering v. Board of Education, 391 U.S. 563 (1968); Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990); Speech of Government Employees; Unconstitutional Conditions