Antonin Scalia

“ Once it is acknowledged that the Constitution's prohibition against laws "abridging the freedom of speech" does not apply to laws enacted in the government's capacity as employer in the same way that it does to laws enacted in the government's capacity as regulator of private conduct, it may sometimes be difficult to assess what employment practices are permissible and what are not. ”

“ As the merit principle has been extended and its effects increasingly felt; as the Boss Tweeds, the Tammany Halls, the Pendergast Machines, the Byrd Machines, and the Daley Machines have faded into history; we find that political leaders at all levels increasingly complain of the helplessness of elected government, unprotected by "party discipline," before the demands of small and cohesive interest groups. ”

“ 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 power to confer. ”

“ Not only is a two-party system more likely to emerge, but the differences between those parties are more likely to be moderated, as each has a relatively greater interest in appealing to a majority of the electorate and a relatively lesser interest in furthering philosophies or programs that are far from the mainstream. ”

“ For purposes of my ensuing discussion, however, I will apply a less permissive standard that seems more in accord with our general "balancing" test: Can the governmental advantages of this employment practice reasonably be deemed to outweigh its "coercive" effects?
Preliminarily, I may observe that the Court today not only declines, in this area replete with constitutional ambiguities, to give the clear and continuing tradition of our people the dispositive effect I think it deserves, but even declines to give it substantial weight in the balancing. ”

“ As Justice Powell discussed at length in his Elrod dissent, patronage stabilizes political parties and prevents excessive political fragmentation-both of which are results in which States have a strong governmental interest. Party strength requires the efforts of the rank and file, especially in "the dull periods between elections," to perform such tasks as organizing precincts, registering new voters, and providing constituent services. ”

“ It seems to me that that categorical pronouncement reflects a naive vision of politics and an inadequate appreciation of the systemic effects of patronage in promoting politicalsta bility and facilitating the social and political integration of previously powerless groups.
The whole point of my dissent is that the desirability of patronage is a policy question to be decided by the people's representatives ”

“ A Government Officials' Guide to Patronage Dismissals, 39 Am.U.L.Rev. 11, 23-42 (1989) . These interpretations of Branti are not only significantly at variance with each other; they are still so general that for most positions it is impossible to know whether party affiliation is a permissible requirement until a court renders its decision.
A few examples will illustrate the shambles Branti has produced. A city cannot fire a deputy sheriff because of his political affiliation, [5] but then again perhaps it can, [6] especially if he is called the "police captain." ”

“ Equally apparent is the relatively destabilizing nature of a system in which candidates cannot rely upon patronage-based party loyalty for their campaign support, but must attract workers and raise funds by appealing to various interest groups. See Tolchin & Tolchin, To the Victor, at 127-130. There is little doubt that our decisions in Elrod and Branti, by contributing to the decline of party strength, have also contributed to the growth of interest-group politics in the last decade. ”

“ The abolition of patronage, however, prevents groups that have only recently obtained political power, especially blacks, from following this path to economic and social advancement.
" 'Every ethnic group that has achieved political power in American cities has used the bureaucracy to provide jobs in return for political support. It's only when Blacks begin to play the same game that the rules get changed. Now the use of such jobs to build political bases becomes an "evil" activity, and the city insists on taking the control back "downtown." ”

“ What the patronage system ordinarily demands of the party worker is loyalty to, and activity on behalf of, the organization itself rather than a set of political beliefs. He is generally free to urge within the organization the adoption of any political position ”

“ A challenger can more easily obtain the support of party workers (who can expect to be rewarded even if the candidate loses-if not this year, then the next) than the financial support of political action committees (which will generally support incumbents, who are likely to prevail) . ”

“ 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. See Elrod, supra, at 384, 96 S.Ct., at 2694 (Powell, J., dissenting) ; Branti, 445 U.S., at 528, 100 S.Ct., at 1300 (Powell, J., dissenting) . Increased reliance on money-intensive campaign techniques tends to entrench those in power much more effectively than patronage-but without the attendant benefit of strengthening the party system. ”

“ But unless the government is fairly sure that dismissal is permitted, it will leave the politically uncongenial official in place, since an incorrect decision will expose it to lengthy litigation and a large damages award, perhaps even against the responsible officials personally.
This uncertainty and confusion are not the result of the fact that Elrod, and then Branti, chose the wrong "line." My point is that there is no right line-or at least no right line that can be nationally applied and that is known by judges. ”

“ Private citizens cannot be punished for refusing to provide the government information that may incriminate them, but government employees can be dismissed when the incriminating information that they refuse to provide relates to the performance of their jobs. ”

“ A major study of the patronage system describes the reality as follows:
" [A] lthough men have many motives for entering political life . . . the vast underpinning of both major parties is made up of men who seek practical rewards. Tangible advantages constitute the unifying thread of most successful political practitioners" Id., at 22.
"With so little patronage cement, party discipline is relatively low ”

“ Society: The Case of the United States, in Private Patronage and Public Power 193, 202 (C. Clapham ed. 1982) . Given that unbroken tradition regarding the application of an ambiguous constitutional text, there was in my view no basis for holding that patronage-based dismissals violated the First Amendment-much less for holding, as the Court does today, that even patronage hiring does so. [2]
Even accepting the Court's own mode of analysis, however, and engaging in "balancing" a tradition that ought to be part of the scales, Elrod, Branti, and today's extension of them seem to me wrong. ”

“ In particular, restrictions on speech by public employees are not judged by the test applicable to similar restrictions on speech by nonemployees. We have said that " [a] governmental employer may subject its employees to such special restrictions on free expression as are reasonably necessary to promote effective government." ”

“ It is self-evident that eliminating patronage will significantly undermine party discipline; and that as party discipline wanes, so will the strength of the two-party system. But, says the Court, " [p] olitical parties have already survived the substantial decline in patronage employment practices in this century." Ante, at 74. This is almost verbatim what was said in Elrod, see 427 U.S., at 369, 96 S.Ct., at 2687. ”

“ The party considers itself lucky if 50 percent of its committeemen show up at meetings-even those labeled 'urgent' while even lower percentages turn out at functions intended to produce crowds for visiting candidates. ”

“ When the government takes adverse action against an employee on the basis of his political affiliation (an interest whose constitutional protection is derived from the interest in speech) , the same analysis applies. That is why both the Elrod plurality, 427 U.S., at 359, 96 S.Ct., at 2682, and the opinion concurring in the judgment, id., at 375, 96 S.Ct., at 2690, as well as Branti, 445 U.S., at 514-515, 100 S.Ct., at 1292-1293, and the Court today, ante, at 72, rely on Perry v. ”

“ That strict-scrutiny standard finds no support in our cases. Although our decisions establish that government employees do not lose all constitutional rights, we have consistently applied a lower level of scrutiny when "the governmental function operating . ”