SUPREME COURT OF THE UNITED STATES

Nos. 88-1872 AND 88-2074

CYNTHIA RUTAN, ET AL., PETITIONERS

v.

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88-1872

REPUBLICAN PARTY OF ILLINOIS ET AL.

MARK FRECH, ET AL., PETITIONERS

v.

-

88-2074

CYNTHIA RUTAN ET AL.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

[June 21, 1990]

JUSTICE BRENNAN delivered the opinion of the Court.

To the victor belong only those spoils that may be constitution-

ally obtained. Elrod v. Burns, 427 U. S. 347 (1976), and Branti

----- ----- ------

v. Finkel, 445 U. S. 507 (1980), decided that the First Amendment

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forbids government officials to discharge or threaten to

discharge public employees solely for not being supporters of the

political party in power, unless party affiliation is an ap-

propriate requirement for the position involved. Today we are

asked to decide the constitutionality of several related politi-

cal patronage practices--whether promotion, transfer, recall, and

hiring decisions involving low-level public employees may be con-

stitutionally based on party affiliation and support. We hold

that they may not.

I

The petition and cross-petition before us arise from a lawsuit

protesting certain employment policies and practices instituted

by Governor James Thompson of Illinois.

On November 12, 1980, the Governor issued an executive order pro-

claiming a hiring freeze for every agency, bureau, board, or com-

mission subject to his control. The order prohibits state offi-

cials from hiring any employee, filling any vacancy, creating any

new position, or taking any similar action. It affects approxi-

mately 60,000 state positions. More than 5,000 of these become

available each year as a result of resignations, retirements,

deaths, expansion, and reorganizations. The order proclaims that

``no exceptions'' are permitted without the Governor's ``express

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permission after submission of appropriate requests to [his] of-

fice.'' Governor's Executive Order No. 5 (Nov. 12, 1980), Brief

for Petitioners 11 (emphasis added).

Requests for the Governor's ``express permission'' have alleged-

ly become routine. Permission has been granted or withheld

through an agency expressly created for this purpose, the

Governor's Office of Personnel (Governor's Office). Agencies

have been screening applicants under Illinois' civil service sys-

tem, making their personnel choices, and submitting them as re-

quests to be approved or disapproved by the Governor's Office.

Among the employment decisions for which approvals have been re-

quired are new hires, promotions, transfers, and recalls after

layoffs.

By means of the freeze, according to petitioners, the Governor

has been using the Governor's Office to operate a political pa-

tronage system to limit state employment and beneficial

employment-related decisions to those who are supported by the

Republican Party. In reviewing an agency's request that a par-

ticular applicant be approved for a particular position, the

Governor's Office has looked at whether the applicant voted in

Republican primaries in past election years, whether the appli-

cant has provided financial or other support to the Republican

Party and its candidates, whether the applicant has promised to

join and work for the Republican Party in the future, and whether

the applicant has the support of Republican Party officials at

state or local levels.

Five people (including the three petitioners) brought suit

against various Illinois and Republican Party officials in the

United States District Court for the Central District of Illi-

nois.

They alleged that they had suffered discrimination with respect

to state employment because they had not been supporters of the

State's Republican Party and that this discrimination violates

the First Amendment. Cynthia B. Rutan has been working for the

State since 1974 as a rehabilitation counselor. She claims that

since 1981 she has been repeatedly denied promotions to super-

visory positions for which she was qualified because she had not

worked for or supported the Republican Party. Franklin Taylor,

who operates road equipment for the Illinois Department of Tran-

sportation, claims that he was denied a promotion in 1983 because

he did not have the support of the local Republican Party. Tay-

lor also maintains that he was denied a transfer to an office

nearer to his home because of opposition from the Republican Par-

ty chairmen in the counties in which he worked and to which he

requested a transfer. James W. Moore claims that he has been

repeatedly denied state employment as a prison guard because he

did not have the support of Republican Party officials.

The two other plaintiffs, before the Court as cross-respondents,

allege that they were not recalled after layoffs because they

lacked Republican credentials. Ricky Standefer was a state

garage worker who claims that he was not recalled, although his

fellow employees were, because he had voted in a Democratic pri-

mary and did not have the support of the Republican Party. Dan

O'Brien, formerly a dietary manager with the mental health

department, contends that he was not recalled after a layoff be-

cause of his party affiliation and that he later obtained a lower

paying position with the corrections department only after re-

ceiving support from the chairman of the local Republican Party.

The District Court dismissed the complaint with prejudice, under

Federal Rule of Civil Procedure 12(b)(6), for failure to state a

claim upon which relief could be granted. 641 F. Supp. 249 (CD

Ill. 1986). The United States Court of Appeals for the Seventh

Circuit initially issued a panel opinion, 848 F. 2d 1396 (1988),

but then reheard the appeal en banc. The court affirmed the Dis-

trict Court's decision in part and reversed in part. 868 F. 2d

943 (1989). Noting that this Court had previously determined

that the patronage practice of discharging public employees on

the basis of their political affiliation violates the First

Amendment, the Court of Appeals held that other patronage prac-

tices violate the First Amendment only when they are the ``sub-

stantial equivalent of a dismissal.'' Id., at 954. The court ex-

--

plained that an employment decision is equivalent to a dismissal

when it is one that would lead a reasonable person to resign.

Id., at 955. The court affirmed the dismissal of Moore's claim

--

because it found that basing hiring decisions on political affil-

iation does not violate the First Amendment, but remanded the

remaining claims for further proceedings.

Rutan, Taylor, and Moore petitioned this Court to review the

constitutional standard set forth by the Seventh Circuit and the

dismissal of Moore's claim. Respondents cross-petitioned this

Court, contending that the Seventh Circuit's remand of four of

the five claims was improper because the employment decisions al-

leged here do not, as a matter of law, violate the First Amend-

ment. We granted certiorari, 493 U. S. ---- (1989), to decide

the important question whether the First Amendment's proscription

of patronage dismissals recognized in Elrod, 427 U. S. 347

-----

(1976), and Branti, 445 U. S. 507 (1980), extends to promotion,

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transfer, recall, or hiring decisions involving public employment

positions for which party affiliation is not an appropriate re-

quirement.

II

A

In Elrod, supra, we decided that a newly elected Democratic

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sheriff could not constitutionally engage in the patronage prac-

tice of replacing certain office staff with members of his own

party ``when the existing employees lack or fail to obtain re-

quisite support from, or fail to affiliate with, that party.''

Id., at 351, and 373 (plurality opinion) and 375 (Stewart, J.,

--

with BLACKMUN, J., concurring in judgment). The plurality ex-

plained that conditioning public employment on the provision of

support for the favored political party ``unquestionably inhibits

protected belief and association.'' Id., at 359. It reasoned

--

that conditioning employment on political activity pressures em-

ployees to pledge political allegiance to a party with which they

prefer not to associate, to work for the election of political

candidates they do not support, and to contribute money to be

used to further policies with which they do not agree. The

latter, the plurality noted, had been recognized by this Court as

``tantamount to coerced belief.'' Id., at 355 (citing Buckley v.

-- -------

Valeo, 424 U. S. 1, 19 (1976)). At the same time, employees are

-----

constrained from joining, working for or contributing to the pol-

itical party and candidates of their own choice. Elrod, supra,

----- -----

at 355-356. ``[P]olitical belief and association constitute the

core of those activities protected by the First Amendment,'' the

plurality emphasized. 427 U. S., at 356. Both the plurality and

the concurrence drew support from Perry v. Sindermann, 408 U. S.

----- ----------

593 (1972), in which this Court held that the State's refusal to

renew a teacher's contract because he had been publicly critical

of its policies imposed an unconstitutional condition on the re-

ceipt of a public benefit. See Elrod, supra, at 359 (plurality

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opinion) and 375 (Stewart, J., concurring in judgment); see also

Branti, supra, at 514-516.

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The Court then decided that the government interests generally

asserted in support of patronage fail to justify this burden on

First Amendment rights because patronage dismissals are not the

least restrictive means for fostering those interests. See El-

---

rod, supra, at 372-373 (plurality opinion) and 375 (Stewart, J.,

--- -----

concurring in judgment). The plurality acknowledged that a

government has a significant interest in ensuring that it has ef-

fective and efficient employees. It expressed doubt, however,

that ``mere difference of political persuasion motivates poor

performance'' and concluded that, in any case, the government can

ensure employee effectiveness and efficiency through the less

drastic means of discharging staff members whose work is inade-

quate. 427 U. S., at 365-366. The plurality also found that a

government can meet its need for politically loyal employees to

implement its policies by the less intrusive measure of dismiss-

ing, on political grounds, only those employees in policymaking

positions. Id., at 367. Finally, although the plurality recog-

--

nized that preservation of the democratic process ``may in some

instances justify limitations on First Amendment freedoms,'' it

concluded that the ``process functions as well without the prac-

tice, perhaps even better.'' Patronage, it explained, ``can

result in the entrenchment of one or a few parties to the exclu-

sion of others'' and ``is a very effective impediment to the as-

sociational and speech freedoms which are essential to a meaning-

ful system of democratic government.'' Id., at 368-370.

--

Four years later, in Branti, supra, we decided that the First

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Amendment prohibited a newly appointed public defender, who was a

Democrat, from discharging assistant public defenders because

they did not have the support of the Democratic Party. The Court

rejected an attempt to distinguish the case from Elrod, deciding

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that it was immaterial whether the public defender had attempted

to coerce employees to change political parties or had only

dismissed them on the basis of their private political beliefs.

We explained that conditioning continued public employment on an

employee's having obtained support from a particular political

party violates the First Amendment because of ``the coercion of

belief that necessarily flows from the knowledge that one must

have a sponsor in the dominant party in order to retain one's

job.'' 445 U. S., at 516. ``In sum,'' we said, ``there is no re-

quirement that dismissed employees prove that they, or other em-

ployees, have been coerced into changing, either actually or os-

tensibly, their political allegiance.'' Id., at 517. To prevail,

--

we concluded, public employees need show only that they were

discharged because they were not affiliated with or sponsored by

the Democratic Party. Ibid.

----

employees. In Elrod, we suggested that policymaking and confi-

-----

dential employees probably could be dismissed on the basis of

their political views. Elrod, supra, at 367 (plurality), and 375

----- -----

(Stewart, J., concurring in judgment). In Branti, we said that a

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State demonstrates a compelling interest in infringing First

Amendment rights only when it can show that ``party affiliation

is an appropriate requirement for the effective performance of

the public office involved.'' Branti, supra, at 518. The scope

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of this exception does not concern us here as respondents concede

that the five employees who brought this suit are not within it.

B

We first address the claims of the four current or former em-

ployees. Respondents urge us to view Elrod and Branti as inap-

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plicable because the patronage dismissals at issue in those cases

are different in kind from failure to promote, failure to

transfer, and failure to recall after layoff. Respondents ini-

tially contend that the employee petitioners' First Amendment

rights have not been infringed because they have no entitlement

to promotion, transfer, or rehire. We rejected just such an ar-

gument in Elrod, 427 U. S., at 359-360 (plurality opinion) and

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375 (Stewart, J., concurring in judgment), and Branti, 445 U. S.,

------

at 514-515, as both cases involved state workers who were employ-

ees at will with no legal entitlement to continued employment.

In Perry, 408 U. S., at 596-598, we held explicitly that the

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plaintiff teacher's lack of a contractual or tenure right to re-

employment was immaterial to his First Amendment claim. We ex-

plained the viability of his First Amendment claim as follows:

``For at least a quarter-century, this Court has made clear

that even though a person has no `right' to a valuable govern-

mental benefit and even though the government may deny him the

benefit for any number of reasons, there are some reasons upon

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which the government may not rely. It may not deny a benefit

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to a person on a basis that infringes his constitutionally pro-

-- - ------ -- - ----- ---- --------- --- ---------------- ----

tected interests--especially, his interest in freedom of

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speech. For if the government could deny a benefit to a person

------

because of his constitutionally protected speech or associa-

tions, his exercise of those freedoms would in effect be penal-

ized and inhibited. This would allow the government to `pro-

duce a result which [it] could not command directly.' Speiser

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v. Randall, 357 U. S. 513, 526 [1958]. Such interference with

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constitutional rights is impermissible.'' Perry, id., at 597

----- --

(emphasis added).

Likewise, we find the assertion here that the employee petition-

ers had no legal entitlement to promotion, transfer, or recall

beside the point.

Respondents next argue that the employment decisions at issue

here do not violate the First Amendment because the decisions are

not punitive, do not in any way adversely affect the terms of em-

ployment, and therefore do not chill the exercise of protected

belief and association by public employees.

This is not credible. Employees who find themselves in dead-end

positions due to their political backgrounds are adversely af-

---

fected. They will feel a significant obligation to support pol-

itical positions held by their superiors, and to refrain from

acting on the political views they actually hold, in order to

progress up the career ladder. Employees denied transfers to

workplaces reasonably close to their homes until they join and

work for the Republican Party will feel a daily pressure from

their long commutes to do so. And employees who have been laid

off may well feel compelled to engage in whatever political ac-

tivity is necessary to regain regular paychecks and positions

corresponding to their skill and experience.

The same First Amendment concerns that underlay our decisions in

Elrod, supra, and Branti, supra, are implicated here. Employees

----- ----- ------ -----

who do not compromise their beliefs stand to lose the consider-

able increases in pay and job satisfaction attendant to promo-

tions, the hours and maintenance expenses that are consumed by

long daily commutes, and even their jobs if they are not rehired

after a ``temporary'' layoff. These are significant penalties

and are imposed for the exercise of rights guaranteed by the

First Amendment. Unless these patronage practices are narrowly

tailored to further vital government interests, we must conclude

that they impermissibly encroach on First Amendment freedoms.

See Elrod, supra, at 362-363 (plurality opinion) and 375

----- -----

(Stewart, J., concurring in judgment); Branti, supra, at 515-516.

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We find, however, that our conclusions in Elrod, supra, and

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Branti, supra, are equally applicable to the patronage practices

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at issue here. A government's interest in securing effective em-

ployees can be met by discharging, demoting or transferring

staffmembers whose work is deficient. A government's interest in

securing employees who will loyally implement its policies can be

adequately served by choosing or dismissing certain high-level

employees on the basis of their political views. See Elrod,

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supra, at 365-368; Branti, supra, at 518, and 520, n. 14. Like-

----- ------ -----

wise, the ``preservation of the democratic process'' is no more

furthered by the patronage promotions, transfers, and rehires at

issue here than it is by patronage dismissals. First, ``politi-

cal parties are nurtured by other, less intrusive and equally ef-

fective methods.'' Elrod, supra, at 372-373. Political parties

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have already survived the substantial decline in patronage em-

ployment practices in this century. See Elrod, 427 U. S., at

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369, and n. 23; see also L. Sabato, Goodbye to Good-time Charlie

67 (2d ed. 1983) (``The number of patronage positions has signi-

ficantly decreased in virtually every state''); Congressional

Quarterly Inc., State Government, CQ's Guide to Current Issues

and Activities 134 (T. Beyle ed. 1989-1990) (``Linkage[s] between

political parties and government office-holding . . . have died

out under the pressures of varying forces [including] the declin-

ing influence of election workers when compared to media and

money-intensive campaigning, such as the distribution of form

letters and advertising''); Sorauf, Patronage and Party, 3

Midwest J. Pol. Sci. 115, 118-120 (1959) (many state and local

parties have thrived without a patronage system). Second, pa-

tronage decidedly impairs the elective process by discouraging

free political expression by public employees. See Elrod, 427

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U. S., at 372 (explaining that the proper functioning of a demo-

cratic system ``is indispensably dependent on the unfettered

judgment of each citizen on matters of political concern'').

Respondents, who include the Governor of Illinois and other state

officials, do not suggest any other overriding government in-

terest in favoring Republican Party supporters for promotion,

transfer, and rehire.

We therefore determine that promotions, transfers, and recalls

after layoffs based on political affiliation or support are an

impermissible infringement on the First Amendment rights of pub-

lic employees. In doing so, we reject the Seventh Circuit's view

of the appropriate constitutional standard by which to measure

alleged patronage practices in government employment. The

Seventh Circuit proposed that only those employment decisions

that are the ``substantial equivalent of a dismissal'' violate a

public employee's rights under the First Amendment. 868 F. 2d,

at 954-957. We find this test unduly restrictive because it

fails to recognize that there are deprivations less harsh than

dismissal that nevertheless press state employees and applicants

to conform their beliefs and associations to some state-selected

orthodoxy. See Elrod, supra, at 356-357 (plurality opinion);

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West Virgina Bd. of Education v. Barnette, 319 U. S. 624, 642

---- ------- -- -- --------- --------

(1943).

The First Amendment is not a tenure provision, protecting public

employees from actual or constructive discharge. The First

Amendment prevents the government, except in the most compelling

circumstances, from wielding its power to interfere with its em-

ployees' freedom to believe and associate, or to not believe and

not associate.

Whether the four employees were in fact denied promotions,

transfers, or rehire for failure to affiliate with and support

the Republican Party is for the District Court to decide in the

first instance. What we decide today is that such denials are

irreconcilable with the Constitution and that the allegations of

the four employees state claims under 42 U. S. C. 1983 (1982

ed.) for violations of the First and Fourteenth Amendments.

Therefore, although we affirm the Seventh Circuit's judgment to

reverse the District Court's dismissal of these claims and remand

them for further proceedings, we do not adopt the Seventh

Circuit's reasoning.

C

Petitioner James W. Moore presents the closely related question

whether patronage hiring violates the First Amendment. Patronage

hiring places burdens on free speech and association similar to

those imposed by the patronage practices discussed above. A

state job is valuable. Like most employment, it provides regular

paychecks, health insurance, and other benefits. In addition,

there may be openings with the State when business in the private

sector is slow. There are also occupations for which the govern-

ment is a major (or the only) source of employment, such as so-

cial workers, elementary school teachers, and prison guards.

Thus, denial of a state job is a serious privation.

Nonetheless, respondents contend that the burden imposed is not

of constitutional magnitude.

Decades of decisions by this Court belie such a claim. We prem-

ised Torcaso v. Watkins, 367 U. S. 488 (1961), on our understand-

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ing that loss of a job opportunity for failure to compromise

one's convictions states a constitutional claim. We held that

Maryland could not refuse an appointee a commission for the posi-

tion of notary public on the ground that he refused to declare

his belief in God, because the required oath ``unconstitutionally

invades the appellant's freedom of belief and religion.'' Id., at

--

496. In Keyishian v. Board of Regents of Univ. of New York, 385

--------- ----- -- ------- -- ---- -- --- ----

U. S. 589, 609-610 (1967), we held a law affecting appointment

and retention of teachers invalid because it premised employment

on an unconstitutional restriction of political belief and asso-

ciation. In Elfbrandt v. Russell, 384 U. S. 11, 19 (1966), we

--------- -------

struck down a loyalty oath which was a prerequisite for public

employment.

Almost half a century ago, this Court made clear that the

government ``may not enact a regulation providing that no Repub-

lican . . . shall be appointed to federal office.'' Public Work-

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ers v. Mitchell, 330 U. S. 75, 100 (1947). What the First Amend-

--- --------

ment precludes the government from commanding directly, it also

precludes the government from accomplishing indirectly. See Per-

----

ry, 408 U. S., at 597 (citing Speiser v. Randall, 357 U. S. 513,

-- ------- -------

526 (1958)); see supra, at ----. Under our sustained precedent,

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conditioning hiring decisions on political belief and association

plainly constitutes an unconstitutional condition, unless the

government has a vital interest in doing so. See Elrod, 427

-----

U. S., at 362-363 (plurality opinion), and 375 (Stewart, J., con-

curring in judgment); Branti, 445 U. S., at 515-516; see also

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Sherbert v. Verner, 374 U. S. 398 (1963) (unemployment bene-

-------- ------

fits); Speiser v. Randall, supra (tax exemption). We find no

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such government interest here, for the same reasons that we found

the government lacks justification for patronage promotions,

transfers or recalls. See supra, at ----.

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The court below, having decided that the appropriate inquiry in

patronage cases is whether the employment decision at issue is

the substantial equivalent of a dismissal, affirmed the trial

court's dismissal of Moore's claim. See 868 F. 2d, at 954. The

Court of Appeals reasoned that ``rejecting an employment applica-

tion does not impose a hardship upon an employee comparable to

the loss of [a] job.'' Ibid., citing Wygant v. Jackson Bd. of

---- ------ ------- -- --

Education, 476 U. S. 267 (1986) (plurality opinion). Just as we

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reject the Seventh Circuit's proffered test, see supra at ----,

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we find the Seventh Circuit's reliance on Wygant to distinguish

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hiring from dismissal unavailing. The court cited a passage from

the plurality opinion in Wygant explaining that school boards at-

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tempting to redress past discrimination must choose methods that

broadly distribute the disadvantages imposed by affirmative ac-

tion plans among innocent parties. The plurality said that

race-based layoffs placed too great a burden on individual

members of the nonminority race, but suggested that discriminato-

ry hiring was permissible, under certain circumstances, even

though it burdened white applicants because the burden was less

intrusive than the loss of an existing job. Id., at 282-284.

--

See also id., at 294-295 (WHITE, J., concurring in judgment).

--

Wygant has no application to the question at issue here. The

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plurality's concern in that case was identifying the least harsh

means of remedying past wrongs. It did not question that some

----

remedy was permissible when there was sufficient evidence of past

discrimination. In contrast, the Governor of Illinois has not

instituted a remedial undertaking. It is unnecessary here to

consider whether not being hired is less burdensome than being

discharged because the government is not pressed to do either on

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the basis of political affiliation. The question in the pa-

tronage context is not which penalty is more acute but whether

the government, without sufficient justification, is pressuring

employees to discontinue the free exercise of their First Amend-

ment rights.

If Moore's employment application was set aside because he chose

not to support the Republican Party, as he asserts, then Moore's

First Amendment rights have been violated. Therefore, we find

that Moore's complaint was improperly dismissed.

III

We hold that the rule of Elrod and Branti extends to promotion,

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transfer, recall, and hiring decisions based on party affiliation

and support and that all of the petitioners and cross-respondents

have stated claims upon which relief may be granted. We affirm

the Seventh Circuit insofar as it remanded Rutan's, Taylor's,

Standefer's, and O'Brien's claims. However, we reverse the Cir-

cuit Court's decision to uphold the dismissal of Moore's claim.

All five claims are remanded for proceedings consistent with this

opinion.

It is so ordered.

-- -- -- -------

JUSTICE STEVENS, concurring.

While I join the Court's opinion, these additional comments are

prompted by three propositions advanced by JUSTICE SCALIA in his

dissent. First, he implies that prohibiting imposition of an un-

constitutional condition upon eligibility for government employ-

ment amounts to adoption of a civil service system. Second, he

makes the startling assertion that a long history of open and

widespread use of patronage practices immunizes them from consti-

tutional scrutiny. Third, he assumes that the decisions in Elrod

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v. Burns, 427 U. S. 347 (1976), and Branti v. Finkle, 445 U. S.

----- ------ ------

507 (1980), represented dramatic departures from prior precedent.

Several years before either Elrod or Branti was decided, I had

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occasion as a judge on the Court of Appeals for the Seventh Cir-

cuit to evaluate each of these propositions. Illinois State Em-

-------- ----- ---

ployees Union, Council 34, Am. Fed. of State, County, and Munici-

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pal Emp., AFL-CIO v. Lewis, 473 F. 2d 561 (1972), cert. denied,

--- --- --- --- -----

410 U. S. 928 (1973). With respect to the first, I wrote:

``Neither this court nor any other may impose a civil service

system upon the State of Illinois. The General Assembly has

provided an elaborate system regulating the appointment to

specified positions solely on the basis of merit and fitness,

the grounds for termination of such employment, and the pro-

cedures which must be followed in connection with hiring, fir-

ing, promotion, and retirement. A federal court has no power

to establish any such employment code.

``However, recognition of plaintiffs' claims will not give

every public employee civil service tenure and will not require

the state to follow any set procedure or to assume the burden

of explaining or proving the grounds for every termination. It

is the former employee who has the burden of proving that his

discharge was motivated by an impermissible consideration. It

is true, of course, that a prima facie case may impose a burden

of explanation on the State. But the burden of proof will

remain with the plaintiff employee and we must assume that the

trier of fact will be able to differentiate between those

discharges which are politically motivated and those which are

not. There is a clear distinction between the grant of tenure

to an employee--a right which cannot be conferred by judicial

fiat--and the prohibition of a discharge for a particular im-

permissible reason. The Supreme Court has plainly identified

that distinction on many occasions, most recently in Perry v.

Sindermann, 408 U. S. 593 (1972).

``Unlike a civil service system, the Fourteenth Amendment to

the Constitution does not provide job security, as such, to

public employees. If, however, a discharge is motivated by

considerations of race, religion, or punishment of constitu-

tionally protected conduct, it is well settled that the State's

action is subject to federal judicial review. There is no mer-

it to the argument that recognition of plaintiffs' constitu-

tional claim would be tantamount to foisting a civil service

code upon the State.'' Id., at 567-568 (footnotes omitted).

--

Denying the Governor of Illinois the power to require every

state employee, and every applicant for state employment, to

pledge allegiance and service to the political party in power is

a far cry from a civil service code. The question in this case

is simply whether a Governor may adopt a rule that would be

plainly unconstitutional if enacted by the General Assembly of

Illinois.

Second, JUSTICE SCALIA asserts that ``when a practice not ex-

pressly prohibited by the text of the Bill of Rights bears the

endorsement of a long tradition of open, widespread, and unchal-

lenged use that dates back to the beginning of the Republic, we

have no proper basis for striking it down.'' Post, at 4; post, at

---- ----

11 (a ``clear and continuing tradition of our people'' deserves

``dispositive effect''). The argument that traditional practices

-----------

are immune from constitutional scrutiny is advanced in two plu-

rality opinions that JUSTICE SCALIA has authored, but not by any

opinion joined by a majority of the Members of the Court.

In the Lewis case, I noted the obvious response to this posi-

-----

tion: ``if the age of a pernicious practice were a sufficient

reason for its continued acceptance, the constitutional attack on

racial discrimination would, of course, have been doomed to

failure.'' 473 F. 2d, at 568, n. 14. See, e. g., Brown v. Board

- - ----- -----

of Education, 347 U. S. 483 (1954).

-- ---------

I then added this comment on the specific application of that ar-

gument to patronage practices:

--

``Finally, our answer to the constitutional question is not

foreclosed by the fact that the `spoils system has been en-

trenched in American history for almost two hundred years.'

Alomar v. Dwyer, 447 F. 2d 482, 483 (2d Cir. 1971). For most

of that period it was assumed, without serious question or de-

bate, that since a public employee has no constitutional right

to his job, there can be no valid constitutional objection to

his summary removal. See Bailey v. Richardson, 86 U. S. App.

D. C. 248, 182 F. 2d 46, 59 (1950), affirmed per curiam by an

equally divided Court, 341 U. S. 918; Adler v. Board of Educa-

tion, 342 U. S. 485 [(1952)]. But as Mr. Justice Marshall so

forcefully stated in 1965 when he was a circuit judge, `the

theory that public employment which may be denied altogether

may be subjected to any conditions, regardless of how unreason-

able, has been uniformly rejected.' Keyishian v. Board of Re-

gents, 345 F. 2d 236, 239 (2d Cir. 1965). The development of

constitutional law subsequent to the Supreme Court's unequivo-

cal repudiation of the line of cases ending with Bailey v.

Richardson and Adler v. Board of Education is more relevant

than the preceding doctrine which is now `universally reject-

ed.' '' Lewis, 473 F. 2d, at 568 (footnotes and citations omit-

-----

ted).

With respect to JUSTICE SCALIA's view that until Elrod v. Burns

----- -----

was decided in 1976, it was unthinkable that patronage could be

unconstitutional, see post, at 5, it seems appropriate to point

----

out again not only that my views in Lewis antedated Elrod by

----- -----

several years, but, more importantly, that they were firmly

grounded in several decades of decisions of this Court. As ex-

plained in Lewis:

-----

``[In 1947] a closely divided Supreme Court upheld a statute

prohibiting federal civil service employees from taking an ac-

tive part in partisan political activities. United Public

Workers v. Mitchell, 330 U. S. 75. The dissenting Justices

felt that such an abridgment of First Amendment rights could

not be justified. The majority, however, concluded that the

government's interests in not compromising the quality of pub-

lic service and in not permitting individual employees to use

their public offices to advance partisan causes were sufficient

to justify the limitation on their freedom.

``There was no dispute within the Court over the proposition

that the employees' interests in political action were protect-

ed by the First Amendment. The Justices' different conclusions

stemmed from their different appraisals of the sufficiency of

the justification for the restriction. That justification--the

desirability of political neutrality in the public service and

the avoidance of the use of the power and prestige of govern-

ment to favor one party or the other--would condemn rather than

support the alleged conduct of defendant in this case. Thus,

in dicta, the Court unequivocally stated that the Legislature

could not require allegiance to a particular political faith as

a condition of public employment:

`Appellants urge that federal employees are protected by the

Bill of Rights and that Congress may not `enact a regulation pro-

viding that no Republican, Jew or Negro shall be appointed to

federal office, or that no federal employee shall attend Mass or

take any active part in missionary work.' None would deny such

limitations on Congressional power but, because there are some

limitations it does not follow that a prohibition against acting

as ward leader or worker at the polls is invalid.' 330 U. S. 75,

100.

``In 1952 the Court quoted that dicta in support of its hold-

ing that the State of Oklahoma could not require its employees

to profess their loyalty by denying past association with Com-

munists. Wieman v. Updegraff, 344 U. S. 183, 191-192. That

decision did not recognize any special right to public employ-

ment; rather, it rested on the impact of the requirement on the

citizen's First Amendment rights. We think it unlikely that

the Supreme Court would consider these plaintiffs' interest in

freely associating with members of the Democratic Party less

worthy of protection than the Oklahoma employees' interest in

associating with Communists or former Communists.

``In 1961 the Court held that a civilian cook could be sum-

marily excluded from a naval gun factory. Cafeteria and Res-

taurant Workers Union, Local 473, AFL- CIO v. McElroy, 367

U. S. 886. The government's interest in maintaining the secu-

rity of the military installation outweighed the cook's in-

terest in working at a particular location. Again, however,

the Court explicitly assumed that the sovereign could not deny

employment for the reason that the citizen was a member of a

particular political party or religious faith--`that she could

not have been kept out because she was a Democrat or a Metho-

dist.' 367 U. S. at 898.

``In 1968 the Court held that `a teacher's exercise of his

right to speak on issues of public importance may not furnish

the basis for his dismissal from public employment.' Pickering

v. Board of Education, 391 U. S. 563, 574. The Court noted

that although criminal sanctions `have a somewhat different im-

pact on the exercise of the right to freedom of speech from

dismissal from employment, it is apparent that the threat of

dismissal from public employment is nonetheless a potent means

of inhibiting speech.' Ibid. The holding in Pickering was a

---- ---------

natural sequel to Mr. Justice Frankfurter's comment in dissent

in Shelton v. Tucker that a scheme to terminate the employment

of teachers solely because of their membership in unpopular or-

ganizations would run afoul of the Fourteenth Amendment. 364

U. S. 479, 496 [(1960)].

``In 1972 the Court reaffirmed the proposition that a non-

tenured public servant has no constitutional right to public

employment, but nevertheless may not be dismissed for exercis-

ing his First Amendment rights. Perry v. Sindermann, 408 U. S.

593. The Court's explanation of its holding is pertinent here:

`For at least a quarter century, this Court has made clear that

even though a person has no `right' to a valuable governmental

benefit and even though the government may deny him the benefit

for any number of reasons, there are some reasons upon which the

government may not act. It may not deny a benefit to a person on

a basis that infringes his constitutionally protected

interests--especially, his interest in freedom of speech. For if

the government could deny a benefit to a person because of his

constitutionally protected speech or associations, his exercise

of those freedoms would in effect be penalized and inhibited.

This would allow the government to `produce a result which [it]

could not command directly.' Speiser v. Randall, 357 U. S. 513,

526. Such interference with constitutional rights is impermissi-

ble.

`We have applied this general principle to denials of tax exemp-

tions, Speiser v. Randall, supra, unemployment benefits, Sherbert

-----

v. Verner, 374 U. S. 398, 404-405 [(1963)], and welfare pay-

ments, Shapiro v. Thompson, 394 U. S. 618, 627 n. 6 [(1969)];

Graham v. Richardson, 403 U. S. 365, 374 [(1971)]. But, most

often, we have applied the principle to denials of public employ-

ment. United Public Workers v. Mitchell, 330 U. S. 75, 100

[(1947)]; Wieman v. Updegraff, 344 U. S. 183, 192; Shelton v.

Tucker, 364 U. S. 479, 485-486; Torasco v. Watkins, 367 U. S.

488, 495-496; Cafeteria and Restaurant Workers, etc. v. McElroy,

367 U. S. 886, 894 [(1961)]; Cramp v. Board of Public Instruc-

tion, 368 U. S. 278, 288 [(1961)]; Baggett v. Bullitt, 377 U. S.

360 [(1964)]; Elfbrandt v. Russell, 384 U. S. [11,] 17 [(1966)];

Keyishian v. Board of Regents, 385 U. S. 589, 605-606 [(1967)];

Whitehill v. Elkins, 389 U. S. 54 [(1967)]; United States v.

Robel, 389 U. S. 258 [(1967)]; Pickering v. Board of Education,

391 U. S. 563, 568 [(1968)]. We have applied the principle re-

gardless of the public employee's contractual or other claim to a

job. Compare Pickering v. Board of Education, supra, with Shel-

-----

ton v. Tucker, supra.

-----

`Thus the respondent's lack of a contractual or tenure `right'

to reemployment for the 1969-1970 academic year is immaterial to

his free speech claim. 408 U. S. at 597.

``This circuit has given full effect to this principle.'' 473

F. 2d, at 569-572 (footnotes and citations omitted).

See also American Federation of State County and Municipal Em-

-------- ---------- -- ----- ------ --- --------- ---

ployees, AFL-CIO v. Shapp, 443 Pa. 527, 537-545, 280 A. 2d 375,

------- --- --- -----

379-383 (1971) (Barbieri, J., dissenting).

To avoid the force of the line of authority described in the

foregoing passage, JUSTICE SCALIA would weigh the supposed gen-

eral state interest in patronage hiring against the aggregated

interests of the many employees affected by the practice. This

defense of patronage obfuscates the critical distinction between

partisan interest and the public interest.

precinct] for the other side''); Johnson, Successful Reform Liti-

gation: The Shakman Patronage Case, 64 Chi.-Kent L. Rev. 479, 481

-------

(1988) (the ``massive Democratic patronage employment system''

maintained a ``noncompetitive political system'' in Cook County

in the 1960's).

Without repeating the Court's studied rejection of the policy

arguments for patronage practices in Elrod, 427 U. S., at

-----

364-373, I note only that many commentators agree more with JUS-

TICE SCALIA's admissions of the systemic costs of patronage

practices--the ``financial corruption, such as salary kickbacks

and partisan political activity on government-paid time,'' the

reduced efficiency of government, and the undeniable constraint

upon the expression of views by employees, post, at 17-18--than

----

with his belief that patronage is necessary to political stabili-

ty and integration of powerless groups. See, e. g., G. Pomper,

- -

Voters, Elections, and Parties 282- 304 (1988) (multiple causes

of party decline); D. Price, Bringing Back the Parties 22-25

(1984) (same); Comment, 41 U. Chi. L. Rev. 297, 319-328 (1974)

(same); Wolfinger, Why Political Machines Have Not Withered Away

and Other Revisionist Thoughts, 34 J. Pol. 365, 398 (1972) (ab-

sence of machine politics in California); J. James, American Pol-

itical Parties in Transition 85 (1974) (inefficient and antiparty

effects of patronage); Johnston, Patrons and Clients, Jobs and

Machines: A Case Study of the Uses of Patronage, 73 Am. Pol. Sci.

Rev. 385 (1979) (same); Grimshaw, The Political Economy of

Machine Politics, 4 Corruption and Reform 15 (1989) (same); Com-

ment, 49 U. Chi. L. Rev. 181, 197-200 (1982) (same); Freedman,

Doing Battle with the Patronage Army: Politics, Courts and Per-

sonnel Administration in Chicago, 48 Pub. Admin. Rev. 847 (1988)

(race and machine politics).

Incidentally, although some might suggest that Jacob Arvey was

``best known as the promoter of Adlai Stevenson,'' post, at 13,

----

that connection is of interest only because of Mr. Arvey's

creative and firm leadership of the powerful political organiza-

tion that was subsequently led by Richard J. Daley. M. Tolchin

& S. Tolchin, To the Victor 36 (1971).

It assumes that governmental power and public resources--in this

case employment opportunities--may appropriately be used to sub-

sidize partisan activities even when the political affiliation of

the employee or the job applicant is entirely unrelated to his or

her public service.

The premise on which this position rests would justify the use of

public funds to compensate party members for their campaign work,

or conversely, a legislative enactment denying public employment

to nonmembers of the majority party. If such legislation is

unconstitutional--as it clearly would be--an equally pernicious

rule promulgated by the Executive must also be invalid.

JUSTICE SCALIA argues that distinguishing ``inducement and com-

pulsion'' reveals that a patronage system's impairment of the

speech and associational rights of employees and would-be employ-

ees is insignificant. Post, at 18. This analysis contradicts

----

the harsh reality of party discipline that is the linchpin of his

theory of patronage. Post, at 13-14 (emphasizing the ``link

----

between patronage and party discipline, and between that and par-

ty success'').

ducements'' and ``influences'' is apparent from his own descrip-

tions of the essential features of a patronage system. See,

e. g., post, at 18 (the worker may ``urge within the organization

- - ---- ------ --- ------------

the adoption of any political position; but if that position is

rejected he must vote and work for the party nonetheless'');

post, at 13 (quoting M. Tolchin & S. Tolchin, To the Victor, at

----

123 (reporting that Montclair, New Jersey Democrats provide fewer

services than Cook County, Illinois Democrats, while ``the rate

of issue participation is much higher among Montclair Democrats

who are not bound by the fear displayed by the Cook County com-

mitteemen'')); post, at 13 (citing W. Grimshaw, The Political

----