The Supreme Court Cries "Foul" to Patronage Contracting: Where Have You Gone Joe McDonough?

Paul Fischer

Whataya gonna do for McDonough?
Whataya gonna do for YOU?

Are ya gonna carry your precinct?

Are you gonna be true blue?

Whenever ya wanted a favor,

McDonough was ready to do.

Whataya gonna do for McDonough,

after what he done for you?
⁽¹⁾

I.  Introduction

In 1931, future mayor Richard J. Daley would lead rallies of voters in the chorus of Joe McDonough's election song, in an effort to elect his benefactor to the patronage⁽²⁾-rich office of Treasurer of Cook County, Illinois.⁽³⁾ Some sixty years later, events within that same county would bring into issue government's continued ability to employ patronage practices when doing so would abrogate the First Amendment rights of independent contractors.⁽⁴⁾ Through its ruling in O'Hare Truck Service, Inc. v. City of Northlake,⁽⁵⁾ the Supreme Court may well have ended forever the go along to get along world represented by County Treasurer Joe McDonough.⁽⁶⁾

The First Amendment to the United States Constitution states that "Congress shall make no law . . . abridging the freedom of speech, or of the press."⁽⁷⁾ While some see freedom of speech in absolute terms, where no abridgment means precisely that,⁽⁸⁾ the more widely-accepted view accepts some restrictions by the government on the exercise of First Amendment freedoms, although only within very narrow parameters.⁽⁹⁾

Since World War I, the Supreme Court has sought to define what is meant by the term "freedom of speech," and how that right generally applies to the lives of citizens.⁽¹⁰⁾ More recently, the Supreme Court has sought to define to what extent the First Amendment protects the rights of government employees faced with losing their jobs at the hands of a government desiring to maintain a system of patronage in its hiring and firing practices.⁽¹¹⁾

Just slightly over a century ago,⁽¹²⁾ public employees were seen as surrendering their First Amendment rights upon acceptance of a government job.⁽¹³⁾ Over the course of intervening time, however, that view has been largely rejected, and replaced by the current understanding that while one may not have a right to a government benefit, such as a government job,⁽¹⁴⁾ government is not permitted to condition receipt of that benefit on the government employee's surrender of a constitutionally guaranteed right.⁽¹⁵⁾

Through a series of cases beginning in 1976, the Supreme Court developed a body of jurisprudence governing situations where a public employee is dismissed because of party affiliation by a government asserting an interest in maintaining a patronage system.⁽¹⁶⁾ In the landmark decision of Elrod v. Burns,⁽¹⁷⁾ the Court considered whether the firing of low level, non-civil service employees because of their party affiliation constituted a First Amendment violation.⁽¹⁸⁾ Because the patronage practice at issue violated the right of political association,⁽¹⁹⁾ a plurality of the Court agreed that the First Amendment had been violated.⁽²⁰⁾ The Court held that non-policymaking, non-confidential employees could not be dismissed solely on the basis of party affiliation without violating the First Amendment.⁽²¹⁾

Four years later, in Branti v. Finkel,⁽²²⁾ the Court expanded upon its earlier ruling, and clarified the "`policymaker'" standard it announced in Elrod for determining when party affiliation may be a valid reason for terminating a public employee consistent with the First Amendment.⁽²³⁾ In 1990, in Rutan v. Republican Party of Illinois,⁽²⁴⁾ the last of what is now seen as a trilogy of cases, the Court extended the original Elrod ruling to include not only the dismissal of public employees, but also politically motivated hirings, promotions, transfers, and recalls based on party affiliation.⁽²⁵⁾

The Court did not, however, extend the inquiry of its First Amendment analysis to include independent contractors possessing a commercial relationship with government.⁽²⁶⁾ A majority of the courts of appeals refused to extend the Elrod, Branti, Rutan line of cases to include independent contractors, thereby permitting independent contractors to be discharged with impunity by governments intent on maintaining patronage systems.⁽²⁷⁾ While the majority of circuits continued to apply the Court's decisions in this restrictive manner, one circuit eventually extended the line of reasoning developed in the public employee cases to include independent contractors, thereby granting them First Amendment protection.⁽²⁸⁾ The other circuits left any such extension of the Elrod trilogy to the discretion of the Supreme Court.⁽²⁹⁾

In O'Hare Truck Service, Inc. v. City of Northlake,⁽³⁰⁾ the Supreme Court granted certiorari to resolve the split among the circuits, and held that the First Amendment protections generally afforded to public employees from being discharged for reasons of political association likewise extend to independent contractors.⁽³¹⁾ In O'Hare, John Gratzianna and the company he owned, O'Hare Truck Services, alleged that the City of Northlake, Illinois, through its Mayor, Reid Paxson, violated O'Hare's First Amendment right of political association.⁽³²⁾ For thirty years, O'Hare Truck Service had been on the city's rotation list of towing-service providers, and had been assured that it would remain on the list as long as it continued to provide satisfactory service.⁽³³⁾ In 1993, the mayor approached O'Hare for support in his re-election campaign.⁽³⁴⁾ O'Hare refused to tender any support, and in fact openly supported the mayor's opponent, who subsequently lost.⁽³⁵⁾ Shortly after the re-election of Mayor Paxson, O'Hare was dropped from Northlake's rotation list.⁽³⁶⁾

O'Hare sued in the United States District Court for the Northern District of Illinois.⁽³⁷⁾ The district court dismissed the complaint, holding that binding Seventh Circuit precedent did not extend the rulings of Elrod and Branti to include independent contractors.⁽³⁸⁾ The Court of Appeals for the Seventh Circuit affirmed the district court's decision, and declined to extend the Elrod cases to include independent contractors, taking the position that to do so was the prerogative of the Supreme Court.⁽³⁹⁾

In O'Hare Truck Service, Inc. v. City of Northlake, the Supreme Court found that the First Amendment safeguards of political association afforded to public employees likewise are afforded to independent contractors.⁽⁴⁰⁾ In a 7-2 decision,⁽⁴¹⁾ the Court found that the discretion of a government to terminate at-will relationships does not include the discretion "to impose conditions on expressing, or not expressing, specific political views."⁽⁴²⁾ The dissent argued that because patronage practices violate no specific text within the Constitution, their proscription is better left to the legislative branch.⁽⁴³⁾ The dissent likewise cited fear of excessive litigation as a reason against extending Elrod's protection to independent contractors.⁽⁴⁴⁾

This Article traces the history of the Supreme Court's treatment of patronage practices in light of First Amendment restrictions and discusses the Court's decisions in three seminal cases, Elrod, Branti, and Rutan. This Article also examines the split among the circuits over whether to extend the holdings of the Elrod line of cases to include independent contractors. This Article then will examine both the majority and dissenting opinions in O'Hare. Finally, this Article concludes that the O'Hare decision exhibits sound constitutional jurisprudence as a natural extension of First Amendment rights called for both historically and logically by the Court's approach to abridgement of fundamental rights in general, and free speech rights in particular.

II.  The Development of First Amendment Jurisprudence Concerning Patronage Hirings and Firings

A.  Elrod v. Burns: The Foundation is Laid for Guaranteeing Public Employees' First Amendment Rights

Patronage hirings and firings occurred frequently and routinely in the United States since the beginning of the Republic,⁽⁴⁵⁾ and were practiced by early American presidents such as George Washington, Thomas Jefferson, and perhaps most famously of all, by Andrew Jackson.⁽⁴⁶⁾ If a justification for the practice of hiring one's political friends and firing one's political enemies was even questioned, the sufficient response appears to have been reliance on the phrase "[t]o the victor belong the spoils."⁽⁴⁷⁾

In the post-World War II explosion of civil rights cases, however, patronage hirings and firings came before the Supreme Court through what eventually has been seen as a trilogy of cases.⁽⁴⁸⁾ The first of the three cases, Elrod v. Burns,⁽⁴⁹⁾ involved a scenario that occurred with regularity in Cook County, Illinois, up to that time--namely the mass firing of public employees belonging to a party different from that of a newly-elected county official.⁽⁵⁰⁾

In a plurality opinion authored by Justice Brennan, the Supreme Court found that the practice of patronage dismissals was violative of public employees' First Amendment rights of freedom of speech and freedom of association.⁽⁵¹⁾ Because a public employee may be coerced by fear of job loss to support a party that he or she does not believe in, that person's ability to act according to his or her beliefs and associate with other like-minded people may be constrained.⁽⁵²⁾

Relying on precedent from cases involving the conferral of benefits by government to citizens,⁽⁵³⁾ the Court found that conditioning continued employment on an employee's restricted speech and belief would result in an unconstitutional condition being placed on a government benefit.⁽⁵⁴⁾ The Court reasoned that while government employment is a benefit to which there is strictly speaking no entitlement, neither may government condition receipt of that benefit in a way that would impinge upon a fundamental right, especially the right of free speech.⁽⁵⁵⁾ Patronage, in the plurality's opinion, effectively places an unconstitutional condition on government employment, in that threats of dismissal inhibit free speech and association, thereby accomplishing indirectly what government could not constitutionally accomplish directly.⁽⁵⁶⁾

1.  Attempting to Define a Standard

Having found patronage practices violative of First Amendment freedoms, the Court's inquiry was not yet over.⁽⁵⁷⁾ The Court stated that prohibitions on First Amendment protections are not absolute, and that sometimes "[r]estraints are permitted for appropriate reasons."⁽⁵⁸⁾ When such restraints significantly impair First Amendment rights, however, they must survive exacting scrutiny⁽⁵⁹⁾ in order to be found constitutional: the restriction must further a vital government end by the least restrictive means possible, and the benefit must outweigh the loss of constitutionally protected rights.⁽⁶⁰⁾

Three arguments were put forth in Elrod in defense of the patronage practices which gave rise to the case.⁽⁶¹⁾ The first argument maintained that patronage can be justified because of the "need to insure effective government and the efficiency of public employees."⁽⁶²⁾ The Court found this argument unpersuasive, and decided that less drastic means were available to the state to maintain government effectiveness and employee efficiency.⁽⁶³⁾

The second interest advanced in defense of patronage was the need to maintain political loyalty of public employees.⁽⁶⁴⁾ The Court found that while this argument was somewhat more persuasive than the first, nonetheless, maintaining public employees' political loyalty was not an interest vital enough to justify all patronage practices.⁽⁶⁵⁾ The Elrod Court therefore declared an exception to the Court's general rule invalidating patronage dismissals as violative of First Amendment rights of free speech and association:⁽⁶⁶⁾ those few individuals in "policymaking" positions, generally higher up in an administration, could be dismissed for patronage reasons, whereas "nonpolicymaking" individuals, those unable to thwart the party's policies which had been approved by the electorate, could not be dismissed.⁽⁶⁷⁾

The third interest put forth in defense of patronage dismissals as a vital state interest was that such dismissals were central to the functioning of partisan politics, which in turn is of foundational importance to the democratic process.⁽⁶⁸⁾ While stating that preservation of the democratic process is indeed an interest that could justify limiting First Amendment freedoms,⁽⁶⁹⁾ the Court found no evidence that the interdiction of patronage dismissals would bring about the demise of party politics and with it the entire democratic process.⁽⁷⁰⁾ Even if evidence existed that patronage helps sustain the two-party system, however, the Court stated that such a gain to government would not justify abridging public employees' First Amendment rights.⁽⁷¹⁾

B.  First Amendment Rights Affirmed: The Exception is Narrowed in Branti v. Finkel

The Elrod Court established the proposition that whether a public employee could be constitutionally dismissed in a patronage-related firing hinged upon whether the employee fit the description of "policymaker."⁽⁷²⁾ Four years after Elrod, the Supreme Court, in Branti v. Finkel,⁽⁷³⁾ clarified which employees would henceforth be considered policymakers for purposes of patronage actions.⁽⁷⁴⁾

In Branti, the dismissed employees were assistant public defenders in Rockland County, New York.⁽⁷⁵⁾ The Court of Appeals for the Second Circuit affirmed the district court's finding that both terminated employees had been performing their jobs satisfactorily, and that the sole reason for their discharge had been that they were Republicans in an office headed by a Democrat.⁽⁷⁶⁾ The Supreme Court upheld the court of appeals, which had enjoined the public defender from firing the employees,⁽⁷⁷⁾ citing to Elrod for the proposition that the First Amendment protects public employees from discharge based solely upon political belief.⁽⁷⁸⁾

In affirming the Second Circuit's decision, the Supreme Court also refined its earlier Elrod ruling in two important ways.⁽⁷⁹⁾ First, public employees no longer needed to prove coercion in order to prevail; instead, discharge based on a lack of affiliation with the party in power would be sufficient.⁽⁸⁰⁾

Secondly, the Branti Court considerably narrowed the policymaker exception that it had created in Elrod.⁽⁸¹⁾ Fearful perhaps that governments intent on retaining patronage practices violative of the First Amendment could avoid the Elrod ruling by attaching labels in order to take advantage of the Elrod exception, the Court in Branti stated that the inquiry would no longer be whether the label "`policymaker'" attached to a particular position.⁽⁸²⁾ Henceforth, the inquiry is whether the hiring authority would be able to demonstrate that party affiliation was an "appropriate requirement for the effective performance of the public office involved."⁽⁸³⁾

C.  First Amendment Protections not Limited Solely to Actions Equivalent to Discharge: Rutan v. Republican Party of Illinois Extends the Protection to Cover Other Adverse Actions

In both Elrod and Branti, the patronage practice that gave rise to a constitutional violation was the dismissal, or threatened dismissal, of public employees based solely on party affiliation.⁽⁸⁴⁾ In both cases, the Court found the patronage dismissals to be an unconstitutional practice, in large part because of the penalty, i.e., job loss, imposed upon public employees in retribution for the exercise of their First Amendment freedoms.⁽⁸⁵⁾

In Rutan v. Republican Party of Illinois,⁽⁸⁶⁾ the Court was asked to consider whether the Elrod and Branti prohibitions against adverse patronage practices were limited solely to actions that are the equivalent of discharge of public employees, or whether other practices of a retributive nature were likewise forbidden by the First Amendment.⁽⁸⁷⁾ In a 5-4 decision authored by Justice Brennan,⁽⁸⁸⁾ the Court held that the "related political patronage practices" of promotion, transfer, recall, and hiring when involving low-level public employees could not constitutionally be based on party affiliation and support.⁽⁸⁹⁾

The Court rejected the argument that patronage practices violate the First Amendment only when they are the substantial equivalent of dismissal.⁽⁹⁰⁾ The Court reasoned that the same First Amendment concerns at issue in Elrod and Branti were present in Rutan.⁽⁹¹⁾ Although less severe in nature than a discharge, to penalize public employees who exercise First Amendment freedoms by a denial of increase in pay, a denial of promotion, or a transfer to an inconvenient location still amounts to a "significant penalt[y]" for the exercise of those rights.⁽⁹²⁾

Again, the Court held that the surrender of First Amendment rights in return for continued enjoyment of a government job amounted to an unconstitutional condition placed on that benefit.⁽⁹³⁾ Absent the state's proving that its patronage practices were narrowly tailored to serve a vital government interest, such practices would not be upheld by the Court.⁽⁹⁴⁾ The Rutan Court determined that the government was unable to meet this burden, and therefore held that the patronage practices at issue were impermissible infringements of the First Amendment rights of public employees.⁽⁹⁵⁾

III.  The Development of First Amendment Patronage Law as Applied to Independent Contractors

A.  The Decisions of the Circuit Courts of Appeal Prior to Rutan v. Republican Party of Illinois

Prior to the Supreme Court's decision in Rutan v. Republican Party of Illinois, the circuit courts of appeal categorically refused to extend the Elrod and Branti decisions to the application of plaintiffs other than public employees.⁽⁹⁶⁾ Independent contractors consistently were held to fall beyond the scope of both decisions, and hence, independent contractors possessed no actionable claim when they claimed an abridgement of First Amendment rights.⁽⁹⁷⁾

The first post-Elrod/Branti decision where non-public employees claimed that patronage practices violated their constitutional rights arose in the Eighth Circuit.⁽⁹⁸⁾ In Sweeney v. Bond,⁽⁹⁹⁾ fee agents for the Missouri Department of Revenue hired by former Governor Joseph Teasdale, a Democrat, were dismissed by Republican Governor Christopher Bond.⁽¹⁰⁰⁾ The majority of those hired to replace the dismissed fee agents were Republicans.⁽¹⁰¹⁾

The Eighth Circuit found the state's arguments persuasive, and subsequently ruled against the discharged fee agents.⁽¹⁰²⁾ First, the Court agreed with the state's contention that the Elrod and Branti cases applied solely to public employees discharged for reason of political belief.⁽¹⁰³⁾ Next, the court's inquiry focused on the question of whether fee agents of the State of Missouri were public employees or independent contractors.⁽¹⁰⁴⁾ Agreeing with the district court's decision that the facts compelled the conclusion that fee agents were independent contractors,⁽¹⁰⁵⁾ the court declared its unwillingness to extend the Elrod/Branti decisions to independent contractors.⁽¹⁰⁶⁾ Beyond stating its reliance on the independent contractor/public distinction, however, the court gave little by way of explanation for its decision.⁽¹⁰⁷⁾

The Seventh Circuit, within whose jurisdiction the events of Elrod had occurred, addressed the issue of independent contractors in LaFalce v. Houston.⁽¹⁰⁸⁾ In an opinion written by Judge Posner, the court addressed the question of whether the First Amendment forbids a municipal government from using "political criteria in awarding public contracts."⁽¹⁰⁹⁾

The court characterized the rulings of Elrod and Branti as holding "that the discharge of a nonpolicymaking public employee solely because of his political beliefs violates the First Amendment."⁽¹¹⁰⁾ The basis for both rulings, in Judge Posner's opinion, was "that public employees would be discouraged from expressing their true political views if it might cost them their jobs."⁽¹¹¹⁾

While acknowledging that there was an "appealing symmetry"⁽¹¹²⁾ to plaintiff's argument that independent contractors are similarly "discouraged from expressing their true political beliefs" when the result of doing so may be the loss of a public contract,⁽¹¹³⁾ the court ultimately found the symmetrical appeal unpersuasive.⁽¹¹⁴⁾ Judge Posner argued that there was enough difference between public employees and independent contractors to warrant maintaining a difference between them for constitutional purposes, thereby precluding an extension of Elrod and Branti to independent contractors.⁽¹¹⁵⁾

The reasoning of the court's opinion rested largely upon perceived economic differences between independent contractors and public employees--differences vast enough in the Seventh Circuit's opinion to warrant maintaining a constitutional distinction between them.⁽¹¹⁶⁾ Loss of a job to a public employee, the court acknowledged, is a significant penalty for the exercise of First Amendment rights.⁽¹¹⁷⁾ Loss of a contract to an independent contractor, on the other hand, was not as extensive a penalty to pay for exercise of those same rights.⁽¹¹⁸⁾ In the Seventh Circuit's view, a public contractor would feel a lesser sense of dependency on government than would a public employee, and hence the latter's First Amendment rights must be more carefully protected than the former's.⁽¹¹⁹⁾ Because of the difference between public employees and independent contractors, and because of the fear of lawsuits by every disappointed bidder for a public contract,⁽¹²⁰⁾ the Seventh Circuit in LaFalce declined to extend Elrod and Branti to include independent contractors.⁽¹²¹⁾

The Third Circuit, in Horn v. Kean,⁽¹²²⁾ relied heavily on Judge Posner's LaFalce arguments when it dismissed a claim brought by former New Jersey motor vehicle agents against Governor Thomas Kean.⁽¹²³⁾ The Third Circuit reasoned that plaintiffs had no First Amendment claim, in that patronage practices of a possible coercive nature "ha[d] diminished importance where the recipient [of a state benefit] is not a state employee but one who contracts with the state."⁽¹²⁴⁾ Because independent contractors' dependency on the state is "diminished,"⁽¹²⁵⁾ the court agreed with the Seventh Circuit that it would be inappropriate for the lower courts to interfere with political institutions where the First Amendment interests at issue were of such an attenuated nature.⁽¹²⁶⁾

B.  The Circuits' Split Subsequent to Rutan v. Republican Party of Illinois

1.  The Seventh Circuit Continues to Rely on LaFalce Despite the Extension of First Amendment Protections Found in Rutan

While still explicitly concerned only with the First Amendment rights of public employees, the Supreme Court, in Rutan v. Republican Party of Illinois, clarified that its rulings in Elrod and Branti were not limited solely to actions equivalent to dismissal.⁽¹²⁷⁾ Rather, the First Amendment protections found in the earlier two cases were held by the Rutan Court to extend to patronage practices including "promotions, transfers, and recalls after layoffs based on political affiliation or support."⁽¹²⁸⁾

Within a year of Rutan, the Seventh Circuit revisited the issue of whether First Amendment protection against discharge based solely on political belief extended beyond public employees to independent contractors when the court decided Downtown Auto Parks, Inc. v. City of Milwaukee.⁽¹²⁹⁾ While Rutan could have been seen as opening the door to the claims of independent contractors, the Seventh Circuit refrained from taking the opportunity.⁽¹³⁰⁾

Downtown Auto Parks involved a parking lot operator's claim of a First Amendment violation when the City of Milwaukee failed to renew a two-year parking lot lease it had with the company.⁽¹³¹⁾ The Seventh Circuit, citing its earlier reasoning in LaFalce,⁽¹³²⁾ held that because Downtown Auto Parks was an independent contractor, it had no First Amendment protection against a municipal government's use of political criteria in awarding a public contract.⁽¹³³⁾ At the same time, however, the court conceded that in light of the Supreme Court's recent Rutan decision, doubt had been cast on the validity of the reasoning relied upon in LaFalce.⁽¹³⁴⁾ Despite the fact that the scope and rationale of Rutan seemed "to be at odds with the holding of LaFalce,"⁽¹³⁵⁾ because Rutan did not explicitly address the First Amendment rights of independent contractors, the Seventh Circuit was determined to rely upon its earlier reasoning which deemed political favoritism to be a valid factor in awarding public contracts to independent contractors.⁽¹³⁶⁾

2.  The Tenth Circuit Finds that Rutan Extends First Amendment Protection to Independent Contractors Facing Retaliatory Government Action

In Umbehr v. McClure,⁽¹³⁷⁾ the Tenth Circuit Court of Appeals broke with both the Seventh and the Third Circuits, by specifically holding "that an independent contractor is protected under the First Amendment from retaliatory governmental action" in the same manner as a public employee.⁽¹³⁸⁾ The court added that it did not reach the decision lightly, and that it agreed with the other circuits that guidance from the Supreme Court on the issue was "particularly needed."⁽¹³⁹⁾

Umbehr involved a Kansas county's termination of a garbage hauling contract with an independent contractor where the contractor had, inter alia, made statements critical of the county board of commissioners.⁽¹⁴⁰⁾ The Tenth Circuit reversed the district court, which had granted the county's motion for summary judgment.⁽¹⁴¹⁾

In analyzing the First Amendment claim, the Tenth Circuit considered the arguments in defense of distinguishing public employees from independent contractors put forth by the Seventh Circuit in LaFalce, and proceeded to systematically reject them in light of Rutan.⁽¹⁴²⁾ As to the perceived practical and economic differences between independent contractors and public employees found to be dispositive by the LaFalce court, the Tenth Circuit found little empirical evidence to support the arguable difference between the two,⁽¹⁴³⁾ concluding that there was certainly not a difference of constitutional magnitude.⁽¹⁴⁴⁾ As to the reluctance of the LaFalce court to extend the Supreme Court's ruling beyond the facts of Elrod and Branti, the court contended that because the Rutan Court had explicitly extended the rulings, lower courts were now authorized to do the same.⁽¹⁴⁵⁾

IV.  O'Hare Truck Service, Inc. v. City of Northlake: The Supreme Court Extends the Elrod Trilogy to Include the First Amendment Rights of Independent Contractors

In O'Hare Truck Service, Inc. v. City of Northlake,⁽¹⁴⁶⁾ the Supreme Court extended to independent contractors the First Amendment guarantee of political association that it had earlier guaranteed to public employees through the Elrod, Branti, and Rutan decisions.⁽¹⁴⁷⁾ John Gratzianna, owner of O'Hare Truck Services, had provided towing services to the City of Northlake, Illinois, for over thirty years.⁽¹⁴⁸⁾ The City maintained a rotation list of companies providing Northlake with towing services, and, prior to the events of O'Hare, the City's policy had been to remove an operator from the list only for cause.⁽¹⁴⁹⁾

In 1993, Mayor Reid Paxson solicited a campaign contribution from Gratzianna.⁽¹⁵⁰⁾ Gratzianna not only refused to contribute to the campaign, but also actively supported Mayor Paxson's opponent for the office.⁽¹⁵¹⁾ Soon after being re-elected mayor, Paxson directed the police chief of Northlake to drop O'Hare's name from the City's rotation list of tow service providers.⁽¹⁵²⁾ Gratzianna brought suit in the United States District Court for the Northern District of Illinois, alleging infringement of his First Amendment rights to political association.⁽¹⁵³⁾ The district court dismissed the claim, citing the necessity of conforming "with binding Seventh Circuit precedent,"⁽¹⁵⁴⁾ which failed to extend the Elrod/Branti rulings to independent contractors.⁽¹⁵⁵⁾ On appeal, the Court of Appeals for the Seventh Circuit affirmed the district court's ruling, maintaining that any extension of the Elrod line of cases should be "up to the Supreme Court."⁽¹⁵⁶⁾ The Supreme Court, citing the circuit split over whether the decisions of Elrod and Branti extended to independent contractors, granted certiorari to resolve the conflict.⁽¹⁵⁷⁾

A.  The Majority Opinion: The First Amendment's Guarantee of Freedom of Political Association Extends to Independent Contractors

In O'Hare, the Supreme Court reversed the Seventh Circuit's decision and held that the First Amendment safeguard of freedom of political association previously held to apply to public employees, likewise applies to independent contractors.⁽¹⁵⁸⁾ Writing for the seven member majority,⁽¹⁵⁹⁾ Justice Kennedy rejected the arguments put forth by Northlake in defense of maintaining the distinction between public employees and independent contractors.⁽¹⁶⁰⁾ In resolving the circuit split over whether Elrod/Branti applied to independent contractors whose right of political association was abridged, the Court rejected the proposition that the state's interest in maintaining a patronage system is an interest compelling enough to outweigh the independent contractor's First Amendment rights.⁽¹⁶¹⁾

1.  The Court Rejects the Arguments Offered in Defense of Maintaining the Distinction Between Public Employees and Independent Contractors

The O'Hare Court rejected Northlake's contention that the principles of Elrod and Branti were inapplicable to the facts of O'Hare, when it disagreed with the City's argument that the First Amendment rights of independent contractors, unlike those of a public employee, must yield to the government's countervailing interest in maintaining a patronage system.⁽¹⁶²⁾ Because the City offered no justification for its retribution against O'Hare except for the City's "right to condition a continuing relationship on political fealty,"⁽¹⁶³⁾ the Court rejected the argument that O'Hare was distinguishable from the Elrod and Branti line of cases.⁽¹⁶⁴⁾ Finding that Northlake failed to offer any new justification for maintaining a constitutional distinction between public employees and independent contractors, the Court found that Northlake had no interest sufficiently compelling to warrant the placing of an unconstitutional condition on O'Hare's enjoyment of a government benefit, namely to remain on the rotation list of towing providers.⁽¹⁶⁵⁾

In arguing against the extension of Elrod to the facts of O'Hare, Northlake had relied heavily on the traditional arguments favoring distinguishing between independent contractors and public employees.⁽¹⁶⁶⁾ The majority rejected the argument, finding that continued reliance on such reasoning would give governments "`carte blanche' to terminate independent contractors for exercising First Amendment rights," because governments could resort to attaching labels to service providers in substitution for considering the real interests at stake.⁽¹⁶⁷⁾ Conceding that the distinction between public employees and independent contractors has roots deep within the legal tradition, the O'Hare Court nonetheless rejected the traditional legal doctrine as insufficient to maintain what had become a constitutional chasm between the two groups.⁽¹⁶⁸⁾

The majority opinion likewise rejected the rationales offered by the circuits in defense of their refusal to extend the holdings in Elrod and Branti beyond public employees to independent contractors.⁽¹⁶⁹⁾ Beginning with the economic argument relied upon by the Third and Seventh Circuits,⁽¹⁷⁰⁾ the majority rejected as unconvincing the concept that there exists a distinction of constitutional magnitude between the two groups based on differing degrees of economic dependency on government income.⁽¹⁷¹⁾ Agreeing with the Tenth Circuit,⁽¹⁷²⁾ the majority found there to be no convincing data to support the proposition that independent contractors are less dependent on government income than are public employees.⁽¹⁷³⁾ Even if such a degree of economic difference existed, however, such a difference would not be a proper focus of the Court's inquiry where constitutional rights were at stake.⁽¹⁷⁴⁾ Rather, the proper concern of the courts is the right of independent contractors to protest the wrongful interference with their rights of political association.⁽¹⁷⁵⁾

Finally, the O'Hare Court rejected the pragmatic argument that extension of Elrod protection to independent contractors would result in numerous lawsuits that would "interfere with the sound administration of government contracting."⁽¹⁷⁶⁾ The majority stated that similarly dire predictions made in Rutan had failed to materialize.⁽¹⁷⁷⁾ Most contracting decisions would continue to be made for reasons legitimate to government.⁽¹⁷⁸⁾ In light of O'Hare, the government may no longer terminate a pre-existing commercial relationship where First Amendment rights of political association would be contravened by such termination, because the maintenance of a patronage system was found to be of insufficient import to outweigh the independent contractor's countervailing First Amendment rights.⁽¹⁷⁹⁾

B.  The Dissent: Patronage is a Political Question Best Left to the Workings of the People Through Their Representatives

Justice Scalia, joined by Justice Thomas, authored a lengthy and strongly worded dissent from the majority opinion in O'Hare.⁽¹⁸⁰⁾ Stating that the Court was "living in another world" and "[d]ay by day . . . busy designing a Constitution for a country I do not recognize,"⁽¹⁸¹⁾ Justice Scalia expressed amazement that the Court would extend Elrod and Branti to include independent contractors.⁽¹⁸²⁾ Justice Scalia charged the Court with intrusion into areas not proper to the Court's jurisdiction, but rather belonging to the democratic process of the people expressing their wishes through their representatives.⁽¹⁸³⁾

1.  The Desirability of Patronage is a Political Question Best Left to the Legislative Process for Resolution

Justice Scalia cited to his dissenting opinion in Rutan v. Republican Party of Illinois as providing the "basic reason" for his dissent in O'Hare.⁽¹⁸⁴⁾ Justice Scalia maintained in both dissents that political patronage is a practice dating back to the founding of the Republic, a practice that by and large has been accepted by the American people, although from time to time they have placed certain restrictions upon it.⁽¹⁸⁵⁾ Because patronage is a "`venerable and accepted tradition'" that does not violate any explicit text of the Constitution, Justice Scalia maintained that far from being an issue upon which the Supreme Court should pass judgment, such venerable and widely accepted practices as patronage are "the stuff out of which the Court's principles should be formed."⁽¹⁸⁶⁾

Contending that Elrod and Branti had been incorrectly decided, Justice Scalia maintained that the whole issue of patronage is a policy question to be decided upon by the people through the democratic process.⁽¹⁸⁷⁾ Justice Scalia did not advocate that patronage was a desirable system, nor a particularly good one, only that it was not an unconstitutional one.⁽¹⁸⁸⁾ Because the democratic process seemed content to prohibit some, but not all, patronage practices, and because it would be impossible to erect a system of awarding contracts by which no person would be intentionally disadvantaged by government because of political belief, the whole issue of patronage in independent contracting is a question beyond "`judicial competence to answer.'"⁽¹⁸⁹⁾

2.  Elrod and Branti Should not be Extended Beyond Public Employees

Justice Scalia maintained that the Nation's traditions, as opposed to judicial activism, ought to serve as the basis upon which to separate the constitutionally permissible from the constitutionally impermissible; upon this basis he stated that while Elrod and Branti were not properly decided on constitutional grounds, at least they "made some sense."⁽¹⁹⁰⁾ While not admitting that a First Amendment violation had occurred in either case, Justice Scalia conceded that the loss of one's job is a significant penalty "to pay for one's politics."⁽¹⁹¹⁾ No such similar penalty, however, is exacted when an independent contractor loses a municipal contract because of his or her politics.⁽¹⁹²⁾ Impliedly admitting that little chance exists for overruling Elrod and Branti, Justice Scalia argued that at the very least they should not be extended any further, and certainly not to independent contractors.⁽¹⁹³⁾

In coming to this conclusion, Justice Scalia borrowed heavily from Judge Posner's reasoning as expressed in LaFalce v. Houston.⁽¹⁹⁴⁾ Believing that the degree of dependancy on the government is less for an independent contractor, "usually a corporation,"⁽¹⁹⁵⁾ than for a public employee, "virtually always an individual who is not rich,"⁽¹⁹⁶⁾ Justice Scalia argued that the traditional distinction between independent contractors and public employees should stand.⁽¹⁹⁷⁾ Likewise, despite the fact that the majority had "shrug[ged] off this concern," the dissent was fearful that permitting independent contractors to bring suits against the government for violations of First Amendment rights would lead to an overwhelming volume of litigation.⁽¹⁹⁸⁾ Particularly because such litigation could be used as an effective means by which competitors could block the awarding of government contracts to other companies, the dissent argued that the Elrod and Branti safeguards should not be extended to include independent contractors.⁽¹⁹⁹⁾

In sum, Justice Scalia argued that the facts alleged in O'Hare did not represent the norm in patronage systems, but rather an extreme case of patronage gone awry.⁽²⁰⁰⁾ For every such case, there are thousands of contracts daily awarded on the basis of patronage that would cause no one to comment.⁽²⁰¹⁾ The O'Hare decision, the dissent concluded, is nothing more than a "Constitution-making" exercise, wherein the majority further contributed to the "major, undemocratic restructuring of our national institutions and mores."⁽²⁰²⁾

V.  Striking the Balance: The Majority Approach Represents a Reasonable Compromise Between Competing and Legitimate Interests

The Supreme Court's decision in O'Hare Truck Servive, Inc. v. City of Northlake represents a logical extension of the First Amendment jurisprudence developed by the Court in cases involving adverse patronage practices.⁽²⁰³⁾ The decision is a welcome development in light of the Court's prior decisions with regard to public employees' First Amendment rights over the past thirty years,⁽²⁰⁴⁾ and despite the valid concerns of the dissent,⁽²⁰⁵⁾ should not prove unduly burdensome to either the court system or government contracting authorities.⁽²⁰⁶⁾

A.  The Court Defines Terms Whose Meaning is Far from Self-Evident

In O'Hare, the Court sought to give meaning to words that are not self-defined, and whose very origin remains far from clear.⁽²⁰⁷⁾ To provide meaning to the words "Congress shall make no law . . . abridging the freedom of speech,"⁽²⁰⁸⁾ the Court in O'Hare needed to balance and reconcile two competing interests.⁽²⁰⁹⁾ On the one hand, the Court sought to protect the legitimate interests of government as employer in providing efficient and economical goods and services to the public, and on the other hand, the Court sought to protect the First Amendment rights of independent contractors.⁽²¹⁰⁾

In arriving at its holding, the O'Hare Court reconciled the two interests in such a way as to guarantee constitutional First Amendment protection to independent contractors.⁽²¹¹⁾ They have the same First Amendment guarantee of freedom of political association as is afforded to public employees.⁽²¹²⁾ Additionally, the legitimate concerns of government were addressed, in that government may still provide for efficient service by discharging a service provider who is unreliable.⁽²¹³⁾ Likewise, as is the case with public employees, government may still avoid a First Amendment violation where "the service provider's political `affiliation is an appropriate requirement for the'" particular contract in question.⁽²¹⁴⁾

1.  "Pages of History" from the Court's Own Jurisprudence Compelled the O'Hare Outcome

The dissent repeatedly expressed its opinion that the entire question of patronage ought to be left to the legislative branch for resolution.⁽²¹⁵⁾ In support of this proposition, the dissent warned the O'Hare majority that it had forgotten the admonition of Justice Holmes that with regard to some issues, "`a page of history is worth a volume of logic.'"⁽²¹⁶⁾ Because the practice of patronage dates back to the time of the Republic's founding and does not violate any explicit text of the Constitution, presumably that page of history bestows a certain presumption of constitutionality upon the practice.⁽²¹⁷⁾

History, however, and particularly the history of First Amendment jurisprudence, actually compelled both the O'Hare decision and the earlier public employment decisions leading up to O'Hare.⁽²¹⁸⁾ While it may be true that prior to World War I no First Amendment case received adequate analysis at the hands of the Supreme Court,⁽²¹⁹⁾ this is no longer the case.⁽²²⁰⁾ For the last fifty years, freedom of speech has increasingly been seen as possibly the most fundamental value of American democratic society, whose value the Supreme Court has guarded zealously so as to preclude encroachment upon it.⁽²²¹⁾

The dissent may well be correct, therefore, in its repeated statement that prior to Elrod no one ever thought that politically motivated firings were a First Amendment violation.⁽²²²⁾ The statement supports the dissent's preference to rely on the legislative branch to solve the problem of politically motivated termination of government benefits, such as jobs.⁽²²³⁾ Perhaps the reason that prior to Elrod no one ever thought that patronage contracting violated the First Amendment, however, was because such thoughts, and the opinions formed on the basis of those thoughts, were effectively precluded from the debate when the legislatures considered the desirability of patronage.⁽²²⁴⁾ If American society is indeed the "`marketplace of ideas,'"⁽²²⁵⁾ then the prerequisite to finding a buyer is to first obtain shelf space in the market.⁽²²⁶⁾

The fact that the legislative process might well be skewed with regard to the issue of patronage would lend ready support to the entry of the Supreme Court into an area which eminent jurists have described as a question "`of political science that exceed[s] judicial competence to answer.'"⁽²²⁷⁾ Since the time of Elrod, the Court seems to have sought to address the issue of patronage vis-a-vis First Amendment rights not because legislatures had totally ignored the issue, the mix of civil service positions along side of patronage jobs in many government bodies demonstrating government's attempt at some reform in the patronage area, but because certain opinions are effectively precluded from the patronage debate.⁽²²⁸⁾

Beginning with Elrod, the Court has expressed concern that when the exercise of First Amendment rights results in a person losing a government benefit, be it job or contract, the person affected may well choose to refrain from exercising that right.⁽²²⁹⁾ The legislature considering the continued desirability of patronage cannot be relied upon to have considered all possible points of view when determining the need to limit or abolish patronage practices.⁽²³⁰⁾ Not only is it possible that the legislature has limited access to a wide spectrum of opinions regarding the issue,⁽²³¹⁾ the legislative majority may itself have an interest in maintaining the practice so as to keep itself in power.⁽²³²⁾ Hence, the compelling need for the Supreme Court to step in to safeguard the fundamental freedoms of those likely to be excluded from the legislative process.⁽²³³⁾

VI.  Conclusion

In O'Hare Truck Service, Inc. v. City of Northlake, the Supreme Court decided that subject to narrow exceptions, government may not condition the continuance of a pre-existing commercial relationship on an independent contractor's surrender of First Amendment rights of political association. The Court's decision builds logically upon its earlier decisions in public employment cases, wherein the maintenance of a patronage system was found to be of insufficient interest to justify suspension of public employees' First Amendment rights. The decision likewise is a constitutionally sound example of the Court intervening in a traditionally legislative area to guarantee the fundamental constitutional rights of those likely to be excluded from the legislative process. Finally, the concerns of the dissent about a possible explosion of lawsuits and subsequent inability of government to perform its proper functions were raised in earlier decisions and failed to materialize. They are likewise unlikely to materialize in light of the O'Hare decision.

* Michael H. Koby teaches at The Catholic University of America's Columbus School of Law in Washington, D.C. B.A., Biola University; J.D., Washington College of Law, the American University.

1. Mike Royko, Boss: Richard J. Daley of Chicago 37 (1971). McDonough was slated for the position of County Treasurer by Mayor Anton Cermak. See id. at 36. Cermak was elected Mayor of Chicago in 1931, having already been elected president of the Cook County Board and head of the local Democratic Party. See id. As mayor, Cermak created the first ethnically balanced ticket in Chicago political history, which was largely responsible for creating the most powerful political machine existing in Chicago up to that time. See id. In 1955, Richard Daley was elected Mayor of Chicago by 118,667 votes, inheriting the political machine created by Cermak. See id. at 90. Cermak himself died an untimely death when, while sharing a speaking platform with President Franklin D. Roosevelt in Miami, an assassin attempting to kill President Roosevelt shot Cermak instead. See id. at 36. Cermak fell into Roosevelt's arms gasping out his last words, "I'm glad it was me instead of you." Eugene Kennedy, Himself! The Life and Times of Mayor Richard J. Daley 57 (1978). After his death, the political "Machine" he founded gave Cermak "a hero's funeral, the biggest in city history, . . . wiped away its tears, and then the South Side put Ed Kelly in as mayor and let Pat Nash run the party. The famine [i.e., someone of non-Irish descent controlling the mayor's office and party political machinery] was over." Royko, supra, at 36.

2. Patronage may be described as "the allocation of the discretionary favors of government in exchange for political support." Martin Tolchin & Susan Tolchin, To The Victor . . . Political Patronage from the Clubhouse to the White House 5 (1971); see also Thomas G. Dagger, Comment, Political Patronage in Public Contracting, 51 U. Chi. L. Rev. 518, 557 (1984) (stating same definition in context of public contracting, as distinguished from public employment). Another definition is "the practice of a public official in making appointments to public (non-civil service) offices and to confer honors." Black's Law Dictionary 1127 (6th ed. 1990). Journalists Martin and Susan Tolchin state that the origins of patronage predate the Roman Empire. See Tolchin & Tolchin, supra, app. c at 319. "As early as 243 B.C., [in China, for example, persons] who gave a certain amount of grain to the state were rewarded with one rank in the official hierarchy," and "[d]uring the Ming Dynasty (1368-1644), the government resorted to selling offices to shore up its resources whenever barbarians from the north threatened to invade [China]." Id. Patronage was likewise widespread in the fourteenth century Ottoman Empire, when the sultan would sell governorships in Egypt for 60,000 gold ducats. See id. at 320. While in eighteenth-century England the office of Secretary of State could be purchased for 6000 to 10,000 pounds sterling, France was becoming deluged in a patronage bureaucracy that included such offices as "`wig inspector[]'" and "`inspector[] of hogs' tongues.'" Id. at 321. The worst abuses of patronage, however, occurred in the British colonies of North America where "officeholders made little pretense of public service, and graft and inefficiency flourished." Id. at 322; see also infra note 46 and accompanying text (discussing patronage practices of American Presidents from Washington through Grant).

The authors do not contend that patronage is per se evil, however, believing rather that patronage may be used for good ends as well as evil ones, "for progress or for regression, to advance social legislation like that of the New Deal era or to try to appoint Supreme Court justices of questionable quality." Tolchin & Tolchin, supra, at 26. Perhaps this ambivalence towards patronage practices is summed up by the two quotes the authors use to introduce their work: Colonel Jacob L. Arvey (a key player in the Daley Machine) is quoted as saying that "`Politics is the art of putting people under obligation to you.'" Id. at 3. Republican member of the Illinois House of Representatives, Arthur Telcser, on the other hand, is quoted as saying that "`Patronage is the root evil of politics. It keeps people in bondage.'" Id.

3. See Royko, supra note 1, at 36-37. The Treasurer's Office meant for McDonough "more jobs, [and] more power." Id. For Daley, who became McDonough's assistant, the Treasurer's Office provided the opportunity to master "the management of a large patronage office." Id. at 37. As Mayor of Chicago twenty-five years later, Daley would control roughly 30,000 patronage jobs with the City, and perhaps an equal if, not slightly greater, number in private industry. See Tolchin & Tolchin, supra note 2, at 44. This was true despite the fact "that 97 percent of Chicago's city-government jobs fell under [the heading of] civil service." Id. at 40. Mayor Daley "circumvented [the] civil service through the use of [thousands] of `temporary employees.'" Id. Some of the temporary employees would stay on the payroll "for the rest of their lives." Royko, supra note 1, at 63. The "carefully nurtured patronage traditions of Chicago" succeeded during the Daley years in transforming Chicago into "a monolithic, one-party state." Tolchin & Tolchin, supra note 2, at 44-45. While admitting that Chicago was a model of urban efficiency during the Machine years, the Tolchins observed that the city had moved "further and further away from the American ideal of an open society." Id. at 45. Eugene Kennedy described Mayor Daley as a "chieftain who had known war and triumph and loss, an Irish leader . . . who [held] the power to dispense favors, promotions, or other largesse . . . [and] never allow[ed] anyone even to seem to share power or authority with [him]." Kennedy, supra note 1, at xi-xv.

While it is true that no Republican has held the mayor's office since 1928, following Mayor Daley's death in 1976, the Machine's grip on the voters has relaxed considerably. See generally Cynthia Grant Bowman, "We Don't Want Anybody Anybody Sent": The Death of Patronage Hiring in Chicago, 86 Nw. U. L. Rev. 57 (1991) (discussing the effects of the Supreme Court's patronage decisions on traditionally patronage-heavy Chicago politics). As the title of the Tolchins' work demonstrates, however, patronage and machine politics was never restricted solely to the municipal level. See generally Tolchin & Tolchin, supra note 2 (discussing patronage as extending from city hall to the White House). For example, the authors maintain that Members of Congress, by acting as middle-persons "between their constituents and an otherwise unresponsive [federal] bureaucracy," tend to elicit from these constituents a sense of obligation to support that member in future reelection bids as a repayment for "past services rendered," even as a Chicago resident would feel indebted to the alderman who got him or her a building permit from City Hall. Id. at 211. See generally David B. McCullough, Truman (1992) (discussing how the President who ended World War II and authorized the Marshall Plan to rebuild Europe got his start from the Pendergast Machine of Kansas City, Missouri. Although never linked personally to the corrupt practices of the machine, as Senator from Missouri, Truman always kept a photograph of "Boss" Tom Pendergast in his office).

4. See generally O'Hare Truck Serv., Inc. v. City of Northlake, 116 S. Ct. 2353 (1996) (extending First Amendment protection to independent contractors).

5. See id.

6. See Tolchin & Tolchin, supra note 2, at 187. McDonough generally avoided frequenting his office, preferring to leave its administration to others, among them his secretary, Richard J. Daley. See Royko, supra note 1, at 37. When questioned about his frequent absences, he offered the excuse that because of the large number of job seekers constantly approaching him, the only way he could accomplish any work was by staying away from the County Building. See id. Although McDonough received the credit for much of the work actually done by Daley, this mattered little to Daley, who learned to master the intricacies of finance and budgets, as well as the sources of and funds for county-wide patronage. See Kennedy, supra note 1, at 56. While representing a general approach to political life, the phrase go along to get along is specifically attributed to Sam Rayburn, the longest-tenured Speaker of the House of Representatives. See Tolchin & Tolchin, supra note 2, at 187. Mr. Rayburn advised House Members that in order to "`[g]et along, you have to go along. Anybody who tries will find a way to go along with his leaders 60-70 percent of the time,'" thereby gaining an advantage for that member's district when "government largesse" was doled out. Id. at 187-88.

7. U.S. Const. amend. I. "The Framers of the Constitution [did not] include in the original document a[ny] provision expressly upholding a general theory of freedom of speech . . . ." John E. Nowak & Ronald D. Rotunda, Constitutional Law § 16.5, at 937 (4th ed. 1991). Relying on their vision of a government of explicitly limited powers, the Founders did not conceive of the possibility of government being able to constitutionally limit the principle of free speech. See id. "Popular pressure, however, demanded" that certain individual rights be explicitly protected as beyond the pale of government interference. Id. This pressure resulted in the 1791 adoption of the Bill of Rights. See id.

8. See Nowak & Rotunda, supra note 7, § 16.7, at 941-44 (discussing the balancing versus absolutist views of Supreme Court Justices Frankfurter, Black, and Harlan regarding First Amendment rights). When compared to other freedoms enumerated in the Bill of Rights, it could appear that the rights guaranteed in the First Amendment are absolute. See id. at 942. For example, the Fourth Amendment guarantees the right to be free only from "`unreasonable searches and seizures.'" Id. (quoting U.S. Const. amend. IV). If the First Amendment does in fact guarantee free speech as an absolute right, then free speech is in a preferred position compared to the other rights guaranteed in the Bill of Rights. See id. All of the other rights guaranteed therein, even freedom of religion, are subject to balancing. See id. "If free speech is an absolute right," then "by definition, [it] is not subject to balancing." Id. Justice Felix Frankfurter, while not using the term "preferred position," nonetheless believed that the rights guaranteed in the First Amendment were first by design, not by mere chance. Id. Professors Nowak and Rotunda maintain that "Justices Black and Douglas championed an absolutist view of free speech, and they are most closely associated with this position, but a majority of the Court has never adopted it." Id. at 943 (footnote omitted). But cf. Rodney A. Smolla, Free Speech in an Open Society 24 (1992).

Professor Smolla maintains that although Justice Black and, to a lesser degree Justice Douglas, are often cited as America's most famous absolutists, "Justice Black was [actually] a qualified absolutist." Id. Smolla contends that "Justice Black was a qualified absolutist" in the sense that he maintained as a "safety valve" a "dichotomy between `speech' and `conduct.'" Id.; see also Louis Henkin, Infallibility Under Law: Constitutional Balancing, 78 Colum. L. Rev. 1022, 1044 (1978). Professor Henkin states that "no one, [and] surely no Justice of the Supreme Court, ever believed that the Constitution forbade any governmental interference whatever with any speech or press at any time or place for any reason." Id. He states further that "[d]espite insistent protestations by Justice Black, there has been no literalist and no absolutist reading of the amendment." Id. Professor Henkin argues that "while [Justice] Black persisted in repeating the words" of the First Amendment, "he was no more literal in method than he was absolute in result." Id.; see also Gerald Gunther, In Search of Judicial Quality on a Changing Court: The Case of Justice Powell, 24 Stan. L. Rev. 1001, 1004-14 (1972) (discussing balancing and the First Amendment); Harry Kalven, Jr., Upon Rereading Mr. Justice Black on the First Amendment, 14 UCLA L. Rev. 428, 441, 444 (1967) (discussing same).

Professor Gunther argues that Justice Harlan applied a balancing approach to First Amendment issues, despite criticism from his brethren on the Warren Court. See Gunther, supra, at 1005. For Justice Harlan, however, "balancing never served as an escape from responsibility." Id. at 1006. Rather, Justice Harlan's "balancing typically entailed a fair and careful evaluation of the asserted state justifications for impinging upon first amendment interests." Id. Professor Gunther states that Justice Harlan's balancing approach was best exemplified in Cohen v. California. See id.; see also Cohen v. California, 403 U.S. 15, 26 (1971) (arguing dual function of speech as conveying not only information, but also otherwise inexpressible emotions).

For the view of an eminent First Amendment scholar regarding free speech and political freedom, see Alexander Meiklejohn, Free Speech and Its Relation to Self-Government (1948). Meiklejohn argues that "[t]he principle of . . . freedom of speech springs from the necessities of the program of self-government. . . . [and] is a deduction from the basic American agreement that public issues shall be decided by universal suffrage." Id. at 26-27. The guarantees of the First Amendment extend, therefore, not to all speaking, but "only to speech which bears, directly or indirectly, upon issues with which voters have to deal[,] . . . matters of public interest." Id. at 94. This "unabridged freedom of public discussion," the author contends, is the "rock on which our government stands." Id. at 91. But see Zechariah Chafee, Jr., Book Review, 62 Harv. L. Rev. 891 (1949). Professor Chaffee took issue with Alexander Meiklejohn's theory that because of the First Amendment, "Freedom of speech on matters affecting self-government is . . . not open to restrictions by the Government." Id. at 895. In support of the "clear and present danger test" formulated by Justice Holmes, itself a type of balancing, Professor Chafee contends that the framers of the First Amendment "had no very clear idea as to what they meant by `the freedom of speech or of the press.'" Id. at 898. The history of constitutional interpretation, however, has resulted in the adoption of a method of judicial balancing that distinguishes "between good public speech and bad public speech." Id. at 899.

9. See Nowak & Rotunda, supra note 7, § 16.7, at 943. The authors state that whereas Justices Black and Douglas are proponents of the absolutist view, "Justice Harlan has often been associated with the `balancing view.'" Id. In Konigsberg v. State Bar of California, 366 U.S. 36 (1961), where Justice Black wrote his defense of the absolutist position, see id. at 61-63 (Black, J., dissenting), Justice Harlan wrote for the Court, and presented his justification for judicial balancing. See id. at 49-51. Justice Harlan stated his rejection of:

the view that freedom of speech and association as protected by the First and Fourteenth Amendments, are "absolutes," not only in the undoubted sense that where the constitutional protection exists it must prevail, but also in the sense that the scope of that protection must be gathered solely from a literal reading of the First Amendment.Id. at 49 (footnote omitted) (citation omitted). Justice Harlan maintained that throughout its history the Court had consistently recognized ways in which constitutionally protected speech was recognized as being narrower in scope than an unlimited license to talk. See id. at 49-50. Referring to examples of where government could restrict First Amendment rights, Justice Harlan said such limitations would need to be "found justified by subordinating valid governmental interests, [such being] a prerequisite to constitutionality which [would] necessarily involve[] a weighing of the governmental interest involved." Id. at 51. But cf. Smolla, supra note 8, at 42 (maintaining that neither absolutism nor the balancing view is entirely sufficient as a "coherent general theor[y] of free speech").

10. Robert B. McKay, The Preference for Freedom, 34 N.Y.U. L. Rev. 1182, 1187 (1959). Professor McKay maintains that the First Amendment had only a "scanty history" from the time of its ratification extending all the way to World War I. Id. McKay examined First Amendment jurisprudence from the time of the Constitution's ratification through just after World War II, and found it "curious but true that until the celebrated decision in Schenck v. United States, 249 U.S. 47 (1919) the first amendment received no genuine analysis from the Supreme Court." Id. (footnotes omitted); see also 4 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law, Substance and Procedure § 20.5, at 13 (2d ed. 1992). The authors maintain that "[f]rom the time the first amendment was enacted [in 1791] until the World War I era, the Supreme Court and the lower courts did not focus very much at all on free speech issues." Id. at 13 n.16. Professors Rotunda and Nowak state that one of the few exceptions occurred with the passage of the Alien and Sedition Acts in 1798, which were enforced by the lower courts. See id. The Act provided that "the President could order all aliens `as he shall judge dangerous to the peace and safety of the United States . . . .' to leave the Country." Id. at 12 (quoting Alien & Sedition Acts, ch. 58, § 1, 1 Stat. 570, 570-71 (1798)). The Act never withstood judicial scrutiny by the Supreme Court, however, although the authors contend that the Act remains "the epitome of an unconstitutional abridgement of free speech." Id. at 13.

Some recent First Amendment scholarship, however, has questioned both whether there really was a paucity of First Amendment cases before the courts from 1791 until World War I, and if so, why World War I and the years immediately following it proved to be the catalyst for the development of modern First Amendment doctrine. See David M. Rabban, The First Amendment in Its Forgotten Years, 90 Yale L.J. 514, 522 (1981). Mr. Rabban states that although legal scholars generally assume that no free speech issues were before the courts prior to the enactment by Congress of the Espionage Act in 1917, such was not the case. See id. In fact, in the "social unrest of the period" just prior to World War I, "workers, anarchists, socialists, and religious minorities produced much . . . free speech litigation." Id. There were likewise cases brought by government employees involving First Amendment claims. See id. at 523.

Mr. Rabban contends that the reason that legal scholars for so long dated modern First Amendment jurisprudence to the World War I era was due to the influence of Zechariah Chafee, Jr., and his work of "seminal legal scholarship," Freedom of Speech (1920). Id. at 516, 516 n.3. Because of Professor Chafee's focus on the Espionage Act of 1917 and the "`clear and present danger'" test formulated by Justice Holmes in Schenck v. United States, 249 U.S. 47 (1919), scholars and judges for decades "accepted Chafee's interpretation of First Amendment history." Id. at 517. Professor Chaffee stated in a footnote to Freedom of Speech, however, that "[t]he history of freedom of speech in America ha[d] not yet been fully investigated." Id. at 517 n.4; see also Chafee, supra, at 933 n.1. Mr. Rabban's article was an attempt to clarify the resulting "distorted view of the social and intellectual history of the First Amendment." Rabban, supra, at 519 (footnote omitted); see also David M. Rabban, The Emergence of Modern First Amendment Doctrine, 50 U. Chi. L. Rev. 1205, 1207 (1983) (building upon earlier article to fill in "important gaps" in First Amendment scholarship from America's entry in World War I through the Supreme Court's decision in Whitney v. California, 274 U.S. 357 (1927)). Compare with Gerald Gunther, Learned Hand and the Origins of Modern First Amendment Doctrine: Some Fragments of History, 27 Stan. L. Rev. 719 (1975).

Professor Gunther examined sixteen letters between Judge Learned Hand and Justice Oliver Wendell Holmes, as well as a number of letters exchanged by Judge Hand and Harvard Law School Professor Zechariah Chafee, Jr. See id. at 719. The letters reveal "the quite different speech-protective formulas advanced by Hand and Holmes." Id. Judge Hand, according to the author, was well ahead of Justice Holmes, and the rest of the Supreme Court, in the development of free speech doctrine in response to the Espionage Act, articulating an incitement/nonincitement distinction in Masses Publ'g Co. v. Patten, 244 F. 535 (S.D.N.Y.), rev'd, 246 F. 24 (2d Cir. 1917). See id. at 720. The author details the influence of Judge Hand and Professor Chafee in persuading Justice Holmes of the importance of special sensitivity to free speech values. See id. at 732. Beginning with a chance train ride between New York and Boston one year after Masses, Judge Hand was able to influence Justice Holmes to alter his views on protecting speech, see id., the result being the clear and present danger test subsequently articulated by Holmes in Abrams v. United States, 250 U.S. 616, 627 (1919) (Holmes, J., dissenting), and Schenck v. United States, 249 U.S. 47, 52 (1919), a test differing from Judge Hand's. See id. at 732-35. In Schenck, Justice Holmes stated that determining whether speech was protected would turn upon the answer to the question of "whether the words used . . . are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree." Schenck, 249 U.S. at 52. Judge Hand's test, articulated in Masses, would later be partially adopted by the Supreme Court in Brandenburg v. Ohio, 395 U.S. 444 (1969). See Gunther, supra, at 734.

11. See infra notes 48-95 and accompanying text (discussing development of decisions protective of public employees' First Amendment rights of political association).

12. See McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220 (1892) (holding the proposition that public employees surrender certain constitutional rights upon taking a government job).

13. See id. This view was summed up by then-Judge Holmes in McAuliffe, when he stated that although a policeman "may have a constitutional right to talk politics . . . he has no constitutional right to be a policeman." Id.; see also Adler v. Board of Educ., 342 U.S. 485, 492 (1952), aff'd sub nom. L'Hommedieu v. Board of Regents of the Univ. of State of New York, 342 U.S. 951 (1952). In upholding the dismissal of a teacher pursuant to a New York statute that disqualified from public school employment any person advocating the overthrow of the government by force or violence, the Supreme Court held that such dismissal did not contravene the appellant's first amendment rights; relying on Justice Holmes' rights/privilege distinction, the Court stated that "[t]hey[, appellants,] may work for the school system upon the reasonable terms laid down by the proper authorities of New York. If they do not choose to work on such terms, they are at liberty to retain their beliefs and associations and go elsewhere." Id. But cf. Nancy I. Oxfeld, Free Speech for Public Employees: Justice Holmes Had It Wrong, N.J. Law., Aug.-Sept. 1994, at 36.

Ms. Oxfeld maintains that "[t]imes have changed since Justice Holmes wrote," largely because of the Supreme Court decisions in Elrod, Branti, and Rutan. Id. at 37; see also William W. Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 Harv. L. Rev. 1439, 1439 (1968). Professor Van Alstyne, writing prior to the Elrod trilogy, held that Justice Holmes' rights/privilege distinction had "long hampered individuals within the public sector in protecting themselves against arbitrary government action." Id. Professor Van Alstyne wrote that Judge Holmes' McAuliffe epigram was actually a tautology whose efficacy had long since been eroded. See id. at 1445. Numerous developments in the law since the time of Holmes' 1892 opinion had contributed to this erosion, although no case explicitly rejected the rights/privilege distinction. See id. Chief among the developments was the doctrine of unconstitutional conditions, as expressed by Justice Sutherland in Frost v. Railroad Comm'n, 271 U.S. 583, 593-94 (1926). Justice Sutherland said that "[i]f the state may compel the surrender of one constitutional right as a condition of its favor, it may, in like manner, compel a surrender of all. It is inconceivable that guaranties embedded in the Constitution of the United States may thus be manipulated out of existence." Id. at 594. Professor Van Alstyne concludes that courts applying the unconstitutional conditions doctrine effectively nullified Justice Holmes' epigram, as did the dramatic increase in government employment occurring since the advent of the New Deal. See Van Alstyne, supra, at 1459. See generally Robert L. Hale, Unconstitutional Conditions and Constitutional Rights, 35 Colum. L. Rev. 321 (1935) (discussing emerging unconstitutional conditions doctrine); Robert M. O'Neil, Unconstitutional Conditions: Welfare Benefits with Strings Attached, 54 Cal. L. Rev. 443, 463-66 (1966) (discussing same).

14. See Perry v. Sindermann, 408 U.S. 593, 597 (1972). In Perry, a state college teacher alleged that his teaching appointment had not been renewed in reprisal for his exercise of free speech. See id. at 594-95. The Court stated that the fact that the public employee had no "right" to reemployment was "irrelevant to his free speech claim." Id. at 597, 599. The Court held that although:

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 interest--especially, his interest in freedom of speech.Id. at 597.

15. See id. at 597.

16. See infra notes 48-95 and accompanying text (discussing Supreme Court decisions covering public employees' First Amendment rights when fired for patronage purposes); see also Nowak & Rotunda, supra note 7, § 16.42, at 1073-75 (discussing Supreme Court cases dealing with political patronage dismissals); Smolla, supra note 8, at 190-92 (discussing same).

Another case dealing with patronage and the First Amendment that had profound impact on both the City of Chicago and Cook County hiring practices was Shakman v. Democratic Org. of Cook County, 481 F. Supp. 1315 (N.D. Ill. 1979), vacated sub nom. Shakman v. Dunne, 829 F.2d 1387 (7th Cir. 1987). The plaintiffs in Shakman were neither public employees nor independent contractors, but rather unsuccessful candidates for public office, who charged that their rights had been violated by the Cook County Democratic Organization's patronage practices. See id. at 1321. They alleged that the Organization's requirement that current and prospective county employees perform political work for Organization candidates gave an unfair advantage to the plaintiffs' opponents. See id. District Judge Nicholas Bua ruled that patronage hiring was unconstitutional in that it violated plaintiffs' First Amendment rights as well as the Equal Protection Clause. See id. at 1355. Because plaintiffs were not public employees, however, Judge Bua specifically made his ruling without reliance on Elrod v. Burns. See id. at 1329.

17. 427 U.S. 347 (1976).

18. See id. at 349, 355 (Brennan, J., plurality opinion).

19. Freedom of association was clearly announced by the Supreme Court in NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1959), rev'd, 360 U.S. 240 (1959). The Court stated that:

[i]t is beyond debate that freedom to engage in association for the advancement of . . . the "liberty" assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech. . . . Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.Id. at 460-61 (citations omitted); see also Nowak & Rotunda, supra note 7, § 16.41, at 1062-69. The authors state that there are actually three separate aspects to the Right of Association. See id. at 1063. The first aspect involves individuals associating to achieve economic or other goals that are unconnected with any fundamental right found in the Constitution. See id. Examples cited by the authors include joining together to form a labor union or a trade association. See id. Legislatures may restrict the activities of such associations, provided the legislature's restriction is rationally related to a legitimate government goal. See id.

The second type of freedom to associate is protected by the Due Process Clause and is "an implicit part of the Bill of Rights guarantees;" this second type of associational freedom is connected to the fundamental right to privacy, and includes such freedoms as the freedom to choose one's spouse and maintain a relationship with one's family members. Id.; see also Moore v. City of East Cleveland, 431 U.S. 494, 498, 512-13 (1977) (invalidating city ordinance restricting housing occupancy to single families, and holding that constitutional protection extends beyond the boundaries of the nuclear family); Loving v. Virginia, 388 U.S. 1, 12 (1967) (invalidating state's miscegenation laws and holding that marriage is one of the fundamental rights of man, necessary to the existence and survival of humankind); accord Zablocki v. Redhail, 434 U.S. 374, 375-77 (1978) (invalidating Wisconsin ordinance forbidding marriage by any resident with minor children not in his custody whom he is under court order to support, unless he can prove compliance with the support obligation). The Supreme Court stated that the right to marry is a fundamental right, and that any significant interference with that right must be supported by a compelling state interest, and must be "closely tailored to effectuate only those interests." Id. at 387-88; see also Developments in the Law--The Constitution and the Family, 93 Harv. L. Rev. 1156, 1251-55 (1980). The author maintains that the key to applying Zablocki lies in the directness of the state's interference. See id. at 1251. A direct interference makes the state an actual participant in the determination to marry, whereas an indirect interference imposes certain consequences on the decision to marry, but leaves the ultimate decision in the hands of the participants. See id. at 1251-52. In a free society, the determination of whether to associate in a relationship such as marriage is best determined by individuals, not the state. See id. at 1255.

The third aspect of freedom of association includes the "right to associate for the purpose of engaging in types of activity [specifically] protected by the first amendment." Nowak & Rotunda, supra note 7, § 16.41, at 1063 (footnote omitted). Examples include associating for the purposes of assembly or exercising political speech. See id. "[G]overnment [may] not limit this right [of] associat[ion] unless the limitation serves a compelling governmental interest," is unrelated to the content of the speech, and no means less restrictive of the associational or expressive right are available to the government. Id.

20. See Elrod, 427 U.S. at 372-73 (Brennan, J., plurality opinion).

21. See id. (Brennan, J., plurality opinion); see also Dagger, supra note 2, at 520-25. Dagger maintained that since the decision in Elrod did not enjoy majority support, the scope of the decision was in doubt and would require the Court's further development. See id. at 525. Elrod did, however, stand for the proposition that "the first amendment prohibited dismissals of nonpolicymaking, nonconfidential government employees on the basis of their partisan political affiliations." Id. (footnote omitted). "Since a majority of the Court refused to endorse the rationale of the plurality opinion, [however,] the validity of other patronage practices remained in doubt." Id.

22. 445 U.S. 507 (1980).

23. Id. at 518.

24. 497 U.S. 62 (1990).

25. See id. at 74-76.

26. See infra notes 48-95 and accompanying text (discussing Supreme Court cases considering First Amendment claims of public employees).

27. See infra notes 96-126 and accompanying text (discussing decisions of circuit courts of appeals considering independent contractors' claims of First Amendment violations).

28. See infra notes 137-45 and accompanying text (discussing the Tenth Circuit's extension of Elrod and Branti to independent contractors).

29. See infra notes 122-36 and accompanying text (discussing decisions of the Third and Seventh Circuits' declining to extend the Elrod trilogy to independent contractors).

30. 116 S. Ct. 2353 (1996).

31. See id. at 2361.

32. See id. at 2355-56.

33. See id. at 2356.

34. See id.

35. See id.

36. See O'Hare, 116 S. Ct. at 2356.

37. See O'Hare Truck Serv., Inc. v. City of Northlake, 843 F. Supp. 1231 (N.D. Ill. 1994), aff'd, 47 F.3d 883 (7th Cir. 1995), rev'd, 116 S. Ct. 2353 (1996). O'Hare sought the court's jurisdiction under Illinois Revised Statute section 1979, 42 U.S.C. § 1983. See id. at 1232.

38. See id. at 1234. Judge Milton Shadur stated that O'Hare had failed to state an actionable claim in the Northern District of Illinois because the Northern District "continue[d] to concur in the view taken by the other circuits . . . that political favoritism in the awarding of public contracts is not actionable." Id.

39. See O'Hare, 47 F.3d at 885, rev'd, 116 S. Ct. 2353 (1996).

40. See O'Hare, 116 S. Ct. at 2361.

41. See id. at 2355.

42. Id.

43. See O'Hare Truck Serv., Inc. v. City of Northlake, 116 S. Ct. 2361, 2362 (1996) (Scalia, J., dissenting). *Editors Note: Justice Scalia combined his dissenting opinions in Board of County Comm'rs v. Umbehr, and O'Hare Truck Serv., Inc v. City of Northlake. For purposes of clarity, this article will refer to Justice Scalia's dissent as O'Hare Truck Serv., Inc. v. City of Northlake only.

44. See id. at 2367 (Scalia, J., dissenting).

45. See generally Tolchin & Tolchin, supra note 2 (discussing patronage as a practice persistent within every culture's politics, including those of the United States).

46. See Bryan A. Schneider, Do Not Go Gentle Into That Good Night: The Unquiet Death of Political Patronage, 1992 Wis. L. Rev. 511, 518-20 (1992). Schneider provides a fascinating sketch of patronage practices employed by revered figures in America's early history. See id. He states that, "George Washington[, for example,] used loyalty to the Constitution, at the time a very political statement, as a litmus test in reviewing applicants for public positions." Id. at 518 (footnote omitted). "Moreover, during Washington's administration the first hints of the division began to emerge between those positions that elected officials could fill with their own selections and those that remained beyond their unbridled control." Id. at 518-19. "In general, `high level' employees were considered to serve at the president's pleasure while `low level' and `specialized' employees could be dismissed only for cause." Id. at 519 (quoting Dennis L. Dresang, Public Personnel Management and Public Policy 25-26 (1984)). "President Thomas Jefferson conducted public personnel matters in essentially the same manner." Id. "Although Jefferson was the first president to succeed a political opponent, a desire for parity--an equal division of public positions between the parties--drove his personnel decisions." Id. (footnote omitted). Schneider says that such "political congeniality did not survive three decades." Id.

Andrew Jackson "legitimized the view that selection of public employees on the basis of their political affiliation alone was an acceptable practice." Id. at 520. Although Andrew Jackson "achieved historical notoriety for" his use of patronage at the presidential level, Abraham Lincoln used it "far more extensively" and effectively. Tolchin & Tolchin, supra note 2, app. c at 326. President Lincoln used patronage to secure his renomination for a second term as President, thus using patronage as the means, albeit indirectly, to hold the federal Union together during the Civil War. See id. Presidents Johnson and Grant were less astute in their manipulation of patronage. See id. at 327.

Presidential use of patronage was reduced considerably by the 1883 passage "of the Pendleton Act, which provided for [the] creation of a Civil Service Commission and merit system." Id. The Act was passed largely in response to the 1881 assassination of President James Garfield by a disappointed federal office seeker. See Schneider, supra, at 520. The Act resulted in competence supplanting favoritism as the central criterion in public employment decisions. See id. at 520-21. The Pendleton Act was modeled after similar legislation which had been passed by the British Parliament in 1870, which resulted in what is "perhaps the most efficient civil service in the world." Frederic A. Ogg & P. Orman Ray, Introduction to American Government 427 (1942). See generally F.M. Stewart, The National Civil Service Reform League (1929) (discussing application of merit principles in the national civil service).

47. The phrase is attributed to New York Governor William Learned Marcy, a contemporary of President Andrew Jackson, who stated, "`[t]o the victor belong the spoils of the enemy.'" Tolchin & Tolchin, supra note 2, app. c at 323. Justice Brennan would perhaps change this phrase forever when he stated, "[t]o the victor belongs only those spoils that may be constitutionally obtained." Rutan v. Republican Party of Illinois, 497 U.S. 62, 64 (1990).

48. The cases were: Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990); Branti v. Finkel, 445 U.S. 507 (1980); Elrod v. Burns, 427 U.S. 347 (1976). See generally Nowak & Rotunda, supra note 7, § 16.42, at 1069-77 (discussing the First Amendment and Public Employment Restrictions).

49. 427 U.S. 347 (1976).

50. The newly elected Democratic sheriff of Cook County, Democrat Richard J. Elrod, upon taking office fired or threatened to fire a large number of Republican employees hired under the previous Republican sheriff's tenure. See id. at 349-50 (Brennan, J., plurality opinion). The employees brought suit against him, claiming that, by his actions, Elrod had violated their First Amendment rights of freedom of speech and association "solely for the reason that they were not affiliated with or sponsored by the Democratic Party." Id. at 350 (Brennan, J., plurality opinion).

51. See id. at 357 (Brennan, J., plurality opinion) ("[T]he First Amendment protects political association as well as political expression" (quoting Buckley v. Valeo, 424 U.S. 1, 15 (1976))); see also Nowak & Rotunda, supra note 7, § 16.41, at 1062 (discussing the right of association as derived from freedom of speech and assembly).

52. See Elrod, 427 U.S. at 356 (Brennan, J., plurality opinion). Justice Brennan stated his belief that it is not merely the employee who would suffer from such coercion, but:

[t]he free functioning of the electoral process also suffers. Conditioning public employment on partisan support prevents support of competing political interests. Existing employees are deterred from such support, as well as the multitude seeking jobs. As government employment, state or federal, becomes more pervasive, the greater the dependence on it becomes, and therefore the greater becomes the power to starve political opposition by commanding partisan support, financial and otherwise. Patronage thus tips the electoral process in favor of the incumbent party, and where the practice's scope is substantial relative to the size of the electorate, the impact on the process can be significant.Id. (Brennan, J., plurality opinion).

53. See supra note 15 and accompanying text (discussing government's inability to condition receipt of benefits on surrender of constitutionally protected rights).

54. See Elrod, 427 U.S. at 357-59 (Brennan, J., plurality opinion).

55. See id. (Brennan, J., plurality opinion). The Court referred to its jurisprudence concerning unconstitutional conditions and held that government "`may not deny a benefit to a person on a basis that infringes his constitutionally protected interests.'" Id. at 359 (Brennan, J., plurality opinion) (quoting Perry v. Sindermann, 408 U.S. 593, 597 (1972)). The Court was especially solicitous of Free Speech interests, and refused to allow government to obtain indirectly a result it could not produce directly. See id. (Brennan, J., plurality opinion).

56. See id. at 359 (Brennan, J., plurality opinion).

57. See id. at 360 (Brennan, J., plurality opinion).

58. Id. (Brennan, J., plurality opinion).

59. See id. at 362 (Brennan, J., plurality opinion) (stating that "[i]t is firmly established that a significant impairment of First Amendment rights must survive exacting scrutiny").

60. See Elrod, 427 U.S. at 362-63 (Brennan, J., plurality opinion). The Court stated that a restriction on fundamental rights would be found constitutional only where it furthers some vital government end by a means that is least restrictive of freedom of belief and association in achieving that end. See id. Further, the benefit gained by the state must outweigh the loss of constitutionally protected rights. See id. (Brennan, J., plurality opinion).

61. See id. at 364-72 (Brennan, J., plurality opinion).

62. Id. at 364 (Brennan, J., plurality opinion).

63. See id. at 366 (Brennan, J., plurality opinion). The Court rejected the efficiency argument by countering that "less drastic means for insuring government effectiveness and employee efficiency are available to government." Id. (Brennan, J., plurality opinion). "[E]mployees may always be discharged for good cause, such as insubordination or poor job performance . . . ." Id. (Brennan, J., plurality opinion).

64. See id. at 367 (Brennan, J., plurality opinion) (agreeing that representative government "ought not be undercut by tactics obstructing the implementation of policies of the new administration, policies sanctioned by the electorate").

65. See id. (Brennan, J., plurality opinion).

66. See Elrod, 427 U.S. at 367-68 (Brennan, J., plurality opinion).

67. Id. (Brennan, J., plurality opinion). The Court qualified its distinction by stating that no clear line exists "between policymaking and nonpolicymaking positions. . . . The nature of the responsibilities is critical." Id. at 367 (Brennan, J., plurality opinion).

68. See id. at 368 (Brennan, J., plurality opinion).

69. See id. (Brennan, J., plurality opinion).

70. See id. at 369 (Brennan, J., plurality opinion). Indeed, Justice Brennan believed just the opposite was true:

The [democratic] process functions as well without the practice, perhaps even better, for patronage dismissals clearly also retard that process. Patronage can result in the entrenchment of one or a few parties to the exclusion of others. And most indisputably, as we recognized at the outset, patronage is a very effective impediment to the associational and speech freedoms which are essential to a meaningful system of democratic government. Thus, if patronage contributes at all to the elective process, that contribution is diminished by the practice's impairment of the same.Id. at 369-70 (Brennan, J., plurality opinion).

71. See id. at 370 (Brennan, J., plurality opinion).

72. See supra note 67 and accompanying text (discussing policymaker exception to the Elrod holding).

73. 445 U.S. 507 (1980).

74. See id. at 518.

75. See id. at 508-09.

76. See id. at 511.

77. See id.

78. See id. at 517 (stating that to prevail in their action "it was sufficient, as Elrod holds, for respondents to prove that they were discharged `solely for the reason that they were not affiliated with or sponsored by the Democratic Party'" (quoting Elrod v. Burns, 427 U.S. 347, 350 (1976) (Brennan, J., plurality opinion))).

79. See infra notes 80-81 and accompanying text (discussing Branti's clarification of the Elrod holding).

80. See supra note 78 and accompanying text (discussing Branti's holding that discharged public employees need not prove coercion to change parties, but merely that discharge was based on political affiliation alone).

81. See Branti, 445 U.S. at 518.

82. Id.

83. Id. Justice Powell would dissent from the ruling in Branti, as he had previously done in Elrod. See id. at 521 (Powell, J., dissenting). He charged that both decisions were causing the "evisceration of patronage practices." Id. (Powell, J., dissenting). While concurring that patronage hiring and firings intrude on public employees' First Amendment rights, Powell maintained that such intrusion was tolerable when balanced against the important state interests generally served by patronage. See Elrod v. Burns, 427 U.S. 347, 387 (1976) (Powell, J., dissenting). Justice Powell maintained that two identifiable state interests are aided by patronage: first, since the days of Jefferson patronage had played an important role in democratizing politics; second, patronage helped to build stable political parties through the offering of rewards to those who assume the tasks necessary to keep the party functioning. See Branti, 445 U.S. at 522 n.1, 522-28 (Powell, J., dissenting). In sum, Powell maintained that the decision to abolish patronage was a question not for the courts, but for the voters through their elected representatives to decide. See id. at 534. But see Cynthia Grant Bowman, The Law of Patronage at a Crossroads, 12 J.L. & Pol. 341, 361 (1996).

Professor Bowman maintains that the passing of patronage is no cause for mourning, largely because "[i]t was accompanied by corruption and inefficiency in the administration of government services." Id. (footnote omitted). Further, she maintains that the benefits purported to accrue to the democratic process via patronage systems "were greatly overrated and often non-existent." Id. (footnote omitted). She states that not only did patronage fail to bring minorities into the political process, but also that "[t]he history of African Americans in Chicago politics demonstrates that this group was particularly harmed by the patronage system." Id. (footnote omitted). See generally William J. Grimshaw, Bitter Fruit: Black Politics and the Chicago Machine, 1931-1991 (1992) (discussing effects of machine politics on Chicago's African American community); Nicholas Lemann, The Promised Land: The Great Black Migration and How it Changed America (1991) (discussing in part the same).

84. See supra notes 49-83 and accompanying text (discussing the holdings in Elrod and Branti).

85. See supra notes 53-56, 79-83 and accompanying text (citing the Branti and Elrod holdings that a public employee's surrender of First Amendment rights in return for continued employment amounts to an unconstitutional condition being placed on that benefit).

86. 497 U.S. 62 (1990).

87. See id. at 65.

88. See id. at 64.

89. Id. at 65. In Rutan, former and then-current employees of the State of Illinois brought suit to challenge certain employment policies and practices of Governor James Thompson, a Republican. See id. They alleged not that they had been discharged because of party affiliation, but that they had suffered discrimination with respect to state employment because they had not supported the Illinois Republican Party, in violation of the First Amendment. See id. at 66; cf. Bowman, supra note 83, at 357. Professor Bowman maintains that while "the open abuses and defiant attitude of the Thompson era have disappeared with the dismantling of his elaborate patronage process," evidence exists that favoritism persists in state hiring. Id. at 356-57 (footnote omitted). Unlike the court-ordered system existing in Cook County, there exists "no external monitoring of the state's compliance with Rutan." Id. at 356 (footnote omitted). Contending that statistical evidence supports the conclusion that party affiliation still gives Republican applicants for state jobs an advantage over Democratic applicants, Professor Bowman offers the explanation that the Governor and "Republican Party of Illinois may have diverted patronage into other channels since Rutan, seeking to evade its prohibitions by using temporary and contract employment to reward political supporters." Id. at 357.

90. See Rutan, 497 U.S. at 75-76 (stating that adverse actions short of dismissal are irreconcilable with the Constitution and state claims under 42 U.S.C. § 1983 for violations of the First and Fourteenth Amendments).

91. See id. at 74.

92. Id.

93. See id. at 72.

94. See id. at 74.

95. See id. at 75. Justice Scalia, joined by Chief Justice Rehnquist, Justice Kennedy, and in part by Justice O'Connor, strongly objected to the majority's extension of the earlier two cases to the facts of Rutan. See id. at 92-115 (Scalia, J., dissenting). As had Justice Powell earlier, Justice Scalia identified a number of state interests which, if served by patronage, he believed could justify an intrusion upon the First Amendment rights of public employees. See id. at 103-110 (Scalia, J., dissenting). In addition to the argument that patronage practices do not merit First Amendment analysis (because the restrictions placed on government by the Constitution differ when government is the employer as opposed to lawmaker), see id. at 94 (Scalia, J., dissenting), Justice Scalia offered three justifications for the continuation of patronage practices. See id. at 104-06 (Scalia, J., dissenting). First, patronage had facilitated "the social and political integration of previously powerless groups." Id. at 104 (Scalia, J., dissenting). Second, patronage had increased participation in American democracy. See id. (Scalia, J., dissenting). Finally, and most importantly, patronage had strengthened the strong party system necessary to the American political process. See id. at 106 (Scalia, J., dissenting). Employing a strict interpretation of the Constitution, Justice Scalia maintained that since nowhere was patronage banned in the First Amendment, and since the practice had endured in America unchallenged for two hundred years (itself giving rise to a presumption of constitutionality according to Justice Scalia) the Court had no business invalidating the practice on Constitutional grounds. See id. at 96-97 (Scalia, J., dissenting). The continuation of patronage should be decided upon by the people through their representatives. See id. at 104 (Scalia, J., dissenting); see also Tolchin & Tolchin, supra note 2, app. c at 324-26.

The authors offer support for at least two of Justice Scalia's theories regarding patronage, namely that patronage has facilitated the political integration of previously powerless groups, and that patronage has increased participation in American democracy. See id. at 324. They maintain that President Andrew Jackson believed that patronage "could give the common man the opportunity to participate in government." Id. Jackson, "galled by the fact that one social class--the aristocracy--had monopolized public office for so long" ignored the "upper classes" when doling out Cabinet appointments, choosing to especially shut out potential appointees from New England and Virginia, neither of which regions of the Country had supported him for the presidency. Id. Jackson changed the structure of government, the authors maintain, by "admitting new classes as participants in it." Id. Whereas in Europe the bourgeoisie had wrested power from the upper classes, "Jacksonian democracy, more revolutionary in its outlook, professed to have brought the lower classes into government . . . ." Id. at 325. Indirectly, the authors likewise support Justice Scalia's third contention regarding patronage, namely that it has strengthened the two-party system. See id. at 326. The Whig Senate repeatedly drafted bills to correct what it saw as President Jackson's abuse of federal power. See id. The battles between the Whigs and the Democrats provided the opportunity for the development of the two-party system "into its modern form." Id. But see Bowman, supra note 3, at 76-90.

Professor Bowman maintains that patronage did not serve the democratizing function attributed to it by Justice Scalia. See id. at 76-79. She points to studies that show that patronage-based political systems, and especially the "typical Irish machine" were "slow to incorporate the Southern and Eastern European immigrants who arrived after the Irish," especially if the latter were not necessary to maintaining a "`winning electoral coalition.'" Id. at 77 (footnote omitted) (quoting Steven P. Erie, Rainbow's End: Irish-Americans and the Dilemmas of Urban Machine Politics, 1840-1985 69 (1988)). Likewise, despite the fact that Blacks in Chicago, for example, traditionally voted for the machine, actual voter turnout in predominantly Black wards was generally low. See id. at 78.

As to the upward mobility function ascribed to patronage by Justice Scalia, Professor Bowman maintains that the function has not worked for all groups, and especially not for African Americans. See id. at 79-83. While agreeing that the Irish in, for example, New York and Chicago benefitted under patronage systems largely because they were disproportionately represented on municipal payrolls, such upward mobility did not occur among African Americans. See id. Only after politically neutral hiring programs were implemented did Blacks begin to enjoy the upward social mobility attributed to holding municipal employment. See id. at 82.

Finally, Professor Bowman disagrees with Justice Scalia's belief that patronage strengthens the American two-party system. See id. at 83-89. She points out that high levels of political activity exist in areas where patronage systems are non-existent, as in Wisconsin and California. See id. at 84. Likewise, in Chicago, for example, the strength of Mayor Richard J. Daley's Machine, which depended upon patronage for its very existence, led to the virtual extinction of the Republican Party as a viable force in Chicago politics. See id. at 85. While patronage may thus strengthen one political party, it simultaneously acts as "a major disadvantage to the two-party system, which works best when parties are more evenly matched and occasionally alternate in office." Id. "The real specter which haunts Justice Scalia's Rutan dissent," Professor Bowman maintains, "is the splintering of American politics into competition among interest groups." Id. (footnote omitted).

96. See infra notes 98-126 and accompanying text (discussing circuit courts of appeals' limited application of Elrod and Branti prior to Rutan).

97. See infra notes 98-136 and accompanying text (discussing cases refusing to extend Elrod and Branti to independent contractors before and after Rutan).

98. Sweeney v. Bond, 669 F.2d 542 (8th Cir. 1982).

99. See id.

100. See id. at 544.

101. See id.

102. See id. at 545-46.

103. See id. at 545.

104. See Sweeney, 669 F.2d at 545.

105. See id. at 545-46. The court considered a number of criteria in arriving at this conclusion. See id. The court agreed that "[t]he finding that fee agents are not public employees [wa]s well supported by the facts presented at trial." Id. at 545. The court relied on the fact that "[t]he Department of Revenue d[id] not supervise the daily operations of the fee agencies," nor "require the fee agents to account for fees collected," nor "supervise the firing of employees within the offices" to support the conclusion that the fired workers were independent contractors and not public employees subject to direct control. Id. at 545-46.

106. See id. at 545.

107. In another case arising within the Eighth Circuit later that year, the court of appeals relied on Sweeney to dismiss a claim brought against the Mayor of St. Louis by a public accounting firm and its partners. See Fox & Co. v. Schoemehl, 671 F.2d 303, 305 (8th Cir. 1982). Following his election as Mayor, Vincent Schoemehl replaced Fox & Company, accountants to the St. Louis school board, with Peat, Marwick, Mitchell and Company. See id. at 304. The Eighth Circuit, relying on Sweeney as controlling, held that Fox & Company had no First Amendment claim, since "`Elrod and Branti were limited to dismissals of public employees for partisan reasons. We are not willing to extend the patronage decisions to cases which do not involve public employees.'" Id. at 305 (quoting Sweeney, 669 F.2d at 545).

108. 712 F.2d 292 (7th Cir. 1983).

109. Id. at 293.

110. Id.

111. Id.

112. Id.

113. Id.

114. See LaFalce, 712 F.2d at 294.

115. See id. at 294-95.

116. See id. at 294.

117. See id.

118. See id. Judge Posner reasoned that if a:

contractor does not get the particular government contract on which he bids, because he is on the outs with the incumbent and the state does not have laws requiring the award of the contract to the low bidder . . . it is not the end of the world for him; there are other government entities to bid to, and private ones as well. It is not like losing your job.Id. But see Bowman, supra note 83, at 351-52.

Professor Bowman disagrees with Judge Posner's characterization of independent contractors having less at risk than do public employees when exercising First Amendment rights. See id. at 351. "[E]specially with the increas[ed] privatization of governmental functions," government contractors may have a great deal at stake. Id. "[M]any individual contractors may be contracting to perform a particular job for the government full time," albeit only for a specified duration. Id. at 351-52. Likewise, in some lines of work, the government may be the major source of contracts. See id. at 352. Finally, in some lines of work, such as the licensing of motor vehicles, the government may be the only source of employment available to the independent contractor. See id.

119. See LaFalce, 712 F.2d at 294.

120. See id.

121. See id. at 294-95. After pointing out that the practice of favoring political supporters in awarding contracts has a long history of both the federal and local levels, the LaFalce court went on to defend its decision by relying on the fact that many businesses are "political hermaphrodites" that maintain relations with both major political parties. Id. at 294. Such firms do so, the court maintained, "not only or [even] mainly because some government contracts are let on a partisan basis." Id. Rather, they do so because "the pervasive role of government in modern American life has made it important for business firms to be on good terms with the major political groupings in the society." Id. As such, the LaFalce court reasoned that it was "unlikely that the cautious neutrality that characterizes the political activities of American business would be altered even by an ironclad constitutional rule against allowing politics to influence the contracting process." Id. Against such an uncertain benefit accruing to the values of the First Amendment, the court balanced "the unknown but potentially large costs" of attempting to banish partisan influence from public contracting, and found the former wanting. Id. The Seventh Circuit concluded its decision by expressing its belief that while it would take no such step, it believed that at some point "the Supreme Court may extend the principle of its public-employee cases to contractors." Id. at 295.

122. 796 F.2d 668 (3d Cir. 1986) (en banc).

123. See id. at 674-75.

124. Id. at 674.

125. Id.

126. See id. at 675. Another decision relying heavily on Judge Posner's LaFalce arguments prior to Rutan was Triad Assocs. v. Chicago Hous. Auth., 892 F.2d 583 (7th Cir. 1989). There, providers of security services to the Chicago Housing Authority maintained that their First Amendment rights were violated when the CHA allegedly used political and racial criteria in the award of contracts. See id. at 585. The Seventh Circuit, citing LaFalce and Horn, dismissed the claim, holding that both cases had established enough difference between independent contractors and public employees as to be "dispositive of the first amendment issue." Id. at 588. Finding that Triad was an independent contractor, the Court cited LaFalce as binding, therefore holding that Triad had no claim. See id. at 587-88. The court likewise voiced its reluctance to overturn LaFalce, stating that it "decline[d] to accept [plaintiff's] invitation." Id. at 588. As had the court earlier in LaFalce v. Houston, the Triad court believed that any expansion of Elrod "`from public employment into the outer spheres of political life'" was the distinct province of the Supreme Court, especially since patronage was a political constellation that had endured since the founding of the Republic. Id. (quoting Horn, 796 F.2d at 677).

127. See Rutan v. Republican Party of Illinois, 497 U.S. 62, 75 (1990); see also supra notes 86-95 and accompanying text (discussing Rutan's application of Elrod to include other patronage practices).

128. Rutan, 497 U.S. at 75.

129. 938 F.2d 705 (7th Cir. 1991).

130. See id. at 709-10; see also infra