The state of the State

Illinois is frequently called "the most political state in the union." It is little wonder, then, that its patronage practices should eventually need scrutiny by the U.S. Supreme Court, and that the decision should send shock waves across the nation. Civil libertarians hailed the decision as strengthening the constitutional guarantee of freedom of association. The severest critics saw it as ending the two-party system and thus strengthening the influence of special interest groups. The facts are simple. In November 1980 Gov. James R. Thompson proclaimed a hiring freeze on all employment under his control. Affected were approximately 60,000 positions, more than 5,000 of which become available each year because of resignation, retirement, reorganization, expansion, etc. His "express permission," granted through the Governor's Office of Personnel, was needed for new hires, promotions, transfers and recalls after layoffs.

Four state employees brought suit, claiming that their failure to support the Republican party caused denial of promotion, transfer or recall after layoff. They held jobs as rehabilitation counselor, equipment operator, garage worker and dietary manager. In addition, one applicant for a job as prison guard claimed that he was denied employment because of his lack of Republican party affiliation.

'This case involves a contrary command: "Ask not what a job applicant can do for the State — ask what they can do for our party" '

In the version that reached the U.S. Supreme Court, Rutan et al v Republican Party of Illinois et al (Docket No. 88-172, issued June 21) the court held, 5-4, that Illinois' patronage system abridged First Amendment rights of free speech and association. Two earlier decisions had forbidden firing of government employees because of party affiliation (see Elrod v Burns, 427 U. S. 347 (1976) — also an Illinois case — and Branti v Finkel, 445 U.S. 507(198)), and the court here extended the prohibition to other employment decisions. In Elrod and Branti the court held that making party allegiance, including work for candidates and money contributions, a condition of employment was impermissible because it could cause unwanted association or inhibit desired association. Certainly the government must require efficient work, but the court saw no connection

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between party membership and poor performance on the job, and it observed that there are less drastic measures than dismissal to correct inadequate performance. Although government jobs are not a matter of right or entitlement, the government may not deny them for reasons that infringe basic constitutional rights. Party affiliation may be required as a condition of government employment only at policymaking levels.

In Rutan the court called denial of promotion or transfer, failure to recall after layoff and rejection of initial hire "deprivations less harsh than dismissal that nevertheless press state employees and applicants to conform their beliefs and associations to some state-selected orthodoxy." It said, "These are significant penalties and are imposed for the exercise of rights guaranteed by the First Amendment."

Critics of the decision see it as threatening the democratic process. Indeed, said the court, "Respondents, who include the Governor of Illinois ... do not suggest any other overriding government interest in favoring Republican Party supporters for promotion, transfer, and rehire." The court observed that political parties are managing to survive and noted "the declining influence of election workers when compared to money-intensive campaigning, such as the distribution of form letters and advertising."

Justice Brennan wrote for the majority, which included Justices White, Marshall, Blackmun and Stevens. Justice Scalia, joined by Chief Justice Rehnquist and Justices Kennedy and, in part by Justice O'Connor, filed a dissenting opinion. Justice Stevens filed a special concurrence that was, in large part, a rebuttal of Scalia who, in turn, responded in frequent, often voluminous footnotes. Scalia attacked at many points, but two issues were central: the degree to which patronage has been historically accepted and the damage that weakening it will do to our democratic process.

On the history of patronage Scalia said, "[W]hen a practice not expressly prohibited by the text of the Bill of Rights bears the endorsement of a long tradition of open, widespread and unchallenged use that dates back to the beginning of the Republic, we have no basis for striking it down." Stevens responded by pointing out that most of the founding fathers hardly accepted patronage since they vigorously opposed political parties. Quoting President John Kennedy's famous "Ask not ..." statement, he added, "This case involves a contrary command: 'Ask not what a job applicant can do for the State — ask what they can do for our party." Whatever traditional support may remain for a command of that ilk, it is plainly an illegitimate excuse for the practices rejected by the Court today."

On the democratic process Scalia made the rather astounding statement, "As . . . the Boss Tweeds, the Tammany Halls, the Pendergast Machines, the Byrd Machines and the Daley Machines have faded into history . . . political leaders at all levels increasingly complain of the helplessness of elected government, unprotected by 'party discipline,' before the demands of small and cohesive interest groups." According to his reading of recent history, the legislative process has been open to undue influence of interest groups precisely because the absence of patronage has destroyed the symbiotic interdependence of officeholder and party faithful beholden to him for their jobs. The party cannot deliver the vote, so the candidate needs the big bucks of the PACs (political action committees) to get the vote through expensive media campaigns.

Scalia says that patronage specifically fosters a two-party system, which makes for efficient expression of the will of the people. He also argues that it is via patronage that minority groups enter the political system and eventually achieve power. He is quite aware of the well-known evils of patronage, but he is apparently willing to make a trade-off for "the systemic effects of patronage in promoting political stability and facilitating the social and political integration of previously powerless groups."

Branti established the principle that high level appointments to policymaking jobs could be conditioned upon party affiliation and Rutan affirmed this. An initial reaction of some government officials was puzzlement as to where the line occurs, and Scalia underlined this by including a laundry list of seemingly conflicting decisions on areas in which government has a legitimate interest in interfering with basic rights of its employees. While lawyers would probably observe that each case cited "turns on the facts," Rutan may open the door to a series of court actions.

The implications for Illinois are complicated by the certainty that there will be a new governor next year. There is no question that existing decisions permit him to name his own top officers, but the aftermath of Branti seems not to have clarified how far down the bureaucratic job chain the definition extends. Like Branti, Rutan is criticized for failing to provide guidelines, and Scalia's dissent underlines the wide divergence in precedent decisions in the various states. In other words, employees previously secure in their jobs still are, but at some undefined levels there may still be the historic election year uneasiness.

'Political leaders at all levels increasingly complain of the helplessness of elected government, unprotected by "party discipline" '

An immediate effect was the issuance by Gov. Thompson on July 17 of Executive Order No. 1 (1990), strictly implementing the principles embodied in Rutan. About the past it says, "It has been the policy and practice of this administration to fill positions in the state only with individuals who are qualified for their positions." Indeed, recommendations to the governor's office have been made from lists of those qualified under civil service regulations, but apparently the attitude has been, "All other things being equal, hire the Republican." Now the record of past party affiliation, activity and voting is not to be considered. The order does not prohibit recommendations for those seeking employment by party officials, but these must deal strictly with the candidate's qualifications for the job and not with party loyalty.

Anyone who lives in Springfield will have to wonder whether job dispensers will be able to ignore the known party affiliation of the recommenders — but at least the Republicans have stopped attaching application forms for party membership to job application forms.

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