The Continuing Judicial Assault on Patronage

Abstract

Notwithstanding the opinions of some observers, who felt that the U.S. Supreme Court might back away from its stand opposing patronage (Sylvia, 1994, 13; Boyd, 1992; Daniel, 1992), the Court is not only standing firm but is continuing its assault. Recent Court cases have expanded the prohibitions against the use of patronage. It seems that the Court takes full advantage of the cases it accepts in this area to reaffirm its opposition to patronage. Moreover, lower courts (at least those in the Seventh Circuit) seem to be taking their cue from the Supreme Court with interpretations of Supreme Court rulings that further restrict the use of patronage whenever possible. The majority of Supreme Court landmark cases extending patronage prohibitions originated in the U.S. District Court for the Seventh Circuit, and, more specifically, they were Illinois cases. A review of these cases and seventh circuit cases extending Supreme Court decisions shows the progressive judicial dismantling of patronage practices. Unlike Supreme Court decisions, which are binding nationwide, circuit court decisions are binding only within the area covered by the circuit. However, these cases are often used as guides by judges in other circuits in rendering decisions. Also, circuit court cases interpreting Supreme Court decisions are often an indication of future Court directions. Although the current direction seems clear, the Court often surprises observers by reversals and decisions that seem to be inconsistent with past decisions. Illinois has a long history of patronage practices. Chicago, under the mayoral regime of Richard J. Daley, gained notoriety as a patronage haven. Chicago was touted by both academics and practitioners as the place where patronage was developed to an art form (Royko, 1971; Rakove, 1975). The fact is less well known, but patronage was also an essential part of Illinois state government (Nowlan, Hanley, and Udstuen, 1991). Patronage was pursued vigorously by both political parties--the Republicans at the state level and the Democrats in Chicago. It is perhaps appropriate that both major political parties figured in significant patronage rulings. Chicago was where the judicial assault on patronage began. The most far-reaching decision on traditional patronage practices, however, involved Illinois state government under a Republican administration. The demise of patronage started with Elrod v. Burns in Cook County. The case banned political firing in positions that did not involve non-policy making. It progressed to the Rutan case, which banned most forms of politically motivated personnel practices in Illinois state government for nonpolicy positions. A significant case is the Shakman Decree, which imposed a court-supervised nonpatronage hiring system on Chicago. More recent Illinois court cases have prohibited patronage in the firing of outside contractors for strictly political reasons and banned the patronage hiring of temporary employees based on political affiliation. Most of the Illinois cases considered here are U.S. Supreme Court decisions that established nationwide precedence. Others are circuit or district court decisions that interpret and extend previous Supreme Court decisions on patronage. The court cases reviewed in this article are the Elrod case, the Rutan case, the O'Hare decision, the Shakman Decree, and the Vickery decision. The employment practice affected by each case is indicated in Table 1. With each case the Court cast the antipatronage net further. What began as a narrow ruling applicable only to the firing of employees who were not involved in policy making has now been broadened to include the hiring of full-time or temporary employees and the firing of independent contractors. Table 1 Illinois Court Cases and Their Contribution to Case Law on Banning Patronage Practices Name Year U.S. Court Employment Practice Elrod 1976 Supreme Firing Shakman 1983 District Court-monitored hiring system Rutan 1990 Supreme Hiring, promotions, transfers, recalls O'Hare 1996 Supreme Firing government contractors Vickery 1996 Circuit Hiring temporary employees The Judicial Attack on Patronage Patronage flourished from the early days of the American republic. …